News Column

Pike heirs file suit claiming state should not have granted permit for mining on their land

May 16, 2014

By Bill Estep, Lexington Herald-Leader



May 16--Kentucky has had a longstanding practice of issuing surface-mining permits that don't square with federal law, several people have claimed in a lawsuit.

The suit involves one permit in Pike County, but could affect a broader situation in which individuals share land ownership with coal or land-holding companies. That is widespread in Eastern Kentucky, according to Lexington attorney Joe F. Childers, who filed the complaint.

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

In cases where ownership of the surface and the underlying coal have been severed, the federal surface-mining law requires a coal company to get permission to mine the site from all the co-owners, according to the suit.

However, the state has long taken the position that any one of the co-owners can give permission to mine -- even one that owns only a 1 percent interest; the state often issues surface-mining permits with the OK of only a minority of owners, which then gives companies leverage over the other owners, Childers said.

"It's a hammer over their heads," he said Thursday.

State regulators "firmly believe" that the permit at issue in the federal lawsuit was properly and legally issued, said Dick Brown, spokesman for the state Energy and Environment Cabinet.

The case involves a 400-acre hollow in Pike County that coal miner M.L. Johnson passed on to his children. Two later sold their 12.5 percent interests to Pike-Letcher Land Co., giving it a 25 percent ownership interest in the land. The company then agreed to let Premier Elkhorn Coal Co. mine the surface, according to the lawsuit.

When Premier Elkhorn applied for a permit to mine on about 180 acres, it listed Pike-Letcher and others as the owners, but it did not name the Johnson heirs, and the company obtained permission to mine only from the land-holding company, according to the lawsuit.

Five of the heirs -- who jointly have a 62.5 percent ownership interest -- are challenging the permit at the state level and in the federal lawsuit. Phillip Johnson, one of five, said he doesn't want to see trees cut and the hollow uprooted.

"There's a lot of sentimental value to this holler," said Johnson, 67, who worked as underground miner for 37 years. Johnson lives at the mouth of the hollow, but built a cabin higher up the ridge, near the site of Premier Elkhorn's permit. He said it isn't fair that a minority owner could override the wishes of majority owners.

The lawsuit argues that the state ran afoul of federal law by approving a permit application that did not list the names and addresses of all the owners. As a result, the Johnson heirs did not get a chance to comment on the permit while it was under consideration, the suit said.

The complaint also argues the state erred by approving the application when it did not include written consent from all the landowners.

The lawsuit is not against the state or coal company, but rather against Sally Jewell, secretary of the U.S. Department of the Interior, which includes the federal surface-mining agency. That agency oversees Kentucky's enforcement of the federal mining law.

The lawsuit seeks an order for Premier Elkhorn to stop mining at the site and asks that Jewell be ordered to put a new system in place for issuing surface-mining permits in Kentucky, stripping the state of authority it has had for more than 30 years over such permits.

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

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Source: Lexington Herald-Leader (KY)