CONSENT PROVISIONS OF THE FEDERAL SURFACE
MINING CONTROL AND RECLAMATION ACT OF
1977—AN
E F F E C T ON W E S T E R N C O A L L A N D S ?
MARK G , MORRIS
Consent Provisions of the Federal Surface Mining Control
and Reclamation Act of 1977
An Effect on Western Coal Lands
Mark G. Morris
April 30, 1979
Consent Provisions of the Federal Surface Mining Control
and Reclamation Act of 1977
An Effect on Western Coal Lands?
The Federal Surface Mining Control and Reclamation Act of
1977 (FSMCRA) advances, as two of its purposes, the establishment
of "a nationwide program to protect society and the environment
1
from the adverse effects of surface coal mining operations"
and
the assurance "that the rights of surface landowners and other persons with a legal interest in the land 2 or appurtenances thereto are
fully protected from such operations."
As part of its mechanism
for protecting surface landowners the statute contains, what is
commonly referred to as its "consent provision".
This provision
mandates that no mining application will be approved pursuant to
the Federal program or an approved State program unless the regulatory authority finds that,
(6) In cases where the private mineral estate has been
severed from the private surface estate, the applicant has submitted to the regulatory authority
(A)
the written consent of the surface owner to
the extraction of coal by surface mining
methods; or
(B)
a conveyance that expressly grants of reserves
the right to extract the coal by surface mining
methods; or
1
Surface Mining Control and Reclamation Act, Pub. L. No. 958?, 30 U.S.C.A. 1202(A) (1977). (hereinafter cited as FSMCRA).
2
Id., Section 1202(B).
1 OiC
J.^O
(2)
(C)
if the conveyance does not expressly grant the
right to extract coal by surface mining methods,
the surface-subsurface legal relationship shall
be determined in accordance with State laws
Provided, that nothing in this chapter shall
be construed to authorize the regulatory authority to adjudicate property rights disputes.
It is interesting to note that at least one court has held
a written consent provision (similar to 6(A) above) to be violative
of due process.
In the case of Department of Natural Resources
k
and Environmental Protection vs. No. 8 Limited of Virginia , the
Kentucky Court of Appeals concluded that the statute, which required
the written consent of a surface owner before mining operations could
begin, was not a legitimate exercise of a state's police power.
The court in No. 8 Limited viewed the written consent provision
as an ineffective environmental conservation measure and held that
it was impermissible for the State to use its police power to affect
the contractual rights of private parties when the statute bore no
real and substantial relation to the general welfare of the state.
Reaching a contrary result, the Idaho Supreme Court in the
case of State ex rel Andrus vs. Click
held that a written consent
provision was an acceptable exercise of a state's police power in
that it bore a reasonable relationship to the state's general welfare.
Specifically, as the court noted, it "is (a) reasonable
(exercise of police power) for the protection of the property owner,
and guards (the appellant) against the necessity of determining the
3
Id., Section 1202 (B)(6).
S 2 8 SW2d 684 (Ky. Ct. App. 197'').
-;97 Idaho 7^1, 55^ P2d 969 (Idaho 1976).
(3)
scope of leases purporting to grant the right to dredge another's
land."6
Possibly these two cases can be reconciled by noting that
i n No. 8 Limited the court was looking only to the stated legislative purpose (environmental conservation) whereas in Glick the
court seemed more willing to justify the written consent provision
on the basis of reducing disputes over the scope of leases purporting
to grant surface mining rights.
This paper will deal primarily with Section 1260 (B)(6)(C)
of the FMSCRA, the State law alternatives for determining the
surface-subsurface legal relationship.
Initially, some of the vari-
ous alternatives used by states will be set out and discussed.
The latter part of the paper will examine these alternatives in the
context of surface coal mining in western states.
Specifically,
an attempt will be made to show the effects, both environmental and
from the standpoint of coal production, that adoption of these
various state law alternatives might have on western coal lands.
Subjacent Support
Essential to an appreciation of state law alternatives to
the "consent provision" of the FSMCRA is an understanding of the
notion of subjacent support.
The issue of subjacent or underlying
support arises when the underlying minerals and the surface have
been severed.
