"The Right to Destroy the Surface" | Knott County, Kentucky

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Surface Mining and Our Environment · U.S. Dept. of the Interior, 1967 · p. 37. View the original.

This is not a road. The shelf cut into the side of this mountain is where the surface used to be. A machine took it off to reach the coal underneath.

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Surface Mining and Our Environment · U.S. Dept. of the Interior, 1967 · p. 1. View the original.

When the coal was gone, the machine moved on. The federal government photographed what it left, and printed it in nineteen sixty-seven, in color.

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Surface Mining and Our Environment · U.S. Dept. of the Interior, 1967 · p. 36. View the original.

It went into a book about what surface mining was doing to the country. The caption on this page is four words long. Area strip mining. Coal.

And this is a Kentucky court, one year later, explaining why none of it needed the farmer's permission. The mineral owner, it says, bought and paid for the right to destroy the surface.

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Surface Mining and Our Environment · U.S. Dept. of the Interior, 1967 · p. 57. View the original.

This film is about that sentence. Where it came from, what it cost, and how long it took to be rid of it.

The beginning is in the court record. Early in the twentieth century a man named John C.C. Mayo traveled Eastern Kentucky, buying from farm families everything that lay under their feet.

The instruments he carried are called broad form deeds. They conveyed every mineral under the surface. They granted the right to use the surface to reach them. And they waived, in advance, all liability for damage.

Many were printed forms. In a number of counties, a judge would later write, uniform blank deeds were used — only the land description and the seller's name had to be filled in. In many instances the county's deed books were ordered by the clerk at the request of the mineral purchasers.

The deed this film turns on was signed in Knott County on December twenty-ninth, nineteen oh five.

The price of things then: in nineteen hundred, the average acre of Knott County land was worth two dollars and ninety cents. The mineral buyers paid three dollars an acre, for the minerals alone. Remember both numbers. A court is going to weigh them.

One thing was not bought or sold that day, because in Knott County it did not exist. There was no railroad in the county. About the only coal that came out of the county, the record says, was picked by hand from outcroppings along the creeks — with a new-found tool, the coal pick.

Strip mining is what it sounds like. Blast the rock and soil off the seam. Push it aside. Take the coal. Cut again.

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Surface Mining and Our Environment · U.S. Dept. of the Interior, 1967 · p. 6. View the original.

The machines that do the pushing grew into some of the largest objects ever to move on land.

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Surface Mining and Our Environment · U.S. Dept. of the Interior, 1967 · p. 109. View the original.

By the middle of the nineteen sixties, the biggest buckets took one hundred fifteen cubic yards at a bite.

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Surface Mining and Our Environment · U.S. Dept. of the Interior, 1967 · p. 20. View the original.

And the report was honest about where the power went. It printed this above the words: society benefits, in many ways.

In September nineteen sixty-five, the question under all of this reached a ten-acre parcel in Knott County. LeRoy Martin and his wife owned it. Most of it was hillside. On the small piece of bottom land stood their dwelling house, their outbuildings, and their garden.

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Surface Mining and Our Environment · U.S. Dept. of the Interior, 1967 · p. 15. View the original.

The minerals under the whole ninety-acre tract had been sold in nineteen oh five, under a broad form deed. Now the companies holding that deed proposed to strip and auger the Martins' land. The Martins went to court.

The trial judge split it down the middle. The company could strip mine. But it must pay the Martins for what it destroyed.

Six months before the Martins filed, Washington had started counting. The Appalachian Regional Development Act, March ninth, nineteen sixty-five. Section two oh five. Mining area restoration.

The Act ordered the Secretary of the Interior to survey strip and surface mining across the United States, and to report back with recommendations.

And they counted. Three point two million acres of American land — five thousand square miles — disturbed by surface mining before January first, nineteen sixty-five.

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Surface Mining and Our Environment · U.S. Dept. of the Interior, 1967 · cover. View the original.

In July nineteen sixty-seven the Interior Department published what it found. Not as a gray federal report. As a picture book. One hundred twenty-four pages, in color.

