AV's Intern Team | February 15, 2016 | 6 Comments
By Tarence Ray
The cut-through Premier Elkhorn made on Phillip Johnson’s property is pictured above. The land to the right is the Johnson family’s land; to the left is an adjacent hollow that has been extensively mined. The cut-through is roughly 300 yards from a cabin Phillip Johnson built on his property prior to the mining in 2014. The mining, including machinery and explosives, is easily heard and felt in the cabin. Photo by Tarence Ray
For weeks Phillip Johnson lay in bed and listened to them tear up his land.
“To be honest with you, it was about the worst thing I ever experienced,” Johnson recounts. “Them ripping and tearing the rock up there with an excavator, nothing you could do about it. And the dozer running every morning till one or two o’clock, while I’m sitting here trying to sleep. It did a lot of damage to me.”
This was during the spring of 2014, after Premier Elkhorn Coal Company began mining Johnson’s land without his consent. Phillip got the mining temporarily halted with the help of his attorneys in June 2014, but not before Premier Elkhorn blew a massive cut-through on one of his ridges. The company had been using dynamite to level the ridge in order to open up Phillip’s hollow to the adjacent hollow for easier access.
“There’s not many hollers this big that ain’t been tore up,” Phillip Johnson says. “I’d say this is the only one in this area that ain’t been stripped and dozered out. All the rest of them have been tore all to pieces.”
Numerous signs warning of blasting, put up by the company, are located throughout the Johnson family’s property. Photo by Tarence Ray
It’s immediately obvious how proud Phillip and his younger brother, Justin, are of this fact. They grew up here in eastern Kentucky, a family of ten that worked the land and lived off it through brutal and fertile seasons, bad times and good. The county lines of Knott, Perry and Letcher meet at the head of their hollow. “You can stand on your hands and feet and stand in three counties at one time,” the older brother says with a laugh.
Phillip eventually went to work as an underground coal miner, a job he held for 37 years. He and his father worked together for 13 of those years.
“[My father] paid for all the land with us selling livestock and shoveling coal,” Phillip says. “And my mother raised eight children. You imagine how sick it made me…to hear [Premier Elkhorn] up here working, and knowing this is stuff daddy paid for with a shovel in the mines? It was like them reaching down and sticking a thorn in your side, you know? I lost many a night’s sleep with it.”
But the brothers’ anger with Premier Elkhorn Coal Company began before mining even started. In 2013, the company sent in a land agent to convince members of his family to sell their property rights so that the company could strip and remove the surface to extract the underground coal seams. Two of their siblings sold their share of the land, but Phillip, Justin and the remaining siblings held out. To this day Phillip Johnson isn’t entirely sure how much the two siblings sold for, but he says it tore their family apart.
The image of the hollow adjacent to the Johnson family’s land was taken from the cut-through on Phillip Johnson’s ridge. Photo by Tarence Ray
“We were a close family. We went to Miami Beach, we’d go to the Smokies and camp out. I mean, we were one big, lovable family before,” he says. “Then [Premier Elkhorn] started putting into this, and it’s tore the family all apart. It really tears you up to think that some company with their money and power can come in and do you that way.”
Exactly how Premier Elkhorn managed to do this against the remaining siblings’ objections, and whether the state of Kentucky should allow it to continue, is the subject of an intense argument among lawyers, policy-makers and landowners.
Phillip Johnson and his siblings are legally represented by Mary Cromer of the Appalachian Citizens’ Law Center in Whitesburg, Ky., Joe Childers of Lexington, Ky., and Walt Morris in Charlottesville, Va. According to them, the case is reminiscent of how coal companies used to use the broadform deed — a legal mechanism that severed underground mineral rights from surface rights — to legally justify strip mining a landowner’s property. These deeds were often written to grant the owner of the minerals the right to extract coal over the objection of the surface landowner. Companies bought up many of these deeds during the first half of the 20th century, at a time when surface mining was virtually unheard of.
