Property – EPA and mine permit, surface/mineral rights, broad form deed: Johnson v. Environmental and Public Protection Cabinet (COA 5/15/2009)

Johnson v. Environmental and Public Protection Cabinet
2008-CA-000151 05/15/2009 2009 WL 1348470 Released for publication

Opinion by Judge Dixon; Judge Moore and Senior Judge Knopf concurred.

The Court affirmed an order of the circuit court affirming a final order of the Environmental and Public Protection Cabinet granting a mine permit to a coal company authorizing both surface mining and underground mining. The Court held that the lease agreement from less than all co-owners of the property was sufficient to satisfy the statutory and regulatory requirements for the issuance of a surface mining permit. The Court also held that Kentucky does not make a distinction between surface and mineral interests when construing the mutual rights, duties and liabilities of cotenants. The Court rejected appellants’ reliance on the Broad Form Deed Amendment, Ky.Const. §19(2), because the terms of the lease gave the coal company the right to mine coal, not an application of a broad form deed. The Court finally held that neither the trial court nor the Court of Appeals could review the issues of whether the actions of the cotenants and the coal company amounted to an ouster or that the strip mining proposed constituted waste as a matter of law. Pursuant to KRS 452.400(4), actions dealing with injury to real property must be brought in the county where the land was situated and were not within the jurisdiction of Cabinet or the circuit court reviewing the grant of a mine permit.

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