In August of 2002, Amanda Moore, a lawyer for the Appalachian Citizens Law Center, took on what she thought was a cut-and-dried legal matter for Granville Lee Burke, a resident of Chopping Branch Hollow in eastern Kentucky. Earlier that year, a flood that wreaked havoc throughout the hollow had severely damaged Burke’s house and toolshed. Like almost everyone in the hollow, Burke blamed Premier Elkhorn Coal Company for the flood. Beginning in the mid-1990s, the company had conducted mountaintop-removal mining, blasting the tops off of ridges and dumping the unwanted tons of rock and dirt toward the headwaters of Chopping Branch Creek, leaving a 500-foot valley fill towering above the hollow. Below was a pond designed to catch the water coming off of the huge treeless fill — a design that failed in the flood.
The following is Moore’s account of battling the company to reimburse Burke for his $2,000 home; it’s excerpted from an essay in the book Missing Mountains: We Went to the Mountaintop but It Wasn’t There, a collection of writings by 35 Kentuckians fighting against mountaintop-removal mining.
Perversely, I was excited to learn that Premier Elkhorn Coal Company had violated the law. Surface mining operations may not encroach within 300 feet of an occupied dwelling; Granville Lee Burke’s house sat just below the company’s sediment pond, within that forbidden radius. Finally, here was an open-and-shut case, one that would require no technical experts to win. We would simply notify the state agency that the company was violating the law, and then sit back and let it do its enforcement work. Case closed, problem solved.
I was therefore a bit surprised when the agency responded to my letter with a copy of a waiver of the 300-foot requirement that had been signed in May of 1996 by Burke’s father, Granville Sr., who lived right next door to his son. When I showed the waiver to Granville Sr., he recognized it — but he told me it was a paper the company had given him after it had asked to lease his garden plot and he had refused. “They told me I was just signing something saying I understood that they wouldn’t be mining on my property,” he said.
Unwittingly or not, Granville Sr. had waived his right to the 300-foot protection. But his son, Granville Lee, had not, and I sent another letter to the agency pointing this out and again requesting immediate enforcement action. Recognizing the potential confusion of having two Granville Burkes owning property side-by-side, I sent the agency a copy of the 1995 deed showing when Granville Sr. and his wife Debra had sold Granville Lee his house, which the parents had lived in before moving next door. I also sent the agency a map of the hollow with both of the Burke properties marked on it. Surely, I thought, this will get things moving.
Weeks passed. Nothing happened. By mid-October, I was irritated. I called the agency to speak with the person reviewing Granville Lee’s complaint to inquire about its status. The reply: “We don’t think Granville Lee really lives in his house, and as you know, the regulation requires that the dwelling be ‘occupied.’”
I was dumbfounded. “Why in the world,” I asked, working hard to keep my voice from getting shrill, “would you not believe that Granville Lee lives in the house that he owns?”
“Well, for starters, there’s no telephone line there,” said the agency representative. “Any time someone wants to call him, they have to reach him by calling his parents’ house. And he also shares a post office box with his parents. Plus, the company guys say that when they dug the pond, the house appeared to be uninhabitable. Basically, there’s just no indication that he lives on his own in that house.”
Again, I did my best not to raise my voice, even though my blood pressure was beginning to thump in my ears. I calmly informed him that the Burkes were far from wealthy and that they shared a telephone line for financial reasons. I then explained to him that the houses in Chopping Branch were mere feet apart and that sharing a phone with a relative next door was hardly unreasonable. “Besides,” I said, “why would Granville Lee have bought the house if he didn’t intend to live in it?”
The agency employee snorted. “Look, I’ve bought and sold lots of houses that I never lived in.” He went on, “And anyway, what took him so long to complain about this? That pond has been there for years.”
This time my voice did get a little louder, my tone a little hotter. “Because he didn’t know until a couple of months ago that the law, at least in theory, provided him with protection to keep the mining at least 300 feet from his house. He’s not a lawyer, you know. He doesn’t have the surface mine laws committed to memory.”
“Well, let’s face it, Ms. Moore,” he responded, “your clients aren’t exactly the sharpest knives in the drawer.”
The conversation ended there.