What remains of the ridge after Premier Elkhorn used explosives to gain access to the Johnson family’s property. Photo by Tarence Ray
It wasn’t until the 1950s that surface mining as a method of coal extraction really took off. “The mineral owner had the complete dominance of the surface owner and could do whatever they needed to get at the coal,” Cromer explains. “So that’s when you had coal companies stripping away and running people off their land to get to their minerals.”
The Kentucky Supreme Court ruled this practice unconstitutional in 1987, but miles and miles of the state’s mountains had already been removed.
According to Cromer, after the 1987 ruling the state and the coal industry began looking for new ways to strip mine privately owned property. “For years they didn’t need consent because most everyone had unknowingly sold out their minerals a long time ago,” she explains. “So when the broadform deed was no longer able to be used they went to this system where they only needed consent from one owner.”
Land ownership law is a complicated issue in this country, and in Kentucky can be somewhat unconventional. Undivided property, or joint property ownership among family members, is a specific type of land ownership that is very common in eastern Kentucky. Under this scenario, each person owns an interest in all of the property. If, for example, four people jointly own a piece of land, that does not mean that there are four separate corners of the property that each person owns. Instead, each person owns an equal interest in the entire parcel.
In Phillip and Justin’s case, their father left the property for the family to own jointly. Phillip, Justin and three of their siblings jointly own a 62.5 percent interest in the land. Premier Elkhorn, through Pike-Letcher Land Co., now controls a 25 percent ownership interest in the land, after their two other siblings sold their individual rights.
The state of Kentucky has interpreted federal surface mining law to mean that a coal company only needs to obtain a lease from one person that owns an interest, no matter how small that interest, in order to strip away that land — even if the rest of the owners object. “It’s this loophole that allows them to get around the broadform deed reformation,” says Cromer.
In the summer of 2014, Cromer, Childers and Morris won a temporary halt on the mining on the Johnson property. U.S. District Judge Amul R. Thapar subsequently ruled that the Surface Mine Control and Reclamation Act, the first federal law to regulate surface mining in individual states passed in 1977, says that a coal company has to get consent from all surface owners in order to mine.
Despite the judge’s ruling, the state of Kentucky reissued the permit on the Johnsons’ land in September 2014 under a subsection of the Surface Mine Control and Reclamation Act that defers to state property laws. “Kentucky has continued to permit under a different part of [SMCRA], and is still continuing to permit based on the consent of just one surface owner, even if the other surface owners object,” says Cromer.
The view of the ridge from the Johnson property is pictured at center. Photo by Tarence Ray
When asked about this practice, the Kentucky Energy and Environment Cabinet responded, “The cabinet is in compliance with all court orders and is addressing all of these issues in state and federal administrative actions.”
The cabinet declined to respond to further questions regarding their legal justification and the fact that they continue to issue permits under a different subsection of federal surface mine law despite Judge Thapar’s ruling. Premier Elkhorn could not be reached for comment.
Despite the reissued permit, it’s unlikely that Premier Elkhorn will continue mining Phillip Johnson’s land any time soon. Late last year, parent company TECO sold Premier Elkhorn to Cambrian Coal for virtually nothing, and the price of coal has dipped so low that, according to data from the U.S. Energy Information Administration, not a single mine in central Appalachia is presently operating at a profit. In the meantime, Cromer and Childers have filed a new action against Secretary of the Interior Sally Jewell and the U.S. Department of Interior on behalf of the Johnsons, so that a federal court can review the state agency’s decision to reissue the permit.
For Justin Johnson, the problem is historical. “I question the fairness and how people in eastern Kentucky have been treated for so many years,” he says. “And these coal companies, where are all these coal companies at now? Are they still here taking care of the people? They’re gone. The money’s gone, so they’re gone.”
Yet the uncertainty of the future is also hard on the brothers. “If coal sales get good they might fight harder for it,” Phillip Johnson says. “If it doesn’t, they might leave it alone. You know, I’d like to see coal sales’ price pick up, but I hope they don’t ever take this from me.”
