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PO Box 1070, Frankfort, KY 40602  Phone 502.875.2428, Fax 502.875.2845

07/28/03: KRC Requests OSM To Set Aside State Law Provisions Stripping Protections From New Pine Mountain Trail State Park  Posted: August 30, 2003

National Citizens Coal Law Project

A Project of the Kentucky Resources Council, Inc.

Post Office Box 1070

Frankfort, Kentucky 40602

(502) 875-2428 phone (502) 875-2845 fax

e-mail fitzKRC@aol.com

July 28, 2003

William J. Kovacic, Director

Lexington Field Office

Office of Surface Mining

2675 Regency Road

Lexington, Kentucky 40503 By e-mail to bkovacic@osmre.gov

Re: Proposed Rule: Kentucky Program Amendment

Pine Mountain Trail State Park

Dear Director:

These comments are submitted on behalf of the Kentucky Resources Council, Inc., whose membership include numerous individuals who reside, work and recreate in areas where surface coal mining activities occur within the borders of the Commonwealth of Kentucky. Additionally, many KRC members use and enjoy the resources of the state and national park and forest lands that are protected by the unsuitability protections of the federal mining law. To the extent that Kentucky is permitted by OSMRE to enact state legislation stripping the buffer zone protections from a public park, and foreclosing designation of viewshed areas from the scenic park as unsuitable for mining, the state legislation is inconsistent with and less protective than federal law and adversely affects the ability of KRC members to invoke protections afforded under federal law.

The proposed rule asks two questions: first, whether the enactment of HB 556 creating the "Pine Mountain Trail" state park is a state program amendment requiring approval by OSM for implementation, and second, if required to be submitted, is the state law change consistent with SMCRA.

The answers to these quest6ions, in order, are yes, and no.

I. Section 11 of HB 556 Affects The Ability Of The State Regulatory Authority

To Maintain, Administer, Implement And Enforce The Approved State

Program And Is A "State Program Amendment" That Must Be Reviewed

And Approved BY OSMRE Prior To Implementation By The State

Initially, there is no serious question but that the state law meets the requirements for a state program amendment and that OSMRE was correct in reversing and reconsidering the August 16, 2003 decision that HB 556 did not constitute a change affecting the program implementation and need not be submitted as a formal program amendment.

30 CFR 732.17 applies to "any alteration of an approved State program . . ." and requires that the state regulatory authority, in this case DSMRE, notify the Director, in writing, "of any significant events or proposed changes which affect the implementation, administration, or enforcement of the approved State program."

Enactment of HB 556 dramatically affects the administration and enforcement of the unsuitability and buffer zone provisions of the approved state program, as described below, and as such is a state program amendment. Where 30 USC Section 1272 and Kentucky Revised Statute 350.085 provide an absolute 300-foot buffer zone around public parks from surface coal mining operations, the 2002 General Assembly created a specific exemption from the application of those protections in creating the Pine Mountain Trail State Park.

Specifically, the 2002 legislation:

1. Specifically mandated that the state Department of Parks waive the 300-foot buffer zone in any land that it acquired within the boundaries of the trail – a direct conflict with 30 USC 1272(e) and KRS 350.085(3) since that buffer zone is not waivable by the owner of the public park; (KRS 148.876(2));

2. Expressly authorizes mining adjacent to the park and makes the creation of the public park subject to the conducting of surface and underground mining adjacent to the park, in direct conflict with the provisions of KRS 350.085(3) creating by law a buffer of 300-feet around any public park; (KRS 148.890(1)); and

3. By precluding the filing of a petition to designate areas outside of the public park as unsuitable for mining in order to protect the scenic vistas of the park, through the inclusion of language in KRS 148.890(1) preserving the right to mine lands "visible from the trail" and by including language in 148.890 Subsections (2) and (3) which attempt to legislatively preempt any argument that protection of the scenic qualities of the trail involve potentially limitations on mining outside of the trail boundaries.

In each and all of these ways, the law directly impinges on the ability of the state regulatory authority to implement, administer and enforce KRS 350.085(3) and to satisfy the requirement of 30 CFR 732.17(g) and 30 CFR 733.11.

Nothing in either SMCRA or the Secretary's regulations, limits the scope of required program amendments to changes in the regulations of the state regulatory authority; rather the scope of the federal regulation encompasses any alteration of an approved State program, and any significant even or change affecting enforcement of that program, even where that change occur through legislative enactments in other chapters or under the management of other agencies.

