Kentucky Resources Council, Inc.
Post Office Box 1070
Frankfort, Kentucky 40602
(502) 875-2428 phone (502) 875-2845 fax
Presentation Before The East Kentucky
April 26, 2003
THE CASE AGAINST MINING UK'S ROBINSON FOREST
I have been asked to address the proposition that some form of surface coal mining operation should be allowed within the main block of the University of Kentucky's Robinson Forest. There has apparently been the suggestion in some quarters that mining of portions of the main block of the forest may be appropriate in order to support the Robinson Scholars Program.
The Resolution of the University of Kentucky Board of Trustees suggested that a "thorough review of the Robinson Forest" should be conducted by the University President in order to generate, for consideration by the Board of Trustees, a comprehensive report in order to inform development of a policy by the Board of Trustees on "how the Forest should be used in the future."
It is always appropriate for an educational institution to periodically review its educational assets in order to assure that they are being put to their highest and best uses, and the dialogue concerning the future of the Robinson Forest will serve to better highlight the significant value of the facility to both the University and the Commonwealth for its intended purpose as a research and demonstration facility, and will hopefully educate and inform the Board in development of its policy.
Whether the future of the forest should include any form of surface coal mining operation, however, is not even a close question or one deserving of serious consideration in the development of that policy. Whatever short-term financial gain might be realized from the lease or sale and subsequent mining of the minerals, would be more than offset by the costs to the University – costs measured in the substantial expenses associated with attempting to obtain reversal of a current ban on such mining; costs associated with the loss of scientific value and the utility of the forest as a research facility; costs measured in the substantial damage that mining the main block would inflict on the reputation and stature of the University as an educational institution, and finally, costs measured in terms of the potential loss of other dedicated grants and donations to the University.
The Kentucky Resources Council, Inc. believes that additional surface coal mining within the main block of the forest would be both unlawful and unwise.
I. Surface Coal Mining Operations Within The Main Block
Cannot Be Accomplished Absent A Termination of The Status
Of Those Lands As Unsuitable for Mining
On February 15, 1991, the main block of the Robinson Forest was designated unsuitable for all surface coal mining and reclamation operations, by order of Deputy Secretary John F. Nichols.
The designation process is provided for in Kentucky law and is a requirement for state management of the surface mining program established by Congress in 1977. The designation of an area as unsuitable for mining reflects a Congressional judgment that there are certain areas in which mining, as one use of land, should give way to other uses that are of more significant value to the public.
The Robinson Forest designation, arrived at after consideration of an extensive record of support, was grounded in factual and legal findings concluding that the Petitioners, which included the Kentucky Resources Council and Sierra Club, (and the Intervening Petitioner University of Kentucky which intervened with respect to Clemons Fork) had met their burden of showing that coal mining would be incompatible with the University's 1985 management plan for the Falling Rock, Lower Buckhorn, Lower Clemons and Upper Coles Fork watersheds and that coal mining on the other University-owned tracts in the Robinson Forest would significantly damage important scientific resources within the petition area.
That designation remains in effect, and prohibits issuance by the state Department of Surface Mining Reclamation and Enforcement of a coal mining permit for any type of coal mining -- auger, strip, area, mountaintop removal, or surface impacts of underground mining within the petitioned area.
Before reaching the policy question of whether or if it would be appropriate to mine the forest, one must first understand that the legal obstacles against the University opening lands within the petitioned main block to mining are formidable and could be surmounted, if at all, only after great direct and indirect cost to the University.
The circumstances under which an area designated as unsuitable for mining may be un-designated (that is, under which the petitioned status may be terminated) are where a petitioner with a "standing" interest can demonstrate that the bases on which the initial decision was made no longer exist.
Thus a termination petition would have to show that for the management plan areas #1 and #3 (the watersheds I mentioned above) that the 18-year plan for their management had been changed and disturbance was not allowed where it has for almost 20 years been banned; and that for the remainder of the block, there are no longer scientific resources that could be damaged. While the University could create a circumstance in which a termination petition might be successful, by altering the management plan to allow destructive or manipulative activities and mining in those identified watersheds, and by ending the numerous long-term research projects and inventories that are ongoing, the baseline of research that has been undertaken would yet make the protection of the forest appropriate.
The University was an intervening petitioner in the designation process, and presented a compelling technical case for protecting the forest due to its scientific value and fragile nature. The University would have a difficult case to make that its previous evidence and unequivocal position in opposition to mining, was in error and that the protections it sought are no longer appropriate or necessary.
Additionally, it is certain that any termination petition would be vigorously opposed by KRC and many other organizations and individuals within the university community and the larger community. A termination petition, the processing of which would itself take up to a year, would be a divisive affair and would likely result in judicial challenge were it approved, given the compelling factual case supporting the initial designation.
Even assuming that the termination petition were successful in whole or in part in undoing the 1991 designation, the termination of that petition would not prevent or preclude re-designation (with or without the University's support) or designation under other criteria under current law would likely prohibit mining within the forest.
For in addition to the designation process allowing a discretionary decision by the state or federal mining agency that areas should be declared off-limits for mining, which was the process by which protections were extended to the Robinson Forest, Congress itself declared certain areas to be off-limits – including areas around cemeteries, churches, national landmarks and wild and scenic rivers, and publicly-owned parks. The record fully supports the principle that as a matter of law, the Robinson Forest is a publicly-owned park and thus is automatically protected without the necessity of a designation petition.