The question then becomes whether or not the mineral
estate owes a duty of support to the surface estate. The case of
7
Campbell vs. Campbell' is indicative of the view that courts have
6
Id. at 980.
?
199 SW2d 931 (Tenn. Ct. App. 19^6).
(4)
taken with regards to this duty of support.
In Campbell the plain-
tiff surface owners brought suit against defendant mineral owners
to recover damages that had been occasioned by the defendants'
underground coal mining operations.
The inquiry complained of by
plaintiffs was subsidence of the surface of their property.
In
holding for the plaintiffs, the court in Campbell stated the general
rule that, absent relinquishment of his rights by the surface estate,
a mineral owner owes a duty of subjacent support.
This servitude of support is often referred to as a "third
g
estate" and may exist as a seperate right in a third person.
It should be noted however that the right to surface support
does not necessarily give the surface owner any right to the minerals which are left in place to
9 provide the support.
of Smith vs. Glendale Coal Co.
In the case
the court noted that the duty a
mineral estate owes the surface estate is one of support and does
not entail the relinquishment of any of the mineral estate.
So,
as the court pointed out, it would be permissible for the mineral
owners to mine all of the coal under the surface and substitute
some other material to serve as surface support.
Of course the right to surface support can be waived.
The
landowner can except the right to surface support from the grant
or reservation at the time the minerals are severed.
Also the
liability the mineral owner owes for failure to provide support to
the surface estate can be waived by an express covenant which runs
with the land. 10
8
S8 C.J.S. Mines, and Minerals 2?8 (.1948).
9
32 A2d 227 (Penn. 19^3).
10
'"8 C.J.S. Mines and Minerals 278 (19^8).
(5)
Kentucky View
In determining whether the surface owner has "consented" to
strip mining, Kentucky courts have, in the past, taken a position
that is favorable to the owner of the mineral estate.
What will
hereinafter be referred to as the "Kentucky View" is well illustrated
11
by the case of Buchanan vs. Watson.
Buchanan was a suit for de-
claratory judgment as to the respective rights of the surface and
mineral owners to a tract of land under a mineral deed.
The broad-
form deed which severed the mineral rights included coal but did not
expressly include or exclude strip or auger mining as a method of
extraction.
The deed also contained a waiver of damages for claims
arising from the mineral owners use of the land in mining operations.
The Kentucky court was presented with two questions.
First, whether
the owner of the mineral could strip mine the surface of land owned
by another and secondly, if allowed to so mine, whether the mineral
owner was liable for damages caused to the surface estate.
The court answered the first question In the affirmative based
on what it found to be, by the terms of the deed, the clear intention of the parties to convey the coal.
The court went on to state
that "to deny the right to remove it (coal) by the only feasible pro12
cess is to defeat the principle purpose of the deed".
In resolving the second question the court looked to Kentucky
decisions which had upheld the validity and enforceability of waiver
of damages clauses.
rule:
n
But in addition the court stated a broader
"The owner of the mineral has the paramount right to the
2 9 0 SW2d 40 (Ky. Ct. App. 1956).
12
Id. at 42.
(6)
use of the surface in the prosecution of iLs business for any purpose of necessity or convenience, unless this power is exercised
oppressively, arbitrarily, wantonly, or maliciously, in which event
13
the surface owner may recover for damages so occasioned."
v
Surface owners in Kentucky were afforded no real protection
by the language in Buchanan which affixed liability for damages to
the holder of mineral rights when mining operations were carried
out "oppressively, arbitrarily,14wantonly, or maliciously."
Blue Diamond Coal vs. Campbell
In
the Kentucky court refused to hold
the mineral estate liable for damages even though "a substantial
amount of timber was destroyed, deep and wide cuts were made, large
spoil banks were thrown up, and waste matter was pushed into the
creek".15
Subsequent cases arising under Kentucky law
16 followed the
Buchanan holding.
Watson vs. Kenlick Coal Co.
arose when owners
of a surface estate brought suit in Federal court against owners
of the mineral estate alleging deprivation of property without due
process of law.
The defendant mineral owners derived their mineral
rights through a 190 5 broad form deed and had begun strip mining
the land to extract coal.