Additionally, while the list provided in 30 CFR 732.17(b) is illustrative rather than exclusive (as reflected by the introductory language "at a minimum"), HB 556 plainly falls within 30 CFR 732.17(b)(2), since the state law directly curtails the authority of DSMRE to "implement, administer, or enforce the approved program[.]"

As such, and for the reasons stated in my October 11, 2002 letter (which is attached hereto and incorporated by reference along with the correspondence referenced in that October 11 letter), the changes proposed in Section 11 of HB 556 alter the authority of the DSMRE to implement and administer the state program in a manner consistent with 30 USC 1253(a)(1) through (7) and 30 USC 1272 and are state program amendments.

The Federal Register notice invites comment on whether the state law requires a state program amendment, based on the statement that "HB 556 does not directly revise Kentucky's approved State program" and because the law is to be implemented by another state agency. As to the first matter, the law does directly the approved state program in two ways. First, by creating an arbitrary park-specific waiver of the applicability of the 300-foot buffer zone and mandating that the Department of Parks waive that protection (a protection that by federal law is not subject to waiver); thus directly ­conflicting with the Cabinet's regulations at 405 KAR 24:020 Section 2(2) and 30 USC 1272(e), and interfering with the Cabinet's ability to enforce the 300-foot Congressionally-mandated buffer for public parks. Second, the language of Section 11(2) and (3) are clear efforts to prevent any person from filing a petition to designate an area outside the park but within the viewshed as unsuitable for mining due to adverse effects on the scenic, historic, fragile or other values of the park. The excision of language from other sections of the original bill and the inclusion of this language attempts to legislatively foreclose utilization of the discretionary designation criteria in a manner inconsistent with 30 USC 1272(e) and 405 KAR Chapter 24.

II. OSM Cannot Defer Evaluation Of The Program Amendment Until Actual

Harm Becomes Imminent

On August 7, 2002, an internal memorandum was transmitted from Joe Braunstein to Jim Taitt evaluating HB 556 and indicating "a distinct possibility that passage and implementation of House Bill 556 could create an encroachment on the SMCRA required and Kentucky program approved 522(e) buffer zone for public parks."

The memo suggested that the agency "take due note" that if mining occurs in the future in that area, "a proposed set aside of Kentucky law pertaining to this matter" will be required, and that "the Pine Mountain trail area and buffer zone" be added to the agency's "watch list and continually monitor the potential for coal mining activities therein."

With all due respect, the proposed agency approach reflected in that memorandum is foolhardy and illegal. Foolhardy, since given the 2-year or more average delay between a state program amendment and approval by OSMRE of that amendment, waiting until harm becomes imminent through discovered commencement of mining within the proscribed boundaries is unworkable, and will create unnecessary conflict between a mining entity mining under a state-issued permit and OSM's after-the-fact effort to set aside the law that allowed the mining.

Illegal, because OSM has acknowledged the inconsistency between Section 11(1) and 30 USC 1272(e), and thus has an obligation to require that the state program amendment be submitted and approved before it is implemented. Additionally, there is no provision allowing state laws to be enacted which are facially inconsistent with SMCRA and the state program obligations, as is the mandated waiver of KRS 350.085(3), simply because there is no current mining. This attempt to resurrect "foreseeability" as a component of extension of unsuitability protections is inconsistent with law. By seeking to avoid conflict with the state in the orderly process of review and disapproval of a facially-inconsistent state program amendment, OSM suggests that it be swept under the rug in the hope that no mining will occur in the prohibited areas, but avoids its oversight obligation and invites incremental erosion of the protections of public parks intended by Congress.

For each of the three reasons identified above, the state law at Sections 4 and 11 violate state program statutory and regulatory provisions relating to protection of areas unsuitable for mining. The park-specific exemptions from the scenic "viewshed" protections available under the designation process, by which an individual could petition areas within the viewshed of the trail as unsuitable for some or all types of mining in order to protect that scenic splendor, and the elimination of the 300-foot buffer zone around the park, interfere with the ability of the state regulatory authority to implement and enforce KRS 350.085(3) and are facially inconsistent with that law, and must be a) considered a state program amendment and (b) be recognized as having been preempted and set aside as inconsistent with federal law.

