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Reclaiming the Crown of King Coal Wendy B American University Law Review Volume 51 | Issue 5 Article 2 2002 Out of the Black Hole: Reclaiming the Crown of King Coal Wendy B. Davis Follow this and additional works at: http://digitalcommons.wcl.american.edu/aulr Part of the Education Law Commons, Environmental Law Commons, Health Law Commons, Oil, Gas, and Mineral Law Commons, and the Tax Law Commons Recommended Citation Davis, Wendy B. “Out of the Black Hole: Reclaiming the Crown of King Coal.” American University Law Review 51, no.5 (June 2002): 905-966. This Article is brought to you for free and open access by the Washington College of Law Journals & Law Reviews at Digital Commons @ American University Washington College of Law. It has been accepted for inclusion in American University Law Review by an authorized administrator of Digital Commons @ American University Washington College of Law. For more information, please contact [email protected]. Out of the Black Hole: Reclaiming the Crown of King Coal Keywords Mineral Rights, Right to Strip Mine, Coal Operators, Adverse Possession This article is available in American University Law Review: http://digitalcommons.wcl.american.edu/aulr/vol51/iss5/2 DAVIS.PRINTER.DOC 7/26/2002 12:38 PM OUT OF THE BLACK HOLE: RECLAIMING THE CROWN OF KING COAL * WENDY B. DAVIS TABLE OF CONTENTS Introduction.........................................................................................906 I. History........................................................................................908 A. Severance of Mineral Rights ..............................................909 B. Nominal Amounts Paid for Mineral Rights.......................912 C. Mining Begins.....................................................................914 D. Futility of Lawsuit against Coal Operators ........................916 II. Extent of Mining Rights............................................................917 III. Right to Strip Mine....................................................................922 IV. Subsidence.................................................................................928 A. Kentucky. ............................................................................931 B. Tennessee ...........................................................................933 C. Virginia................................................................................933 D. West Virginia.......................................................................936 E. Pennsylvania........................................................................941 V. Adverse Possession.....................................................................943 VI. Death and Destruction Caused by Mining Disasters ...............945 VII. Environmental Impact ..............................................................947 VIII. Health Impact............................................................................952 IX. Tax Revenue...............................................................................954 X. Impact of Education..................................................................956 XI. Reparations................................................................................958 Conclusion ...........................................................................................966 * Assistant Professor of Law and Dean of Students, Appalachian School of Law, Grundy, Virginia. Special thanks to Amie Sloane, Appalachian School of Law class of 2003, for research assistance. This Article is dedicated to the memory of Dean L. Anthony Sutin and Professor Thomas Blackwell; it was an honor and a privilege to work with you. 905 DAVIS.PRINTER.DOC 7/26/2002 12:38 PM 906 AMERICAN UNIVERSITY LAW REVIEW [Vol. 51: 905 INTRODUCTION To encourage the development of the great natural resources of a country[,] trifling inconveniences to particular persons must sometimes give way to the necessities of a great community.1 Appalachia is poor because of, and in spite of, its wealth of natural resources. Coal has made, and kept, the people of Appalachia poor. Those who have benefited from coal should now repay the people of Appalachia. For decades, the four-state Appalachian coal fields region has been the poorest in this nation.2 The percentage of persons below the poverty level in the coal counties is nearly twice the national average, with a median household income of between one half and two-thirds of the national average.3 “The great irony is that [the Appalachian region] contains some of the nation’s richest resources and its 1. Pa. Coal Co. v. Sanderson, 6 A. 453, 459 (Pa. 1886). 