[Federal Register Volume 64, Number 242 (Friday, December 17, 1999)]
[Rules and Regulations]
[Pages 70766-70838]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-30892]
[[Page 70765]]
_______________________________________________________________________
Part II
Department of the Interior
_______________________________________________________________________
Office of Surface Mining Reclamation and Enforcement
_______________________________________________________________________
30 CFR Part 740 et al.
Valid Existing Rights; Final Rule
30 CFR Part 761
Interpretative Rule Related to Subsidence Due to Underground Coal
Mining; Final Rule
Federal Register / Vol. 64, No. 242 / Friday, December 17, 1999 /
Rules and Regulations
[[Page 70766]]
-----------------------------------------------------------------------
DEPARTMENT OF THE INTERIOR
Office of Surface Mining Reclamation and Enforcement
30 CFR Parts 740, 745, 761, 762, 772, 773, 778, 780, and 784
RIN 1029-AB42
Valid Existing Rights
AGENCY: Office of Surface Mining Reclamation and Enforcement (OSM),
Interior.
ACTION: Final rule and record of decision.
-----------------------------------------------------------------------
SUMMARY: This rule redefines the circumstances under which a person has
valid existing rights (VER) to conduct surface coal mining operations
on lands listed in section 522(e) of the Surface Mining Control and
Reclamation Act of 1977 (SMCRA or ``the Act''). Section 522(e)
prohibits or restricts surface coal mining operations on certain lands,
including, among other areas, units of the National Park System,
Federal lands in national forests, and buffer zones for public parks,
public roads, occupied dwellings, and cemeteries. The rule also
establishes requirements for submitting and processing requests for VER
determinations for those lands. Finally, the rule modifies the
exception for existing operations; revises the procedures for
compatibility findings for surface coal mining operations on Federal
lands in national forests; and establishes requirements governing coal
exploration activities on the lands listed in section 522(e) of SMCRA.
Adoption of this rule removes all existing suspensions affecting 30 CFR
part 761.
EFFECTIVE DATE: January 18, 2000.
FOR FURTHER INFORMATION CONTACT: Dennis Rice, Office of Surface Mining
Reclamation and Enforcement, Room 115, South Interior Building, 1951
Constitution Avenue, NW, Washington, DC 20240. Telephone: (202) 208-
2829. E-mail address: drice@osmre.gov. Additional information
concerning OSM, this rule, and related documents may be found on OSM's
home page on the Internet at http://www.osmre.gov.
SUPPLEMENTARY INFORMATION:
Table of Contents
I. How did we obtain and consider public input?
II. What general comments did we receive on the proposed rule?
III. How does the final rule differ stylistically from the proposed
rule?
IV. In what context does the term VER appear in SMCRA?
V. What is the legislative history of the VER provision in section
522(e)?
VI. How did we previously define or attempt to define VER?
VII. Section 761.5: How are we defining VER in this final rule?
A. Introductory Language.
B. Paragraph (a): Property Rights Demonstration.
C. Paragraph (b): Primary Standards for VER.
1. What alternatives did we consider?
2. Why did we select the good faith/all permits standard?
3. What comments did we receive regarding takings issues
concerning the good faith/all permits standard?
4. Why did we reject the takings standard?
5. Why did we reject the ownership and authority standard?
D. Paragraph (b)(2): ``Needed for and Adjacent'' Standard.
1. What is the history of this standard?
2. How did we propose to revise this standard in 1997?
3. How does the standard in the final rule differ from the one
that we proposed in 1997?
4. What comments did we receive on the proposed standard and how
did we dispose of them?
E. Paragraph (c): VER Standards for Roads.
F. How does the definition address VER for lands that come under
the protection of section 522(e) after August 3, 1977?
VIII. How does our definition of VER compare with VER under other
Federal statutes?
IX. Are VER transferable?
X. Sections 740.4, 745.13, and 761.14(a): Who is responsible for VER
determinations for non-Federal lands within section 522(e)(1) areas?
A. Statutory Background and Rulemaking History.
B. What alternatives did we consider?
C. Which alternative are we adopting?
XI. Sections 740.11 and 761.14(a): Which VER definition (State or
Federal) applies to lands listed in section 522(e)(1) and (e)(2) of
the Act?
XII. What other changes are we making in the Federal lands program
regulations in 30 CFR Parts 740 and 745?
XIII. Why are we removing the definition of ``surface coal mining
operations which exist on the date of enactment'' from 30 CFR 761.5?
XIV. Why are we adding definitions of ``we'' and ``you'' and their
grammatical forms to 30 CFR 761.5?
XV. How have we revised 30 CFR 761.11, which is the regulatory
counterpart to the prohibitions and limitations of section 522(e) of
the Act?
XVI. Section 761.12: Which operations qualify for the exception for
existing operations?
XVII. Why are we removing the prohibitions in former 30 CFR
761.11(h)?
XVIII. Why did we reorganize former 30 CFR 761.12 as Secs. 761.13
through 761.17 and 762.14?
XIX. Section 761.13: How have we revised the procedural requirements
for compatibility findings for surface coal mining operations on
Federal lands in national forests?
XX. How do 30 CFR 761.14 and 761.15, which concern waivers for
buffer zones for public roads and occupied dwellings, differ from
former 30 CFR 761.12(d) and (e)?
XXI. Section 761.16: What are the submission requirements for
requests for VER determinations and how will these requests be
processed?
A. In what major ways does the final rule differ from the
proposed rule?
1. Role of Federal Surface Management Agencies.
2. Handling of Situations Involving Property Rights Disputes.
3. Action on Incomplete Requests.
4. Administrative Completeness Reviews.
5. Notification Requirements for Lands Listed in 30 CFR
761.11(a).
B. Paragraph (a): To which agency must you submit a request for
a VER determination?
C. May a request for a VER determination be submitted separately
from a permit application?
D. Paragraph (b): What information must you include in a request
for a VER determination?
E. Paragraph (c): How will the agency initially review my
request?
F. Paragraph (d): What notice and comment requirements apply to
the VER determination process?
G. Paragraph (e): How will a decision be made?
H. Paragraph (f): How may a VER determination be appealed?
I. Paragraph (g): To what extent and in what manner must records
related to the VER determination process be made available to the
public?
J. May the regulatory authority reconsider VER determinations
during review of a subsequent permit application?
XXII. How does new 30 CFR 761.17, which concerns regulatory
authority obligations at the time of permit application review,
differ from its predecessor provisions in former 30 CFR 761.12?
XXIII. How and why are we revising Part 762, which contains criteria
for the designation of lands as unsuitable for surface coal mining
operations?
XXIV. Section 772.12: What are the requirements for coal exploration
on lands designated unsuitable for surface coal mining operations?
XXV. Technical Amendments to Parts 773, 778, 780, and 784.
XXVI. What effect will this rule have in Federal program States and
on Indian lands?
XXVII. How will this rule affect State programs?
XXVIII. How does this rule impact information collection
requirements?
XXIX. Procedural Matters.
A. Executive Order 12866: Regulatory Planning and Review.
B. Regulatory Flexibility Act.
[[Page 70767]]
C. Small Business Regulatory Enforcement Fairness Act.
D. Unfunded Mandates Reform Act of 1995.
E. Executive Order 12630: Takings.
F. Executive Order 13132: Federalism.
G. Executive Order 12988: Civil Justice Reform.
H. Paperwork Reduction Act.
I. National Environmental Policy Act of 1969 and Record of
Decision.
I. How Did We Obtain and Consider Public Input?
This final rule is based on a proposed rule that we published for
public review and comment on January 31, 1997 (62 FR 4836). We also
posted the proposed rule and associated documents on our home page on
the Internet. In response to requests from the public, we held public
hearings on the proposed rule in Athens, Ohio; Billings, Montana;
Washington, Pennsylvania; and Whitesburg, Kentucky. The comment period
was originally scheduled to close June 2, 1997, but, in response to
several requests, we extended the deadline until August 1, 1997. See 62
FR 29314, May 30, 1997.
In addition to the testimony offered at the four hearings, we
received approximately 75 written comments specific to the proposed
rule: 31 from private citizens, 28 from companies and associations
affiliated with the mining industry, 4 from environmental
organizations, and 11 from Federal, State, and local governmental
entities and associations. In developing the final rule, we considered
all comments that were germane to the proposed rule. In this preamble,
we discuss how we revised the proposed rule in response to comments. We
also explain the disposition of those comments that did not result in a
change in the proposed rule.
II. What General Comments Did We Receive on the Proposed Rule?
Many comments from private citizens expressed general opposition to
mining on public lands, especially in national parks and national
forests. Since SMCRA allows mining on these lands under certain
circumstances, we have no authority to adopt a regulation that would
impose an absolute prohibition on mining on these lands.
One commenter representing several States disputed the need for any
rulemaking, arguing that the present system is working well and is
consistent with the principles of State primacy under SMCRA. However,
some commenters representing individual State regulatory authorities
expressed support for the clarity and additional specificity that the
rule would provide. Furthermore, two Federal district courts have
ordered OSM to take steps to promulgate a final rule defining VER.
Belville Mining Co. v. Lujan, No. C-1-89-790 (S.D. Ohio 1991) and
Helmick v. U.S., No. 95-0115 (N.D. W.Va. 1997).
Finally, we believe that a Federal definition is necessary to
establish a reference point for State definitions and to ensure that
the lands listed in section 522(e) of the Act are protected as Congress
intended. The good faith/all permits standard that we are adopting as
part of the VER definition in this final rule will cause relatively
little disruption to existing State regulatory programs. Twenty of the
24 States with approved regulatory programs under section 503 of the
Act already rely upon a good faith/all permits or all permits standard
for VER.
One commenter requested that the final rule and related documents
consistently use the term ``type'' to refer to the distinction between
surface and underground mining. Similarly, the commenter stated that
the term ``method'' should refer only to the specific techniques
employed for either surface or underground mining operations; e.g.,
area, contour or mountaintop removal for surface mining operations and
longwall or room and pillar for underground mining operations. We have
endeavored to apply these terms in the manner recommended, although
``type'' may also mean ``method,'' depending upon context, deed
nuances, and the vagaries of State property law.
III. How Does the Final Rule Differ Stylistically From the Proposed
Rule?
On June 1, 1998, President Clinton issued an Executive Memorandum
requiring the use of plain language in all proposed and final
rulemaking documents published after January 1, 1999. The memorandum
provides the following description of plain language:
Plain language requirements vary from one document to another,
depending on the intended audience. Plain language documents have
logical organization, easy-to-read design features, and use:
Common, everyday words, except for necessary technical
terms;
``you'' and other pronouns;
the active voice, and
short sentences.
The President's memorandum includes an exception for final rules
based upon proposed rules published before January 1, 1999. While that
exception applies to this final rule, we have incorporated some plain
language principles in this rule, as required by a memorandum dated
June 10, 1998, from the Office of the Secretary of the Department of
the Interior. Thus, the final rule and preamble use the pronouns
``we,'' ``us,'' and ``our'' to refer to OSM, and the pronouns ``you''
and ``your'' to refer to a person who claims or seeks to obtain an
exception or waiver authorized under 30 CFR 761.11 or section 522(e) of
the Act. In all other cases, we specifically identify the person or
agency to which the rule or preamble refers. Other changes include
avoidance of the word ``shall.'' Instead, the final rule and preamble
use ``must'' to indicate an obligation, ``will'' to identify a future
event, and ``may not'' to convey a prohibition.
We recognize that more could be done to comply more fully with
plain language principles. However, further changes would require a
wholesale revision of the entire regulation, which would delay
considerably publication of a final rule. For this reason, we have
deferred a more extensive plain language rewrite.
IV. In What Context Does the Term VER Appear in SMCRA?
As summarized below, section 522(e) of SMCRA, 30 U.S.C. 1272(e),
prohibits or restricts surface coal mining operations on certain lands
after the date of SMCRA's enactment (August 3, 1977). However, the Act
specifies that these prohibitions and restrictions are ``subject to
valid existing rights.'' It further provides that these prohibitions
and restrictions do not apply to operations in existence on the date of
enactment.
Section 522(e)(1) protects all lands within the boundaries of units
of the National Park System; the National Wildlife Refuge System; the
National System of Trails; the National Wilderness Preservation System;
the Wild and Scenic Rivers System, including study rivers designated
under section 5(a) of the Wild and Scenic Rivers Act; and National
Recreation Areas designated by Act of Congress.
Section 522(e)(2) prohibits surface coal mining operations on
Federal lands within the boundaries of any national forest unless the
Secretary finds that there are no significant recreational, timber,
economic, or other resources that may be incompatible with such
operations. If the Secretary makes this finding, the Act allows the
approval of surface operations and impacts incident to an underground
mine on any national forest lands. In addition, if the Secretary makes
this finding, the Act allows approval of any type of surface coal
mining operations on national forest lands west of the 100th meridian
(except the Custer National Forest) that lack significant forest cover,
provided
[[Page 70768]]
the proposed operations comply with certain statutes.
Section 522(e)(3) prohibits surface coal mining operations that
would adversely impact publicly owned parks and properties listed on
the National Register of Historic Places. However, this paragraph of
the Act provides a waiver for surface coal mining operations that
receive joint approval from the regulatory authority and the agency
with jurisdiction over the park or place.
Section 522(e)(4) prohibits surface coal mining operations within
100 feet of the outside right-of-way line of any public road, but it
provides a mechanism and criteria for approval of exceptions from this
prohibition. It also exempts mine access and haulage roads at the point
of intersection with a public road.
Section 522(e)(5) prohibits surface coal mining operations within
100 feet of a cemetery or within 300 feet of a public building, school,
church, community or institutional building, or public park. This
paragraph also prohibits operations within 300 feet of an occupied
dwelling, but it allows the owner of the dwelling to waive the
prohibition.
The term VER also appears in section 601(d) of SMCRA, which
pertains to the designation of Federal lands as unsuitable for mining
operations for minerals or materials other than coal. Specifically,
this paragraph of the Act provides that ``[v]alid existing rights shall
be preserved and not affected by such designation.''