Thank you for your consideration of these comments. The October 11, 2002 letter is attached below, and the correspondence it references is believed to already be part of the administrative record, but is available on request if it is not.

I have also attached for your reference a Continuing Legal Education presentation that I did on this matter.

Cordially,

Tom FitzGerald

Director

Kentucky Resources Council, Inc.

Post Office Box 1070

Frankfort, Kentucky 40602

(502) 875-2428 phone (502) 875-2845 fax

e-mail fitzKRC@aol.com

October 11, 2002

William J. Kovacic, Director

Office of Surface Mining

2675 Regency Road

Lexington, Kentucky 40503

Re: House Bill 556

Dear Director:

Thank you for forwarding to me the correspondence between the state regulatory authority and your office regarding House Bill 556 and the potential for conflict between that legislation and the obligations of the state to maintain, administer and enforce the approved state program in a manner consistent with the federal mining act and the regulations of the Secretary of Interior.

After reviewing the documents, which include your letter of May 31, 2002, the state responsive transmittal on June 5, 2002 of HB 556 as enacted, your letter of Inquiry of June 25, 2002, the state response of July 3, 2002, the July 29 and August 7, 2002 Braunstein memoranda and the August 16, 2002 letter, it is apparent that your office has erroneously concluded that a state program amendment is not necessary despite several areas in which the state law conflicts facially with both the mandatory and discretionary designation criteria of Section 522 of SMCRA, 30 U.S.C. 1272.

The Commonwealth manages an "approved state regulatory program" under the 1977 Surface Mining Control and Reclamation Act, 30 U.S.C. 1201 et seq. As such, the state is obligated by both state law, KRS 350.465, and by 30 C.F.R. 733.11 to maintain, administer and enforce the state program in a manner consistent with the federal law and regulations. Pursuant to 30 C.F.R. 732.17(g), the state is obligated to submit for federal review and approval, and changes to laws or regulations affecting the state's implementation, administration or enforcement of the "state program."

In the June 25 letter you posed two questions to the state concerning the language of Section 11 as part of the federal agency review. The questions, reprinted below, were directed at determining whether the "legitimate" and "adjacent" language of Section 11 would violate the Congressional designation of the three-hundred (300) foot, non-waivable buffer zone around "public parks" as unsuitable for mining:

Do you construe the phrase "legitimate use of the surface and subsurface property adjacent to or visible from the trail, to mean "mining in accordance with the approved Kentucky surface mining program, including 405 KAR 24:040 Sections 2(2) and (4) (counterpart to the Surface Mining Control and Reclamation Act of 1977 (SMCRA) Sections 522(e)(3) and (5)?

Also, do you construe the term "adjacent" in the quoted phrase above

to mean no closer than 300 feet from the park, except for where there are valid existing rights, in accordance with 405 KAR 24:040 Section 2(2)

(counterpart to SMCRA Section 522(e)(5))?

The July 3, 2002 letter from the state Natural Resources and Environmental Protection Cabinet did not provide assurance that the 300-foot buffer zone around this public park would be respected; instead the Cabinet indicated that the Webster definition would be applied and that there was "nothing in HB 556 that would indicate that the term was meant to mean "no closer than 300 feet from the park, except where there are valid existing rights."

The August 7 internal memorandum indicated continuing concerns within OSM that there is "a distinct possibility that passage and implementation of House Bill 556 could create an encroachment on the SMCRA required and Kentucky program approved 522(e) buffer zone for public parks. This is a matter of concern for OSM.

The memo continued:

At the present time, however, there is not evidence of any active or

foreseeable mining at or within the above-mentioned buffer zone for the

Pine Mountain Trail. That being the case, it is recommended that the

agency (OSM) take due note that any proposed mining within this

described area that is not conducted in accordance with Kentucky's counterpart to section 522(e) of SMCRA will require a proposed set

aside of Kentucky law pertaining to this matter. It is also recommended that at this time the Field Office adds the Pine Mountain Trail area and buffer zone to its watch list and continually monitor the potential for

coal mining activities therein.

The acknowledgment of future OSM action as needed, combined with

active monitoring attention, should satisfy any current agency obligations pertaining to House Bill 556, the Pine Mountain Trail, and 522(e).

