Protections for Wilson Creek residents argued

The question of whether Laurel Mountain Resources should be allowed to mine on Wilson Creek in Floyd County without restrictions to protect the community was argued Friday before a three-judge panel of the Kentucky Court of Appeals.

The legal issue boiled down to whether the Kentucky Energy and Environment Cabinet Secretary overstepped his authority in ordering that any future mining on the land in question meet certain conditions.

The conditions were part of a February 2009 order, signed by Cabinet Secretary Len Peters, that denied a petition by Wilson Creek residents to declare 2,000 acres of their watershed as "unsuitable for mining."

Alex May, representing the fifth generation of his family from Wilson Creek, talks to Associated Press reporter Dylan Lovan after Friday's appeals court hearing.

However, the order did impose some conditions on any future surface mining on that land. Those conditions are:

• The company cannot not use the one-lane Wilson Creek Road as its coal haul road;
• Mined land has to be returned to its approximate original contour (this is already required by law but state officials routinely grant variances);
• Trees have to be planted on the reclaimed land; and
• Primary and secondary sediment control systems must be used to prevent flooding and control pollution.

Laurel Mountain Resources attorney W. Blaine Early III argued that state and federal laws related to "lands unsuitable" designations only allow the secretary to approve or deny such a petition, and not impose conditions if the petition is denied.

By doing so, Early argued, Peters violated state law which prohibits the cabinet from applying any standards more stringent than federal law.

However, Early acknowledged that the conditions do not prevent mining, and the cabinet could apply the same conditions in the permitting process, just not in response to a "lands unsuitable for mining" petition.

A "place by place" consideration of the impacts of mining would be more appropriate rather than one applied universally to all 2,000 acres, he said.

Attorneys S. Bradford Smock and Steve Sanders took a different view.

"If he [Peters] chooses not to designate, he can still impose conditions," said Smock, who was representing the cabinet. "The conditions are something he's always been able to do under both federal and state law."

Judge John Lambert questioned why the cabinet would not choose to apply conditions through the permitting process.

The lands unsuitable process is designed "to see the whole picture and not meant to be a place-by-place designation," Smock replied.

Sanders pointed out that "there is substantial evidence that supports the conditions," in Peters' order. He noted that Wilson is already designated as an "impaired stream" by the Kentucky Division of Water, and that the hillsides already are prone to land slides.

Sanders was representing Wilson Creek resident Bev May and KFTC, parties to the original petition and defendants in a lawsuit brought by Miller Brothers mining, the company that originally applied for the strip mining permit. Miller Brothers' operations have since been taken over by Laurel Mountain Resources, a subsidiary of Richmond, Virginia-based James River Coal Company.

In September 2010, Franklin Circuit Judge Thomas Wingate upheld the cabinet's order. In the decision Judge Wingate wrote that "the court finds that there was substantial evidence to support the Secretary's determination that flooding could occur."

The mining plan included three valley fills, which would bury the headwaters of Wilson Creek and Big Fork.

Friday's hearing was an appeal of Wingate's ruling.

The judges did not indicate how soon they will rule on the case.