The plaintiffs sought injunction and
damages alleging that destruction of the land constituted a "taking
of their property within the meaning of the fifth and fourteenth
amendments.
State action was premised, in part, upon decisions of
13
Id. at 43.
l4
371 SW2d 483 (Ky. Ct. App. 1963).
1
'Id. at 484.
l6
(1975)•
498 F2d 1183 (6th Cir. 1974) cert, denied, 422 U.S. 1012,
(?)
the Kentucky Court of Appeals which the plaintiffs felt unconstitutionally enlarged the rights conveyed to the owner of a mineral
estate by a broad fam- deed.
The Sixth Circuit Court of Appeals
rejected this argument finding that the plaintiffs erred in their
assumption that they had rights under the deed which were subsequently destroyed by decisions of the Kentucky Court of Appeals.
The
court held that based on Kentucky state law the predecessors in
title to the plaintiffs gave up their right to prevent strip
mining when the deed was executed.
Citing Buchanan the court stated
the Kentucky rule which gave the mineral owner under a broad for
deed the right to strip mine.
The court in Watson noted that no
other state court had interpreted a broad form deed to allow strip
mining and, while conceding that the result might be harsh, refused
to find an actionable Constitutional violation upon which Kentucky's
property law could be set aside.
The soundness of the Kentucky View was seriously questioned
17
in the case of Commerce Union Bank vs. Kenkade.
In that case,
surface owners brought an action against the mineral owner seeking
a declaration that the mineral conveyance did not grant the right
to mine coal by strip or open-pit methods.
The deed in question
did not expressly give the mineral owners the right to strip mine
but did grant "the right to18
such surface space as may be necessary
in mining operations. . . "
In holding that the mineral owners
did not have the right to strip mine the court distinguished the
deed in question from a broad form deed saying that the deed in
1?
540 SW2d 861 (Ky. 19?6) cert, denied, 430 U.S. 915, (1977).
l8
Id. at 862.
204
(8)
question did not grant such overwhelming mining rights that the mineral owners acquired the right to use strip mining methods to recover the coal.
Concurring opinions in Commerce rejected the distinguishment
of the deed in Buchanan from the one in question and called for the
overruling of Buchanan.
Justice Stephenson pointed out in his con-
curring opinion that Buchanan had been misinterpreted and stood for
no more than the proposition that "the right to strip mine, unless
specifically excluded, is an incident to the ownership of the coal
19
if that is the only feasible and economical method of removal". '
(emphasis added).
Justice Stephenson expressed his opinion that
Buchanan was an aberration in the law of minerals and that the right
to strip mine should be contingent upon a deed specifically granting
such right or the consent of the surface owner.
The Commerce case is significant in that it evidences a departure from the reasoning in Kentucky cases that a deed granting
the right to coal grants the right to strip mine even if not expressly provided for in the deed.
Although Buchanan was not over-
ruled, the Kentucky court indicated a willingness in Commerce to
construe mining rights only after a careful interpretation of clauses
in the deed and did not automatically brand the deed "broad form"
with the result of allowing the mineral owner to strip mine.
Surface Destruction Test
In determining whether a mineral deed includes coal that is
to be strip mined, Texas courts have relied upon what has come to
19
Id. at 869.
h< Xft. J
(9)
be known as the "surface destruction test".
29
The Texas case,
21
Wylie vs. Reed
, applied the surface destruction test to a con-
troversy concerning coal and lignite ownership.
In Wylie the Texas
Supreme Court held that coal or lignite which could be extracted
only with substantial destruction to the surface estate was owned
by the surface owner.
In reaching this conclusion the Texas court relied upon the
case of Acker vs. Guinn 22 which held that,
Unless the contrary intention is affirmatively and
fairly expressed, therefore, a grant or reservation
of'minerals' or 'mineral rights' should not be construed to include a substance that must be removed
by methods that will^in effect, consume or deplete
the surface estate. ^
The effect of the Wylie case would then seem to be that,
absent a clearly expressed contrary intention, the owner of the
surface estate would own coal and lignite that must be removed by
surface mining methods.