The August 16, 2002, gave no indication of a continuing concern with the law, but instead merely notified the state that based on the state's July 3, 2002 letter,

the Office of Surface Mining (OSM) finds that House Bill 556 does not

constitute a change that affects the implementation, administration, or

enforcement of your approved state program. OSM concludes that

House Bill 556 does not need to be submitted as a formal amendment

to the approved state program.

The OSM decision of August 16, 2002 is flawed in several respects.

First, in OSM's failed attempt to finesse away the conflict between the Section 11(1) "adjacent" language and the 300-foot buffer zone, the OSM analysis of HB 556 appears to have failed to notice that Section 4(2) of House Bill 556 expressly waives the unwaivable- mandating that the Department of Parks waive the 300-foot protection for any lands it acquires for the park. Section 4(2) of the Act is in direct conflict with 405 KAR 24:040 Section 2(2) and Section 522(e), and must be set aside as an illegal effort to deny protections for this public park that were created by Congressional action and cannot be waived by the owner or manager of the park.

Second, Section 11(1) is, by the state's own July 3 acknowledgment, incompatible with the buffer zone protection of 405 KAR 24:040 Section 2(2), which prohibits approval of a mining permit which includes land within 300-feet, measured horizontally, of any public park. HB 556 removes from this public park the buffer zone protection that would otherwise be extended, and which Kentucky is obligated to extend under federal law to all public parks.

The OSM deferral of requiring state program amendment review and disapproval of this significant change in the applicability of 522(e) and 405 KAR 24:040 Section 2(2) based on the lack of immediate proposed mining activity, is unlawful, and resurrects a corollary to the discredited doctrine of "foreseeability" under which the agency had in the 1980's published a rule, rejected by the D.C. District Court, to allow state's to defer processing of unsuitability petitions where there was no foreseeable coal operation.

Your agency has a non-discretionary mandatory duty to commence state program amendment review and disapproval of this section insofar as it proposes to allow mining within 300-feet of the park boundaries.

Finally, the analysis by your agency appears to have missed the incompatibility of Section 11(2) and (3) with discretionary criteria for designation of lands as unsuitable for mining.

While OSM focused on the effect of the language of Section 11(1) of the bill on the buffer zone protections automatically extended by Congressional designation to all public parks, the language of Section 11(2) and (3), and the excision of the language from other sections of the original bill, attempts to prevent any party from filing a petition to designate areas within the "viewshed" of the trail park as unsuitable for mining because of adverse impacts on the scenic, historic, fragile or other values of the park.

In so doing, the law creates a special exemption depriving this unique area of the possibility of protection that existed prior to the designation of the area as a park. As you are aware, the unsuitability process includes two types of designations - those made by Congress, including the buffer zones around public parks, cemeteries and the like, and the discretionary process by which a state would evaluate a petition seeking to designate an "area" as off-limits to mining due to the incompatibility of surface coal mining operations with fragile or historic lands, natural hazard lands, renewable resource lands where mining could result in substantial loss, lands in which the mining could result in substantial loss or reduction in the long-range availability of water supplies[], or land use policies, plans or programs.

The language of Section 11 seeks to impose a mandated legislative finding that the viewshed ends at the trail boundary, and that no designation of an area outside the trail boundary is necessary to protect the various values within the trail boundary. Thus the "area" now within the park has become less-protected than it would have been prior to the enactment of the state law, since formerly the area could have been subject to a petition seeking to restrict mining within the viewshed in order to protect the scenic, historic or other values of the area, but due to an industry-inspired revision to the law, this area is no longer eligible as an "area" whose viewshed is subject to discretionary designation on the basis of necessity to protect the values within the area.

It is ironic indeed, and clearly contrary to the discretionary designation process, that an area initially proposed for a public park because of the natural beauty of the surrounding landscape would be given less, rather than more, protection by virtue of the state designation and attachment of limiting criteria thereon.

For each of these reasons, I respectfully demand that your office reverse the August 16, 2002 decision and begin the process of requesting submittal of the law by Kentucky as a formal state program amendment.

Cordially,

Tom FitzGerald

Director

THE CURIOUS CASE OF THE NOT-SO-SCENIC TRAIL

OR THE PLIGHT OF PRINCESS LENORE

Perhaps no piece of recent legislation better reflects the tension between the past and the future of the eastern Kentucky region, and between the dedication of land to extraction of mineral resources and the use of land for recreational and scenic purposes, than House Bill 556 (2002), codified at KRS 148.870 - 892.