The Secretary's foreword does not sound like a government document. In the process of those withdrawals, it says, we have looted and ravished the land.

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Surface Mining and Our Environment · U.S. Dept. of the Interior, 1967 · p. 22. View the original.

The picture pages carry their own headings. But man has left behind a residue of devastation.

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Surface Mining and Our Environment · U.S. Dept. of the Interior, 1967 · p. 26. View the original.

And the countryside laid bare. These ridges are not geology. They are rows of spoil — rock the machines pushed off the coal seam.

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Surface Mining and Our Environment · U.S. Dept. of the Interior, 1967 · p. 24. View the original.

The book printed the before.

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Surface Mining and Our Environment · U.S. Dept. of the Interior, 1967 · p. 25. View the original.

And the after. Two streams meet. One runs clear, and one runs yellow. The heading printed over these pages reads: with pure streams defiled.

In Kentucky the numbers were the worst in the book. Sediment washing off strip-mined land at up to one thousand times the rate of undisturbed forest. From Kentucky spoil banks, twenty-seven thousand tons per square mile in a year. From forest, twenty-five.

In Eastern Kentucky the haul roads alone — just the roads the trucks use — made up about a tenth of all the disturbed ground.

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Surface Mining and Our Environment · U.S. Dept. of the Interior, 1967 · p. 58. View the original.

Soiled air, and eroded land.

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Surface Mining and Our Environment · U.S. Dept. of the Interior, 1967 · p. 59. View the original.

Gouged and torn landscapes, and piles of barren mine spoil.

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Surface Mining and Our Environment · U.S. Dept. of the Interior, 1967 · p. 62. View the original.

A wildlife habitat, destroyed by acid mine water.

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Surface Mining and Our Environment · U.S. Dept. of the Interior, 1967 · p. 66. View the original.

Some of it burned. The caption on this one reads: underground mine fire. Coal.

Of everything disturbed by nineteen sixty-five, about one acre in three had been reclaimed at all. And of that reclaimed third, nearly half was nature's own doing, not anyone's program.

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Surface Mining and Our Environment · U.S. Dept. of the Interior, 1967 · p. 27. View the original.

The book was not an argument against mining. Its own next heading says: this need not be. Planned mining.

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Surface Mining and Our Environment · U.S. Dept. of the Interior, 1967 · p. 29. View the original.

And reclamation can return the land.

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Surface Mining and Our Environment · U.S. Dept. of the Interior, 1967 · p. 65. View the original.

A woodland campsite, on a reclaimed surface mine.

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Surface Mining and Our Environment · U.S. Dept. of the Interior, 1967 · p. 2. View the original.

A wheat field on restored surface-mined land. The argument was never that the digging had to stop. It was that somebody had to be responsible for the land afterward.

The findings, dated July nineteen sixty-seven. Three point two million acres affected. Two million of them needing treatment. Twenty thousand active operations. And a projection: by nineteen eighty, more than five million acres.

The recommendations asked for a national program. Prevent the future damage. Repair the past.

Against all of that, here is what enforcement looked like on the ground. Kentucky, for the year ending June nineteen sixty-six: one hundred seventy-nine active permits. Ten field inspectors.

Thirteen months after the report was published, Kentucky's highest court decided what a broad form deed was worth. Martin against Kentucky Oak Mining Company. June twenty-first, nineteen sixty-eight. Arguing for the Martins: a lawyer from Whitesburg named Harry Caudill.

Everyone understood what the case was. Briefs came in from the Kentucky Civil Liberties Union, the Sierra Club, the Appalachian Group to Save the Land and People — and from the Big Sandy-Elkhorn Coal Operators Association.

The court began by setting the scenery aside. Conservation, it wrote, was not the question before it. The question was whether the mineral owners must purchase from the landowner the right to strip.

The landowners argued that no farmer would ever have intended his fields be destroyed. The court answered with the arithmetic of nineteen oh five. Land worth two dollars ninety an acre. Minerals sold for three dollars. The owner, it wrote, was willing to take the chance on future destruction of his bottom land to get the immediate money.