In a dissenting opinion in W.ylie Justice Daniel took issue
with the majorities" holding which required a factual or legal
finding that the coal or lignite must necessarily be mined by surface-depleting methods in order to recognize it as belonging to
the surface estate.
Justice Daniel preferred a holding which would
20
See generally, Comment, Lignite: Surface or Mineral
The
Surface Destruction Test and More, 29 Baylor L. Rev. 879 (19777.
v54 SW2d 169 (Tex. 1977).
p?
21
cc
h6k SW2d 348 (Tex. 1971).
23
Id. at 3r'2
-t>o
(10)
apply the rule of Acker to coal and lignite "which may be mined and
removed from the premises by open pit or strip raining methods without any requirement that the surface owner must prove that such
method of removing this near-surface mineral at the time of the
24
deed".
As he explained in his dissent, Justice Daniel viewed the
controlling principle in Acker to be the existence of the mineral
so near the surface as to be part of the surface rather than the
mineral estate.
Hence, in i/tfylie he felt no precedent required a
showing of surface destruction in order to ascertain the ownership
rights of the respective estates.
Justice Daniel's distinction could have significance in a
case where coal or lignite lying near the surface is sought to be
utilized by the process of underground gasification, a method of
extraction in which the surface is not destroyed.
Using the majori-
ties' approach, the right to this gasified coal would go to the
mineral estate, while under Justice Daniel's approach, the surface
estate would be entitled to gasified coal.
2^
The case of Williford vs. Spies
raised an interesting ques-
tion regarding the surface destruction test.
In that case plaintiff
acquirer's of grantee's interest under a deed, which reserved onehalf of all oil, gas and other minerals, brought suit against defendant grantors to adjudicate entitlement to coal and lignite
24Wylie vs. Reed, id. at 1?4.
25
53° SW2d 127 (Tex. Ct. Civ, App. 1975).
(11)
royalties.
Prior to the grant, the defendant had entered a recorded
mineral lease which severed the mineral estate, specifically including the coal and lignite, from the surface.
The Texas court sought
to apply the rule advanced in Acker in which the surface estate
is entitled to all minerals which must be extracted by surface
destruction methods, "unless a contrary intention is affirmatively
26
and fairly expressed".
The court in Williford viewed the question
then as whether or not the "contrary intentjjn" must be expressed
in the instrument containing the grant or reservation, or whether
the "contrary intention" could be shown by proof of attending circumstances.
In this case the attending circumstance was the re-
corded mineral lease which specifically contemplated that the coal
and lignite would be extracted by strip mining.
The court in Willi-
ford found that the deed in question was unambiguous and in no way
made reference to the prior mineral lease,
As a result, the court
determined that the plaintiffs were entitled to all royalties from
coal and lignite which were strip mined.
This determination was
made without aid from evidence as to the attending circumstances.
So, as indicated by the Williford court, the "contrary intention",
to be effective, must be expressed in the instrument containing the
grant or reservation.
The Williford case is interesting for another reason.
The
defendant grantor in that case made the argument that a fact issue
was raised with regard to the destruction of the surface since the
mining company had subsequently reclaimed the land by replacing
26
Acker vs. Guinn, id. at 352.
0,0 n
A m
(12)
topsoil and planting vegetation.
The court rejected this argument
finding that since the surface was destroyed for agricultural or
grazing purposes, subsequent reclamation was immaterial in determining
the parties' legal rights.
Based on this holding, Texas courts
would probably reject arguments that surface mining only temporarily
inconveniences the surface estate and would instead hold under
Acker and Wylie that strip mining destroys the surface estate even
when reclamation is subsequently undertaken.
Contemplation of the Parties
In dealing with the problem of determining whether a mineral
owner has a right to strip mine in the absence of an express provision, many courts have looked solely to the contemplation of the
parties at the time the deed was executed to determine the rights
of the parties.
Justice Eagen summed up this interpretive process
27
when, writing in Wilkes-Barne Township School District vs. Corgan, '
he said,
First, it is the intention of the parties at the time
of entering in (to a deed) thereto that governs, and
such intention is to be gathered from a reading of the
entire contract. . .