I. Background On The Pine Mountain Trail Act

1. Creation of the Pine Mountain State Park was one of the five bills that Governor Paul Patton included in his 2002 Environmental Agenda, the others being HB 600, the "Smart Growth Bill," House Bill 598, on Cell Tower Siting, HB 174, the Solid Waste bill, and HB 540 on Power Plant Siting. In some form, four of these five agenda items supported or advocated by the Administration became law.

2. The Patton Administration prefaced its support for the agenda in this way:

Those things we hold dear about our state - the unique beauty of

our landscapes, prime farmland, the wildlife, recreational opportunities-

have become even more important. As have our small towns and large

cities, which offer citizens a sense of community and a high quality

of life.

These qualities will determine our ability to compete for quality jobs in

the new economy of the 21st century, where technology allows companies to locate virtually anywhere. Those areas that offer a high concentration of skilled workers and are attractive, clean and have a high quality of life will be the most successful.

In the last decade the trend of out-migration has been reversed and Kentucky is growing again. In 1982, about a third of an acre was developed for every person living in Kentucky. By the end of the last

decade, that figure had jumped to one half acre per person. Unfortunately not all of this growth has been well planned -- in our urban areas, the rate of land development fare exceeded the rate of population increase. And only 27 of our 12 counties have comprehensive planning. Quality growth is the key to allowing us to remain competitive now and prosperous in the future, while protecting our environment.

Governor Patton is supporting several key pieces of legislation that can

strengthen our quality of life and thus our future prosperity.

Of the Pine Mountain State Park Bills, introduced in the House as House Bill 556 by Representative Keith Hall and in the Senate as Senate Bill 158 by Senator Ray Jones, the Patton Administration said this:

Pine Mountain State Park Bill . . . creates a linear park from Breaks

Interstate Park to Pine Mountain State Park, then turning south to

Cumberland Gap National Park, protecting some of the Common-

wealth's most unique natural areas and providing opportunities for

the public to enjoy the region's beauty. The park will be approxi-

mately 120 miles long with a 500 foot corridor on either side of the

crest of Pine Mountain, one of few largely intact landscape scale

ecosystems in Kentucky.

II. Original Bill Sparks Fear In Extractive Industries

The original bill contained several provisions that were excised at the request of the extractive industries as the bill was marked up in the House. Among those provisions were this sweeping legislative finding and statement of purpose, which appeared in Section 1(1) of the bill:

The General Assembly recognizes that certain areas of the Common-

wealth possess outstanding and unique scenic, recreational, geological,

biological, historical, archaeological, and other scientific, aesthetic, and

cultural values. Therefore, it is hereby declared that in order to afford

the citizens of the Commonwealth an opportunity to enjoy these natural

areas, to attract out-of-state visitors, to ensure the well-being of our tourism industry, to preserve for future generations the beauty of certain areas untrammeled by man, to provide for the ever-increasing outdoor recreation needs of an expanding population, and to promote the preservation of, public access to, travel within, and enjoyment and appreciation of the outdoor areas and historic resources of the Commonwealth, there is hereby established a certain defined area . . . for ultimate designation as the Pine Mountain Trail State Park[.]

Clearly, the intent of designating the trail was to allow an opportunity to enjoy the values provided by surrounding areas whose context made this ridgeline unique.

It was this very recognition that concerned the coal industry, who weighed whether to seek an exemption for coal from the bill, to attempt to kill the bill entirely, or to seek to make amendments in order to eliminate the central threat they perceived in the bill - the ability of an individual or group to file a petition to designate lands unsuitable for mining based on the "viewshed" from the proposed state park.

III. The Emergent Bill

As enacted, House Bill 556

* creates a "linear state park" to be known as "the Pine Mountain Trail State Park, a trail of approximately one hundred twenty (120) miles in length" running from the Breaks Interstate Park along the crest of Pine Mountain to the Cumberland Gap National Park". Section 3(1). The precise boundaries are to be defined by the Department of Park within the Tourism Development Cabinet, but the general boundaries are a 1,000 foot corridor at the ridge of the mountain range from the Breaks Interstate Park to Bad Branch State Nature Preserve, 100 to 250 feet wide from Bad Branch to the Pine Mountain State Resort Park, and no wider than 250 feet from the resort park to Cumberland Gap National Park. Additional land acquisition by purchase is authorized.

* The trail is designated as a "state scenic trail, so chosen because of its unique location."