SMCRA does not define or explain the meaning of VER in the context
of either section 522(e) or section 601. Today's rulemaking addresses
VER only in the context of section 522(e).
V. What Is the Legislative History of the VER Provision in Section
522(e)?
The legislative history of section 522(e) in general and the VER
exception in particular is sparse. In this portion of the preamble, we
either quote or summarize all the legislative history that we found
pertinent to the rationale for the final rule and disposition of
comments. The other portions of this preamble discuss how we and others
interpret the legislative history, and how these interpretations
influenced the decision-making process.
Language in Previous Versions of SMCRA
The phrase ``subject to valid existing rights'' and the current
outline of section 522(e) first appear in the conference committee
version of the 1974 precursor to SMCRA. Prior to the conference
committee changes, the Senate bill (S. 425) excluded only existing
operations from the prohibitions of what is now section 522(e). The
House bill (H.R. 11500) contained an exception only for certain
situations in which a person had made substantial legal and financial
commitments in an existing mine before September 1, 1973--and that
exception applied only to the lands listed in what is now paragraphs
(e)(1) and (e)(2) of section 522 of the Act.
Committee Reports
The 1977 conference committee report on the legislation that became
SMCRA does not address VER. See H.R. Conf. Rep. No. 95-493, at 110-11
(1977). Thus, the most authoritative source in the legislative history
of SMCRA does not clarify congressional intent with respect to the
meaning of VER under section 522(e).
The 1974 conference committee report explains that the addition of
the phrase ``subject to valid existing rights'' to section 522(e) was
intended to address surface coal mining operations on national forest
lands. H.R. Conf. Rep. No. 93-1522, at 85 (1974). Subsequent committee
reports on succeeding versions of SMCRA contain either substantively
identical or abbreviated discussions of this topic without further
elucidation on the meaning of VER under section 522(e). See S. Rep. No.
94-28, at 220 (1975); H.R. Conf. Rep. No. 94-189, at 85 (1975); H.R.
Rep. No. 94-896, at 47-48 (1976); H.R. Rep. No. 94-1445, at 47 (1976);
H.R. Rep. No. 95-218, at 95 (1977); and S. Rep. No. 95-128, at 94-95
(1977). Therefore, for purposes of providing background for this
rulemaking, we will quote only the discussions from the most recent
committee reports, which pertain to the legislation that the President
ultimately signed into law.
The committee report on H.R. 2, the House version of the
legislation that ultimately became SMCRA, contains the following
passage:
The language ``subject to valid existing rights'' in section
522(e) is intended, however, to make clear that the prohibition of
strip mining on the national forests is subject to previous court
interpretations of valid existing rights. For example, in West
Virginia's Monongahela National Forest, strip mining of privately
owned coal underlying federally owned surface has been prohibited as
a result of United States v. Polino, [131] F. Supp. [772] (1955). In
this case the court held that ``stripping was not authorized by
mineral reservation in a deed executed before the practice was
adopted in the county where the land lies, unless the contract
expressly grants stripping rights by use of direct or clearly
equivalent words. The party claiming such rights must show usage or
custom at the time and place where the contract is to be executed
and must show that such rights were contemplated by the parties.''
The phrase ``subject to valid existing rights'' is thus in no way
intended to open up national forest lands to strip mining where
previous legal precedents have prohibited stripping.
H.R. Rep. No. 95-218, at 95 (1977).
The committee report on S. 7, the Senate version of the legislation
that ultimately became SMCRA, contains a similar discussion:
All of these bans listed in subsection (e) are subject to valid
existing rights. This language is intended to make clear that the
prohibition of strip mining on the national forests is subject to
previous state court interpretation of valid existing rights. The
language of 422(e) [now 522(e)] is in no way intended to affect or
abrogate any previous State court decisions. The party claiming such
rights must show usage or custom at the time and place where the
contract is to be executed and must show that such rights were
contemplated by the parties. The phrase ``subject to valid existing
rights'' is thus in no way intended to open up national forest lands
to strip mining where previous legal precedents have prohibited
stripping.
S. Rep. No. 95-128, at 94-95 (1977).
Congressman Manuel Lujan, Jr. attached the following statement of
separate views to the House committee report:
Much has been said about the problem presented by the language
contained in Sec. 522(e) of H.R. 2 * * *.
As the Committee Report indicates, this section's limitation
that the prohibition is ``subject to valid existing rights'' is not
intended to open up national forest lands to strip mining when
previous legal precedents have prohibited stripping. Naturally, the
bill's language is also subject to the corollary that it is not
intended to preclude mining where the owner of the mineral has the
legal right to extract the coal by surface mining method[s].
Concerns in this area are not merely hypothetical. For example,
in the establishment of the national forest system in many areas of
the country, grantors sold the land to the United States government
for inclusion in a national forest, but reserve[d] mineral rights
for themselves and deeds of conveyance for which the United States
was a party. The language of Sec. 522(e) itself, the thrust of the
report discussion and common sense all dictate that the only logical
interpretation of Sec. 522(e) is that enactment of this legislation
does not disrupt the relationship between the owner of the coal and
the Federal government.
I believe, therefore, that it would be contrary to the intention
of the Act, and a misuse of the Act, for the Forest Service (or
anyone else) to argue that [SMCRA] somehow modifies the relationship
between the owner of the surface and subsurface rights. Clearly,
alienation by sale, assignment, gift, or inheritance of the property
right of the coal is not affected by the Act nor is the legal right
[[Page 70769]]
to mine the coal in any way modified if such right existed prior to
enactment of the Act.
H.R. Rep. No. 95-218, at 189 (1977).
Part VII.C.5. of this preamble contains a discussion of the
significance of Congressman Lujan's statements.
Floor Debate (Congressional Record)
In remarks made on the House floor during debate on the 1975
precursor to SMCRA, Congressman John Dingell questioned the need for
the phrase ``subject to valid existing rights,'' stating that ``it is
extra verbiage and really has no meaning.'' 121 Cong. Rec. H7048 (March
18, 1975) (statement of Rep. Dingell). He offered an amendment that
would have removed this phrase and replaced it with a provision
allowing surface coal mining operations in national forests and
grasslands whenever the deeds conveying lands to the United States
reserved the coal and specifically provided for the use of surface
mining methods. The House rejected the amendment. 121 Cong. Rec. H7050
(March 18, 1975).
During floor debate on the same bill, Congressman Delbert Latta
asked ``whether this legislation affects in any way the rights of an
owner of mineral rights situated below land owned by the Federal
Government.'' 121 Cong. Rec. H6679 (March 14, 1975). In response,
Congressman Morris Udall cited section 714 of SMCRA, which he
characterized as requiring surface owner consent before any underlying
Federal coal may be mined. Congressmen Latta, Udall, and others then
engaged in the following exchange:
Mr. LATTA. That takes care of the Federal Government when it
owns the mineral rights, but I have reference to the opposite
situation where the surface is owned by the Federal Government, but
the mineral rights have been retained by a private owner.
Mr. UDALL. We did not deal with that problem. I do not know of
any instance in which it would arise or be affected.
Mr. LATTA. It is not covered by this bill.
Mr. OTTINGER. Mr. Speaker, if the gentleman would yield, why
would not the rights of a surface owner be protected where the
mineral rights were not owned by the Federal Government, but were
owned privately?
Mr. UDALL. The problem we dealt with was the situation in the
instance where private interests owned the surface but the Federal
Government owned the coal.
* * * * *
Mr. OTTINGER. If the gentleman will yield further, I think there
are situations where private owners own both the surface and the
coal, and there is no protection provided.
Mr. UDALL. In that case the whole thrust of the bill is to
regulate how to mine coal, whatever the ownership is.
* * * * *
Mr. LATTA. * * * [I]f I understood what you said, this bill does
not deal with the situation propounded in my question, meaning where
a private citizen has sold the surface to the Federal Government and
has retained the mineral rights. This bill would not in any way
affect the mineral rights of that private citizen?
Mr. UDALL. This is a bill that deals with how one mines coal in
that situation and every other situation, but we do not attempt to
change property rights in the situation the gentleman talks about
and thus the mineral rights are not affected.
121 Cong. Rec. H6679 (1975).
Part VII.C.5. of this preamble includes a discussion of the
significance of this colloquy.
Some commenters referred to a floor debate on a proposed amendment
to section 601 of H.R. 2, the House bill that eventually became SMCRA.
(Section 601 provides for the designation of Federal lands as
unsuitable for the mining of minerals and materials other than coal.)
Congressman Teno Roncalio proposed an amendment to delete the sentence
in section 601(d) that reads, ``[v]alid existing rights shall be
preserved and not affected by such designation.'' Congressman Udall
opposed the amendment ``because it takes from the bill a statement that
valid legal rights should be preserved. I do not think we should do
that without paying compensation under the fifth amendment [sic].'' 123
Cong. Rec. H12878 (1977) (April 29, 1977) (statement of Rep. Udall).
The House rejected the amendment and retained the language at issue.
However, as discussed in parts VII.C.4. and VIII of this preamble, we
now find this colloquy to be of little relevance to the meaning of VER
under section 522(e).
VI. How Did We Previously Define or Attempt To Define VER?
The 1978 Proposed Rule
In our first attempt to define VER after the enactment of SMCRA, we
proposed to adopt different VER standards for different categories of
lands. For lands protected under paragraphs (e)(1) and (e)(2) of
section 522, we proposed a form of the ownership and authority
standard. Specifically, the proposed rule would have defined VER as:
Those property rights in existence on August 3, 1977, that were
created by a legally binding conveyance, lease, deed, contract, or
other document which expressly authorizes the applicant to produce
coal by surface coal mining operations and the exercise of such
rights cannot, under applicable State or Federal law, be conditioned
or denied in the manner provided in [30 CFR Part 761].
For lands protected under paragraphs (e)(3) through (e)(5) of
section 522, we proposed to limit VER to those lands for which a person
had obtained all State and Federal permits needed to conduct surface
coal mining operations as of August 3, 1977. The preamble to the
proposed rule indicates that we presumed that the first standard would
apply only to Federal lands, while the second standard would apply only
to State and privately owned lands. See 41 FR 41662, 41686, 41826,
September 18, 1978.
The 1979 Final Rule
After evaluating the comments received on the 1978 proposed rule,
we decided that the proposed ``dual definition was not really workable
because it did not distinctly separate Federal lands from private
lands.'' 44 FR 14993, March 13, 1979. Section 522(e)(1) includes both
Federal and non-Federal lands, and paragraphs (e)(3) through (e)(5) of
that section apply regardless of land ownership. Except for paragraph
(e)(2), Congress did not establish Federal versus non-Federal ownership
as a criterion for protection under section 522(e). Nor did Congress
prescribe different levels of protection under section 522(e) for
Federal and non-Federal lands.
Accordingly, the final rule promulgated in 1979 contains a single
definition of VER that applies to all lands listed in section 522(e).
In developing this definition, we relied upon (1) a belief that
Congress created the VER exception as a means of avoiding compensable
takings of private property and (2) the principle that the extent to
which the Federal government and States may prohibit or restrict the
exercise of private property rights without providing compensation is
determined by case law established pursuant to the Fifth and Fourteenth
Amendments to the Constitution. Specifically, we ``endeavored to
determine the point at which payment would be required because a taking
had occurred, then to define `valid existing rights' in those terms,
i.e., those rights which cannot be affected without paying
compensation.'' 44 FR 14992, March 13, 1979, col 1.
The definition provided that, except for haul roads, VER included
only those property rights in existence on August 3, 1977, the owners
of which either had obtained all necessary permits for the proposed
surface coal mining operation on or before August 3, 1977 (the ``all
permits'' standard), or could demonstrate that the coal for which the
exception was sought was both needed for and immediately adjacent to a
surface coal mining operation in existence on August 3, 1977 (the
[[Page 70770]]
``needed for and adjacent'' standard). See 44 FR 14902, 15342, March
13, 1979.
Litigation Concerning the 1979 Final Rule
The mining industry, the State of Illinois, the National Wildlife
Federation, and assorted environmental organizations all challenged the
validity of the 1979 definition. Industry and Illinois alleged that
this definition entailed a taking of property in violation of the Fifth
and Fourteenth Amendments. Because the plaintiffs presented no evidence
that the definition had caused actual loss or harm to a specific party,
the court declined to rule on the constitutionality of the definition
on the basis of a hypothetical claim. However, the court asserted that
a person who applies for all permits, but fails to receive one or more
through government delay, engenders the same investments and
expectations as a person who has obtained all permits. Specifically,
the court stated that ``a good faith attempt to have obtained all
permits before the August 3, 1977 cut-off date should suffice for
meeting the all permits test.'' In re Permanent Surface Mining
Regulation Litigation I, 14 Env't Rep. Cas. (BNA) 1083, 1091 (D.D.C.,
Feb. 26, 1980), (``PSMRL I, Round I'').
The industry plaintiffs appealed those portions of the district
court's decision in PSMRL I, Round I that were adverse to their
interests. However, the U.S. Court of Appeals for the Federal Circuit
remanded the appeal after the government informed the court that it was
reconsidering the 1979 definition. Thus, the court never reached a
decision on the merits of the appeal. The remand order specified that
the judgment of the District Court could not be considered final. See
In re Permanent Surface Mining Regulation Litigation, No. 80-1810,
Order of Remand (D.C. Cir., Feb. 1, 1983).
The 1980 Suspension Notice
To comply with the decision in PSMRL I, Round I, 14 Env't Rep. Cas.
(BNA) 1091 (1980), which partially remanded the all permits standard,
we suspended the 1979 definition of VER to the extent that it required
that all permits have been obtained before August 3, 1977. See 45 FR
51547-48, August 4, 1980. The suspension document stated that, pending
further rulemaking, we would interpret the definition as including the
court's suggestion that a good faith effort to obtain all permits by
that date should suffice to establish VER. This standard is known as
the ``good faith/all permits'' standard.