'Where the language of a contract
is contradictory, obscure, or ambiguous, or where its
meaning is doubtful, so that it is susceptible of two
constructions, one of which makes it fair, customary,
and such as prudent men would naturally execute, while
the other makes it inequitable, unusual, or such as
reasonable men would not be likely to enter into, the
interpretation which makes^a rational and probable argument must be preferred.'
An Interesting aspect of the contemplation test is different ways
in which it has been applied by the courts, as will be indicated
k03 Pa 383, 170 A2d 97 (Perm. 1961).
2?
28
I d . at 98.
(13)
below.
I n Stewart vs. Chernicky
29
the owner of a surface estate sued
the lessor and lessee of the coal estate to recover for allegedly
unauthorized strip mining.
The 1902 deed which conveyed title to
coal in the tract to the defendant lessor was silent as to whether
strip mining was to be allowed.
The court in Stewart looked to the
language in the deed which gave the owner of the coal estate "the
right to drain and ventilate said mines by shafts or otherwise. . ."
The deed also provided for "a full release of and without liability
for injury to the surface, waters or otherwise. . .
arises) from any of the said operations".^1
(if the injury
The court noted that
ventilation is a feature of only shafts or deep mining and reasoned
that the release from liability was limited to injury resulting only
from deep mining, it being the only "said operation" contemplated
by the parties.
32
The case of Franklin vs. Call-lipatr
is illustrative of how the
intention of the parties to a deed can be ascertained indirectly
by looking to the language of
the deed.
The 190 5 deed in question
did not mention strip mining but gave the mineral owner the right
to buy as much of the surface estate as he needed for water dumps,
machinery, railroads and the like.
However, an express provision
in the deed provided that if oil or gas lines were laid by the
mineral owner, they must be placed at a sufficient depth so as not
29
3
439 Pa 43, 266 A2d 259 (Penn. 1970).
°Id. at 264.
Jl
l d . at 263.
32
68 Abs 67, 119 NE2d 688, (Ohio Ct. Common Pleas 19c'4).
(14)
to interfere with the agricultural, purposes of the surface estate.
By virtue of this provision the Ohio court concluded that it was
the intention of the parties at the time the deed was executed to
keep the surface of the land intact.
As a result, the mineral owner
was not allowed to strip mine.
The fact of whether strip mining was a known practicable
method of extraction at the time the grant or reservation was made
is often an important factor in a court's ascertainment of the intention of the parties.
In Department of Forests and Parks vs.,
33
George's Creek Coal and Land Co.
v
the Maryland Court of Appeals
was faced with the problem of interpreting the mineral reservation
in a 1931 deed. The deed in question made no express authorization
of a right to strip mine but simply gave the mineral estate the
34
rxght "to mine, excavate, and remove all said coal".
The court
noted that in 1931 strip mining was a known method of recovering
coal and hence, since not specifically excluded in the reservation,
must have been within the contemplation of the parties when they
adopted the broad language used in the reservation.
Using a simi35
lar rationale in the case of West Virginia Coal Co. vs. Strong^
the West Virginia court interpreted a 1904 deed giving the plaintiff
the right to extract "all" of the coal.
The court concluded
that strip mining was not known and accepted as a common practice
in 1904 and refused to allow strip mining even though, according
to the plaintiff, this was the only method by which "all" of the
33
250 Md 125, 242 A2d 165 (Md. Ct. App. 1963).
3 4
' Id. at 166.
3
^129 WV 832, 42 SE2d 46 (W. Va. Sup. Ct, App. 194?).
36
Id. at 4?.
(15)
coal could be extracted.
Occasionally a court will find the language used in a deed,
although not expressly allowing strip mining, to be couched in such
broad terms as to include strip mining.
37
Mount Carmel Railroad Co. vs. Hanna.
Such was the case in
In Mount Carmel the plain-
tiff railfoad was trying to prevent the defendant coal company from
strip mining under the railroad's right-of-way.
The grant of the
right-of-way to the railroad contained a reservation of all the coal
with the right to mine same without liability.
The grant, dated
1891, contained language reserving
the right to mine "in any manner
38
or by any method of mining".