* Access is generally limited to foot use and other nonmotorized uses

* Eminent domain can be used to acquire in fee but not private dwellings or residential properties "or property owned or leased, including adjacent or contiguous tracts of land leased or owned or which may be acquired, for the purposes of operating an oil or gas well, surface or underground coal mine operation, or surface or underground mineral quarrying operation," if the person holds a state permit or license issued by the Department for Surface Mining Reclamation and Enforcement or the Department of Mines and Minerals.

* Within the boundaries of the trail the department may acquire fee or lesser interests by purchase.

* In acquiring any interests the Commonwealth or its agencies "shall waive the three hundred (300) foot restriction contained in KRS 350.085(3) and boundary restrictions for a well set forth in KRS 353.610." Section 4(2).

* Hunting is allowed with KDFWR and Parks approval.

* The law outlines permissible uses, protecting those in existence at time of law, and allowing blasting but limiting blasts to 10,000 pounds or less of explosives if within 1250 feet from the crest at the Breaks- Bad Branch area and 500 feet from the boundary for the rest of the trail. Select timber cutting and other resource removal is allowed under permit. It is unclear whether "other resource removal" could include mineral extraction from within the trail boundaries since the term is undefined.

* Management plans are to be developed.

* The law protects the rights of landowners and successors to hunt, fish and trap on former land, gather medicinal plants and to access cemeteries

* By June 30 2003, trail boundaries are to be specifically defined, and within six months thereafter, a management plan for trail is to be proposed, and adopted within 12 months of that date.

* Penalties are provided, including a penalty of $100 for unintentional trespass on private lands within the boundary of trail or adjacent to the trail, $200 if intentional.

IV. The Case of The Not-So-Scenic Park

In response to concerns expressed by extractive industry groups, a number of changes were made to the bill.

1. The introductory language concerning the scenic, aesthetic, historic, biological values and of providing the opportunity to enjoy those values by designating this trail was excised, replaced by this introduction:

The General Assembly recognizes that the ridge top of Pine

Mountain is a unique area desirable for the creation of a trial.

2. This descriptive language formerly found in Section 3(4) of the Act was eliminated:

The trail shall be a state scenic trail, so chosen because of its location

and in order to provide maximum potential for the appreciation of natural

areas and the conservation and enjoyment of the significant scenic,

historic, natural, ecological, geological, and cultural qualities of the

area through which the trail passes.

3. Where the original bill allows the department of parks to waive the 300-foot restriction of KRS 350.085(3), the revised bill mandated that waiver.

4. The former bill language prohibiting above-ground blasting operations within 1,000 feet outward from the crest of the mountain in either direction "so as not to imperil the use of the trail{ ]" was replaced by a limitation on explosive weight that varies by area of the trail.

5. A new section of the bill, codified at KRS 148.890, was added:

a. In subsection (1), except for the blasting restrictions, nothing in the Act is to be construed as affecting "in any way, the legitimate use of surface and subsurface property adjacent to or visible from the trail, whether such use was in effect upon the designation of the trail or not, including but not limited to timbering, oil and gas operations, mining, both by surface and underground mining means, or any other legitimate use of surface or mineral property adjacent to or within view of the trail.

b. If that weren't clear enough, subsection (2) attempts to legislate vision:

Use of the lands outside of the boundary of the trail shall not be

limited or restricted because the lands may be viewed from the

trail. The viewshed of the trail shall be limited to the trail boundary

for any land use regulation of lands outside the boundary of the

trail.

c. Subsection 3 contains a series of findings intended to affect the ability to utilize the unsuitability designation process:

The General Assembly finds that the boundaries for the trail

prescribed in Sections 1 to 12 of this Act are adequate and

sufficient to protect areas inside the trail that may contain fragile

or historic lands; or which may have important historic, cultural,

scientific, aesthetic values and natural systems; or that may be

renewable resource lands which have important in terms of

long-range productivity of water supply, food, or fiber products;

or which could be considered natural hazard lands, including lands

subject to frequent flooding, areas of unstable geology, or areas

in which the health, safety, or welfare of people, property or the

environment is threatened due to surface coal mining or similar

activities conducted outside the trail boundaries.

