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Foresight Energy subsidiary is making claims on a four-decade-old contract between landowners and a government utility.
First in a three-part series
Monday: Coal mine expansion could swallow family farms in southern Illinois
Editor’s note: Mark Kern died shortly before the publication of this story. He was interviewed several times in 2017 and his wife, Pat, most recently in February.
Ever since the land man visited, Pat Kern walks the trails on her family’s farm every chance she gets.
On a summer afternoon, bluebells carpet the lush forest around Goose Creek. Redbuds bloom alongside the invasive autumn olive she and her husband Mark spent hours futilely trying to remove. Dogwood petals blow in the wind like snow. This swath of rolling hills and woods is part of a federal conservation program — the government pays them not to plant commercial crops on it, though Mark is allowed to plant sorghum and corn to attract deer and wild turkey.
The farm has been in Mark Kern’s family since 1888, and outside of the conservation area they raise cattle and grow corn. The Kerns’ dream house built in 1979 offers sweeping views of the fields, forest and purple sky at sunset. Its “Wall of Fame” displays the heads of deer that Kern’s four sons hunted during their family get-togethers on the farm.
For the Kerns, the farm represents family, the beauty of nature and the cycle of life. But it sits on top of rich coal deposits owned by the Tennessee Valley Authority (TVA) and leased by a company controlled by coal magnate Robert Murray, who recently acquired a majority interest from billionaire Chris Cline. Under a deal Mark Kern’s father signed on behalf of hundreds of local farmers in 1976, the Kerns could be forced to sell their beloved land.
The threat has loomed since November 2012, when representatives of the mining company Sugar Camp Energy — a subsidiary of Foresight Energy — began visiting. Ben Cox, a local “land man” hired by Sugar Camp, said the company needed the Kerns’ farm for mine infrastructure and cited the 1976 deal giving them the right to buy it. That’s when Pat took to the trails, to grasp every chance to enjoy and appreciate what she might lose.
The couple invited Cox and his boss, Sam Hatcher, for a lunch of steak from their cattle and vegetables from their garden, and a tour of their beloved farm and woods. Kern also scouted out and suggested another swath of land he thought the mine might use instead — land currently housing a holding facility for wild mustangs rounded up on federal land out west. But, the Kerns said, the Sugar Camp representatives were adamant they needed the Kerns’ farm.
Kern said that Cox repeatedly told him that Sugar Camp needed to buy 360 acres of his farm plus 83 adjoining acres owned by his four sons. That land, Kern said, includes the original 1915 Kern family home, three-quarters of the pasture for their cattle and four lakes or ponds, including the one where their Mennonite neighbors’ children come to swim, in separate shifts for boys and girls.
“He pointed to our forest and said there won’t be a tree left standing,” said Pat Kern. “It makes you so emotional.”
Cox, who no longer works for the company, and a representative for both Murray Energy and Foresight declined to comment for this story. TVA provided a statement saying: “As we pursue TVA’s mission of delivering safe, reliable, environmentally-responsible power at the lowest feasible cost, we remain committed to reaching fair, equitable agreements with those who may be impacted by our operations.”
A Fateful Agreement
The TVA is a government-owned utility formed in 1933 that provides power for 9 million people in seven Southeastern states. Today, the TVA increasingly gets its power from natural gas-fired generation and renewable sources, mirroring the nation’s overall energy shift. But in decades past the TVA relied primarily on coal, so in the 1960s through 1980s it bought coal deposits to be sure to secure enough fuel.
Kern’s father Frank was secretary of the Ewing Northern Coal Association — local farmers who under the 1976 agreement promised to sell their coal mineral rights to the TVA. Farmers got about $1,000 for each coal-containing acre, with many owning 100 acres or more. The agreement also stipulated that if the TVA wanted to buy the farmers’ surface land in the future, the farmers would have to sell, receiving fair market value plus 10 percent.
At the time, it seemed like a great deal. One hundred thousand dollars was a huge sum in those days. And coal mining was regularly done below farmland with little impact on the surface. So Kern’s father and other farmers didn’t think they would suffer any ill impacts from mining below their farms, and they didn’t think the TVA would really have any reason to demand they sell their land in the future.
Besides, it was a patriotic era and they felt good about supporting the country’s energy security, Mark Kern and others explained.