The 1982 Proposed Rule
On June 10, 1982 (47 FR 25278), we published a proposed rule
setting out six options for revising the definition of VER. These
options included the good faith/all permits standard, a mineral rights
ownership standard, a mineral rights ownership plus right to mine by
the method intended standard (the ``ownership and authority''
standard), and three variations on the latter two standards. Since the
proposed standards all attempted to establish a clearly defined
``bright-line'' test for VER, they became known as ``mechanical
tests.''
The 1983 Final Rule
Commenters criticized each option in the 1982 proposed rule as
either too broad or too narrow, and many argued that one or more of the
proposed options would result in a taking of property without just
compensation in violation of the Fifth and Fourteenth Amendments to the
Constitution. Because the Supreme Court has consistently declined to
prescribe set formulas for determining when a taking will occur, we
concluded that any mechanical test likely would be either over-
inclusive or under-inclusive of all potential takings that might result
from the section 522(e) prohibitions. Therefore, on September 14, 1983
(48 FR 41314), we adopted a definition of VER which provided, in part,
that a person has VER if a prohibition on surface coal mining
operations would result in a compensable taking of that person's
property interests under the Fifth and Fourteenth Amendments to the
Constitution. This standard is known as the ``takings'' standard.
The revised definition also (1) removed the requirement for a
demonstration of a property right to the coal on August 3, 1977, (2)
defined the ``needed for'' aspect of the needed for and adjacent
standard, and (3) added a provision (sometimes referred to as
``continually created VER'') to establish VER standards for lands that
come under the protection of section 522(e) after August 3, 1977. This
situation would arise, for example, when a park is created or expanded
or a protected structure is built after that date.
Litigation Concerning the 1983 Final Rule
The mining industry, the National Wildlife Federation, and assorted
environmental organizations all challenged the validity of the 1983
definition. The U.S. District Court for the District of Columbia
subsequently remanded most of that definition on procedural grounds.
The court held that the takings standard represented such a significant
departure from the options presented in the 1982 proposed rule that a
new notice and comment period was necessary to comply with the public
participation requirements of the Administrative Procedure Act, 5
U.S.C. 553. See In re Permanent Surface Mining Regulation Litigation
II, Round III--Valid Existing Rights, 22 Env't Rep. Cas. (BNA) 1557,
1564 (D.D.C. 1985) (``PSMRL II, Round III--VER''). The court also held
that the proposed rule failed to provide adequate notice that it would
expand the needed for and adjacent standard to include properties
acquired after the date of enactment of SMCRA (August 3, 1977).
Accordingly, the court remanded paragraphs (a) and (d)(2) of the
definition, which relied upon the takings standard to determine VER,
and the revised needed for and adjacent standard in paragraph (c) of
the definition to the Secretary for proper notice and comment.
The 1986 Suspension Notice
In response to the remand order in PSMRL II, Round III--VER, 22
Env't Rep. Cas. (BNA) at 1564 (1985), we suspended paragraphs (a) and
(c) of the 1983 definition of VER on November 20, 1986 (51 FR 41952,
41961). These paragraphs contained the takings standard and the revised
needed for and adjacent standard. We also suspended paragraph (d)(2) of
the definition to the extent that it relied upon the takings standard.
As discussed at 51 FR 41954-55, this action effectively reinstated the
1980 good faith/all permits standard and the 1979 needed for and
adjacent standard.
The preamble to the suspension notice stated that, with two
exceptions, we would use the VER definition in the applicable State or
Federal regulatory program when making VER determinations. As discussed
at 51 FR 41955, one of these exceptions occurs when a State definition
relies upon an all permits standard. In that case, we would apply the
State standard as if it included a good faith component. The second
exception involves State programs that include a takings standard for
VER. In those situations, the preamble stated that, pending
promulgation of a new Federal definition of VER, we would not process
requests for VER determinations involving lands within units of the
National Park System.
The 1988 Proposed Rule
On December 27, 1988 (53 FR 52374), we proposed the good faith/all
permits
[[Page 70771]]
standard and the ownership and authority standard as options for a
regulatory definition of VER. Under the ownership and authority
standard, a person could establish VER by demonstrating both a property
right to the coal and the right to mine it by the method intended, as
determined by State law. After evaluating the comments received, we
withdrew the entire proposed rule for further study on July 21, 1989
(54 FR 30557).
The 1990 VER Symposium
On April 3-4, 1990, we and the University of Kentucky College of
Law, in cooperation with the American Bar Association, cosponsored a
national symposium on the meaning of VER under section 522(e) of SMCRA.
Volume 5, Number 3 of the Journal of Mineral Law and Policy contains
the proceedings of this symposium. The participants provided extensive
analyses of takings jurisprudence and case law related to VER, but they
did not reach a consensus on how to define VER. The arguments presented
ranged from the theory that we could prohibit all mining in section
522(e) areas as a public nuisance or noxious use to the position that
Congress intended the VER exception to operate as complete protection
for all property rights in existence on August 3, 1977.
The Belville Litigation
In 1990, the Belville Mining Company, an Ohio mining firm, filed
suit against the Secretary of the Interior alleging that he had, among
other things:
Failed to perform a mandatory duty to promulgate the
definition of VER needed to implement section 522(e);
In lieu of regulations, issued various statements and
directives on VER, including the policy set forth in the November 20,
1986 suspension notice, without notice and comment in violation of the
Administrative Procedure Act; and
Made VER determinations relying on State regulations
identical to an invalidated Federal regulation.
See Belville Mining Co. v. Lujan, No. C-1-89-790 (S.D. Ohio 1991),
modified September 21, 1992 (``Belville I'').
In a July 22, 1991, decision, the court in Belville I ordered the
Secretary to begin proceedings to promulgate a final rule defining VER;
enjoined him from enforcing or applying the November 20, 1986
suspension notice or any temporary directive that extends the policy of
the suspension notice; and directed him to immediately begin
proceedings to disapprove State program definitions of VER that rely
upon the all permits standard. On September 21, 1992, pursuant to the
Government's motion for reconsideration, the court narrowed the portion
of its ruling concerning disapproval of State program definitions to
require only the disapproval of the Ohio program definition of VER
insofar as that definition affects Belville and its requests for VER
determinations. In doing so, the court accepted the Government's
argument that Federal remedy law prohibits the imposition of injunctive
remedies that are beyond the scope of the plaintiff's individual
injuries and related requests for VER determinations. Consequently, we
interpreted the decision barring use of the 1986 policy as applying
only to Ohio. The final rule that we are adopting today effectively
renders both the Belville I decision and the 1986 suspension notice
moot with respect to the applicable definition of VER.
The 1991 Proposed Rule
On July 18, 1991, we proposed to revise the definition of VER by
reinstating the takings standard, the good faith/all permits standard,
and the 1979 version of the needed for and adjacent standard. In
addition, we proposed to eliminate the separate standards for VER for
lands that come under the protection of section 522(e) after August 3,
1977. Instead, the proposed rule modified the other VER standards in
the definition to incorporate the concept that VER determinations
should reflect the circumstances that existed when the land came under
the protection of section 522(e), which may be later than August 3,
1977.
The Energy Policy Act
On October 24, 1992, the President signed the Energy Policy Act of
1992 (Pub. L. 102-486, 206 Stat. 2776) (``EPAct'') into law. Section
2504(b) of that law required adherence to the VER policy in the
November 20, 1986 suspension notice (51 FR 41952) for one year after
the date of enactment. That provision had the effect of staying
implementation of the July 1991 Belville I decision, as modified in
September 1992, and halting publication of a new final rule defining
VER based upon the 1991 proposed rule.
Appropriations Act Moratoriums
The EPAct provision expired on October 24, 1993. However, at the
Department's request, the appropriations acts for the Department of the
Interior and related agencies for fiscal years 1994 and 1995 each
included language that effectively placed a moratorium on adoption of a
new or revised Federal VER definition or disapproval of existing State
program definitions of VER. The last moratorium (section 111 of Pub. L.
103-332) lapsed on October 1, 1995. Congress did not include similar
language in any legislation for fiscal year 1996 or subsequent fiscal
years.
The 1997 Proposed Rule
After evaluating the comments received on the 1991 proposed rule
and taking intervening events into consideration, on January 31, 1997
(62 FR 4836), we withdrew the 1991 proposal and published a new,
extensively revised proposed rule concerning the definition of VER and
related issues. This proposal forms the basis for the final rule being
published today.
VII. Section 761.5: How Are We Defining VER in This Final Rule?
A. Introductory Language.
The definition of VER that we are adopting today as part of 30 CFR
761.5 describes VER as a set of circumstances under which a person may,
subject to regulatory authority approval, conduct surface coal mining
operations that section 522(e) of the Act and 30 CFR 761.11 would
otherwise prohibit. This language establishes the conceptual framework
within which the provisions of paragraphs (a) through (c) of the
definition must be applied.
In a change from the proposed rule, we have added the phrase
``subject to regulatory authority approval'' to emphasize that a person
with VER is not automatically entitled to conduct surface coal mining
operations on protected lands. One commenter appeared to believe
otherwise. For the same reason, we have added a sentence to the
introductory portion of the definition to clarify that, even if a
person has VER and thus is exempt from the prohibitions and limitations
of section 522(e) and 30 CFR 761.11, surface coal mining operations on
these lands are subject to all other pertinent requirements of the Act
and the applicable regulatory program. The VER exception does not
entitle a person to an exemption from any permitting requirements or
performance standards.
One commenter charged that by defining VER as a condition rather
than as a right, the proposed rule altered the essence of VER from a
recognition of property rights to a regulatory standard or condition
that a surface coal mining operation must meet prior to mining. We have
made a few essentially editorial changes in response to this
[[Page 70772]]
comment to clarify that VER means a set of circumstances (rather than
``conditions'') under which a person is exempt from the prohibitions
and restrictions of section 522(e) and 30 CFR 761.11 and may seek
approval from the regulatory authority to conduct surface coal mining
operations on those lands in accordance with standard regulatory
program requirements.
While property rights are an element of some of the standards for
VER, we do not agree with the commenter's claim that VER must be
defined solely in terms of property rights. Congress did not define
VER, and the legislative history of section 522(e) emphasizes that,
with certain exceptions, Congress intended to prohibit new surface coal
mining operations on the lands listed in that section. See, for
example, S. Rep. No. 95-128, at 55 (1977). We believe that these facts
argue against adoption of a rule that defines VER solely in terms of
property rights. Except for unleased Federally owned coal, such a rule
would present little or no impediment to surface coal mining operations
on the lands listed in section 522(e) of the Act. Thus, it would offer
little protection to those lands beyond the protection that the
permitting requirements and performance standards of the regulatory
program afford to all lands.
B. Paragraph (a): Property Rights Demonstration.
Paragraph (a) of the definition of VER in the final rule provides
that a person claiming VER for any type or component of surface coal
mining operations other than roads must demonstrate that a legally
binding conveyance, lease, deed, contract, or other document vests that
person with the right, as of the date that the land came under the
protection of section 522(e) of the Act and 30 CFR 761.11, to conduct
the type of surface coal mining operations intended. Interpretation of
the documents relied upon to establish property rights must be based
upon applicable State statutory or case law, unless otherwise provided
under Federal law. If no applicable law exists, interpretation of these
documents must reflect custom and generally accepted usage at the time
and place that the documents came into existence.
Under the final rule, a person need not necessarily provide a
property rights demonstration for roads used or constructed as part of
surface coal mining operations. Instead, a person may demonstrate VER
for roads using any of the standards in paragraph (c) of the
definition.
The final rule is substantively identical to the corresponding
provisions of the 1997 proposed rule, with one exception. We have added
a clause clarifying that the provision requiring the use of State law
to interpret documents does not apply if Federal law provides
otherwise, as may be the case if the documents were issued under the
Mineral Leasing Act or similar laws. In terms of organization, the
final rule differs slightly from the proposed rule in that, for reasons
of clarity and consistency with plain language principles, we have
segregated the property rights demonstration into a separate paragraph,
rather than including it in the same paragraph as the good faith/all
permits and needed for and adjacent standards.
The requirement for a property rights demonstration and the
provisions concerning interpretation of documents are consistent with
the legislative history of the Act, which indicates that Congress did
not intend to enlarge or diminish property rights under State law. See
H.R. Conf. Rep. No. 95-493, at 106 (1977); H.R. Rep. No. 95-218, at 95
(1977); and S. Rep. No. 95-128, at 94-95 (1977). The legislative
history frequently references United States v. Polino, 131 F. Supp. 772
(N.D. W.Va. 1955), in which the court held that the right to use
surface mining methods to recover privately owned coal underlying
Federal lands within the Monongahela National Forest depends upon the
language of the deed, the interpretation of which is a matter of State
law.
In addition, these provisions receive support from section
510(b)(6)(C) of SMCRA, which provides that, in cases where the private
mineral estate has been severed from the private surface estate, ``the
surface-subsurface legal relationship shall be determined in accordance
with State law,'' and that ``nothing in this Act shall be construed to
authorize the regulatory authority to adjudicate property rights
disputes.'' Language similar to the latter proviso also appears in the
right-of-entry provisions of section 507(b)(9) of the Act.
History
The requirement for a property rights demonstration has its origins
in paragraphs (a)(1) and (c) of the March 13, 1979 VER definition.
Paragraph (c) of that definition required that interpretation of the
terms of the documents be based not only upon usage and custom, but
also upon a showing that the parties to the document actually
contemplated a right to conduct the same underground or surface mining
activities for which the person claims VER. However, on November 27,
1979, in connection with the PSMRL I, Round I litigation, we published
a Federal Register notice stating that, as an alternative to the
language of paragraph (c), ``existing State law may be applied to
interpret whether the document relied upon establishes valid existing
rights.'' 44 FR 67942, November 27, 1979. This alternative reflected
the strong interest Congress expressed in deferring to State property
law when interpreting documents relating to property interests. See the
summary of and excerpts from the legislative history in Part V of this
preamble.
