2010-21645. Request for Determination of Valid Existing Rights Within the Daniel Boone National Forest, Kentucky

AGENCY:

Office of Surface Mining Reclamation and Enforcement, Interior.

ACTION:

Notice and request for comment.

SUMMARY:

We, the Office of Surface Mining Reclamation and Enforcement (OSM), are providing opportunity for the public to comment on a request for a determination of valid existing rights (VER) to conduct surface coal mining operations on approximately 175 acres of land owned by the U.S. Forest Service within the Daniel Boone National Forest in Clay County, Kentucky.

DATES:

We will accept electronic or written comments until 4 p.m. Eastern time on September 30, 2010. Requests for an extension of the comment period must be received by the same time.

ADDRESSES:

You may submit comments by any of the following methods:

• Mail/Hand-Deliver/Courier: Joseph L. Blackburn, Director, Lexington Field Office, 2675 Regency Road, Lexington, Kentucky 40503.
• E-mail: [e-mail].

For detailed instructions on submitting comments, see “V. How do I submit comments on the request?” in the SUPPLEMENTARY INFORMATION section of this document.

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 will we process the request?

V. How do I submit comments on the request?

I. What is the nature of the VER determination request?

On June 7, 2010, the law offices of Napier & Associates, P.S.C., 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 175 acres of land owned by the U.S. Forest Service within the Daniel Boone National Forest in Clay County, Kentucky. Jack Smith, et al. is seeking a determination of VER pursuant to the “good faith/all permits” standard in accordance with 30 CFR 761.16(b)(2).

II. What legal requirements apply to this request?

Section 522(e)(2) of the Surface Mining Control and Reclamation Act of 1977 (SMCRA or the Act), 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 for a “property rights demonstration” in accordance with 30 CFR 761.16(b)(1) and 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).

Jack Smith, et. al. is seeking a VER determination pursuant to the “good faith/all permits” standard in accordance with 30 CFR 761.16(b)(2). This standard requires the applicant to show that it has obtained, or made a good faith effort to obtain, all permits and other authorizations required to conduct surface coal mining operations, before the land came under the protection of 30 CFR 761.11(b).

III. What information is available relevant to the basis for the request?

The following information has been submitted by Napier & Associates on behalf of Jack Smith, Jerry Smith and Leovie Smith:

1. A legal description of the land to which the request pertains in the form of a deed dated June 6, 1951, deed book 103, page 215, from Joe D. Smith and Mallie Smith, to A.C. Smith, Jack Smith, and Jerry Smith.

2. Several deeds documenting the chain of title for the surface and mineral estates subject to the VER request, specifically a deed of Guardian dated December 7, 1961, deed book 120, page 189, between Mallie Hyde, guardian of the estates of Jack and Jerry Smith, minors, the sellers, and A.C. Smith, the purchaser; a deed dated March 8, 1969, deed book 133, page 163, between A.C. Smith and Leovie Smith and Darby and Josephine Jackson; and a deed dated December 1, 1977, deed book 158, page 457, between Darby and Josephine Jackson and the United States of America.

3. A letter, dated February 19, 1969, from T.R. Frazier, District Ranger, to Ambrose C. Smith, regarding a land purchase option and contract.

4. A request for a mineral report regarding Forest Service Tract 758 dated September 22, 1976.

5. A mineral report and Tract map regarding U.S. Tract 758 on the DBNF dated March 2, 1977, in Clay County, Ky.

6. A Land Purchase Option and Contract—Darby Jackson et. al. & USA dated April 20, 1977, for Tract 758 on the DBNF.

7. A survey plat of Tract 758 dated August, 1977.

8. A map for a strip and auger mine permit #09243-2 in the name of Mountain Clay, Inc., dated May 15, 1970.

9. A Ky. DNR Strip mining permit application, permit #3472-74, in the name of Mark IV Coal Co., Inc., dated October 30, 1974.

10. A Ky. DNR permit #3472-74 to engage in strip mining of coal in the name of Mark IV Coal Co., Inc., effective November 12, 1974.

11. A bond release map in the name of Mark IV Coal Co., Inc., permit #3472-74, dated April 17, 1978.

12. Ky DNR Letter to USDA Forest Service dated December 20, 1978, indicating satisfactory reclamation on the Mark IV Coal Co. Permit #3472-74.

IV. How will we process the request?

We received the request on June 7, 2010, and determined that it was administratively complete on June 17, 2010. That review did not include an assessment of the technical or legal adequacy of the materials submitted with the request.

The process by which we will further review the request is set out in 30 CFR 761.16(d) and (e). As required by 30 CFR 761.16(d)(1), we are publishing this notice to seek public comment on the merits of the request. A similar notice will also be published in a newspaper of general circulation in Clay County, Kentucky.

After the close of the comment period, we will review the materials submitted with the request, all comments received in response to this and other notices, and any other relevant, reasonably available information to determine whether the record is sufficiently complete and adequate to support a decision on the merits of the request. If not, we will notify the requester, in writing, explaining the inadequacy of the record and requesting submittal, within a specified time, of any material needed to remedy the deficiency.

Once the record is complete and adequate, we will determine whether the requester has demonstrated VER for the proposed surface coal mining operations. Our decision document will contain findings of fact and conclusions, along with an explanation of the reasons for our conclusions. We will publish a notice of the decision in the Federal Register and a newspaper of general circulation in Clay County, Kentucky.

However, as provided in 30 CFR 761.16(d)(1)(iv), we will not make a decision on the merits of the request, if, by the close of the comment period under this notice or the notice required by 30 CFR 761.16(d)(3), a person with a legal interest in the land to which the request pertains initiates appropriate legal action in the proper venue to resolve any differences concerning the validity or interpretation of the deed, lease, easement, or other documents that form the basis of the request.

V. How do I submit comments on the request?

We will make the VER determination request and associated materials available to you for review as prescribed in 30 CFR 842.16, except to the extent that the confidentiality provisions of 30 CFR 773.6(d) apply. Subject to those restrictions, you may review a copy of the request for the VER determination and all comments received in response to this request at the Lexington Field Office (see ADDRESSES). Documents contained in the administrative record are available for public review at the Field Office during normal business hours, Monday through Friday, excluding holidays.

Electronic or Written Comments

If you wish to comment on the merits of the request for a VER determination, please send electronic or written comments to us at the addresses above (see ADDRESSES) by the close of the comment period (see DATES). Under 30 CFR 761.16(d)(1)(vii), you may request a 30-day extension of the comment period. Requests for extension of the public comment period must be submitted to the same addresses by the date indicated.

If you submit comments by E-mail, please include your name and return address in your message. You may contact the Lexington Field Office at [phone] if you wish to confirm receipt of your message.

Public Availability of Comments

Before including your address, phone number, e-mail address, or other personal identifying information in your comment, you should be aware that your entire comment—including your personal identifying information—may be made publicly available at any time. While you can ask us in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so.

Dated: June 30, 2010.

Thomas D. Shope,

Regional Director, Appalachian Region.