Interior Secretary Sally Jewell should explain why the Office of Surface Mining is subverting the federal law that created it and trying to reinstate the pernicious broad form deed that Kentucky repealed in 1988.
OSM's betrayal of its statutory origins comes in a Pike County case in which a federal judge found that the federal Surface Mining Control and Reclamation Act of 1977 requires the consent of all landowners before a coal company can begin mining.
Five descendants of coal miner M.L. Johnson challenged the state-issued mining permit after a subsidiary of Tampa-based TECO Energy began blasting and bulldozing their inheritance — 400 acres of hills and hollow on Bob's Branch near Virgie — without their consent.
The TECO subsidiary, Premier Elkhorn Coal Co., owns a quarter of the surface rights, which Kentucky says allows the mining to begin over the majority owners' objections.
OSM says its mission is to enforce the surface mining law. Yet, rather than uphold that law, OSM is deferring to the state of Kentucky's long-held practice of permitting mining with the consent of as little as 1 percent of the land's owners — even though the state's interpretation directly conflicts with the ruling U.S. District Judge Amul R. Thapar handed down in June.
Through a series of technicalities and procedural steps, OSM has moved the case to an administrative law judge in Salt Lake City. The governments and the coal company are seeking to dissolve an OSM order that has been blocking the mining, allowing the coal company to immediately resume stripping the Johnson family's land.
To get around Tharpur's clear meaning, OSM cites a provision in the 1977 surface mining law that referred to broad form deeds, which existed only in Kentucky and were ended in 1988 by a constitutional amendment.
The deeds separated the rights to the coal underground from the surface of the land and, according to court rulings of the time, made the coal owner's claim superior to the rights of the surface owners.
The deeds, many from the 19th century, were signed long before anyone conceived of the huge mining machines that have stripped Kentuckians of the farms and forests that supported generations of families.
The notorious legal documents were still in effect when Congress passed the surface mining act in 1977, and the provision of the law on which OSM is now hanging its hat was clearly intended to protect Kentucky's broad form deeds.
It's appalling that OSM would try to revive this obviously unjust abuse of property rights, but also consistent with OSM's historical subservience to the coal industry at the expense of coalfield residents.
Environmental groups recently expressed disappointment with the Obama administration's failure to rein in coal industry environmental abuses in Appalachia. Add to that Interior's apparent eagerness to join in trampling the property rights of the people who live and own land in Kentucky's mountains.