For reasons that the preamble does not explain, the revised VER
definition that we adopted on September 14, 1983, did not contain a
counterpart to the property rights demonstration required by paragraph
(a)(1) of the 1979 definition. However, the 1983 rule retained a
revised version of paragraph (c) of the 1979 definition, which
concerned interpretation of documents. This provision, which was
codified as paragraph (e) of the 1983 definition, required that
interpretation of the terms of documents ``be based upon either
applicable State statutory or case law concerning interpretation of
documents conveying mineral rights or, where no applicable State law
exists, upon the usage and custom at the time and place it came into
existence.''
On January 31, 1997 (62 FR 4836), we proposed to reinstate a
revised version of the property rights demonstration required under
paragraph (a)(1) of the 1979 definition. The proposed rule differed
from the 1979 rule in three ways:
It did not describe the person making the VER
demonstration as the permit applicant, since the proposed rule also
clarified that a person may request a VER determination without
preparing and submitting a permit application.
It provided that the requisite property rights must be
vested as of the date that the land comes under the protection of 30
CFR 761.11 or section 522(e), rather than as of August 3, 1977.
It did not limit eligible property rights to the right to
produce coal.
The proposed rule incorporated the 1983 language pertaining to the
interpretation of documents. However, we proposed to modify that
language to eliminate its restriction to documents concerning mineral
rights, since surface coal mining operations may involve property
interests other than mineral rights. Also, unlike the 1983 definition,
we proposed to require a property rights demonstration and apply the
interpretation of documents provision to the needed for and adjacent
standard.
[[Page 70773]]
(See the discussion of this standard in Part VII.D. of this preamble.)
The final rule incorporates all elements of the proposed rule as
described above. The following discussion summarizes the comments that
we received on this aspect of the proposed rule and our disposition of
those comments.
Summary and Disposition of Comments on the Proposed Rule
One commenter requested that we revise the rule to clarify that the
deed, lease, or other documents relied upon for the property rights
demonstration must include explicit authority to conduct surface coal
mining operations. In addition, the commenter asserted that these
documents must explicitly sanction both the type of activity for which
VER is claimed and the scope and location of that activity. We do not
agree. In enacting the permitting requirements of sections 507(b)(9)
and 510(b)(6) of SMCRA, Congress considered measures that would have
required either explicit authority or surface owner consent in
situations in which the surface and mineral estates are in separate
ownership, but in the end decided to defer to State property law as
interpreted by State courts. See S. Conf. Rep. No. 95-337 and H.R.
Conf. Rep. No. 95-493, at 105-6 (1977); 123 Cong. Rec. H7587-88 (July
21, 1977) (statement of Rep. Seiberling). See also, Congress' failure
to adopt Secretary Andrus' recommendation that surface owner consent be
required in all cases for the entire area covered by a permit
application (H.R. Rep. No. 95-218, at 156 (1977)). There is no
suggestion in the Act or its legislative history that Congress intended
to accord lesser deference to State property law in determining VER
under section 522(e). Indeed, the discussion of the Polino decision and
related discussions concerning mining on national forest lands in the
congressional reports quoted or referenced in Part V of this preamble
indicate otherwise.
Another commenter asserted that the property rights demonstration
should be limited to discerning whether the person has a property right
to conduct surface mining, not whether he or she has a right to use a
specific method of surface mining. As summarized and excerpted in Part
V of this preamble, the legislative history of the VER provision in
section 522(e) clearly indicates that Congress did not intend for this
provision to be construed in a manner that would allow surface coal
mining operations of a nature that are not authorized under State
property law. Therefore, the nature and detail of the property rights
demonstration is dependent upon State property law concerning the
interpretation of the language of deeds and other conveyances. It may
be as simple as demonstrating the right to conduct surface coal mining
operations in general, or, depending upon the wording of the conveyance
and State property law, the requester may need to demonstrate that the
method of surface coal mining operations meets the restrictions imposed
by the conveyance or State law.
Some commenters expressed concern that the definition could be
interpreted as negating a VER determination each time an operation or
permit experiences a change in ownership. We disagree. As discussed in
Part IX of this preamble, State law, the applicable VER standard, and
the terms of the instrument of conveyance govern the extent to which a
transfer of property rights or a change in ownership of a permit or
operation impact VER. In general, we view VER as transferable because,
unless otherwise provided by State law, the property rights, permits,
and operations that form the basis for VER determinations are
transferable. Therefore, except as discussed in Part IX of this
preamble, we anticipate that permit transfers and changes in ownership
of operations and property rights subsequent to a VER determination
would have no effect on VER or the validity of the VER determination.
One commenter stated that, by requiring a property rights
demonstration as part of the definition of VER, the proposed rule
failed to recognize that mining entities may seek and obtain a permit
for a surface coal mining operation before acquiring property rights
for all lands within the permit area. We believe that the commenter's
concern is misplaced. Under the final rule, there is no requirement
that the same person make both the property rights demonstration
required by paragraph (a) of the definition and the demonstration of
compliance with the good faith/all permits or needed for and adjacent
standard under paragraph (b) of the definition. In other words, under
the final rule, the person who makes the property rights demonstration
required by paragraph (a) of the definition need not be the same person
as the one who demonstrates compliance with the requirements of the
good faith/all permits or needed for and adjacent standards under
paragraph (b) of the definition. However, each request must demonstrate
compliance with both paragraphs (a) and (b) of the definition of VER.
And the person holding the permits must obtain the necessary property
rights before actually initiating surface coal mining operations on the
land in question.
Some commenters opposed the proposed rule to the extent that it
provided that property rights must be vested as of the date that the
land comes under the protection of the Act, rather than as of the date
of enactment of SMCRA (August 3, 1977) as in the 1979 rule. The
commenters argued that persons conducting surface coal mining
operations after the enactment of SMCRA should have immediately
procured all necessary property rights (e.g., purchased a 300-foot
buffer around all planned minesites to preclude application of the
prohibition on mining within 300 feet of an occupied dwelling) to avoid
potential adverse impacts from the creation of new protected areas
after August 3, 1977. We do not agree. The lease or purchase of a
buffer zone would be impractical in cases where the owners of that land
refuse to lease or sell. Moreover, we first adopted the concept of
basing VER on the circumstances that existed when the land came under
the protection of section 522(e) rather than on the circumstances that
existed on August 3, 1977, as part of our 1983 definition of VER. As
discussed in Parts VII.F. and XVI of this preamble, this concept
withstood a legal challenge. In view of the existence of this concept
as part of our rules for 16 years, and the expectations engendered by
that rule, we are not persuaded by the commenters' argument.
Some commenters opposed the proposed rule to the extent that it
provided that property rights other than the right to produce coal are
eligible for consideration. The commenters argued that this
modification was arbitrary, an imprudent and unreasonable giveaway of
surface rights, and inconsistent with congressional intent. They also
argued that this aspect of the proposed rule had no basis under SMCRA,
and that it was in violation of the definition of surface coal mining
operations in section 701(28) of the Act. We disagree.
The statutory definition of surface coal mining operations in
section 701(28) includes ``activities conducted on the surface of lands
in connection with a surface coal mine or * * * surface operations and
surface impacts incident to an underground coal mine.'' In addition to
``excavation for the purpose of obtaining coal,'' the definition
expressly includes ``the cleaning, concentrating, or other processing
or preparation'' of coal. And paragraph (B) of the definition includes
``any adjacent land the use of which is
[[Page 70774]]
incidental to any such activities'' as well as roads, impoundments,
ventilation shafts, refuse banks, overburden piles, ``repair areas,
storage areas, processing areas, shipping areas and other areas upon
are sited structures, facilities, or other property or materials on the
surface, resulting from or incident to such activities [the activities
listed in paragraph (A) of the definition].'' Clearly, the definition
is not restricted to coal extraction activities or operations on lands
from which coal is extracted. Therefore, our final rule properly
acknowledges that, to the extent that a person has a right under State
property law to conduct an activity or construct a facility included
within the definition of surface coal mining operations on any lands
listed in 30 CFR 761.11 and section 522(e), that person may seek to
apply the VER exception to the proposed activity or facility even if
there are no plans to extract coal from those lands.
As discussed above, the legislative history of the right-of-entry
provisions of sections 507(b)(9) and 510(b)(6)(C) of SMCRA and of the
prohibitions of section 522(e) indicates that Congress wanted to
respect and defer to State court interpretations of documents
concerning property rights. Hence, we find it appropriate to defer to
State property law to determine whether a person has a property right
to use a particular parcel of land for any activity or facility
included in the definition of surface coal mining operations, rather
than arbitrarily limiting the scope of the property rights to which the
VER exception applies to the right to extract coal.
One commenter argued that the property rights demonstration must
include explicit authority, by deed, lease or otherwise, to engage in
non-extraction activities. He also asserted that the property rights
documents must explicitly sanction both the type of activity for which
VER is claimed and the scope and location of that activity. However,
the commenter failed to provide a rationale for these statements. We
see no reason or basis to establish differing standards for property
rights demonstrations based on whether the land will be used for coal
extraction or whether it will be used for other activities or
facilities included within the definition of surface coal mining
operations. Section 522(e) refers to surface coal mining operations
without differentiating among the various activities and facilities
included in the definition of that term. As discussed above and as
excerpted in Part V of this preamble, the legislative history of SMCRA
clearly indicates that Congress wanted to defer to State court
interpretations of documents concerning property rights. Therefore, we
see no basis or need to require that the documents in question
expressly authorize use of the land for activities and facilities that
are included in the definition of surface coal mining operations but
that do not directly produce coal. A demonstration that State statutory
or case law recognizes a person's right to use the land for those
activities and facilities under the terms of the document used to
establish property rights will suffice.
Some commenters stated that the VER inquiry should begin and end
with the property rights demonstration. They argue that the Act and its
legislative history as well as various court decisions mandate adoption
of an ownership and authority standard for VER. That is, if a person
has the property right under State law to conduct surface coal mining
operations, the person also has VER under section 522(e) of SMCRA. As
discussed in detail in Part VII.C.5. of this preamble, we do not agree
that the Act and its legislative history require the adoption of an
ownership and authority standard for VER. For the reasons outlined in
Parts VII.A. and VII.C. of this preamble, we do not view VER as
coextensive or synonymous with property rights. Instead, we view
property rights as a prerequisite for demonstrating VER under the good
faith/all permits and needed for and adjacent standards.
C. Paragraph (b): Primary Standards for VER
On January 31, 1997, we proposed to adopt two standards for VER for
surface coal mining operations in general: the good faith/all permits
standard (paragraph (a)(1) of the proposed definition) and the needed
for and adjacent standard (paragraph (a)(2) of the proposed
definition). The final rule revises these standards in response to
comments and moves them to paragraph (b) of the definition. Part VII.C.
of this preamble provides an explanation of the good faith/all permits
standard and the disposition of related comments, while Part VII.D. of
the preamble discusses the needed for and adjacent standard and related
comments.
Several commenters argued that standards for the VER exception in
section 522(e), which identifies lands that Congress designated as
unsuitable for surface coal mining operations, should be more
restrictive than the standard for exceptions under section 522(a),
which pertains to lands designated by petition. In the preamble to the
1979 definition of VER, we concurred with this argument:
OSM decided that the VER phrase must be distinguished from the
definition of substantial legal and financial commitments. * * * The
latter exemption applies to the petition process under Section
522(a), whereas VER applies to the Congressional prohibitions of
mining under Section 522(e). This distinction suggests that, in
order to qualify for VER and thereby mine in the prohibited areas of
Section 522(e), they must have a property interest in the mine that
is even greater than the substantial legal and financial commitments
needed to mine despite a designation by petition under Section
522(a).
44 FR 14491-92, March 13, 1979.
We repeated this position in the Greenwood Land and Mining Co. VER
determinations at 46 FR 36758, July 15, 1981; 46 FR 50422, October 13,
1981; and 47 FR 56191, December 15, 1982.
However, we reversed our stance in the preamble to the 1983 VER
definition, stating that ``the two concepts are separate and
distinct.'' 48 FR 41316, September 14, 1983. Neither the language of
the Act nor its legislative history supports the proposition that the
lands designated by Congress under section 522(e) are more deserving of
protection than the lands designated by petition under section 522(a).
See S. Rep. No. 95-128, at 55 (1977), which states that:
[C]ertain lands simply should not be subject to new surface coal
mining operations. These include primarily and most emphatically
those lands which cannot be reclaimed under the standards of this
Act and the following areas dedicated by the Congress [in section
522(e)].
The phrase ``lands which cannot be reclaimed under the standards of
this Act'' refers to petition-initiated mandatory designations under
section 522(a)(2), while the remainder of this passage addresses lands
designated by Congress under section 522(e). Clearly, the Senate
committee found at least some lands designated under section 522(a) to
be equal in importance to lands designated under section 522(e).
Consequently, we find no basis for the assumption that VER under
section 522(e) must be more restrictive than the standard for
exemptions from petition-initiated designations under section 522(a).
Another commenter asserts that restricting VER to the circumstances
set out in the definition, especially the good faith/all permits
standard, is inconsistent with our posture concerning the 1979
definition. He notes that briefs filed on behalf of the Secretary in
connection with assorted litigation concerning the definition of
[[Page 70775]]
VER interpret the preamble to the 1979 definition of VER as meaning
that we did not intend to limit the scope of the VER exception to cases
meeting the standards prescribed by the definition. According to the
briefs, the definition identified only those situations in which a
person unequivocally has VER. In all other cases, VER would be
determined on a case-by-case basis.
The briefs derive this characterization of the 1979 definition from
the first and last sentences of the following preamble discussion:
VER is a site-specific concept which can be fairly applied only
by taking into account the particular circumstances of each permit
applicant. OSM considered not defining VER, which would leave
questions concerning VER to be answered by the States, the Secretary
and the courts at later times. Without a definition, however, many
interpretations of VER would be made and no doubt challenged by both
operators and citizens; and once valid existing rights
determinations are challenged, the permitting process would be
delayed. OSM has therefore concluded that VER should be defined in
order to achieve a measure of consistency in interpreting this
important exemption. Under the final definition, VER must be applied
on a case-by-case basis, except that there should be no question
about the presence of VER where an applicant had all permits for the
area as of August 3, 1977.