In short, any notion that mining the forest would provide a simple, reliable or predictable source of financial support for a scholarship program is misplaced. As outlined below, KRC believes that allowing mining within the forest in order to support a scholarship program is as inappropriate as it would be legally difficult.
Before turning to matters of policy, the second threshold question is whether allowing mining of the forest would be consistent with the University's obligations under the trust agreement by which the Forest is held and managed.
II. Would Mining Be Consistent With The Trust Purposes?
The Robinson Forest came to the University in 1923 when the E.O. Robinson Mountain Fund conveyed some 14,000 acres of land located in Breathitt, Knott and Perry counties to the University of Kentucky in trust.
The 1923 conveyance was of the surface estate only, and the land was given to the University in trust for the particular uses and purposes of "agricultural experimentation work and teaching, and for the practical demonstration of reforestation." The trust deed also had a general goal in mind, which was the betterment of the region through education.
According to the summary of a legal opinion developed for the University by Professor Jesse Dukeminier in June, 1982 concerning the Robinson Forest deeds and leases,
Before this conveyance was made, all the commercially
valuable timber had been cut from the land by E.O. Robinson
and his partner, and Robinson wanted the University, through
the Agricultural Experiment Station, to demonstrate how cut-
over land can be reforested and made productive again. To
carry out this purpose, the University established the Robinson
Substation, and the University's reforestation efforts proved
very successful. The Robinson Forest is the result.
According to Dukeminier's summary, the mineral rights were not conveyed in 1923, but were added to the trust by Robinson seven years later. In accepting the mineral rights, then President McVey noted to the Board of Trustees that "this is a fine gift and removes some of the criticism that was made at the time of the original gift of the surface rights. This gift will remove any possibilities that coal mining operations will interfere with the development of the forest area at Quicksand."
Dukeminier, while concluding that the University had the power to execute mineral leases, noted that the power could not be exercised in a manner that interfered with the "practical demonstration of reforestation and agricultural experimentation and teaching" and that, in any event, any proceeds had to be used for agricultural experimental work and teaching, practical demonstration of reforestation, or other purposes tending to the betterment of the regions' people as the University and E.O. Robinson Mountain Fund might agree.
Substantial questions exist as to whether further surface mining would be consistent with, or interfere with, the specific trust purposes, and whether a lease or sale of minerals at a time when the market is soft from overproduction and lack of demand, would be a prudent exercise of fiduciary responsibility by the University.
III. Even If Allowable, Mining The Robinson Forest Main Block
Would Be Unwise
Assuming, for the moment, that the substantial legal obstacles to opening the main block to mining activities could be overcome, the policy implications of the University opening the Robinson Forest to mining militate against such action.
Beyond the legal questions, what would be the public perception of the University's decision to jettison the scientific research and demonstration activity, and its own record of opposition to mining the main block. For one contemplating donation of assets to the University for specific purposes, the idea that those assets would be liquidated may adversely affect the perception of the institution as one to which those assets should be trusted.
Dean of Agriculture Barnhart framed the issue to the Trustee Committee for the Future of Robinson Forest on April 6, 1982, according to the meeting minutes:
Dean Barnhart said that the University has many fine assets at the institution such as its rare book collection just being added to the library. Dean Barnhart stated that he did not intend to be facetious, but asked why not sell the rare books since they could support academic programs just as the Robinson Forest supports
the programs of the College of Agriculture.
The perception that unique and significant research assets will be placed at risk or sold off in order to support university operations would, I believe, raise legitimate questions in the mind of potential donors of the university's trustworthiness as a donee of charitable assets.
A second concern is whether it is worth the risk of jeopardizing the ecological integrity of this unique resource, and the continued scientific research by allowing further mining? As Ben will present, there is some real question as to whether the prior mining, which was undertaken under a "Cadillac" mine plan and as a matter of resolving a mineral and surface dispute between the University and third parties, in fact has caused long-term ecological change and damage to the research value of affected watersheds in the forest.
Finally, the question of funding student scholarships must be decoupled from the future of the forest. There has not been, to date, a complete accounting of the funds generated, and the disposition of the funds, from the mineral leasing of outlying tracts, nor has there been any explanation of why those proceeds were not invested in a manner that would be capable of sustaining scholarships on a more permanent basis. The needs of and scope of the scholarship program should be defined, and an appropriate fundraising program be undertaken by the University, which has substantial fundraising capability. Whether mining the Robinson Forest is lawful, and appropriate, must be evaluated without linkage to an apparent shortfall in funding related to the management of the existing program, which was never intended to be dependent on infusion of new funds from mining the main forest block.
In closing, KRC believes that as the University Board considers adoption of a policy on utilization of the forest, it should embrace the mission of the Forest as one of research and demonstration, reaffirm the historic posture of the University against surface coal mining of the main block of the Forest, and delink funding of student scholarships for the Robinson Scholars program from mining. A funding mechanism more appropriate and enduring for that program, one which does not require that the trust corpus be destroyed or placed at risk in order to fund educational opportunities, is needed.