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repealed in 1988.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.
Lexington Herald-Leader
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