E6-20507. Determination of Valid Existing Rights Within the Daniel Boone National Forest, KY

AGENCY:

Office of Surface Mining Reclamation and Enforcement (OSM), Interior.

ACTION:

Notice of decision.

SUMMARY:

This notice announces our decision on a request for a determination of valid existing rights (VER) under section 522(e) of the Surface Mining Control and Reclamation Act of 1977 (SMCRA or the Act). We have determined that Sturgeon Mining Company, Inc. (Sturgeon Mining or Sturgeon) possesses VER for a coal haulroad within the boundaries of the Daniel Boone National Forest in Owsley County, Kentucky. This decision will allow Sturgeon to obtain a Kentucky surface coal mining and reclamation permit for the road in question and to use the road to access and haul coal from a surface mine located on adjacent private lands.

DATES:

Effective Date: December 5, 2006.

FOR FURTHER INFORMATION CONTACT:

William J. Kovacic, Director, Lexington Field Office, 2675 Regency Road, Lexington, Kentucky 40503. Telephone: [phone]. Fax: [phone]. E-mail: [e-mail].

SUPPLEMENTARY INFORMATION:

I. What Is the Nature of the VER Determination Request?

II. What Legal Requirements Apply To This Request?

III. What Information Is Available Relevant to the Basis for the Request?

IV. How We Processed the Request

V. How We Made Our Decision

VI. What Public Comments Were Received?

VII. How Can I Appeal the Determination?

VIII. Where Are the Records of This Determination Available?

I. What Is the Nature of the VER Determination Request?

On February 23, 2006, QORE Property Sciences (QORE) submitted a request for a determination of VER on behalf of Sturgeon. Sturgeon is proposing to conduct surface coal mining operations on approximately 424 acres of privately owned land near Watches Branch of Laurel Fork in the southeast corner of Owsley County, Kentucky. The property to be mined is adjacent to the Daniel Boone National Forest.

QORE is seeking a determination that Sturgeon has VER under paragraph (c)(1) of the definition of VER in 30 CFR 761.5 to use an existing road across Federal lands within the Daniel Boone National Forest as an access and haul road for the proposed mine. No other surface coal mining operations would be conducted on Federal lands within the Daniel Boone National Forest as part of this mine.

On June 20, 2006, we published a notice in the Federal Register (71 FR 35448) in which we provided 30 days for the public to comment on the request for a determination of VER to use an existing Forest Service road as a coal mine access and haul road across Federal lands within the boundaries of the Daniel Boone National Forest in Owsley County, Kentucky.

II. What Legal Requirements Apply To This Request?

Section 522(e)(2) of SMCRA, 30 U.S.C. 1272(e)(2), prohibits surface coal mining operations on Federal lands within the boundaries of any national forest, with two exceptions. The first exception pertains to surface operations and impacts incidental to an underground coal mine. The second relates to surface operations on lands within national forests west of the 100th meridian. Neither of those exceptions applies to the request now under consideration.

The introductory paragraph of section 522(e) also provides two general exceptions to the prohibitions on surface coal mining operations in that section. Those exceptions apply to operations in existence on the date of enactment of the Act (August 3, 1977) and to land for which a person has VER. SMCRA does not define VER. We subsequently adopted regulations defining VER and clarifying that, for lands that come under the protection of 30 CFR 761.11 and section 522(e) after the date of enactment of SMCRA, the applicable date is the date that the lands came under protection, not August 3, 1977.

On December 17, 1999 (64 FR 70766-70838), we adopted a revised definition of VER, established a process for submission and review of requests for VER determinations, and otherwise modified the regulations implementing section 522(e). At 30 CFR 761.16(a), we published a table clarifying which agency (OSM or the State regulatory authority) is responsible for making VER determinations and which definition (State or Federal) will apply. That table specifies that OSM is responsible for VER determinations for Federal lands within national forests and that the Federal VER definition in 30 CFR 761.5 applies to those determinations.

Paragraph (c) of the Federal definition of VER contains the standards applicable to VER for roads that lie within the definition of surface coal mining operations. QORE is seeking a VER determination under paragraph (c)(1), which provides that a person who claims VER to use or construct a road across the surface of lands protected by 30 CFR 761.11 or section 522(e) of SMCRA must demonstrate that the “road existed when the land upon which it is located came under the protection of § 761.11 or 30 U.S.C. 1272(e), and the person has a legal right to use the road for surface coal mining operations.”

Based on other information available to us, we also considered whether VER might exist under the standard in paragraph (c)(3), which requires a demonstration that a “valid permit for use or construction of a road in that location for surface coal mining operations existed when the land came under the protection of § 761.11 or 30 U.S.C. 1272(e).”