44 FR 14993 (March 13, 1979), col. 2-3.
The supplemental final environmental impact statement prepared for
a 1983 rulemaking describes the 1979 definition as follows:
[T]he existing regulation, as modified by the court, provides
that at a minimum, an operator should be determined to have VER if
he had made a good faith effort to apply by August 3, 1977, for all
permits necessary to mine in one area. OSM, however, has
consistently maintained, in court and elsewhere, that in each case
OSM would examine the totality of the circumstances before deciding
on any VER application and that the regulatory standard is not the
exclusive means of obtaining VER.
January 1983 Supplement to OSM-EIS-1, Vol. 1: Analysis, at IV-39
(citations omitted).
In 1985, the U.S. District Court for the District of Columbia
acknowledged that the 1979 preamble could be read as suggesting the
interpretation discussed above, but the court questioned both the
accuracy of this interpretation, given the context of the sentence upon
which it depends, and the validity of the premise that preamble
language could supersede regulatory language:
The government and the industry-intervenors argue that even
under the old ``all-permits'' test promulgated in 1979, states had
to make, in addition to the all-permits determination, an
independent takings analysis on a case by case basis in order to
determine whether VER existed. * * *
To support their claim that the 1979 * * * rule included an
independent takings test, in addition to the all-permits test,
defendants and intervenors point to one sentence in the preamble to
the 1979 rule. ``Under the final definition, VER must be applied on
a case-by-case basis, except that there should be no question about
the presence of VER where an applicant had all permits for the area
as of August 3, 1977.'' 44 Fed. Reg. 14993 (1979). That sentence, to
be sure, does suggest that there would be instances other than the
all-permits situation in which a VER determination could be made.
But the paragraph in which it is included, however, may also mean
simply that the VER all-permits issue must of necessity be decided
anew each time a person seeks VER. In any event, no such alternate
method of obtaining VER was included in the final 1980 rule, see 30
C.F.R. Sec. 761.5 (1980).
PSMRL II, Round III--VER, 22 Env't Rep. Cas. (BNA) at 1561 (1985)
(footnote omitted), emphasis in original.
For purposes of this rulemaking, we find it unnecessary to
determine whether the interpretation advanced in the briefs and
environmental impact statement remains valid in view of the
pronouncements in the court opinion. As discussed in Part VII.C. of
this preamble, we have reevaluated the language of the Act and its
legislative history. We have determined that adherence to the terms of
the good faith/all permits and needed for and adjacent standards in
paragraph (b) of the definition is the most reasonable interpretation
of VER and will better satisfy congressional intent in enacting section
522(e). And, in practice, to the extent allowed by the courts, we have
always adhered to the definition established in the rules in making VER
determinations, rather than relying upon the 1979 preamble to do
otherwise.
One commenter urged us to adopt more restrictive permitting and
bonding requirements and performance standards for surface coal mining
operations conducted under the VER exception, regardless of the
standard that we selected for the definition of VER. We find no basis
under SMCRA for doing so, since there is no indication that Congress
intended stricter standards for surface coal mining operations on these
lands. Furthermore, we believe that our existing requirements are
sufficiently stringent to protect environmental resources to the extent
that SMCRA authorizes or requires protection of those resources. Among
other things, section 510(b)(2) of the Act and 30 CFR 773.15(c)(2)
prohibit approval of a permit application unless the applicant
affirmatively demonstrates that reclamation as required by the Act and
the regulatory program can be accomplished under the reclamation plan
in the permit application. In addition, section 509(a) of the Act and
30 CFR 800.14(b) require that the permittee post a performance bond in
an amount sufficient to assure completion of the reclamation plan if
the regulatory authority has to complete the work in the event of
forfeiture.
1. What Alternatives Did We Consider?
In addition to the ``no action'' (no rulemaking) alternative, the
environmental impact statement prepared for this rulemaking identified
four major options for a primary standard for VER to accompany the
needed for and adjacent standard:
Good Faith/All Permits: Under this alternative, a person
would have VER if, prior to the date the land came under the protection
of 30 CFR 761.11 and section 522(e) of the Act, that person or a
predecessor in interest had obtained, or made a good faith effort to
obtain, all permits and other authorizations required to conduct
surface coal mining operations.
Good Faith/All Permits or Takings: Under this alternative,
a person who could not meet the good faith/all permits standard would
still have VER whenever a failure to recognize VER would be expected to
result in a compensable taking of that person's property interests
under the Fifth and Fourteenth Amendments to the U.S. Constitution.
Ownership and Authority: Under this alternative,
demonstration of both a property right to the coal and the right to
mine it by the method intended would constitute VER.
Bifurcated: Under this alternative, the ownership and
authority standard would apply if the coal rights were severed from the
surface estate before the land came under the protection of 30 CFR
761.11 and section 522(e). Otherwise, the good faith/all permits
standard would apply.
In the proposed rule published on January 31, 1997, we announced
our intention to adopt the good faith/all permits standard and the
needed for and adjacent standard as the primary standards for VER. The
draft environmental impact statement released on the same date
identified the good faith/all permits standard as the preferred
alternative to accompany the needed for and adjacent standard. In
general, the environmental community and members of the public at large
supported the good faith/all permits alternative, while industry
advocated
[[Page 70776]]
the ownership and authority alternative. The few States that commented
split among the good faith/all permits, takings, and bifurcated
alternatives.
2. Why Did We Select the Good Faith/All Permits Standard?
In enacting SMCRA, Congress did not provide clear or dispositive
direction on the meaning or purpose of VER under section 522(e). There
are credible supporting and opposing arguments for each alternative.
Indeed, as summarized in Part VI of this preamble, at various times
during the past two decades, we have either proposed or adopted all the
listed alternatives, plus some variations on these alternatives.
However, after carefully evaluating all comments received and
conducting a rigorous analysis of the legislative history of section
522(e), relevant litigation, and the potential environmental impacts of
each alternative, we believe that the good faith/all permits standard
best achieves protection of the lands listed in section 522(e) in a
manner consistent with congressional intent at the time of SMCRA's
enactment. At the same time, it protects the interests of those persons
who had taken concrete steps to obtain regulatory approval for surface
coal mining operations on lands listed in section 522(e) before those
lands came under the protection of 30 CFR 761.11 and section 522(e).
And, since 20 of the 24 approved State regulatory programs under SMCRA
already rely upon either the good faith/all permits standard or the all
permits standard, adoption of a good faith/all permits standard would
cause the least disruption to existing State regulatory programs.
The good faith/all permits standard is consistent with the
legislative history of section 522(e), which indicates that Congress'
purpose in enacting section 522(e) was to prevent new surface coal
mining operations on the lands listed in that section, either to
protect human health or safety, or because the environmental values and
other features associated with those lands are generally incompatible
with surface coal mining operations. The report prepared by the Senate
Committee on Energy and Natural Resources on S. 7, the Senate version
of the legislation that became SMCRA, states that:
[T]he Committee has made a judgment that certain lands simply
should not be subject to new surface coal mining operations. These
include primarily and most emphatically those lands which cannot be
reclaimed under the standards of this Act and the following areas
dedicated by the Congress in trust for the recreation and enjoyment
of the American people: lands within the National Park System, the
National Wildlife Refuge System, the National Wilderness
Preservation System, the Wild and Scenic Rivers System, National
Recreation Areas, National Forests with certain exceptions, and
areas which would adversely affect parks or [places listed on the]
National Register of Historic Sites [sic].
In addition, for reasons of public health and safety, surface
coal mining will not be allowed within one hundred feet of a public
road (except to provide access for a haul road), within 300 feet of
an occupied building or within 500 feet of an active underground
mine.
Since mining has traditionally been accorded primary
consideration as a land use there have been instances in which the
potential for other equally or more desirable land uses has been
destroyed. The provisions discussed in this section were
specifically designed and incorporated in the bill in order to
restore more balance to Federal land use decisions regarding mining.
S. Rep. No. 95-128, at 55 (1977).
In addition, the report prepared by the House Committee on Interior
and Insular Affairs on H.R. 2, the House version of the legislation
that became SMCRA, states that:
[T]he decision to bar surface mining in certain circumstances is
better made by Congress itself. Thus section 522(e) provides that,
subject to valid existing rights, no surface coal mining operations
except those in existence on the date of enactment, shall be
permitted on lands within the boundaries of units of certain Federal
systems such as the national park system and national wildlife
refuge system * * * or in other special circumstances * * *.
H.R. Rep. No. 95-218, at 95 (1977).
See also S. Rep. No. 95-128, at 94-95 (1977).
The final environmental impact statement (EIS) for this rulemaking
indicates that, compared with the other alternatives considered, the
good faith/all permits standard is the most protective of the lands
listed in section 522(e). According to the analysis in the EIS,
adoption of the takings standard in place of the good faith/all permits
standard would result in the mining of an estimated additional 2,855
acres of protected lands between 1995 and 2015 (185 acres of section
522(e)(1) lands, 1,686 acres of Federal lands in eastern national
forests, and 984 acres of State park lands and buffer zones for State
parks). Adoption of either the bifurcated alternative or the ownership
and authority standard would result in the mining of an estimated
additional 3,062 acres during that time frame (304 acres of section
522(e)(1) lands, 1,761 acres of Federal lands in eastern national
forests, and 997 acres of State park lands and buffer zones for State
parks). See Table V-1 in Final Environmental Impact Statement OSM-EIS-
29 (July 1999), entitled ``Proposed Revisions to the Permanent Program
Regulations Implementing Section 522(e) of the Surface Mining Control
and Reclamation Act of 1977 and Proposed Rulemaking Clarifying the
Applicability of Section 522(e) to Subsidence from Underground
Mining.''
As these numbers show, the model predicts that the additional
disturbance would occur entirely on some of the lands for which the
Senate Committee expressed the most concern; i.e., public parks and the
lands protected by paragraphs (e)(1) and (e)(2) of section 522 of the
Act. See S. Rep. No. 95-128, at 55 (1977). Therefore, we believe that
adoption of the good faith/all permits standard for VER will best
fulfil the intent of Congress, as expressed in that report, to prohibit
new surface coal mining operations on the lands protected by section
522(e), with certain exceptions.
In addition, the economic analysis that the U.S. Geological Survey
and we prepared for this rulemaking found that adoption of the good
faith/all permits standard would have a net positive benefit to
society, while adoption of the takings, ownership and authority, or
bifurcated alternatives would have a net negative benefit to society.
The analysis found negligible differences among the alternatives in
terms of their economic impact. None of the alternatives would have a
significant economic impact on the mining industry or the cost of
producing and delivering coal, assuming that the prohibitions and
restrictions of section 522(e) do not apply to subsidence from
underground mining operations. See ``Final Economic Analysis: Proposed
Revisions to the Permanent Program Regulations Implementing Section
522(e) of the Surface Mining Control and Reclamation Act of 1977 and
Proposed Rulemaking Clarifying the Applicability of Section 522(e) to
Subsidence from Underground Mining'' (July 1999).
The good faith/all permits standard in the final rule requires a
demonstration that the person claiming VER, or a predecessor in
interest, had obtained, or made a good faith effort to obtain, all
permits and other authorizations required to conduct surface coal
mining operations on the land before it came under the protection of 30
CFR 761.11 and section 522(e) of the Act. Potentially necessary permits
and authorizations include, but are not limited to, mining permits,
National Pollutant Discharge Elimination System (NPDES) permits, U.S.
Forest Service special use permits, Mine Safety and Health
Administration authorizations, air quality plan approvals, local
[[Page 70777]]
government approvals, and (for some types of facilities) building
permits and zoning changes.
The proposed rule language referred only to ``State and Federal
permits and other authorizations.'' Several commenters objected to this
limitation, noting that other governmental entities such as counties
may require permits for surface coal mining operations. The commenters
argued that these permits should be included within the universe of all
necessary permits and authorizations under the good faith/all permits
standard. In response, we have deleted the limiting phrase ``State and
Federal'' from the rule. We agree with the commenters that the good
faith/all permits standard should consider all necessary permits and
authorizations, not just State and Federal permits and authorizations.
When permits and authorizations to operate do not establish
boundaries for the mining operation, the geographical extent of the VER
determination will be defined by the extent of surface coal mining
operations contemplated by all parties at the time of issuance of or
application for the permit or authorization. See the Greenwood Land and
Mining Co. VER determinations at 46 FR 36758, July 15, 1981; 46 FR
50422, October 13, 1981; and 47 FR 56191, December 15, 1982; and the
Mower Lumber Co. VER determinations at 45 FR 52467, August 7, 1980 and
45 FR 61798, September 17, 1980.
Some commenters complained that the good faith/all permits standard
is not truly a bright-line standard. They cited the potentially wide
and continually changing array of permits and authorizations required
for surface coal mining operations and the difficulty in identifying
which permits were required at any particular time. We believe that
persons requesting a VER determination and the agency responsible for
making the VER determination will be able to use public records to
reconstruct what permits and authorizations were required for a
particular site on the date that the land comes under the protection of
30 CFR 761.11 and section 522(e) of the Act. As demonstrated in the
Greenwood and Mower determinations cited above, we have experienced
little difficulty in identifying what permits are required at any
particular time.
One commenter expressed concern that the good faith/all permits
standard does not take into consideration the fact that mining firms
may not be legally required to apply for or obtain certain permits and
authorizations, such as an air quality plan approval, before obtaining
a SMCRA permit and initiating surface coal mining operations. We do not
interpret the good faith/all permits standard as requiring submission
of applications for all necessary permits and authorizations before the
date that the land comes under the protection of 30 CFR 761.11 or
section 522(e) of the Act. We believe that the language of this
standard is sufficiently flexible to remedy the concern raised by the
commenter. Specifically, we interpret this standard as providing the
agency making the VER determination with the discretion to decide (1)
which non-SMCRA permits and authorizations are needed to initiate
surface coal mining operations, and (2) what constitutes a good faith
effort to obtain all necessary permits and authorizations. In making
these decisions, the agency should consider any permitting time lines
or regulatory authority policies in place when the land came under the
protection of 30 CFR 761.11 and section 522(e).
