Judge: Company that didn't get permission from some owners shouldn't have gotten mining permit

bestep@herald-leader.comJune 13, 2014 

Loader and coal on a truck at a Pine Branch Coal Sales surface mine near Chavies, Ky., Friday, December 19, 2008.

CHARLES BERTRAM | 2008 STAFF FILE PHOTO — Herald-Leader Buy Photo

In a decision with potentially far-reaching impact, a federal judge has ruled the state improperly issued a surface-mining permit to a coal company that did not get permission to mine from some owners.

The issue in the case was whether coal companies have to get permission for surface mining from all landowners when individuals share ownership with companies and the surface and mineral rights had been severed, which is not unusual in Eastern Kentucky.

State and federal regulators had long taken the position that any surface owner — even one with a 1 percent interest — could give permission for a coal company to mine.

That position is incorrect, however, U.S. District Judge Amul R. Thapar said in a decision issued Friday.

The federal surface mining law says a coal company has to get consent to mine from all surface owners, Thapar ruled.

"The consent of 'a' surface owner does not suffice," Thapar wrote.

Lexington attorney Joe F. Childers, who represented five people challenging the permit, said the ruling has national implications.

It was the first time a federal judge has addressed the issue, he said.

"This is an order that upsets 32 years of erroneous interpretation of the federal surface mining act" by state and federal regulators, said Childers, who handled the case with Mary Varson Cromer of the Appalachian Citizens' Law Center in Whitesburg. "It's a very significant opinion."

Childers said coal companies had used the state's position on issuing permits without the consent of all surface owners as a way to get around the broad-form deed amendment.

Voters approved that measure in the late 1980s to block companies who own the coal underground — but not the surface — from mining without permission of surface owners.

Thapar's decision could be appealed. Attorneys for the defendants in the case, the secretary of the U.S. Interior Department and Premier Elkhorn Coal Company, could not be reached.

Attorneys for the federal agency and coal company had argued in court documents that the state properly issued the permit.

Kentucky has authority to enforce federal surface-mining rules in the state, with oversight from the U.S. Office of Surface Mining, a part of the Interior Department.

It's not uncommon in Eastern Kentucky for people to share land ownership with coal or land-holding companies, Childers said.

It happens, for instance, when several siblings jointly inherit land, and some then sell their interest.

That's what happened in the case before Thapar, which involves a 400-acre hollow that coal miner M.L. Johnson passed on to his children.

Two heirs sold their 12.5 percent stakes to Pike-Letcher Land Co., giving it a 25 percent ownership interest in the land.

Pike-Letcher then agreed to let Premier Elkhorn mine the surface, according to court documents. The heirs with the majority interest in the land did not.

When the coal company applied for a permit to mine 180 acres, which the state granted, it did not list the Johnson heirs as joint owners of the land.

Five of the heirs — who jointly have a 62.5 percent ownership interest in the land — sued to stop the mining.

The hollow where the siblings grew up is steep and beautiful; they don't want trees cleared and the land wrenched apart, Childers said.

One of the five, retired underground miner Phillip Johnson, had built a cabin high in the holler as a place to get away, before Premier Elkhorn began mining a few hundred feet away.

"There's a lot of sentimental value to this holler," Johnson, 67, told the Herald-Leader last month when he and the others sued.

Thapar issued a preliminary injunction requiring Premier Elkhorn to stop mining while the federal surface-mining agency inspects the permit.

The Johnson heirs want the agency to order a halt to mining. If it doesn't, they can ask Thapar again to block the mining, Thapar said.

The judge said he was mindful that his order could put Premier Elkhorn employees out of work, at least temporarily.

But the public also has a significant interest in making sure states and mining companies comply with the rules Congress has put in place for surface mining, Thapar said.

That is particularly true where, as in this case, the violation goes to the core purpose of the federal surface-mining act, Thapar wrote: "The protection of surface owners from the travails of surface mining."

Bill Estep: (606) 678-4655. Twitter: @billestep1

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