Franklin County

Floyd County residents' mining petition a 'partial' victory

MARTIN — When land agents began approaching residents of Wilson Creek in Floyd County to seek leases for a surface mine, Bev May imagined coal trucks rumbling up and down the one-lane county road.

She imagined tributaries to the creek filled, sediment ponds replacing forested hills above her home, and whippoorwills and songbirds driven out of the valley.

May and a group of neighbors, with help from Kentuckians for the Commonwealth, organized and eventually filed a petition with the state Energy and Environment Cabinet seeking to have the Wilson Creek watershed declared "lands unsuitable for mining."

The petition, filed in response to a mine permit application by Prestonsburg's Miller Brothers Coal, was denied, but Energy and Environment Secretary Len Peters instead attached several conditions that would apply to the Miller Brothers' permit and any future permit.

Those conditions included barring the company from using the narrow county road for coal hauling, requiring hardwood reforestation after mining is complete, requiring extra flood-control measures, and barring any variances on valley and stream fills, in order to reduce the mine's footprint.

Miller Brothers, which has since filed for bankruptcy and has been bought by Laurel Mountain Resources, sued the state and May because of the conditions, but Franklin Circuit Judge Thomas Win gate upheld the cabinet's right to impose the conditions on Sept. 10.

Laurel Mountain Resources could appeal the circuit court's decision but hasn't decided whether it will, said Stites and Harbison attorney Blaine Early.

The judge's ruling is a partial victory for Wilson Creek, May said. Laurel Mountain Resources owns some of the land in question, so it can still mine, but its land is not contiguous. May said some neighbors who felt pressured by land agents realized through the petition process that they would rather not allow their land to be stripped.

"What happens from here depends on the price of coal, and it depends on what happens to mountaintop removal in the whole state," May said.

Tom FitzGerald, an attorney and executive director of the Kentucky Resources Council, said the court ruling establishes important case law.

FitzGerald has written several lands-unsuitable petitions over the years, including one that set aside University of Kentucky's Robinson Forest and one that was settled and protects the summit of Black Mountain, the state's highest peak.

"The importance of the Wilson Creek petition decision is that the court upheld the authority of the cabinet to impose additional permitting conditions on mining as an alternative to designation" of land as unsuitable for mining, FitzGerald wrote in an e-mail.

Such a designation has been rarely sought and rarely granted since it was made part of federal surface mining laws in the 1970s. It is granted in the case of lands that are too fragile, historically significant or important to a community, such as a drinking water source.

Two petitions have been filed in Kentucky this year: one FitzGerald wrote seeking to designate watersheds around the towns of Benham and Lynch in Harlan County unsuitable for mining, and one written by a group of residents on Teges and Crane creeks in Clay County. The Benham-Lynch petition was ruled frivolous recently, and FitzGerald plans to appeal.

Teges Creek resident Marti Allen said she never opposed surface mining until faced with the prospect of a mine less than a mile from her 200-year-old home.

She said her petition claims, among other things, that endangered freshwater mussels in the creek would be threatened by mining.

"Folks who own these great tracts of land ... people who don't even live here say, 'What's it good for?' They have their right to do that, but not if it's detrimental to my rights, seeing that I actually live here," Allen said.

Property rights are the reason unsuitable designations are so rare, said Sara Smith, president of the newly formed non-profit research group Commonwealth Institute for Energy and the Environment.

Declaring land with coal unsuitable for mining constitutes "a taking," Smith said.

"I think it's always been a tool. It's something that has been used since it first became an option," but there isn't much case law surrounding it, Smith said. "The reason you don't hear that much about it, it's a very big hurdle to overcome."

In the case of Wilson Creek, where one valley fill was put in decades ago, residents couldn't prove to the state Energy and Environment Cabinet that their community would be in certain danger of increased floods and losing significant historical landmarks.

But the cabinet did take notice of about 100 families living along the creek and take into account their concerns by imposing permit conditions that apply to Laurel Mountain Resources' current permit application and any future applications.

"It isn't a complete victory. The community members would really have liked to have been able to ... stop all surface mining in the permit area," said Mary Varson Cromer, an attorney with Whitesburg's Appalachian Citizens Law Center who worked with May.

May has been advising Allen, in Clay County, with that group's petition and said she hopes other communities are empowered by their victory.

"Wilson Creek is one very small place. It was a compromise," she said.

May's efforts were documented in the KET film Deep Down, funded in part by the Natural Resources Defense Council and Kentuckians for the Commonwealth. It aired earlier this year.