Owners helpless to save Pike Co. land; judge should halt mining while legal issues argued

Imagine you're minding your own business, maybe admiring spring's first blush of redbuds, when someone comes onto your property and begins bulldozing it.

When you protest, the state says you are in the wrong.

That's the travesty that five siblings are challenging in Pike County as a Teco Energy subsidiary strip-mines their inheritance without their consent.

If, like us, you thought Kentucky voters ended such abuses in 1988 when they made broad form deeds unconstitutional, think again.

Citing a 2009 state Court of Appeals decision, the state is defending its permitting of the mining, which is why five survivors of coal miner M.L. Johnson have turned to the federal courts for justice.

U.S. District Court Judge Amul R. Thapar should halt the mining at least until the legal issues can be sorted out.

Attorneys for the heirs say federal law requires the permission of all the owners before surface mining can be permitted and that Kentucky's practice of approving surface mining upon the consent of an owner with as little as a one percent interest violates federal law.

The coal company and its Florida-based parent may lose some money if the judge enjoins the mining. But, as the Johnson heirs plead, their land will be destroyed forever if he does not.

Under the state-issued permit, the coal company can take 150 feet off a ridge near 67-year-old Phillip Johnson's mountainside cabin, ruining land where the family has grown crops, pastured cattle, raised apples, gathered berries and enjoyed each other's company along with many sunsets and sunrises.

The Cabinet for Energy and Environment says Kentucky has long held that a surface-mining permit can be issued without the consent of all the landowners.

Lawyers for the Johnsons say the 2009 state Court of Appeals decision that upheld the state's practice was based on common law with no consideration of the U.S. Surface Mining Control and Reclamation Act, which is supposed to govern state regulation.

The Johnson heirs own a 62.5 percent interest in 400 acres of hills and hollow on Bob's Branch near Virgie; the state permitted about 180 acres of their land for the surface mining to which they never agreed. Premier Elkhorn Coal Co., the Teco subsidiary, controls the coal but only 25 percent of the surface rights (obtained through other heirs).

Johnson and his siblings say they did not know the state had issued the permit last October, even though the law requires landowners to be notified and their names to be published in the newspaper.

Without the required public notice, they had no opportunity to object or comment. As soon as they found out, they filed an administrative challenge with the state, to no avail.

On Palm Sunday morning, Charlene Johnson, Phillip's wife, walked to the top of the mountain from the family cabin to enjoy the view, but instead saw that the Teco subsidiary had cut a road, started bulldozing trees and drilled 17 holes for explosives in preparation for dynamiting the family's beloved hills.

The family sought a temporary injunction from a cabinet hearing officer, again to no avail.

The helplessness of the owners to stop the destruction of their land brings back painful memories of broad form deeds, which finally were outlawed by a constitutional amendment.

The notorious broad form deeds separated ownership of the land and the coal. In an era when miners burrowed their way underground with shovels and picks, mountaineers were paid pennies to sign the documents.

Decades later, when giant machines began stripping away the hills to uncover the coal, the deeds stripped landowners of farmsteads where their families had lived for generations.

That this casual trampling of property rights continues in 2014 should outrage Kentuckians.

Why the U.S. Department of the Interior, which is supposed to enforce federal surface mining laws, has allowed it also demands an explanation.

And the next time you hear someone say that Kentucky's coal industry is overregulated, imagine bulldozers destroying your property without your permission.

This story was originally published May 21, 2014 at 12:00 AM with the headline "Owners helpless to save Pike Co. land; judge should halt mining while legal issues argued."