But a lot has changed since those days. For most of the 1900s, coal in Illinois was extracted through room and pillar mining, wherein columns of coal are left standing underground to support the surface. Now Illinois operations typically use longwall mining, wherein a massive machine chews away whole seams of coal and lets the ceiling collapse behind it. This method causes widespread subsidence, wherein panels of earth sink by up to six feet, cracking the foundations and walls of houses and causing water to pool in depressions created in the land.
A Hard Sell
In 2002, the TVA signed a lease with a company called Illinois Fuel for the coal underlying the farmers’ land. Then in 2009, that lease was transferred to a mining company called Ruger, part of Chris Cline’s Cline Group of coal companies. Cline, who started as a miner in West Virginia at age 15, clambered his way up in the business to become, as Forbes dubbed him, “the last coal tycoon.” The lease let the company mine and sell the TVA coal, and also gave the company the power to enforce the 1976 agreement with the Ewing Northern Coal Association.
William Richardson, 86, figures he is one of only two original Ewing Northern Coal Association board members still living. He had about 300 acres when the deal was signed, getting him about $300,000 under the deal. With the money he added a room onto his house, which now displays 10 heads of deer killed by his sons and grandsons.
Richardson pulls out a crate of small black journals labeled by year, recording his daily activities for decades. One entry reads simply “Papa Joe was killed.” He points out May 16, 1978, which says “got coal money” and then mentions a 4-H beauty pageant.
Richardson is still proud of his role in the TVA deal.
His cousin Dale Richardson, 74, also felt “it was a windfall” when he received about $80,000 after signing the deal. But today, he and his wife fear being forced to sell the land where they farm corn, soybeans and wheat, and stable the beautiful buckskin mustang that Dale adopted from the nearby wild horse holding center.
Dale Richardson said the company’s land man told him a railroad spur would go through his yard. And maps on file at the Illinois Department of Natural Resources show long wall mining is planned in 2024-2026 in the tract containing the Richardsons’ home.
“We were scared to death,” said Janice Richardson, adding that their grandchildren cried upon hearing they might have to sell the farm.
“There’s nothing I can do. I’m committed to that contract, but I sure don’t want to leave here,” said Dale Richardson, whose handmade wooden furniture fills the home where he has lived for all but one year of his life. Some of the wood is local walnut he cured by soaking it for months in his pond.
Cox visited or contacted Dale Richardson numerous times trying to pressure him to sell with the threat of a forced sale hanging over the conversations, Richardson said.
“I told Ben Cox, ‘I ain’t concerned about your money, but there’s a funeral home in [the nearby town of] Benton and I want them to come get me here.’ The general public doesn’t understand. I’m 74. When you live in an area like this, you have set roots down you can’t replace. I don’t care how much money they give you.”
(Though multiple farmers say Sugar Camp has threatened to enforce the archaic deeds to take their land, there’s no evidence of the company actually filing a lawsuit to do so.)
Mark and Lisa Miller’s home also sits above TVA coal. Miller’s father signed an agreement similar to the Ewing Northern Coal Association one. He said Sugar Camp representatives have multiple times threatened to take him to court to enforce the terms of the agreement in order to pressure him to sell parts of his land for wells and a railroad to serve the mine. The Millers have so far refused.
Their house — adorned with inspirational wall-hangings, 4-H ribbons and photos of their daughters’ prize show goats — has cracked and “twisted,” as Lisa puts it, in numerous locations because of subsidence from longwall mining. Miller said Cox promised Sugar Camp would compensate them for the damage, but only if they agreed to sell land.
“The deed my parents signed was to the United States,” Miller said. “When my dad signed he thought he’d be dealing with people that played fairly. These people, I’m not going to say they’re dishonest, but they’ll lead you in a lot of different directions to suit themselves.”
Even Worse Deals
TVA isn’t the only party that owns coal in the area. In the early 1900s, U.S. Steel also bought up Illinois coal to power its steel mills, which have now largely closed as the steel industry moved overseas. The deeds for these mineral rights also often stipulate that mineral rights owners can force surface landowners to sell — in a number of cases for just $50 to $90 an acre, while land in the area is often valued at $5,000 or more per acre, according to locals.
Sugar Camp representatives have invoked the U.S. Steel and other old deeds to pressure farmers to sell their land, according to a number of the Kerns’ neighbors.