For more, listen to a radio episode that explores Phillip Johnson’s story from WMMT’s Mountain News and World Report. Additional reporting for this article was done by Parker Hobson of Appalshop/WMMT-FM.
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This is just how the case we have sitting in appeal with Judge Shepard started. We have waited for going on three years for a decision on a state hearing case that is being challenged on appeal. The boxes of evidence never allowed in the state hearing case, we did get a map that showed Consol Coal claimed ownership of the Jimmy W. Hall property, the map is all we could get in as evidence showed the fraud created when they claimed ownership.
We are asking that the initial permit that allowed them to mine be declared null and void as it should have never been issued. We gave up on the one person giving them permission because an uncle did but they did neglect to obtain the mineral rights on a second 125 acres they destroyed or should I say just removed from the mountain. This will be addressed when the case has been ruled upon. Hoping we will not need to request the DOI review, hoping the Judge will rule by the law. We have talked to the DOI and they sent us back to the state to go through the process, this is where we are this far down the line. This is the way it is in Kentucky, criminal acts are allowed to continue, Attorney Generals and Secretary of States refuse to prosecute and industry just keeps on getting away with these acts. The Johnson property may be adjacent to the Hall property or possibly on the same permit. We are at the corner of Letcher, Knott and Pike Counties. Will be following this case as it hits so close to home.
This type of land ownership is not at all unconventional. Decedents in Central Appalachia rarely parcel out their property by tract in a will. More importantly, the 1987 decision did NOT find the practice unconstitutional. It struck down a law that attempted to ban strip mining without the landowner’s consent. That prompted passage of a constitutional amendment in 1988 that DID accomplish that, with the exceptions noted.
well we have 32 acres and the coal company went thru our land to..its a done deed..they just went thru and stripped it and when i visited the property thats been in our family since the 1920’s and tried to find my grandfathers fence line that was there the last time i visited..it was gone…the coal company blasted and bulldozed their way thru without saying a word or getting permission. we didnt own the coal rights but brings up another question because the deed only says coal rights excluded and curious if this means gas rights too because they put in a gas well on their property..curious if i can do the same on our property and if i own the gas rights and other mineral rights since the deed only excepted specifically the coal rights? either way..they removed a section of our land over 1000 yds long and up to 200 feet wide..and ive even been trying to get permission to use the road they blasted so i can access my property which is currently land locked.
i may have to see about getting an attorney too.
A clay mining company has been given a strip mining permit to mine clay on my family farm based on a 1926 broadform deed. We went to an appeals process at Frankfort and the states attorneys said that they could do whatever they wanted with non coal. They do not think that section 19-2 of the state constitution applies to clay. The attorney general has a site and I sent him several emails asking if this was legal and he of course does not answer, but I guess he is too busy running for governor. I will remember him on election day. It has been almost 5 years and I called Frankfort to see if the permit will be renewed and they would not tell me. I guess we pay taxes so all the lawyers down there can work against us. I called and asked Mr. Coleman the guy running for attorney general if it was legal he said he would check if he was elected. Even though I am very conservative and so a republican I guess this is one time I will vote democrat in a couple of elections. I am not a lawyer but from my research on the internet I can not find any other state where this would be legal and it would be illegal here in Ky if it was coal and I think it is may be illegal but our tax funded lawyers in Frankfort say it is “complicated”. The deed is for fireclay and the company that speculated on these in 1926 found that the clay here was not suitable to make firebrick and sold about 8o of these deeds in 1929 for one dollar. Mrs. Cromer, the lawyer from Appalachian Law Center says that state does not make any difference in clay in Kentucky. Some other types of clay lie a lot lower in the hill and would be much more invasive to strip mine and I do not think this was the intent of the deed and that like coal, deep mining was the intent when the deed was made. Mining clay is more invasive as it lies below the coal and it is only mined as the company uses it so usually takes much longer. I started to say brick company but this clay is probably not suitable for firebrick and will probalbly be used to make mortar. Mrs. Cromer did say that damages should be paid and the states attorney said that this was between us and the clay company, I guess even if they are due we will have to take the company to court to try to collect. The states attornery said this is “complicated” and for me it is as I am trying to find a common thread in what the state is telling me they do and what I read in the Ky supreme court decisions. The one that gave the right to strip mine with broadform deeds was about coal and the ones that allowed for damages and required owners permission to strip mine were also and the Ky supreme court decisions also talks about fracking which applies to oil and gas. This farm has been divided into 6 sections, all but on belonging to members of my family and I think we pay between 2 and 3 thousand dollars property tax on the land, it is had to estimate taking the value of the homes off and the clay company pays 300 dollars on the mineral rights on however many it has not stripped of the over 40 it acquired in 1993. So for around ten dollars it can put us off this land for an extended period of time probably at least 10 years and we have to continue to pay $3000, I confirmed with the county tax acessor. This may be the law in Ky but I want to see it in writing and not just here it said by a lawyer living onm tax dollars in Frankfort.