The court noted that this clause
must be read in conjunction with other clauses in the document relating to deep mining.
However the court held that the reservation
encompassed the release of liability for damages caused by strip
mining as well.
This conclusion was based upon a finding that another
clause referring specifically to a reservation of the use of deep
mining tunnels was prefaced by the words "also excepts and reserves".
Based on this terminology, the court had little trouble in deciding
that the reservation was one of addition and not limitation.
Hence,
the language reserving the right to mine "in any manner or by any
method" included strip mining as well as deep mining.
Use Test
Similar to the contemplation of the parties test, the "use
test" focuses on the use to ¥/hich the land was being put at the
37
371 Pa 232, 89 A2d 508 (Penn. 1952).
38
Id. at 510.
39
Id. at 512.
o«
39
(16)
time the deed was executed.
Courts in Pennsylvania have, in the
past, given consideration to the use of the land in question when
interpreting whether a deed grants rights to strip mine in the absence of express consent.
Although no Pennsylvania case has been
found In which surface use was the sole consideration of the court
in determining the rights of the mineral estate, it appears to have
been an important consideration in several cases.
ko
The case of Rochez Brothers vs. Duricka
is illustrative
of how a court considered surface use in reaching its decision.
I31 Rochez the Pennsylvania court was presented with a situation
where plaintiff coal company claimed the right to strip mine coal
based upon its ownership of mineral rights reserved in a deed executed in 1919*
The court primarily looked to the language of the
reservation and determined that the intention of the parties only
encompassed undergroud mining.
However, in a characteristically
colorful opinion, Justice Musmano in speaking for the court, noted
that,
The surface of the ground involved here is farm
land. A farm, except in a restricted way, is not affected by underground mining. The farmer may plough, plant
and prune while miners work underneath his growing crops.
But strip mining drives him from his land as effectively
as a tornado. . . No farmer would permit such a disablement of his land without specific consideration. It is
clear in this case that the rights reserved and later
conveyed to the plaintiff, were not broad enough to include such a disablement.'
As can be seen from the above, the use to which the surface
estate was being put was a consideration in determining the intention
ha
37k Pa 262, 97 A2.d 825 (Penn. 1953)•
Z|1
Id. at 827.
fli o
(17)
of the parties.
I4.2
One year later the case of Commonwealth vs. Fitzmartin
before the same court.
came
In Fitzmartin the Commonwealth of Pennsyl-
vania owned the surface rights in a tract of land which had been
conveyed subject to a reservation which gave the mineral owner the
right to mine coal but which did not expressly include strip mining
as a permissible methord of extraction.
The Commonwealth sought
injunctive relief to prevent the defendant coal companies from strip
mining.
The land in question was an unimproved, rocky and mountain-
ous tract which was purchased by the Commonwealth as an area for the
protection and propagation of wildlife.
The majority opinion pointed
out that there were no roads, buildings or improvements of any kind
on the land which would be disrupted by strip mining.
The court held
that the defendants had the right to strip mine the coal based,
in part, upon a deed provision that the court interpreted
43 as an
"implied waiver of grantee's right to surface support".
distinguished the Rochez
J
The court
case because the land in .^ochez was rich
agricultural land as opposed to the rocky, hilly land in Fitzmartin.
Justice Stearn wrote a vigorous dissent in Fitzmartin.
With
regard to consideration of land use as a consideration in interpreting
the reservation, Justice Stearn advanced a two-part argument.
First,
that consideration of land use had no place in interpretation of
the reservation and secondly, even if it were a valid consideration,
the use here should be given much weight:
ho
376 Pa 390, 102 A2d 893 (Penn. 1954).
43
Id. at 897.
o
%
*
" . . . the Commonwealth's use of this large tract of
land should be given tremendous weight. In addition
to its recreational value, it is being reforested, is
necessary for soil conservation and retention of surface
water for the prevention of floods and ^g needed as a
water storage area in case of draught."
Language in a subsequent Pennsylvania case dealing with a
similar interpretation problem cast doubts upon surface use as
a valid consideration in interpreting a mineral grant or reservation.