6. Many Moons by James Thurber, tells the tale of Princess Lenore, who has fallen ill from a surfeit of raspberry tarts and will not be cured until she has the moon. The King sets out to get the moon for her, and gives her a golden disc that she hangs around her neck. The King worries that she will see the moon rise the next night and realize that the golden disc is not the moon and will fall ill again. He summons his advisers, the first of whom suggests that she be given glasses so dark that she cannot see the moon.

That is the Section 11(2) solution. You may think that what you see beyond the trail boundary is within the viewshed of the trail, but we have by law decreed it otherwise.

The second adviser suggests heavy curtains shroud the castle so that the moon will not be visible to Princess Lenore. The King rejects this solution also because no air will get in.

Perhaps this is the solution to the dilemma - line the trail with curtains depicting landscapes without mountaintop removal mines, so that visitors can enjoy the faux-viewshed without interfering with mineral removal operations.

V. Consistency With Federal Law

1. The Commonwealth manages an "approved state regulatory program" under the 1977 Surface Mining Control and Reclamation Act, 30 U.S.C. 1201 et seq. As such, the state is obligated by both state law, KRS 350.465, and by federal law, to maintain, administer and enforce the state program in a manner consistent with the federal law and regulations. 30 C.F.R. 733.11, and is obligated to submit for federal review and approval, and changes to laws or regulations affecting the state's implementation, administration or enforcement of the "state program." 30 C.F.R. 732.17.

2. By letter dated May 31, 2002, the Lexington Field Office Director of the federal Office of Surface Mining Reclamation and Enforcement requested that the state submit a final enacted version of the legislation to allow OSM to determine whether House Bill 556 should be submitted as a formal state program amendment.

3. By letter dated June 5, 2002, the state Natural Resources And Environmental Protection Cabinet transmitted the final enacted version of the bill.

4. By letter dated June 25, 2002, OSM's LFO Director posed two questions to the state concerning the language of Section 11 as part of the federal agency review. The questions are reprinted below:

Do you construe the phrase "legitimate use of the surface and

subsurface property adjacent to or visible from the trail, to mean

"mining in accordance with the approved Kentucky surface mining

program, including 405 KAR 24:040 Sections 2(2) and (4) (counter-

part to the Surface Mining Control and Reclamation Act of 1977

(SMCRA) Sections 522(e)(3) and (5)?

Also, do you construe the term "adjacent" in the quoted phrase above

to mean no closer than 300 feet from the park, except for where there are valid existing rights, in accordance with 405 KAR 24:040 Section 2(2)

(counterpart to SMCRA Section 522(e)(5))?

5. By letter dated July 3, 2002, the state Natural Resources and Environmental Protection Cabinet responded to the first question in the affirmative - since the legitimate use of the surface and subsurface property adjacent to and visible from the trail includes mining, it is reasonable to assume that this would include mining under the approved state program, which includes the sections cited by OSM. With respect to the second question, the state responded that

The cabinet would construe the term "adjacent" to mean "next to" or "adjoining" which is the term's dictionary definition. I see nothing in HB

556 that would indicate that the term was meant to mean "no closer than

300 feet from the park, except where there are valid existing rights."

6. An internal memorandum indicates as late as August 7, 2002, continuing concerns within OSM that there is

a distinct possibility that passage and implementation of House Bill

556 could create an encroachment on the SMCRA required and

Kentucky program approved 522(e) buffer zone for public parks. This

is a matter of concern for OSM.

At the present time, however, there is not evidence of any active or

foreseeable mining at or within the above-mentioned buffer zone for the

Pine Mountain Trail. That being the case, it is recommended that the

agency (OSM) take due note that any proposed mining within this

described area that is not conducted in accordance with Kentucky's counterpart to section 522(e) of SMCRA will require a proposed set

aside of Kentucky law pertaining to this matter. It is also recommended that at this time the Field Office adds the Pine Mountain Trail area and buffer zone to its watch list and continually monitor the potential for

coal mining activities therein.

The acknowledgment of future OSM action as needed, combined with

active monitoring attention, should satisfy any current agency obligations pertaining to House Bill 556, the Pine Mountain Trail, and 522(e).

7. By letter dated August 16, 2002, OSM's LFO notified the state that: based on the state's July 3, 2002 letter,

the Office of Surface Mining (OSM) finds that House Bill 556 does not

constitute a change that affects the implementation, administration, or

enforcement of your approved state program. OSM concludes that

House Bill 556 does not need to be submitted as a formal amendment

to the approved state program.