III. What Information Is Available Relevant to the Basis for the Request?

The following information has been submitted by QORE or obtained from the United States Forest Service (USFS or Forest Service) or the Kentucky Department for Natural Resources (DNR):

1. A 4,900 foot road designated USFS road FSR 1649A exists on the land to which the VER determination request pertains.

2. The land upon which the road is located was in Federal ownership as part of the Daniel Boone National Forest on August 3, 1977, the date of enactment of SMCRA.

3. On May 18, 2006, the USFS issued a permit to Sturgeon for non-Federal commercial use of this road. The permit is contingent upon Sturgeon receiving all other necessary authorizations to operate.

4. The road in question is clearly visible on several aerial photographs taken between April 11, 1978, and February 26, 1988.

5. The road is visible as a faint feature in aerial photographs dated April 27, 1974, and May 9, 1976.

6. A DNR employee remembers using an old logging road in this area for trail biking the summer after he graduated from college in the spring of 1977.

7. The USFS issued River Mining Co., Inc. a special use permit for the construction and use of a road in this location as a coal access and haul road on September 24, 1976.

8. There is a copy of pages from the Forest Service Handbook regarding categorical exclusions.

9. There is documentation pertaining to the 1976 Special Use Permit for location of Forest Service Road 1649A.

IV. How We Processed the Request

We received the request on February 23, 2006, and determined that it was administratively complete on March 23, 2006. That review did not include an assessment of the technical or legal adequacy of the materials submitted with the request.

As required by 30 CFR 761.16(d)(1), we published a notice in the Federal Register seeking public comment on the merits of the request on June 20, 2006 (71 FR 35448). We also published notices on June 22 and 29, and July 6 and 13, 2006, in The Booneville Sentinel, Booneville, Kentucky, a newspaper of general circulation in Owsley County, Kentucky.

After the close of the comment period on July 21, 2006, we reviewed the materials submitted with the request, all comments received in response to this and other notices, and other relevant, reasonably available information (copies of pages from the Forest Service Handbook and Forest Service documentation pertaining to Watches Branch Road 1649A (Administrative Record Numbers KYVER-016 and 019, respectively) and determined that the record was sufficiently complete and adequate to support a decision on the merits of the request.

We evaluated the record in accordance with the requirements at 30 CFR 761.16(e) as to whether the requester has demonstrated VER for the proposed access and haul road. For the reasons discussed below, we have determined that the requestor has demonstrated VER.

V. How We Made Our Decision

As we stated above, QORE sought a VER determination under paragraph (c)(1) of the definition of VER at 30 CFR 761.5, which provides as follows:

(1) The road existed when the land upon which it is located came under the protection of section 761.11 or 30 U.S.C. 1272(e), and the person has a legal right to use the road for surface coal mining operations.

We applied this standard by examining all information submitted by QORE, the Forest Service and interested parties for evidence of a road in existence on August 3, 1977. QORE submitted a signed, notarized statement by the property owner of the currently proposed Kentucky surface coal mining permit 895-0171 (for which the applicant has requested VER to use the existing Forest Service road). That statement asserts that the road in question was originally constructed to access the property-owner's property on Watches Fork in Owsley County, Kentucky. The land owner also stated that the road was used by pre-law permit 6264-77. That permit was issued to River Mining Company of Independence, Kentucky, by the Commonwealth of Kentucky's Department of Natural Resources and Environmental Protection, Division of Reclamation on September 29, 1977.

Based upon the date of the permit alone, it appears that the 1977 surface coal mining permit issued to River Mining Company was issued post-SMCRA (Administrative Record Number KYVER-002). The exact date of construction of the road is not known. Two scanned images of Kentucky Department of Transportation aerial photographs of the same area dated April 11, 1978, clearly show the road in question (Administrative Record Numbers KYVER-005 and KYVER-006). A May 9, 1976, scan of a Forest Service infrared aerial photograph shows the faint trace of a road at the location of the road in question, as does a Forest Service aerial photograph dated April 27, 1974 (Administrative Record Numbers KYVER-002, and KYVER-020, respectively).

Although it is not certain exactly when River Mining Company constructed its access and haul road under the 1976 Special Use Permit issued by the Forest Service, it is clear that a road of unknown origin, perhaps created as a logging road, has existed on the trace of the road in question since at least 1976. Therefore, we have determined that the evidence indicates that a road existed when the land upon which the road is located came under the protection of section 761.11 of the Federal regulations and section 522(e) of SMCRA on August 3, 1977.