A good faith effort may not necessarily require actual submission
of applications for all required permits and authorizations in every
instance. However, at a minimum, a good faith effort to obtain all
necessary permits must include application for any required SMCRA
permit. Because the SMCRA permit is the major permit needed for a
surface coal mining operation, requiring submission of an application
for this permit will ensure that the requester has made a significant
effort to acquire the necessary permits. Therefore, we have added a
sentence to paragraph (b)(1) of the definition specifying that, at a
minimum, an application for any permit required under SMCRA must have
been submitted before the land comes under the protection of 30 CFR
761.11 and section 522(e).
However, if, at the time that the land came under the protection of
30 CFR 761.11 and section 522(e) of SMCRA, State and Federal law did
not require a SMCRA permit for the type of operation planned, none is
needed to establish VER for that type of operation under this standard.
In that case, the person must have obtained, or made a good faith
attempt to obtain, all other necessary permits and authorizations to
operate from the appropriate agencies by that date.
Revoked, expired or lapsed permits or authorizations do not qualify
for consideration under the good faith/all permits standard because (1)
they are no longer valid authorizations to operate and (2), in the case
of an expired permit, the failure to renew or seek renewal in a timely
fashion indicates a lack of a good faith effort to obtain all necessary
permits and authorizations. One commenter stated that this restriction
is incongruous with our position endorsing the transferability of VER
and our statement in the preamble to the proposed rule that VER attach
to the land rather than to a person or operation. The commenter
expressed concern that this restriction would inhibit the remining and
repermitting of bond forfeiture sites.
The commenter has misinterpreted the scope of this restriction.
What we are saying is that once a permit expires, lapses, or is
revoked, a person who requests a VER determination subsequent to the
expiration, lapse, or revocation of that permit cannot rely upon the
prior existence of that permit to satisfy the requirements of paragraph
(b)(1) of the definition of VER. However, the expiration, lapse, or
revocation of a permit in no way alters the validity of VER
determinations made under the good faith/all permits standard before
the permit expired, lapsed, or was revoked. As discussed in Part IX of
the preamble to this final rule, we no longer adhere to the position
that VER always attach to the land. However, in the case of the good
faith/all permits standard, VER would effectively attach to the land
since the only requirement apart from the property rights demonstration
is a requirement that someone have made a good faith effort to obtain
all necessary permits. There is no requirement that a person actually
obtain a permit to demonstrate VER under this standard. Therefore, once
we or the State regulatory authority determine that a person has VER
for a particular site under the good faith/all permits standard, that
determination remains valid for all future surface coal mining
operations of the type and method covered by the determination,
regardless of the status of any permit that may exist for that land.
Therefore, the language to which the commenter objects does not present
a barrier to repermitting lands for which permits have expired, lapsed,
or been revoked. Previous VER determinations applicable to the site
under the good faith/all permits standard would remain valid and any
areas that come under the protection of 30 CFR 761.11 and section
522(e) before the permit expired, lapsed, or was revoked would be
covered by the exception for existing operations in 30 CFR 761.12.
Some commenters argued that the good faith/all permits standard is
inherently unfair and unreasonable because so few persons could qualify
for VER under that standard 20 years after the enactment of SMCRA. They
also note that, while industry generally
[[Page 70778]]
acquires mineral rights well in advance of any planned mining, it does
not seek permits for those lands until mining is reasonably imminent.
Section 506(b) of the Act generally limits permit terms to 5 years and
section 506(c) provides that a permit will terminate if the permittee
has not begun surface coal mining operations within 3 years of the date
of issuance. Thus, the commenters argue, the good faith/all permits
standard unfairly penalizes persons who have purchased coal reserves
for investment purposes or to provide for the company's long-term
security or future expansion.
We believe that the good faith/all permits standard properly
implements the intent of Congress to prevent most new surface coal
mining operations on the lands listed in section 522(e). We agree that,
except for lands coming under the protection of 30 CFR 761.11 and
section 522(e) after August 3, 1977, few persons will qualify for VER
under this standard. But this result is fair, reasonable, and
appropriate, given the congressional intent to protect section 522(e)
lands.
To some extent, speculative investors in land and interests in land
assume the risk of future changes in the regulatory environment. Under
the 1979 Federal rule, the 1980 suspension notice, State regulatory
programs, and our 1986 suspension notice, an all permits or good faith/
all permits standard has been in place for most of the time since the
enactment of SMCRA for most of the lands listed in section 522(e).
Therefore, few mineral owners could plausibly claim that they were
unaware of the applicability of the restriction, or that they had
reasonable expectations of being held to a less restrictive standard.
Furthermore, the needed for and adjacent VER standard in paragraph
(b)(2) of the definition offers relief to some persons who are unable
to meet the good faith/all permits standard. And, as discussed in the
final environmental impact statement and final economic analysis for
this rulemaking, mineral owners and mine operators frequently rely upon
the other exceptions provided by section 522(e), such as waivers for
the buffer zones for public roads and occupied dwellings, compatibility
findings for Federal lands in national forests, and joint approval for
publicly owned parks and historic places.
Section 522(e) of the Act affects a person's eligibility to obtain
a permit for surface coal mining operations. Logically, then, the VER
exception under section 522(e) should ensure fairness by protecting a
pre-existing interest under the regulatory process that was in place
when the prohibitions of section 522(e) took effect. That is, in
general, the VER exception should protect an equitable interest in
regulatory approval of proposed surface coal mining operations for
which a person had taken steps to obtain regulatory approval in
reliance upon the circumstances that existed before the land came under
the protection of section 522(e). The good faith/all permits standard
protects this equitable interest in regulatory approval.
This standard is also consistent with the general principles of
equitable estoppel; i.e., that one who has in good faith relied upon
and complied with the requirements for obtaining an interest by ``doing
all he could do'' should not be deprived of the interest. See Shostak
and Barrett, Valid Existing Rights in SMCRA, 5 J. Min. L. & Pol'y 585,
600 (1990), and Note, Regulation and Land Withdrawals; Defining ``Valid
Existing Rights'', 3 J. Min. L. & Pol'y 517 (1988). Thus, under the
good faith/all permits standard, in determining whether a person has
demonstrated VER, the agency will examine whether the record
demonstrates that, by the time that the land came under the protection
of 30 CFR 761.11 and section 522(e), that person or a predecessor in
interest had relied upon and complied with all regulatory requirements
for obtaining the necessary permits and authorizations by doing all
that could be done to obtain those permits and authorizations. If a
person makes both this demonstration and the property rights
demonstration required by paragraph (a) of the definition of VER, it
would be unfair to deny that person eligibility to apply for and obtain
a permit under SMCRA.
SMCRA and its legislative history do not compel or support adoption
of a VER standard crafted to (1) ensure continuation of all standard
pre-SMCRA industry practices, (2) preserve the ability of all mineral
owners to extract coal from protected areas by surface coal mining
operations whenever authorized under State property law, or (3)
maintain broad eligibility for VER on a nondeclining basis. We believe
that adoption of a standard incorporating these principles would
effectively vitiate the protections of section 522(e) for all lands
except those overlying unleased Federal coal. This result would
contravene Congress' intention in enacting this section.
Some commenters argued that nothing in the statute or its
legislative history remotely suggests that VER be defined in terms of a
good faith/all permits standard. We agree that neither the statute nor
its legislative history mentions a good faith/all permits standard for
VER. However, as discussed above, we believe that the good faith/all
permits standard is consistent with the legislative history of section
522(e). In addition, the definition of VER is not restricted to the
good faith/all permits standard; it also includes the needed for and
adjacent standard.
Commenters also argue that if Congress had intended to provide a
permit-based exception to the prohibitions of section 522(e), it would
have done so expressly as it did in section 510(b)(5) (restrictions on
mining alluvial valley floors), section 510(d)(2) (special requirements
for surface coal mining operations on prime farmlands), and section
522(a)(2) (petition-initiated designations of land as unsuitable for
surface coal mining operations). According to the commenters, adoption
of a permit-based definition of VER conflicts with the judicially
endorsed presumption that Congress has acted both purposely and
intentionally when it includes particular language in one statutory
provision but not in another.
We agree that the statute's use of different terminology for each
of these exceptions means that Congress probably intended a somewhat
different meaning for the VER exception under section 522(e) than for
the exceptions provided under the other statutory provisions cited by
the commenters. However, we do not agree that the difference in
terminology rules out the adoption of any type of permit-based standard
for VER under section 522(e). And the good faith/all permits standard
in this final rule differs from the permit-based exceptions under other
provisions of the Act in that it includes a good faith component, which
the others do not. Furthermore, our definition of VER includes the
needed for and adjacent standard, which is not a permit-based standard.
Finally, nothing in the litigation history of the definition of VER
indicates that the courts would likely find a permit-based standard
unacceptable for the reasons advanced by the commenters.
Many commenters characterized Hodel v. Virginia Surface Mining &
Reclamation Ass'n, 452 U.S. 264, 296 n.37 (1981) (``Hodel v. VSMRA'')
as representing a rejection of a permit-based standard for VER, or at
least an indication that the courts would view such a standard with
disfavor. In that case, the Supreme Court stated in a footnote that
nothing in the statutory language of SMCRA or its legislative history
would compel adoption of an all permits standard for VER. One commenter
also argued that, in National
[[Page 70779]]
Wildlife Fed'n v. Hodel, 839 F.2d 694, 750 n.86 (D.C. Cir. 1988) (``NWF
v. Hodel''), the U.S. Court of Appeals for the Federal Circuit
characterized this Supreme Court pronouncement as a rejection of the
all permits standard: ``[T]he Supreme Court has previously rejected a
too-restrictive interpretation of VER in an early challenge to the
SMCRA brought by industry.'' We respectfully disagree with these
characterizations of the Supreme Court's decision and opinion. First,
the definition of VER was not before the court. Second, the language
chosen by the Supreme Court is decidedly neutral. It addresses only the
question of whether the statute compels adoption of an all permits
standard. It does not reach the issue of whether an all permits
standard (or good faith/all permits standard) is permissible.
Commenters attacked the good faith/all permits standard as
unconstitutionally defining property rights in violation of the Tenth
Amendment to the Constitution, which reserves that power to the States
as one of their unenumerated powers. We disagree. Our definition of VER
clearly defers to State property law on all questions of property
rights. The final rule defining VER does not by its terms deprive any
person of property rights. Instead, our definition establishes the
limits of the VER exception to the prohibitions and restrictions of
section 522(e), based on equitable considerations.
Furthermore, in Hodel v. VSMRA, 452 U.S. at 291 (1981), the Supreme
Court stated:
The Court long ago rejected the suggestion that Congress invades
areas reserved to the States by the Tenth Amendment simply because
it exercises its authority under the Commerce Clause in a manner
that displaces the States' exercise of their police powers.
Commenters also argued that the good faith/all permits standard
denies property owners due process under the Fifth Amendment because it
conditions the retention of a property right on conditions that are
unreasonable and of which the property owner had inadequate notice. We
disagree. Property owners had the opportunity to comment on either an
all permits or good faith/all permits standard in the 1978, 1982, 1988,
1991, and 1997 proposed rules. Furthermore, the final rule creates
little change in the status quo since most States have applied a good
faith/all permits or all permits standard ever since they obtained
approval of their SMCRA regulatory programs. In addition, when the VER
standard is applied, all VER determinations have been and will continue
to be subject to administrative and judicial review.
Commenters allege that the good faith/all permits standard
improperly relies upon the opinion in PSMRL I, Round I, 14 Env't Rep.
Cas. (BNA) at 1090-91 (1980). They note that, on February 1, 1983, the
U.S. Court of Appeals for the Federal Circuit remanded these
regulations to the Secretary for review and revision at his request.
The order of remand in this case stated that the judgment of the
district court in PSMRL I, Round I, supra, could not be considered
final. See In re Permanent Surface Mining Regulation Litigation, No.
80-1810, Order of Remand (D.C. Cir., Feb. 1, 1983). While the district
court's decision lacks precedential weight, the order of remand does
not prohibit use of the opinion as guidance in developing revised
regulations. Regardless, as discussed above, our rationale for adoption
of the good faith/all permits standard rests primarily upon our
analysis of the legislative history of section 522(e) and Congress'
purpose in enacting that section, not upon the opinion accompanying the
court's decision. Only the good faith component has its origins in the
PSMRL I, Round I decision.
Commenters also asserted that the definition of VER does not
comport with our statement in the PSMRL I, Round I litigation that
``Congress intended the term valid existing rights to encompass
property rights recognized as valid under state case law.'' 14 Env't
Rep. Cas. (BNA) at 1090 (1980). The commenters overlook the context of
this statement, which pertained only to paragraph (c) of the 1979
definition of VER. See 44 FR 67942, November 27, 1979. Paragraph (c)
established criteria for the interpretation of documents used as part
of the property rights demonstration. It did not comprise an
independent standard for VER, contrary to the apparent assumptions of
the commenters.
As noted in the decision, the Secretary committed only to revise
the definition to state that documents dealing with property rights
entitling one to surface mine coal will be interpreted in accordance
with appropriate State court decisions. He did not agree to waive the
other requirements of the 1979 definition, which include compliance
with one of the VER standards in paragraphs (a) and (b) of the
definition (the all permits standard, the needed for and adjacent
standard, or the separate standard for haul roads). Nor did he agree to
alter paragraph (d) of the 1979 definition, which provided that VER
``does not mean mere expectation of a right to conduct surface coal
mining operations.''
One commenter complained that the version of the good faith/all
permits standard that we proposed in 1997 differs sharply from our
representations to the courts concerning the meaning of VER under
section 522(e). The commenter specifically referred to and quoted a
reply brief that the Government filed with the Supreme Court in Hodel
v. VSMRA, 452 U.S. 264 (1981), on behalf of the Secretary. We agree
that the final rule is not fully consistent with the statements in this
brief. However, as discussed above and in Part VII.C.5. of this
preamble, we no longer subscribe to this brief's interpretation of the
legislative history of section 522(e). Furthermore, the discussion of
VER in the brief occurred in the context of a facial challenge to
section 522(e) of the Act. The definition of VER was not before the
Court, and the Court did not rule on the meaning of the VER exception.