In New Charter Coal Co. vs. McKee
, Justice Jones, speaking
for the Pennsylvania Supreme Court stated that,
The court below adverted to the fact that some of the
surface is in cultivation and that its use for the purpose would be destroyed by strip mining. For some time
it was apparently thought that our decision (in Rochez)
was authority for the proposition that the use to which
the surface was being put at the time of the grant automatically foreclosed the right to strip mine if that usage
was of a valuable nature. It is now established that
that was not the ratio decedendi of Rochez; Rochez was
decided simply on the grounds that the wording of the
mining powers did not support an interpretation, other
than that of giving the right to deep mine.
As evidenced by New Charter Coal, it is doubtful that a Pennsylvania court would now consider surface use as a factor to be
used in interpreting a deed.
This attitude probably results in
part from the reluctance of courts to look outside of the "four
corners" of a deed or to rescue a party who did not foresee the
consequences of his bargain.
Environmental Effects
When I was a child, my family would travel
Down to western Kentucky, where my parents were born
And there's a backwards old town, that's often remembered.
So many times, that my memories are worn
^ I d . at 898.
Pa 307, 191 A2d 830 (Penn. 1963).
46
Id. at 834.
And the coal company came with the world's largest shovel
And they tortured the timber and stripped all the land
Well they dug for their coal, till the land was forsaken
Then they wrote it all down as the progress of man
And daddy won't you take me back to Muhlenberg County
Down, by the Green River where Paradise lay
Well I'm sorry my son, but you're too late in asking
Mister Peabody's coal train has hauled it away.
The environmental effects of surface coal mining, such as
48
those illustrated by the song set out above, are well documented.
The decision of which state law alternative is chosen to determine
the surface-subsurface legal relationship in accordance with section
1260(B)(6)(C) of PMSCRA will necessarily determine whether surface
mining, with its attending environmental consequences, will be allowed.
However, a section 1260(B)(6)(C) determination takes on
special significance with regards to Western coal lands because
of the unique nature of the environment involved.
As one writer
has noted,
While the East is a wet highly fertile area, the Western
(coal) fields lie under semi-arid lands. A fragile ecosystem has developed and gently ramished over centuries. . .
The least tampering may destroy it.
Western coal lands create special, environmental problems because,
as Binder notes, "Drier areas can probably be reclaimed only eith
major, substantial inputs of water, fertilizer and management.":>0
This is significant because the failure to revegetate affected coal
lands combined with the characteristically thin topsoil of the area
could lead to major problems of erosion caused by wind and rain.
h7
'John Prine, Paradise c Cotrillion Music, Inc. (1971).
48
See generally, Down and Stocks Environmental Impact of
Mining TT977)• — —
49
Binder, Strip Mining, The West, and the Nation, 12 Land and
Water L. Rev. 1 (1977).
~
/
°Id. at 8.
i\ <4 r*
A? O
v
(20)
In his article, Binder notes that, although techniques such as
soil drainage designs might be developed to trap precipitation,
revegetation is nearly impossible without irrigation.
Irriga-
tion creates additional problems in terms of cost, due in part to
the poor distribution of water in the West. '"2
Other water problems are noted by Binder:
A coal seam may act as an impermeable layer which
prevents the percolation of water through it. The rupture of the seam by mining results in a loss of water
to lower strata. Mining may drain trapped underground
watercourses and alter surface streams. An entire aquifer may be lost if there is subsidence of overlying strata
into underground coal mines containing an aquifer. Interference with an aquifer can disrupt flow channels,
and thus well levels. ^
Additional environmental problems stem from the fact that
the West is a sparsely populated area.
Obviously the influx of
large numbers of people associated with mining operations will create
problems in terms of housing, schools and a strain on municipal
services.
Also, the temporary loss of grazing lands to surface
coal mining could have the effect of changing the lifestyle of the
West where a major industry is ranching.
Binder also points out
that, "One important quantitative factor is that the land disturbed
for related needs, such as roads, railroad tracks, transmission
lines, housing and public service may far exceed the land actually
mined."5
51
52
Id. at 10.
Id. at 17.
C 3
' Id. at 21.
54
Id. at 14.
