Wilson Creek residents continue fight for protections

Wilson Creek residents are looking to state officials to find new ways to protect their land, water, health and community after a Kentucky Court of Appeals panel struck down restrictions on any strip mining that would take place there.

In a ruling issued Friday, the panel voided a state regulation that the Kentucky Energy and Environment Cabinet relied on to issue those protections. The judges remanded the case back to the cabinet.

Wilson Creek resident Bev May said the ruling was disappointing because the protections the community were counting on are now put on hold while residents and the cabinet review their next steps.

"We're going back and ask the cabinet to keep its commitment to protect our community," said May. "We are determined as ever that we're not going to be abused. We still have our rights under the broad form deed amendment and still have our promise from the county judge to not let them use Wilson Creek as a haul road."

The effort dates back to 2006 when Wilson Creek residents learned that Miller Brothers coal company was trying to buy leases so that it could strip mine along both sides of the watershed simultaneously, and use the community's only access road as its haul road. Residents organized, and among the actions taken was to file a petition with the environmental cabinet to have the Wilson Creek watershed declared "unsuitable for surface mining."

In an early 2009 decision, the cabinet did not grant that petition, but did say that any mining of the area had to meet certain restrictions. Those restrictions were:

•  the coal company could not haul coal on the one-lane Wilson Creek road.
• that any mined land needed to be returned to its approximate original contour, and
• the land needed to be reforested to prevent flooding.

Even though these were reasonable conditions and reflected existing law, Miller Brothers filed a lawsuit, arguing on one hand the state only has the authority to rule either in favor or against a Lands Unsuitable petition, and on the other hand there was not enough evidence to support the need for the added restrictions to mining in Wilson Creek.

Miller Brothers and its successors (the company is now part of James River Coal) appealed that decision, first with the cabinet and then to Franklin Circuit Court. Both upheld the protections.

In reversing those rulings, the Court of Appeals did not address the validity of the protections themselves, but the process by which the cabinet issued them. They ruled that federal law allows a Lands Unsuitable petition to be either granted or denied, and for restrictions to be applied only if the petition is granted.

Granting restrictions on future mining without an unsuitability determination goes beyond the authority of  federal law, and the Kentucky General Assembly has forbidden state law from being more stringent than federal law. Therefore, the regulation the cabinet followed, the appeals court panel found, is "null, void and unenforceable."

"The procedural  flaw was in not first declaring the watershed unsuitable for certain types of mining before issuing the restrictions," May explained.

For the short-term, that may mean more legal wrangling. But, as May pointed out, the community still has a pledge from the Floyd County judge-executive to not grant a waiver for Wilson Creek to be used as a coal-haul road. And under the 1988 broad form deed amendment to the Kentucky constitution, landowners can refuse to allow strip mining on their property.

Some, if not all, of the protections the cabinet intended to use on future mining may still be applied for any individual permit that James River Coal may seek.

"The cabinet listened to the concerns of residents and took those concerns seriously enough to provide some modest protections for the community. They had the right intention but the process was flawed. Now they have an opportunity to go back and fix that problem, and we're counting on them to do that."

Wilson Creek residents and the Floyd County KFTC Chapter are represented in this case by the Appalachian Citizens Law Center.

Find a copy of the Appeals Court ruling here.