As the brief itself notes, the Secretary was engaged in rulemaking to
redefine VER at the time that the brief was filed. And, as discussed
above and in Part VII.C.5. of this preamble, we believe that the VER
standards in the final rule are the standards that are most consistent
with the legislative history and Congress' intent in enacting section
522(e).
Some commenters opposed the good faith/all permits standard as a
violation of the principle of statutory construction that a statute
must be construed in a manner that affords each provision separate
effect. Specifically, they charged that adoption of the good faith/all
permits standard would effectively merge the VER exception under
section 522(e) into the exception for existing operations under the
same section, and thus improperly render the VER exception superfluous.
We do not agree. First, as defined in this rule, the exception for
existing operations does not apply to lands for which a permit has not
actually been obtained; i.e., it has no good faith component.
Second, the exception for existing operations includes authorized
operations that have already begun surface coal mining operations
before the land comes under the protection of 30 CFR 761.11 and section
522(e); the VER exception is not intended to apply to these operations.
Third, the definition of VER is not restricted to the good faith/all
permits standard. It also includes the needed for and adjacent standard
and a separate standard for roads, neither of which has any counterpart
in the exception for existing
[[Page 70780]]
operations in 30 CFR 761.12. Therefore, the VER exception includes
significant differences from the exception for existing operations. The
only overlap occurs with respect to unstarted operations that have
obtained a permanent program permit under SMCRA.
In summary, we believe that the good faith/all permits standard is
both reasonable and consistent with congressional intent. As discussed
above and as summarized in Part V of this preamble, the legislative
history is sparse and unclear, and parts are arguably inapplicable with
respect to how Congress intended the VER exception in section 522(e) of
the Act to be interpreted. In the face of this difficulty in
determining Congress' intent, we believe that the good faith/all
permits standard best balances a number of statutory purposes and
policy objectives. These purposes and objectives include establishing a
reasonable standard that is practicable to administer, providing
substantial environmental protection to congressionally designated
areas, providing an exception to the prohibition on surface coal mining
operations in those areas when it would be unfair to apply the
prohibition, protecting surface landowners from the adverse effects of
surface coal mining operations, minimizing disruption of existing State
regulatory programs and expectations engendered thereunder, and, to the
extent that it harmonizes with the other purposes and objectives,
mitigating or minimizing compensable takings of property interests.
3. What Comments Did We Receive Regarding Takings Issues Concerning the
Good Faith/All Permits Standard?
Many commenters argued that the good faith/all permits standard is
constitutionally infirm because of its Fifth Amendment takings
implications. This argument appears to rely upon three premises: (1)
that any interference with property rights recognized under State law
would be a compensable taking, (2) that the good faith/all permits
standard would effectively deny mineral owners any reasonable economic
use of their property, and (3) that a standard which, when applied,
might result in some compensable takings is facially unconstitutional.
We do not agree that any of these premises is correct.
With respect to the definition of VER under section 522(e) of
SMCRA, the U.S. District Court for the District of Columbia has held
that ``no mechanical formula [for VER] will ever perfectly define the
universe of circumstances in which failure to grant VER will constitute
a taking.'' PSMRL II, Round III--VER, 22 Env't Rep. Cas. (BNA) at 1563
(1985). And the Supreme Court has long held that regulation that
affects the value, use, or transfer of property may constitute a
compensable taking if it goes too far. Pennsylvania Coal Co. v. Mahon,
260 U.S. 393 (1922). However, the courts have also long held that the
rights of property owners are not absolute and that government may,
within limits, regulate the use of property. See the summary of takings
law published at 56 FR 33161, July 18, 1991.
The Supreme Court has identified three factors as having particular
significance in a regulatory takings analysis: (1) the economic impact
of the proposed government policy or action on the property interest
involved, (2) the extent to which the action or regulation interferes
with any reasonable, investment-backed expectations of the owner of the
property interest, and (3) the character of the government action.
Connolly v. Pension Benefit Guaranty Corp., 475 U.S. 211, 224-25
(1986). The courts generally find that a compensable taking exists only
if the government action would cause inequitably disproportionate
economic impacts on the property or interfere with reasonable,
investment-backed expectations of persons with an interest in the
property to such an extent that justice and fairness would require that
the public, rather than the private property owners, pay for the public
benefit resulting from the restrictions that the government action
places on the property. Armstrong v. United States, 364 U.S. 40, 49
(1960).
In declining to review the constitutionality of section 522(e) of
SMCRA, the Supreme Court explained its historic approach to takings
analyses as follows:
[T]his court has generally ``been unable to develop any ``set
formula'' for determining when ``justice and fairness'' require that
economic injuries caused by public action be compensated, rather
than remain disproportionately concentrated on a few persons.''
Rather, it has examined the ``taking'' question by engaging in
essentially ad hoc, factual inquiries that have identified several
factors--such as the economic impact of the regulation, its
interference with reasonable investment-backed expectations, and the
character of the government action--that have particular
significance. Kaiser Aetna v. United States, 444 U.S. 164, 175
(1979). * * * These ``ad hoc factual inquiries'' must be conducted
with respect to specific property, and the particular estimates of
economic impact and ultimate valuation relevant in the unique
circumstances.
Hodel v. VSMRA, 452 U.S. at 296 (1981) (citations omitted).
When regulation goes too far in infringing on private property
rights is not precisely definable. The Supreme Court has consistently
``eschewed any `set formula' for determining how far is too far,
preferring to `engage in * * * essentially ad hoc, factual inquiries.'
'' Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 1015 (1992)
(``Lucas''), quoting Penn Cent. Transp. Co. v. New York City, 438 U.S.
104, 124 (1978). In Lucas, the Supreme Court recognized what it
characterized as a ``logically antecedent inquiry'' into a takings
claimant's title prior to the inquiry into whether the government has
interfered with rights inherent in that title in a manner that rises to
the level of a Fifth Amendment taking. Id. at 1027. The Court noted in
Lucas that its takings jurisprudence ``has traditionally been guided by
the understandings of our citizens regarding the content of, and the
State's power over the `bundle of rights' that they acquire when they
obtain title to property.'' Id. at 1027. Thus, the Court continued,
some regulation of rights should be expected. ``In the case of personal
property, by reason of the State's traditionally high degree of control
over commercial dealings,'' the possibility of significant impacts
should be anticipated. Id. at 1027-28. But the Court indicated that
interests in land have greater expectations of protection. Id. at 1028.
Further, the Court suggested that an ``owner's reasonable
expectations'' may be critical to a takings determination. Id. at 1016
n.7. These expectations are those that ``have been shaped by the
State's law of property; i.e., whether and to what degree the State's
law has accorded legal recognition and protection to the particular
interest in land with respect to which the takings claimant alleges a
diminution (or elimination) of value.'' Id. at 1016 n.7.
However, in a subsequent case, the Supreme Court reiterated that
``our cases have long established that mere diminution in the value of
property, however serious, is insufficient to demonstrate a taking.''
Concrete Pipe & Prod. v. Construction Laborers Pension Trust, 508 U.S.
602, 645 (1993). The Court cited Village of Euclid v. Ambler Realty
Co., 272 U.S. 365, 384 (1926), which involved an approximate 75 percent
diminution in value, and Hadacheck v. Sebastian, 239 U.S. 394, 405
(1915), which involved a 92.5 percent diminution in value, as examples
of the cases to which it was referring.
[[Page 70781]]
Even under Lucas (see id. at 1027-28), coal owners and the coal
mining industry may not necessarily enjoy the same expectations of
freedom from government interference as persons who have historically
been subject to a lesser degree of regulation, a factor that must be
considered when evaluating the impact of the governmental action on
investment-backed expectations. The Supreme Court recently held that
``those who do business in the regulated field cannot object if the
legislative scheme is buttressed by subsequent amendments to achieve
the legislative end.'' Concrete Pipe & Prod. v. Construction Laborers
Pension Trust, 508 U.S. 602, 645 (1993) (citations omitted). And, in
the same case, the Court ruled that ``legislation readjusting rights
and burdens is not unlawful solely because it upsets otherwise settled
expectations.'' Id. at 646 (citations omitted).
In PSMRL I, Round I, 14 Env't Rep. Cas. (BNA) at 1091 (1980), the
U.S. District Court for the District of Columbia declined to rule on
the constitutionality of the 1979 all permits standard for VER because
the plaintiffs' takings claims were purely hypothetical. However, in
its opinion, the court stated that it found persuasive the government's
arguments that the definition met the standards of existing takings
jurisprudence. And the definition that we are adopting today is
consistent with that court's declaration that ``a good faith attempt to
have obtained all permits before the August 3, 1977 cut-off date should
suffice for meeting the all permits test.''
Furthermore, in Hodel v. VSMRA, 452 U.S. at 296 n.37 (1981), the
Supreme Court stated that, while nothing in the statutory language of
SMCRA or its legislative history would compel adoption of an all
permits standard for VER, section 522(e) ``does not, on its face,
deprive owners of land within its reach of economically viable use of
their land since it does not proscribe nonmining uses of such land.''
The definition of VER that we are adopting today likewise does not
prohibit nonmining uses of land protected by section 522(e). Therefore,
we believe that the good faith/all permits standard is consistent with
the principles established by the Supreme Court.
The commenters are correct in noting that neither of these
decisions specifically endorses the good faith/all permits standard as
constitutionally sound. However, there is nothing in these court
decisions, SMCRA, or its legislative history that precludes adoption of
a good faith/all permits standard for VER under section 522(e) or
suggests that adoption of this standard would be a facial regulatory
taking. Therefore, the only question is the degree to which its
application to individual situations may result in a compensable
taking.
The takings implication assessment in Part XXIX.E. of this preamble
states that the good faith/all permits standard has significant takings
implications as that term is defined by Executive Order 12630. It also
states that, of all the alternatives that we considered, this standard
has the greatest potential to result in compensable takings. However,
the assessment explains that, while these takings implications are
unquantifiable, we anticipate that the rule will result in very few
compensable takings. The final environmental impact statement and final
economic analysis for this rulemaking suggest that any takings that do
occur will be limited largely to lands in eastern national forests with
Federal surface and non-Federal mineral ownership and to lands in State
and local parks and buffer zones for those parks.
Also, we anticipate that, in most cases, the lands protected by
section 522(e) and 30 CFR 761.11 will comprise only a small portion of
the relevant property interests as a whole. Therefore, under
established takings jurisprudence, these prohibitions are unlikely to
result in compensable takings. See Penn Cent. Transp. Co. v. New York
City, 438 U.S. 104, 130 (1978) (``Takings jurisprudence does not divide
a single parcel into discrete segments and attempt to determine whether
rights in a particular segment have been entirely abrogated.'') For
example, because mineral ownership is commonly less fragmented than
surface ownership, the buffer zones for dwellings, cemeteries, roads,
public buildings, and parks are unlikely to preclude surface coal
mining operations on the bulk of a parcel for which a person owns the
mineral rights. Even if the entire parcel lies within one or more of
the prohibited areas, there may be no compensable taking because (1)
the person may be able to recover the coal through underground mining
methods without constructing surface facilities on the protected lands,
or (2) there may be residual non-coal interests in the property which
are unaffected or even enhanced by the prohibitions. For example,
prohibition of surface coal mining operations could increase the value
of the surface estate for residential or commercial development.
One commenter stated that Penn Central retains little currency in
view of the subsequent Lucas decision. We find nothing in Lucas that
expressly or by implication reverses the aspect of Penn Central quoted
in the previous paragraph. And, in a decision rendered after Lucas, the
Supreme Court reaffirmed this aspect of its Penn Central decision:
We reject Concrete Pipe's contention that the appropriate
analytical framework is the one employed in our cases dealing with
permanent physical occupation or destruction of economically
beneficial use of real property. [Citation to Lucas omitted.] While
Concrete Pipe tries to shoehorn its claim into this analysis by
asserting that ``the property of [Concrete Pipe] which is taken, is
taken in its entirety,'' we rejected this analysis years ago in Penn
Central, where we held that a claimant's parcel of property could
not first be divided into what was taken and what was left for the
purpose of demonstrating the taking of the former to be complete and
hence compensable. To the extent that any portion of property is
taken, that portion is always taken in its entirety; the relevant
question, however, is whether the property taken is all, or only a
portion of, the parcel in question.
Concrete Pipe & Prod. v. Construction Laborers Pension Trust, 508 U.S.
602, 643-44 (1993), citations omitted.
One commenter argued that the statutory prohibition in section
522(e), when combined with the good faith/all permits standard for VER,
would physically appropriate a distinct property interest (the right to
surface mine) and thus would constitute a compensable taking regardless
of how much of a person's property was actually affected by section
522(e) or what other uses of the property might remain. However, the
commenter did not explain why this situation would qualify as a
physical intrusion under the standard established in Loretto v.
Teleprompter Manhattan CATV Corp., 458 U.S. 419 (1982). And we are
aware of no basis for such an argument under existing takings
jurisprudence.
One commenter stated that, based upon the takings implication
assessment, adoption of the good faith/all permits standard is
proscribed by Edward J. DeBartolo Corp. v. Florida Gulf Coast Building
& Construction Trades Council, 485 U.S. 568 (1988). In that case, which
dealt with First Amendment issues, the Supreme Court held that if ``an
otherwise acceptable construction of a statute would raise serious
constitutional problems, the Court will construe the statute to avoid
such problems unless such construction is plainly contrary to the
intent of Congress.'' Id. at 575. The commenter argued that, under this
decision, we must select an alternative other than the good faith/all
permits standard because the takings implication assessment in the
proposed rule found that the good faith/all permits standard has the
greatest potential to result in
[[Page 70782]]
compensable takings. We do not agree that the rationale in this
decision prohibits adoption of the good faith/all permits standard.