2. The Central Appalachian Coal Fields comprise the following counties: (Kentucky) Bell, Breathitt, Carter, Clay, Elliott, Estill, Floyd, Harlan, Jackson, Johnson, Knott, Knox, Laurel, Lawrence, Lee, Letcher, Magoffin, Martin, Menifee, Morgan, Owsley, Perry, Pike, Powell, Rockcastle, Rowan, Wayne, Wolfe, Whitley; (Tennessee) Anderson, Campbell, Claiborne, Morgan, Scott; (Virginia) Buchanan, Dickenson, Lee, Russell, Tazewell, Wise; (West Virginia) Boone, Braxton, Clay, Fayette, Kanawha, Lincoln, Logan, McDowell, Mercer, Mingo, Nicholas, Raleigh, Summers, Webster, Wyoming. RONALD L. LEWIS, BLACK COAL MINERS IN AMERICA: RACE, CLASS, AND COMMUNITY CONFLICT 1780-1980 214 n.1 (Univ. of Ky. Press 1987). 3. According to the U.S. Census Bureau, the median household income in 1997 in the United States was $37,005, with 13.3% of persons below the poverty level. See UNITED STATES CENSUS BUREAU STATE AND COUNTY QUICKFACTS, at http://quickfacts.census.gov/qfd/states/00000.html (last visited Mar. 9, 2002). A survey of three counties representative of the coal mining regions of Appalachia exemplifies the contrasting poverty levels of the Appalachian region and the rest of the United States. In Buchanan County, Virginia, the median household income was $25,812 with a poverty level of 24.7%. See UNITED STATES CENSUS BUREAU STATE AND COUNTY QUICKFACTS, at http://quickfacts.census.gov/qfd/states/51/51027.html (last visited Mar. 20, 2002). McDowell County, West Virginia had an median income of $18,592 with a poverty level of 31.4%. See UNITED STATES CENSUS BUREAU STATE AND COUNTY QUICKFACTS, at http://quickfacts.census.gov/qfd/states/54/=54047.html (last visited Mar. 20, 2002). Letcher County, Kentucky had a median income of $22,893 with a poverty level of 26.1%. See UNITED STATES CENSUS BUREAU STATE AND COUNTY QUICKFACTS, at http://quickfacts.census.gov/ qfd/states/21/21133.html (last visited Mar. 20, 2002). A quick look at previous census results shows that the poverty contrast has existed for a number of years. According to the 1990 Census, five census tracts in Buchanan County, Virginia, had 20.3 to 27.8% of residents below the poverty level. Cathy St. Clair, Renewal Community Program Meeting Set, THE VIRGINIA MOUNTAINEER, Sept. 27, 2001, at 1. From 1960 to 1965 three-fourths of the families in Eureka Hollow, a coal town in McDowell County, West Virginia, had incomes below the federal poverty level of $3,000 per year. BILL PETERSON, COALTOWN REVISITED: AN APPALACHIAN NOTEBOOK 5-6 (Henry Regnery Co. 1972). In 1965, six of the ten poorest counties in America were located in the Kentucky coal fields. JACK E. WELLER, YESTERDAY’S PEOPLE xii-xiii (Univ. of Ky. Press 1965). DAVIS.PRINTER.DOC 7/26/2002 12:38 PM 2002] REPARATIONS FOR THE COAL MINERS OF APPALACHIA 907 poorest people.”4 The Appalachian coal fields of eastern Kentucky, southwestern Virginia, southern West Virginia, and northwestern Tennessee comprise an area that is more homogeneous than any of these states taken as a whole. It has been argued that the residents of this region would be better off if these counties were united into one state of Appalachia, so that the power and profit could remain in the region.5 Coal mining is essentially the only industry in the region. The economic dependence on the coal mining industry combined with the devastating environmental and health effects associated with coal mining, have resulted in unusable real estate, lower education levels, and a generally lower standard of living than anywhere else in this country.6 These conditions, however, have resulted in millions of dollars in profits for the large coal mining companies and a significant contribution to the industrial development and wealth of this country. Coal generates more than fifty-one percent of the electricity in this country.7 Coal fueled the industrial development of the United States after 1890.8 Nearly eighty percent of the coal consumed in this country was extracted from the Appalachian Mountains.9 The Appalachians have been effectively used as an economic colony of the industrial northeast, sapping its mineral and timber wealth.10 This Article suggests that it is time to repay the people who suffered at the hands of the coal mining companies, and who assisted 4. PETERSON, supra note 3, at 19; see also WELLER, supra note 3, at xii-xiii (underscoring the ironic nature of the contrast between actual income and profitability of the Appalachian region by noting that eastern Kentucky land companies were the most profitable of America’s corporations). 5. See GEORGE VECSEY, ONE SUNSET A WEEK viii (Saturday Rev. Press, E.P. Dutton & Co., Inc. 1974) (discussing the author’s interactions with coal miners and his conclusion that the single state of Appalachia should only consist of the coal-bearing portions of Virginia, Tennessee, Kentucky, Ohio, and West Virginia). 6. See generally WELLER, supra note 3, at xiii (quoting Arnold Toynbee,
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