The Kentucky Constitution and Mineral Rights: Constitutionalizing as a Means of Settling the Debate

By: Arthur Cook, Staff Member

State constitutions, often overlooked in favor of the federal charter, provide not only a substantive body of rights, but also a historic primer outlining the major internal debates in states. As a result, state constitutions differ from the federal constitution because they are often used to settle contentious issues. Section 19(2) of the Kentucky constitution attempts to do just that.

In 1984, Kentucky’s General Assembly passed K.R.S. 381.940, which sought to provide statutory basis for interpreting mineral rights under severed deeds, also known as the Broad Form Deed Act. It stated, in pertinent: “. . .that . . .coal be extracted only by the method or methods of commercial coal extraction commonly known to be in use in Kentucky in the area affected at the time the instrument was executed… .”[1]

The purpose of the statute was clear: prevent the continued unfairness of the decimation of Appalachia through destructive processes such as surface or “strip” mining by taking advantage of impoverished persons. Historically, some owners sold their mineral rights for as little as fractions of a dollar per acre, much below the fair market value.[2] The long-term effects of surface mining make it improbable that even reclaimed land can be restored to pre-mining vitality.

K.R.S. 381.940, through its operative clause limiting the extraction methods to those “commonly known” at the time of execution, effectively terminated the use of surface mining on lands granted in the Broad Form. However, there was a significant constitutional hurdle in Kentucky that would prove fatal to K.R.S. 381.940.

In Akers v. Baldwin, Kentucky’s Supreme Court held the statute unconstitutional because the legislature violated separation of powers clauses and usurped the power the Kentucky constitution reserved for the judiciary to interpret legal effects of contracts for mineral rights.[3]

The backlash to the decision was immediate. The decision was rendered in July of 1987 and the General Assembly placed the proposed amendment (later, Kentucky Constitution Section 19(2)) on the ballot in November of 1988. The text of Section 19(2) is nearly identical to K.R.S. 381.940. The goal was plain: in the debate between coal and Kentucky’s citizens, the solution could not come from the General Assembly (as Akers held) nor was the Supreme Court willing to interpret the Broad Form Deed to limit surface mining (again, as Akers held) so it was up to the citizens of the Commonwealth to use their popular sovereignty and amend the constitution to settle the debate.

By constitutionalizing the issue, the citizens of Kentucky sought to settle the debate permanently. Because of the malleability of state constitutions, such as Kentucky's, citizens are able to structure local rights to precisely meet the challenges of today in a way the federal constitution cannot. Consequently, the Kentucky Supreme Court upheld the amendment and its’ effects in Ward v. Harding in 1993, theoretically settling the issue.[4]

[1] Ky. Rev. Stat. Ann. § 381.940 (2011).

[2] Harry M. Caudill, Night Comes to the Cumberlands, 61-72 (2nd ed., 1987).

[3] Akers v. Baldwin, 736 S.W.2d 294 at 309-310 (Ky. 1987).

[4] Ward v. Harding, 860 S.W.2d 280 at 289 (Ky. 1993)