A 1910 deed covering Don Webb’s farm gives Sugar Camp the right to buy his land for $60 an acre. Sugar Camp said it needs to buy 70 acres of his land, a significant portion of his 300-acre farm, for a coal refuse pile, as explained in an August 2016 letter from Cox to Webb’s attorney. Since 2005, Sugar Camp has been leasing the mineral rights from the company RGGS, owned by Texas oil tycoon Russell Gordy, with the provisions of the archaic deed applying to both companies.
Webb said that Sugar Camp’s piles of coal waste — called “gob” — and other operations on surrounding land have made it impossible for him to access those 70 acres. So he has not been able to plant crops on it for almost three years, costing him about $60,000 in lost revenue even as he’s had to pay taxes he can’t afford on the land. “I’m not a wealthy farmer, we’re just a small family farm,” Webb said.
In the letter to Webb’s attorneys, Cox noted the 1910 deed that could force Webb to sell for $60 an acre, and said Sugar Camp is offering to pay $480,000 for the land, which it considers above market value. The letter said that if Cox did not hear from the Webbs by August 19, the company would give notice of its intention to enforce its rights to claim the land.
Webb said there is no way he could replace the lost land with the price Sugar Camp is offering, because there is little land available for purchase and taxes would consume much of the payment.
“Basically I’m being forced to take what they offer, or they will try to enforce a 100-year-old document,” Webb said. He eventually signed an agreement to sell the land for $480,000, but Sugar Camp has so far not completed the sale, and now he worries that he won’t get any money at all but will still be blocked from accessing and farming that plot.
Sherman Browning was born in 1928 and has lived on his farm since 1962. In 1973 he married Sue, who also grew up nearby, and whose father had signed the TVA deal. They list multiple friends who have had to move after selling their land to Sugar Camp.
The 1911 deed covering Browning’s land says it must be sold at $60 an acre if the company with rights to the coal below wants the land.
“I guess that was a lot of money then,” Browning said. Sherman Browning’s son lives about a mile away in the family’s “home place” — the term many here use to refer to their family land. But that home is in the path of Sugar Camp’s planned longwall mining, and if the house ends up near the edge of a longwall panel, Browning fears it will “break in half.”
Browning figures the house he and Sue live in is probably safe since it is right between the railroad tracks and one of the mine processing plants, and he doubts Sugar Camp will want to mine directly under it or acquire that parcel. They don’t want to leave the house, but the mine has changed their lives.
“We heard a lot of strange noises, thumping and bumping,” said Sue Browning. “At first they dynamited a lot, there were a lot of explosions, and they would blow the whistle first.”
Few people in the area oppose coal mining. Most of them have family who worked or still work in mines. Sherman Browning’s father was almost killed working in a coal mine, he said: “A rock-fall crushed his legs…a buddy pulled him out, he laid in the hospital for three months…he walked crooked for the rest of his life.” Pat Kern’s ex-husband was a miner, as was Mark Kern’s ex-wife’s father, as was Webb’s grandfather, who died of black lung disease.
Browning wishes farmers would “band together” and refuse to sell to Sugar Camp. Instead, farmers say, people end up striking a deal with the company, against their wishes but trying to make the best of it because they feel they have no choice.
Browning said he’s learned over the course of his long life: “You just can’t fight railroads, lawyers and coal mines.”
Bittersweet memories, uncertain future
One day in July 2017, the rolling, lush land glowed brilliantly in sunlight reflected off dark gray storm clouds. But Pat Kern worried the clouds still wouldn’t drop badly needed rain. Mark Kern had been hauling tanks of water out to the fields twice daily for the cows.
Over a bowl of blackberries from their garden, Pat Kern pulls out an old file box from the basement — Frank Kern’s painstakingly neat notebook from his time as secretary of the Ewing Northern Coal Association. The brittle yellow paper shows long lists of bills paid and meeting minutes. Tucked inside is the TVA document verifying Kern’s ownership of the land involved in the deal.
Mark Kern says his father had reservations and was one of the last in the association leadership to agree to the deal. But during a time of economic crisis for farmers nationwide, it seemed like a good decision.
“I saw my dad take a check to a family, and when he came back to the car he had tears in his eyes,” said Kern. “It was one of only two times I saw him cry. He said they had never seen that much money.”
“It was bittersweet,” added Pat Kern. “It helped a lot of people. It could have saved some farms. But it just saved them for another generation, because now they are being destroyed.”
This series was produced with support from the Fund for Investigative Journalism.