Then the holding. The mineral owner bought and paid for the right to destroy the surface in a good faith exercise of the right to remove the minerals. And so there is no basis on which he could owe damages for exercising that right.

The trial court had ordered the company to pay the Martins. That part of the judgment was reversed. Over three dissents.

Judge Hill wrote the long one. Comparing the court's own precedents, he found two of them, in his words, as inconsistent as sin and salvation.

I am shocked and appalled, he went on, that the court of last resort in the beautiful state of Kentucky would lend its approval and encouragement to the diabolical devastation and destruction of a large part of the surface of this fair state, without compensation to the owners thereof.

His argument was the calendar. Strip mining was neither heard of nor dreamed of in nineteen oh five in Knott County. A law journal note he cited dated its arrival to nineteen fourteen, worked with picks, shovels, and slip-scrapers drawn by mules.

The federal report had recommended a federal law. Congress spent seven years drafting one.

In December nineteen seventy-four a surface mining bill finally reached the President's desk. Gerald Ford declined to sign it. A memorandum of disapproval, December thirtieth: I am withholding my approval from Senate bill four twenty-five.

Congress passed it again the next spring. On May twentieth, nineteen seventy-five, Ford vetoed it again, in writing. As many as thirty-six thousand people would lose jobs. Consumers would pay higher electric bills. The nation would be more dependent on foreign oil. The energy crisis was real, and the veto held.

Two years later the politics had changed. August third, nineteen seventy-seven. The Surface Mining Control and Reclamation Act. A new President signed it.

Ten years after the picture book, the federal government could finally tell every operator in America how the land must be left.

But a law about how to mine says nothing about whether the man on the surface can refuse. That was property law. State law. And in Kentucky, the rule was still Martin.

Twice, Kentucky's legislature tried to soften that rule by statute. Twice, the court struck the statute down.

By nineteen eighty-seven the court itself had stopped believing the story about nineteen oh five. It is highly unlikely, its chief justice wrote, that any parties to a deed would knowingly agree that one of the estates — the surface — could and would be totally destroyed. The obliteration of the surface would never have been anticipated by the grantor.

The evidence in this case, and the evidence generally, the court added, is that strip mining as it is practiced today was non-existent in the early nineteen hundreds. This Court takes judicial notice of that fact.

So the question went to the people. November nineteen eighty-eight. A constitutional amendment: in any old deed that does not name its mining method, the coal comes out only by the methods known in the area when the deed was signed.

It passed with more than eighty-two percent of the vote.

The mineral owners fought the amendment in court. Their deeds, they argued, were property, and the constitution of the United States does not let a state rewrite them. The case reached the Supreme Court of Kentucky. Ward against Harding, July fifteenth, nineteen ninety-three.

The court upheld the amendment. With its ratification, the opinion begins, the people swept away decades of litigation.

And it went one sentence further. The rule the voters wrote, the court said, is the rule that had been right all along — we now hold it to have been at all times the proper rule, our decisions to the contrary notwithstanding. Three of seven justices dissented.

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Surface Mining and Our Environment · U.S. Dept. of the Interior, 1967 · p. 37. View the original.

From the deed on the Martins' land to the amendment: eighty-three years.

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Surface Mining and Our Environment · U.S. Dept. of the Interior, 1967 · p. 29. View the original.

The picture book promised that the land could come back, if somebody paid for it.

For most of a century, the answer to who would pay was written on a printed form, in a deed book a coal buyer had ordered for the county, at three dollars an acre.

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Surface Mining and Our Environment · U.S. Dept. of the Interior, 1967 · cover. View the original.

If your family's land in eastern Kentucky ever carried one of these deeds, the comments are open. The film about what the same government's cameras found in the coal camps of nineteen forty-six is on this channel.

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Surface Mining and Our Environment · U.S. Dept. of the Interior, 1967 · p. 26. View the original.