The VER standard in the definition of VER at 30 CFR 761.5 also requires that the person seeking VER must have “a legal right to use the road for surface coal mining operations.” That “legal right” standard was added to the definition of VER on December 17, 1999 (64 FR 70766, 70832). In the preamble to that revision of the definition of VER, OSM stated that a person must demonstrate a legal right to use the road for surface coal mining operations. (See 64 FR 70791) That is, despite the fact that a road existed on August 3, 1977, that fact alone doesn't give the applicant the right to use the road for commercial purposes. To comply with this requirement, Sturgeon applied for and received a Road Use Permit for the road in question (Watches Fork Road (FSR 1649A)) from the Forest Service dated May 18, 2006 (Administrative Record Number KYVER-008). That permit authorizes Sturgeon to haul “coal from private lands adjacent to National Forest System lands.”

Paragraph (c)(1) of the definition of VER at 30 CFR 761.5 merely states that the applicant for VER must have a legal right to use the road for surface coal mining operations. The preamble to the definition of VER published on December 17, 1999, does not provide any additional information regarding the “legal right” requirement. That is, there is no requirement that the legal right to use the road must exist on the date of the enactment of SMCRA. The only requirement is that the applicant has a legal right to use the road. Therefore, we conclude that the May 18, 2006, Road Use Permit from the Forest Service is sufficient to prove that Sturgeon has a legal right to use the road.

The Forest Service Road Use Permit for the Watches Fork Road includes various conditions. For example, the permittee is required to conduct work to improve the road, but only after VER is established and all State, local and Federal permits and licenses are obtained, and before hauling commences. Also, the Forest Service Road Use Permit states that Sturgeon's use of the road is “nonexclusive.” That is, the Forest Service may use this road and authorize others to use the road at any and all times.

Based upon the evidence discussed above, we have determined that VER for the Watches Fork Road, FSR 1649A, across a portion of the Daniel Boone National Forest exists.

VI. What Public Comments Were Received?

Three commenters submitted written comments opposing approval of the VER determination. Some of the comments simply oppose the proposed mining operation without providing any information relevant to the basis upon which VER is claimed or decided. Therefore, we will not address those comments.

One commenter stated that this action could not proceed until after OSM, the USFS, and the U.S. Army Corps of Engineers (USACOE) conducted a coordinated National Environmental Policy Act (NEPA) review of this action and the pending adjacent permit application. OSM finds that a NEPA review of this type is not required. The issuance of the USFS road use permit is already covered under the NEPA action taken by the USFS in compliance with its Environmental Policy and Procedures Handbook. OSM's decision on the request for a determination of VER is a legal opinion that is categorically excluded from the requirement to prepare an environmental assessment or environmental impact statement. The categorical exclusion is listed in the Departmental Manual at 516 DM 2, Appendix 1.4. Issuance of the State permit is not a Federal action and, therefore, NEPA has no applicability. Actions taken by the USACOE with respect to NEPA and any excess spoil fills on the adjacent permit are not part of this decision and, in addition, are already reviewed by the USACOE under the Nationwide 21 permit review.

Two commenters stated, and we agree, that the applicant did not meet the standards of 30 CFR 761.5(b) for VER based on having made a good faith effort to obtain a permit according to final rules issued by OSM. However, this is not the standard on which VER was requested. The appropriate standard for the road for which VER was requested is the definition of VER at 30 CFR 761.5(c)(1) which applies to the use of roads across lands protected from surface coal mining and reclamation operations.

Two commenters contend that the USFS did not have authority to issue the May 18, 2006, land use permit to the applicant. This comment is apparently based on the premise that the USFS permit could not be issued until OSM had determined that the applicant had shown VER to use the road. This claim is apparently further based on several conversations one of the commenters had with USFS personnel who apparently told him that a USFS land use permit would not be issued until OSM made a decision on the VER request. One commenter also expressed the opinion that OSM can not find in favor of the applicant because the USFS land use permit can not be issued without a VER determination. We are not aware of any provision of law, statute, regulation, or policy that precludes the USFS from issuing a land use permit based upon whether or not some other government agency approval has already been granted. Also, the Federal regulations at 30 CFR 760.11(c)(1) state, in part, that VER can exist if the person requesting the determination has a legal right to use the road. The term “legal right” is not defined. Because it is not defined, we believe that any number of circumstances would establish this right. It could mean that the person holds a permit, has a legal easement, qualifies for a permit, or any number of circumstances or conditions that would qualify as a “legal right.” In this instance, the USFS Road Use Permit satisfies the “legal right” component necessary to show that VER exist under 30 CFR 761.5(c)(1).

