ACLC and KFTC Prevail in Suit Against Strict Conditions Placed by Kentucky on All Coal Mining Permits in the Wilson Creek Watershed
On September 10, 2010, Judge Thomas D. Wingate dismissed Miller Bros. Coal’s petition to remove the conditions placed on coal mine permitting within the Wilson Creek watershed. The suit arose from a Lands Unsuitable for Mining Petition filed by Beverly May and the Floyd County Chapter of Kentuckians for the Commonwealth. The state did not designate the land as unsuitable for mining, but instead heeded KFTC’s concerns and required that all permitting in the area comply with certain conditions to better protect the area from flooding, to reduce water pollution, to ensure that the land is reforested after mining, and to ensure that the land is returned to its approximate original contour.
The coal company sued KFTC and the state, arguing that the state did not have the authority to restrict mining in that way and arguing that, even if the state had the authority, there was insufficient evidence to support the conditions placed on future mining.
Judge Wingate disagreed, pointing out that many of the conditions the state is now requiring on Wilson Creek are already required by the law. With regard to the potential for flooding, Judge Wingate notes that “common sense alone should put one on notice that serious flooding problems could ensue in an area which was previously 81% forested and was not reforested post-mining.”
Judge Wingate’s decision is an important affirmation of the Lands Unsuitable for Mining process, which itself is an important part of the Surface Mining Control and Reclamation Act of 1977 (“SMCRA”). As Congress stated in 1977:
“The process for designation of lands as unsuitable for surface coal mining is …premised on the notion that successful management of surface mining depends, in large part, on the application of rational planning principles. While coal surface mining may be an important and productive use of land, it also involves certain hazards and is but one of may alternative land uses. In some circumstances, therefore, coal surface mining should give way to competing uses of higher benefit.”
Judge Wingate’s decision can be found here: 2010-09-10 Franklin Circuit Court Opinion and Order