E9-15000. Failure to Demonstrate Valid Existing Rights for Land Within the Daniel Boone National Forest

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 (OSM) have determined that, based upon the information provided, the applicant has not demonstrated the existence of VER on the Jack Smith, et al. property within the boundaries of the Daniel Boone National Forest in Clay County, Kentucky.

DATES:

Effective Date: June 25, 2009.

FOR FURTHER INFORMATION CONTACT:

Joseph L. Blackburn, 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. How Can I Appeal the Determination?

VII. Where Are the Records of This Determination Available?

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

On July 15, 2008, David Altizer submitted a request on behalf of Jack Smith, Jerry Smith and Leovie Smith, for a determination of VER to conduct surface coal mining operations on approximately 238 acres of land owned by the U.S. Forest Service within the Daniel Boone National Forest in Clay 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.

At 30 CFR 761.16(b) we published the information needed for OSM to make a determination of VER, which includes information required to demonstrate the “good faith/all permits” standard in accordance with 30 CFR 761.16(b)(2) or the “needed for and adjacent” standard in accordance with 761.16(b)(3).

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

The request included a Property Rights Demonstration, as required by 30 CFR 761.16 (b)(1) pursuant to the definition at 30 CFR 761.5. Included were two deed conveyances referenced in the Property Rights Demonstration, containing a legal description of the land owned by the petitioner that is the subject of the request, and the subsequent severance of the surface and mineral estates.

IV. How We Processed the Request

We received the request on July 18, 2008, through a letter dated July 15, 2008, submitted by David Altizer on behalf of Jack Smith et al. The request did not include all of the information required for the “good faith/all permits” standard in accordance with 30 CFR 761.16(b)(2) or the “needed for and adjacent” standard in accordance with 30 CFR 761.16(b)(3). Therefore, we determined that the request was not administratively complete. Because the request was not administratively complete, our review did not include an assessment of the technical or legal adequacy of the materials submitted with the request.

In a letter dated August 13, 2008, we informed the requester that the information submitted was incomplete. As required by 30 CFR 761.16(c)(2), we provided an additional 30 days within which to submit the required information. No additional information was submitted by the requester.

V. How We Made Our Decision

Because we did not receive any further information in support of the request, and we did not receive a request for an extension of time within which to submit additional information, the request remains incomplete and cannot be processed. In such a situation, our regulations at 30 CFR 761.16(e)(4) require us to issue a determination that an applicant has not demonstrated VER. This determination is made without prejudice therefore the requester may submit a revised request with the appropriate information at any time.

VI. How Can I Appeal the Determination?

Our determination that the applicant has not demonstrated VER is subject to administrative and judicial review under the Federal regulations at 30 CFR 775.11 and 775.13.

VII. 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: April 23, 2009.

Thomas D. Shope,

Regional Director, Appalachian Region.