The Lands Unsuitable Petition Process Under SMCRA - A Case Study

Introduction The Surface Mining Control and Reclamation Act (Public Law 9587) (hereinafter the "Act" or "SMCRA") passed by Congress in August 1977 represents a comprehensive federal scheme for controlling surface coal mining and the surface effects of underground mining through permitting requirements, performance guidelines and reclamation planning. While the provisions of the Act have been the subject of numerous legal challenges and court battles over the years, it is difficult to identify a more controversial program within the Act than the provisions for designating lands as unsuitable for surface coal mining operations. The lands unsuitable designation process provides for the acceptance and review of petitions submitted by citizens or organizations seeking to have specified land areas designated unsuitable for all or certain types of surface coal mining activities. In filing these petitions, the interested parties or petitioners are required to make allegations about potential adverse impacts on people or the environment and submit evidence supporting their allegations. In 30 U.S.C. § 1272, Congress provided that "[a]ny person having an interest which is or may be adversely affected shall have the right to petition ... to have an area designated as unsuitable for surface coal mining operations." Under the Act, an area can be designated as unsuitable where the mining operation will (1) be incompatible with existing state or local land use plans, (2) affect fragile or historic lands, (3) affect renewable resource lands where mining operations could result in substantial loss or reduction of long-range productivity, or (4) affect natural hazard lands where such operations could substantially endanger life and property. In enacting SMCRA, Congress mandated that each state establish a process to determine which, if any, lands within the state are unsuitable for all or certain types of surface mining operations. In response to this federal legislation, the Kentucky General Assembly adopted a state regulatory program for surface mining that included provisions direct¬ing the Secretary of the Natural Resources and Environmental Protection Cabinet to establish a program for designating lands as unsuitable for surface mining as required by the Act. In recent litigation in Kentucky, several environmental groups filed a lands unsuitable petition, later joined by the University of Kentucky, challenging a proposal by Arch Mineral Corporation to surface mine over 3 million tons of recoverable coal. The petition sought to designate over 10,000 acres of land adjacent to Arch's proposed operations as unsuitable for surface mining operations, basically alleging that the mining would disturb an outdoor laboratory. The filing of the petition activated Kentucky's regulatory scheme for reviewing lands unsuitable petitions that can result in an absolute prohibition against surface mining on the petitioned land for historical, environmental and other related reasons. The designation process involves vague petition requirements creating a situation that Arch argued is devoid of constitutional due process and subject to abuse by the petitioner on many fronts. Arch maintained that the lands unsuitable regulations do not grant adequate protection to Arch's legitimate property rights under the due process clauses of the United States and Kentucky Constitutions and are thus void and unenforceable. The entire process resulting in a decision on the petition took just under 12 months in the Arch case, and although Arch was ultimately successful in preserving its right to mine, Arch's surface mining permit was held up for this period of time. This delay led to the cessation of mining operations by Arch and the idling of over 250 workers. This paper will review the lands unsuitable designation process and the significant implications the process has for existing surface mining operations, currently proposed operations and even those long-range operations not yet contemplated. Special emphasis will be given to Kentucky's lands unsuitable program. Finally, the recent litigation involving Arch Mineral Corporation and its effort to surface mine 81.5 acres of Arch controlled property will be utilized to illustrate this very unusual regulatory scheme. Regulatory background Chapter 30, Subchapter F of the Code of Federal Regulations (C.F.R.) promulgated to implement the provisions of SMCRA, requires that each state establish procedures under the state's surface mining program for designating non-federal and non-Indian state lands as unsuitable for all or certain types of surface coal mining operations. 30 C.F.R. § 764.1. The C.F.R. establishes minimum standards for state lands unsuitable programs and sets out requirements for filing a Lands Unsuitable Petition (hereinafter "LUP"), processing LUPs, decision-making guidelines and hearing requirements. Kentucky has adopted regulations providing for the implementation of the lands unsuitable process as part of the state's regulatory program under SMCRA. The following discussion summarizes the principle components of the Kentucky lands unsuitable program.