A commenter seemed to believe that VER could not be granted to the applicant because the road in question did not meet every standard established in the definition of VER at 30 CFR 761.5(c). Those Federal regulations do not require that every standard on that section be met. Rather, the definition of VER at 30 CFR 761.5(c) states that the applicant must meet one or more, not all, of these standards to prove VER. We have found that the applicant has shown that the road did exist at the time SMCRA became effective, and that the applicant has a legal right to use the road. Thus, the standard at 30 CFR 761.5(c)(1) has been met, and no other proof is necessary.

One commenter expressed an opinion that Sturgeon Mining did not qualify for VER because that company did not exist on August 3, 1977. It is true that Sturgeon Mining did not exist in 1977. However, the standard for the road in question is at 30 CFR 761.5(c)(1), which is the only applicable standard in this case, and that standard requires only that the road must have existed at the passage of SMCRA and that the applicant has (not “had”) a legal right to use it. Therefore, we do not agree with the commenter that Sturgeon can not apply for VER on the road in question simply because Sturgeon did not exist as an entity prior to August 3, 1977.

Several facts were published in the notice that opened the public comment period. Those facts were intended to provide information and background about the road in question. A commenter pointed out what the commenter considered to be certain discrepancies in those facts. Some of the comments are not pertinent to the characteristics that make the road eligible for VER under the definition of VER at 30 CFR 761.5(c)(1) and, therefore, we will not address those comments.

The commenter stated that while the road was visible in several aerial photos, “one could see that it was not used as a coal haul road.” The requirement for VER under the definition of VER at 30 CFR 761.5(c)(1) does not require that an existing road be used as a haulroad to qualify for VER. The requirement at 30 CFR 761.5(c)(1) provides that to demonstrate VER, the road must have existed at that location when the land came under the protection of section 761.11 of the Federal regulations or 30 U.S.C. 1272(e), and the person has a legal right to use the road for surface coal mining operations. As we discussed above, there is ample proof that a road existed at that location when the land came under the protection of section 761.11 of the Federal regulations or 30 U.S.C. 1272(e). There is also ample proof that the road was used as a haul road, but that is not required by the standard at 30 CFR 761.5(c)(1).

The commenter asserts that the road in question runs through Breathitt and Perry counties. The commenter submitted aerial photos to prove this. While it is true that there are roads in this area that are in those counties and that the road in question may be part of this road system, the only part of the road to which the VER determination applies is that part that lies within the boundaries of the USFS in Owsley, County. Any other part of this road is not relevant to the request.

The commenter had concerns about the public notice published by the applicant for the permit application submitted to the State of Kentucky for the surface coal mining and reclamation operation for which the road in question will be used for access and coal haulage, if VER is approved. That public notice was for the permit, not for the VER determination. As we noted above, separate newspaper notices were published concerning the VER determination request.

Two commenters seem to question whether or not the road even existed prior to the effective date of SMCRA, and whether the road on which the VER determination is being requested is the same road used by River Mining as a coal haul road. Aerial photographs, on-site visits, and affidavits and statements made by persons familiar with the area all support the fact that the road on which the VER determination request has been made existed, that it was used for coal haulage, and that the road is the same road used by River Mining and described by those persons that submitted information about the road.

Two commenters made lengthy arguments to the effect that Sturgeon Mining can not meet the criteria for VER on this road because Sturgeon is in no way related to River Mining. As we stated above, the request that OSM grant a positive VER determination is based solely upon the definition of VER at 30 CFR 761.5(c)(1), not on whether the applicant is a successor to River Mining. All information submitted by the applicant or discussed by OSM in this action pertaining to River Mining is solely for the purpose of describing the history of this road to show that it does exist and that it existed prior to the effective date of SMCRA.

A commenter stated that the public notice opening the comment period had to be re-published because the acreage for the adjacent permit was in error. The commenter stated that the notice stated that Sturgeon Mining Company, Inc. is proposing to conduct surface coal mining operations on approximately 424 acres. The commenter pointed out that the actual proposed permit acreage in 235.57 acres. While this is true, it is not reason for withdrawing and re-publishing the notice of receipt and opening of the public comment period. The size of the operation which this road might serve is not relevant to whether or not the criteria for approving or denying the VER determination are met.

VII. How Can I Appeal the Determination?

Our determination that VER exists is subject to administrative and judicial review under 30 CFR 775.11 and 775.13 of the Federal regulations.

VIII. Where Are the Records of This Determination Available?

Our records on this determination are available for your inspection at the Lexington Field Office at the location listed under FOR FURTHER INFORMATION CONTACT.

Dated: September 22, 2006.

Michael K. Robinson,

Acting Regional Director, Appalachian Region.