I need an Attorney for my family. A different Coal mining company did the same thing to our land and I was informed that the court ordered them to plant trees on the 29 acres they took Coal out of and we own land in another county also that they were headed to after the first one. I had a very experienced Attorney in these matters back in 2004 but my oldest brother wasn’t sure he wanted to sign the very common and fair contract which was on a contingency basis. I moved out of state and recently moved home and my family wants me to find an Attorney but of course my Attorney has retired. I’m upset about the entire situation. My Aunt who dealt with the mining company said they owe us interest from the 1st day of their dig and they poisoned water that runs through our land. My great Grandfather bought a bunch of different parcels and some of my cousins received a letter from the mining company with a check and a couple of them signed and cashed their checks without realizing they were giving up mineral water etc. rights. My family never received letters so I spoke with the mining company and they said we should have and were going to find out why, well I had a different last name, moved to Nevada and had a new phone number so of course they couldn’t have reached me if they tried. We are getting up in years so I would like to get this issue pursued per my mother’s wishes, she put me in charge about 20 years ago, unfortunately she recently passed away so I want to complete what she asked me to do for our family. I really need an experienced lawfirm who will go hard after the mining company for poisoned water, coal heist and literally everything involved. Let’s call it justice for all landowners who have been victims of coal mining companies. I’m sad and I am upset. My family is ready to sue. Please help if you can refer an attorney and thank you so much
If this was done with the old broadform deeds it is probably illegal as the law has chanced as I see it from the different supreme court decisions and section 19-2 of the Ky constitution. Good luck finding an experienced law firm willing to help you. Most of the lawyers who deal with minerals and mining seem to be on the company’s side as I guess that is where the money is. If you find one let me know as I need one too. We have a bunch of lawyers living off our tax dollars in Frankfort, but they seem to be on the other side of this issue. If they could show me a written law where this is legal I could probably understand it better. All a person has to do to get a mining permit down there is make a statement that they have a right to mine and once they get it I found that I’m fighting the state. They have given this clay mining company permits for 30 years and no one has challenged him until now so if this is no legal I think they should be liable for all the families that have been taken advantage by this, but from my dealing with them they do not think so and the damages the supreme court decisions say due they say are between us and the company which seems to want to hold us to the language of the old broadform deed. If this is being done to you with the old broadform deeds check the Ky supreme court decisions and section of the Ky constitution. I found these in about a 30 minute search when this started almost 5 years ago but the lawyer I hired has not read them in almost five years. My state representtiive, Patrick Flannery, said it was illegal when I called him and he called my lawyer and talked to him but that was the end of his help after he found it was being done. Mary Cromer, the lawyer from the Appalachian Law Center said that damages and tried to call my lawyer who would not answer her. I guess I need another lawyer as this one, like everyone else seems very timid when it comes to confronting the state. Good luck and let me know if you find a lawyer with some nerve. I wonder if all the families who have been affected by this would have a case against the company and maybe even the state as the ones I have talked to have not been paid damages. From what research I have done on the internet the statute of limitations does not start until they find that a crime has been committed. John Ramey