VI. Analysis

1. Incompatibility of Section 11(1) with 405 KAR 24:040 Section 2(2)

24:040 Section 2(2) prohibits approval of a mining permit which includes land within 300-feet, measured horizontally, of any public park. HB 556 removes from this public park the buffer zone protection that would otherwise be extended, and which Kentucky is obligated to extend under federal law to all public parks.

The OSM deferral of action on this significant change in the applicability of 522(e) and 405 KAR 24:040 Section 2(2) based on the lack of immediate proposed mining activity, is unlawful, and resurrects a corollary to the discredited doctrine of "forseeability" under which the agency had sought to allow state's to defer processing of unsuitability petitions where there was no foreseeable coal operation.

2. Inconsistency of Section 4(2) With Section 522(e)

While OSM attempted to finesse the apparent conflict between Section 11(1) of the Act and 405 KAR 24:040 Section 2(2), it appears to have missed the unfinessable conflict between Section 4(2) of the bill and the 300-foot park buffer zone requirement.

In Section 4(20, the initial bill authorized and the revised bill required that the Department of Parks waive the 300-foot protection for any lands it acquired.

3. Incompatibility of Section 11(2) and (3) with discretionary criteria for designation of lands as unsuitable for mining.

While OSM focused on the effect of the language of Section 11(1) of the bill on the buffer zone protections automatically extended by Congressional designation to all public parks, the language of Section 11(2) and (3), and the excision of the language from other sections of the original bill, attempts to prevent any party from filing a petition to designate areas within the "viewshed" of the trail park as unsuitable for mining because of adverse impacts on the scenic, historic, fragile or other values of the park.

In so doing, the law creates a special exemption depriving this unique area of the possibility of protection that existed prior to the designation of the area as a park. The unsuitability process includes two types of designations - those made by Congress, including the buffer zones around public parks, cemeteries and the like, and the discretionary process by which a state would evaluate a petition seeking to designate an "area" as off-limits to mining due to the incompatibility of surface coal mining operations with

* fragile or historic lands in which the surface coal mining operations

could result in significant damage to important historic, cultural,

scientific or aesthetic values or natural systems;

* natural hazard lands in which the mining could substantially endanger

life and property;

* renewable resource lands where mining could result in substantial loss

or reduction in the long-range productivity of food or fiber;

* lands in which the mining could result in substantial loss or reduction in

the long-range availability of water supplies[], or

* land use policies, plans or programs.

The language of Section 11 seeks to impose a mandated legislative finding that the viewshed ends at the trail boundary, and that no designation of an area outside the trail boundary is necessary to protect the various values within the trail boundary.

Thus the "area" now within the park has become less-protected than it would have been under existing law since it can no longer be eligible as an "area" whose viewshed is subject to designation as necessary to protect the values within the area.

The King's advisers would be proud of this bill.

4. The Case of The Management Plan Without A Goal

Both the original and revised bill call for development of a management plan. The former language of Section 7(1) directed that in developing the plan,

Primary emphasis shall be given to protecting aesthetic,

scenic, historic, archaeological, biological, geological and scientific

features of the trail.

The revised bill excised this language, leaving no specific goals for the management plan other than the needs of local area citizens.

VII. Conclusion

By contrasting House Bill 556 as introduced with the legislation that emerged from the 2002 General Assembly Regular Session, one can see the legislative effort to incorporate language and concepts proposed by the industries concerned with oil, gas, coal and other mineral extraction and to secure passage of the bill. The emergent product is an attempt to reconcile the irreconcilable - to paper over polar conflicts in land use that will continue to occur as a region transitions from the era of coal dominance to a future more reliant on tourism and other economic development that depends on the scenic and recreational quality of the environment and is incompatible with large-scale disruption of land for mineral extraction.

During the fight over Black Mountain, one industrial landowner posted their property on the summit of Black Mountain with this sign:

NO TRESPASSING

NO HUNTING

NO FISHING

NO FOUR WHEELERS

NO SIGHT SEEING

NO NOTHING

VIOLATORS WILL BE PROSECUTED!

Perhaps we could post the new Pine Mountain Trail State Park to read:

WELCOME

ENJOY THE TRAIL

JUST DON'T LOOK UP! 1

1 Prepared for the EMLF Seminar October 10, 2002 by Tom FitzGerald, Director, Kentucky Resources Council, Inc.

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