(21)
From a production standpoint the Western coal fields offer
a tremendous reward.
Coal resources in the Northern Great Plaing
area are estimated at 1.5 trillion tons while the Rocky Mountain
area contains an estimated additional 580 billion tons.
J
Any
choice of alternatives selected under section 1260(B)(6)(C) of
the FSMCRA will have a direct bearing upon how much of this coal
is mined by surface methods.
It should be observed however, that
the Federal government owns about 800,000 acres of coal lands,
the great majority of which are located in the West.5^
It should
also be noted that the FSMCRA contains a specific provision dealing
with the consent problems on these lands. 57 The consent problem
presented in this context has been well described:
When vast areas of public lands were transferred
to private interests in the early part of this century,
the mineral rights were withheld for the United States
as a revolutionary conservation measure. Aggravated
by the passage of time and the current wish to develop
Western coal, this situation has led to a serious land
use confrontation between surface users, such as farmers
and ranchers, and federal coal lessees. In an effort
to mitigate such rivalries, the Act provides for limited
and circumscribed surface owner consent as a condition
of issuing a new federal coal lease.
Basically, section 1304(C) requires the written consent of the
surface owner before a lease may be entered into by the Federal
government.
homa
"'The Science and Public Policy Program, University of OklaEnergy Alternatives: A Comparative Analysis" (T975) •
J56
Id. at 1-9.
57
FSMCRA, Section 1304.
£-0
Harvey, Paradise Regained? Surface Mining Control and
Reclamation Act of 1977, 15 Houston L. Rev. " 1147, 11&5 0-978).
(22)
For private coal land owners, section 1260(B)(6)(C) of the
FS8SCRA and the various alternatives noted previously provide a mechanism for determining legal relationships "between surface and mineral
owners when the instrument of conveyance is silent as to whether
surface mining will be allowed.
As noted previously, the decision
of which alternative is adopted will only decide whether strip mining
is to be allowed.
Consequences of an environmental nature as well
as from the standpoint of increased coal production will of course
be contingent upon strip mining being undertaken.
Stated another
way, If surface mining is allowed under a chosen alternative, the
consequences will be the same as if surface mining is allowed under
a different alternative.
Notwithstanding the above, certain considerations relevant
to Western coal lands will come into play in determining the application of the various state lav; alternatives for determining the
surface-subsurface legal relationship.
If the surface destruction
test of Wylie vs. Reed is chosen, the problem will no doubt arise
as to whether the surface estate owns only the coal that must be
mined by surface destruction methods or whether the surface owner
is entitled to all coal lying so near the surface as to be considered
part of the surface estate.
This could have ramifications in the
West where underground coal gasification offers an attractive alternative to surface mining.
The application of the contemplation of the parties test will
usually necessitate a finding of whether surface mining was a known
practicable method of coal extraction when the deed was entered
into.
This will have significance in the West upon a showing that
(23)
the deed in question was entered into at a point in time when strip
mining was in widespread use which, arguably, would be the case
considering the only relatively recent interest in developing
Western coal fields.
The adoption of the land use test would probably result in
a court's giving the mineral owner the right to strip mine in most
cases due to the fact that, as a general rule, Western lands are
not in productive use as agricultural lands.
However, if the land
in question was being used for grazing purposes at the time the deed
was executed, a Western court might hold for the surface owner by
reasoning that surface mining is incompatible with ranching operations .
Under the Kentucky view alternative, the mineral owner should
be allowed to strip mine absent a finding that the deed in question
did not grant the "overwhelming mining rights" spoken of by the
59
Commerce Union Bank court.
In conclusion, it should be noted that this is an oft litigated area of the law.
Likewise it should be remembered that the
alternatives discussed previously are not exclusive.
A court may
well give consideration to other factors in reaching a decision
concerning surface-subsurface legal relationships.
At any rate,
the choice of alternatives under Section 1260 (B)(6)(C) of the
FSMCRA will have significant consequences not only in terms of the
resulting environmental concerns, but also from the standpoint of
increasing coal production in a Western area containing tremendous
coal resources.
^Commerce Union Bank vs. Kinkade, id. at 864.