First, we believe that adoption of another alternative would be
contrary to the intent of Congress. In enacting section 522(e) of
SMCRA, Congress clearly intended to minimize the number of new surface
coal mining operations on protected lands. The other alternatives for
the definition of VER are all less protective of the lands in section
522(e). Therefore, we believe that adoption of one of those
alternatives would be contrary to the intent of Congress in enacting
section 522(e).
Second, we do not agree that adoption or implementation of the good
faith/all permits standard presents a constitutional problem. The Fifth
Amendment only prohibits the taking of property without compensation.
And the Tucker Act, 28 U.S.C. 1491, provides recourse for an individual
to seek compensation in any situation in which a compensable taking
might arise as a result of a Federal action. According to the Supreme
Court, when ``compensation is available for those whose property is in
fact taken, the government action is not unconstitutional.'' United
States v. Riverside Bayview Homes, Inc., 474 U.S. 121, 128 (1985). And
the Supreme Court also ruled that the Takings Clause ``is designed not
to limit governmental interference with property rights per se, but
rather to secure compensation in the event of otherwise proper
interference amounting to a taking.'' First English Evangelical
Lutheran Church v. County of Los Angeles, 482 U.S. 304, 315 (1987).
Furthermore, we have used the good faith/all permits standard most
of the time since SMCRA's enactment. And 20 of the 24 approved State
regulatory programs under SMCRA rely upon a VER definition that
includes either the all permits standard or the good faith/all permits
standard. Apart from two cases of limited precedential weight from the
U.S. District Court for the Southern District of Ohio, Belville Mining
Co. v. Lujan, No. C-1-89-790 (S.D. Ohio 1991) (Belville I) and Sunday
Creek Coal Co. v. Hodel, No. C-2-88-0416 (S.D. Ohio, June 2, 1988), we
are not aware of any final decisions in which State or Federal courts
have found that the good faith/all permits standard, or an agency
determination that a person did not have VER under the good faith/all
permits standard, was invalid on the basis of a conclusion that the
standard or determination would result in a compensable taking of a
property interest under the Fifth and Fourteenth Amendments to the U.S.
Constitution. And we are aware of no final decisions in which the U.S.
Court of Federal Claims has held that a person who could not meet the
good faith/all permits standard suffered a compensable taking.
Therefore, we anticipate that application of the good faith/all permits
standard will result in very few compensable takings.
The preamble to the proposed rule contains the following
discussion, which relies upon a zoning analogy to support the validity
of the good faith/all permits standard in the face of a Fifth Amendment
challenge:
Section 522(e) is a form of land use regulation that may be
considered analogous to certain provisions of zoning law. VER under
section 522(e) is generally analogous to those provisions of land
use law that define when a person attains a vested right to a
particular land use regardless of subsequent changes in zoning
ordinances that would otherwise prohibit or restrict that use. State
laws vary widely with respect to when a person develops a vested
interest in a particular land use, but mere ownership is rarely
sufficient. Some States require that a person both obtain all
necessary permits and make significant expenditures in reliance on
those permits. Others require that a person reach a certain point in
the permit process or make substantial good faith expenditures based
on the existing zoning before he or she develops a vested interest
in uses allowed under that zoning.
The good faith/all permits standard for VER has a similar effect
and is based in part on a similar rationale. Therefore, OSM
anticipates that, in any review of the validity of a final VER
standard, a court would consider principles analogous to those that
have guided judicial decisions on challenges to the validity of
zoning ordinances and similar land use regulatory provisions. In
general, the courts have upheld land use restrictions as a
legitimate exercise of the police power under the U.S. Constitution.
62 FR 4844, January 31, 1997.
One commenter attacked this analogy as inappropriate and
inconsistent with constitutional law. The commenter argued that zoning
authority arises from the plenary police powers reserved to the States
under the Tenth Amendment to the Constitution, while Congress'
authority to regulate intrastate coal mining derives from judicial
interpretation of the Commerce Clause of the Constitution. See United
States v. Lopez, 514 U.S. 549, 566 (1995), citing Hodel v. VSMRA,
supra. The commenter also quoted a different Supreme Court decision on
SMCRA, in which the Court stated:
We do not share the view of the District Court that the Surface
Mining Act is a land-use measure after the fashion of the zoning
ordinances typically enacted by state and local governments.
Hodel v. Indiana, 452 U.S. 314, 331 n.18 (1981).
We agree that the constitutional authority for SMCRA is the
Commerce Clause. See Hodel v. VSMRA, 452 U.S. at 275-283 (1981), and
Hodel v. Indiana, 452 U.S. at 321-329 (1981). We did not intend the
discussion in the proposed rule to be interpreted as identifying the
police power as a source of authority for either SMCRA or adoption of
implementing regulations. Rather, we intended that discussion to
explain in part why we do not anticipate that the courts will find this
standard to be a facial regulatory taking; i.e., we expect the courts
to evaluate this rule as a justifiable balancing of private rights with
protection of public interests, given the dictates of SMCRA. Our
statement that, in general, the courts have upheld land use
restrictions as a legitimate exercise of the police power under the
Constitution referred to litigation involving measures enacted by State
and local governments, not Federal laws and regulations.
One commenter argued that the good faith/all permits standard has
no takings implications because all mining in section 522(e) areas
would be either a public nuisance or a threat to public health and
safety. The commenter stated that, under background principles of
property and nuisance law, prohibition of surface coal mining
operations in these areas would never rise to the level of a
compensable taking. While this statement may be true in some cases for
some lands listed in section 522(e), the ad hoc, fact-specific nature
of takings jurisprudence means that we cannot assume that it will
always be true.
In Lucas, supra, at 17-25, the Supreme Court stated that the
``harmful or noxious use'' principle in Goldblatt v. Town of Hempstead,
369 U.S. 590 (1962), and Mugler v. Kansas, 123 U.S. 623 (1887) (the
nuisance law to which the commenter refers) was merely an earlier
description by the Court of the police power justification for allowing
the government to cause some diminution in the value of private
property without requiring that the owner of that property be
compensated. However, in Lucas, the Court held that a property owner
must be compensated for all total regulatory takings; i.e., situations
in which the owner retains no economically viable or beneficial use of
the property, unless the use or uses in question are already prohibited
under background principles of State nuisance and property law.
The Court further stated that ``[t]he fact that a particular use
has long been engaged in by similarly situated owners
[[Page 70783]]
ordinarily imports a lack of any common law prohibition.'' Lucas, 505
U.S. at 1015. This premise might apply to surface coal mining
operations in many of the areas protected by section 522(e) because
State and local laws often did not prohibit surface coal mining
operations in these areas before SMCRA. Its exact applicability would
vary from State to State and locality to locality depending on State
and local laws and the facts of each case. Hence, the commenter's claim
that all mining in section 522(e) areas is per se a public nuisance and
a threat to public health and safety is of questionable merit. See also
Whitney Benefits, Inc. v. United States, 18 Cl.Ct. 394 (1989), aff'd
926 F.2d 1169 (Fed. Cir. 1991), in which the court of appeals held
that, at least in the context of prohibiting surface coal mining
operations on alluvial valley floors, ``Congress was not in SMCRA
abating a `nuisance', within the meaning of Supreme Court and other
cases.'' Whitney Benefits at 926 F.2d 1177. However, as discussed above
and in the takings implication assessment, we believe that successful
takings claims under the good faith/all permits standard will be rare.
Some commenters argued that adoption of any standard other than the
good faith/all permits standard would result in compensable takings of
surface owners' property rights to peaceful enjoyment of their
property. We know of no Federal case law supporting this argument.
However, because we are adopting the good faith/all permits standard,
which the commenters favored, there is no need to respond to this
comment.
A few commenters warned that the takings implications of the good
faith/all permits standard may significantly disrupt State regulatory
programs because a single successful claim could devastate State
funding of these programs. The commenters stated that the threat of
large inverse condemnation awards would cause some States to relinquish
primacy, which, one commenter noted, would threaten ``the federalist
foundation of the Act.'' We find this possibility to be remote since 20
of the 24 approved State regulatory programs already include either an
all permits or a good faith/all permits standard, and have done so
since the date that we approved their programs under section 503 of the
Act.
One State regulatory authority warned that the financial exposure
resulting from adoption of the good faith/all permits standard would
likely lead to States referring all VER determinations to us to avoid
any liability for compensable takings awards, which could easily
bankrupt a regulatory agency. However, there is no provision of the Act
that authorizes such referrals. Furthermore, we believe that referrals
are unlikely because 20 of the 24 approved State programs, including
the one for the State that the commenter represents, already include an
all permits or good faith/all permits standard for VER. If a State does
attempt to refer a VER determination to us, we will take whatever
measures are appropriate under sections 503 and 504 of SMCRA.
4. Why Did We Reject the Takings Standard?
For the reasons discussed in Part VII.C.2. of this preamble, we
believe that, of all the alternatives considered for the definition of
VER, the good faith/all permits standard best comports with the intent
of Congress in enacting section 522(e). For this and other reasons, we
did not propose to adopt a takings standard for VER. However, some
persons elected to comment on either this standard or the validity of
our reasons for failing to propose a takings standard. None of the
comments received on the proposed rule provides sufficient basis for
reconsideration of our preferred alternative.
To the extent that they chose to comment on the possibility of a
takings standard, most commenters from every interest group expressed
opposition, just as they did when we formally proposed one in 1991.
Commenters provided various reasons for their opposition. Some
characterized the takings standard as unacceptably subjective or
unpredictable, with results that would vary widely from State to State
and perhaps within a State as well. Many expressed concern about the
potentially onerous information collection and analytical burdens that
this standard could place both on persons seeking a VER determination
and on the agency making the determination. Commenters noted that these
agencies are unlikely to have the resources needed to conduct a
comprehensive takings analysis. Other commenters argued that only the
courts have both the authority and the competence to determine whether
an agency action would result in a compensable taking. In addition, a
number of commenters opposed the takings standard because of their
belief that it would be far less protective of the lands listed in
section 522(e) than the good faith/all permits standard. Because we did
not propose a takings standard, we find it unnecessary to discuss the
merits of these arguments here.
In the preamble to the 1997 proposed rule, we explained that one of
the reasons why we did not propose to adopt the takings standard is
that a takings standard would be relatively difficult to administer,
compared to the other alternatives. The few commenters who supported a
takings standard as either their first or second choice argued that
difficulty in administration is not a valid reason for not selecting an
otherwise viable rulemaking alternative. We disagree. Executive Order
12988, ``Civil Justice Reform,'' encourages the adoption of rules that
do not present or create administrative difficulties.
And, in a 1985 opinion, the U.S. District Court for the District of
Columbia, while declining to rule on the merits of a takings standard,
cast doubt upon its administrative viability:
The Secretary seems to assume, and this court expresses no
opinion on this issue, that Congress intended each and every VER
determination made by a state agency or OSM to coincide precisely
with what a judicial determination of a taking would be in that
given factual setting. But * * * only a court can decide whether a
taking has occurred. Thus, while at first blush, it would appear
that the broad constitutional takings test as promulgated by the
Secretary comports with Congress' wishes to avoid any takings, it is
not clear whether the broad test or one of the mechanical tests will
better carry out congressional intent.
PSMRL II, Round III--VER, 22 Env't Rep. Cas. (BNA) at 1563 (1985).
One commenter stated that there is nothing in SMCRA or its
legislative history that suggests that VER under section 522(e) is
coextensive with the Takings Clause of the Fifth Amendment. As
discussed above and in Parts VII.C.2. and VII.C.3. of this preamble, we
agree.
Other commenters who favored either the takings standard or the
ownership and authority standard noted that both we and the courts have
frequently stated or implied that a principal purpose of the VER
exception in section 522(e) is to avoid compensable takings. This
statement is true. However, the expressions of opinion in the court
decisions cited by the commenters are not binding, either because this
particular question was not at issue in the cases before the courts or
because the court declined to rule on the merits of the issue.
Furthermore, both our prior statements suggesting that Congress
included the VER exception in section 522(e) to avoid compensable
takings (see, for example, 44 FR 14992, March 13, 1979, col. 1) and
similar expressions of opinion in court decisions relied upon the
colloquy between Congressmen Udall and Roncalio concerning VER under
section 601 of the Act. See 123 Cong. Rec. H12878 (April 29, 1977).
[[Page 70784]]
We now believe that this colloquy has little if any relevance to
the meaning of VER under section 522(e). Section 601 relates only to
the mining of minerals and materials other than coal on Federal lands,
while section 522(e) relates to surface coal mining operations on both
Federal and non-Federal lands. Given this distinction and the
references in section 601 to withdrawal of public lands from mineral
entry or leasing, we believe that it is reasonable to conclude that the
VER provision in section 601 refers to rights under the General Mining
Law, the Mineral Leasing Act, and similar Federal statutes concerning
the management and disposition of Federal lands and minerals. As
discussed in Part VIII of this preamble, the concepts of VER under
other Federal statutes are not readily translatable to VER under
section 522(e).
And, most importantly, under the canons of statutory construction,
the colloquy deserves little weight as a statement of congressional
intent. The quoted exchange is an extemporaneous discussion between two
legislators, reflecting their individual concerns and perceptions, and
it does not appear in any form in any congressional report. Thus, it
cannot be relied upon or accorded substantial weight as an expression
of congressional intent concerning VER under section 522(e). See PSMRL
I, 627 F.2d 1346, 1362 (D.C. Cir. 1980) reh. den. July 10, 1980,
quoting Duplex Printing Press Co. v. Deering, 254 U.S. 443 (1921), and
referencing 2A Sutherland, Statutory Construction, Sec. 48.13 (4th ed.
1973), which states that legislative debates ``are not a safe guide * *
* in ascertaining the meaning and purpose of the law-making body''
because they are merely ``expressive of the views and motives of
individual members.''
One commenter argued that a takings standard would be more
restrictive and environmentally protective than a good faith/all
permits standard in situations in which application of the prohibitions
would not constitute a compensable taking even though a good faith
effort to obtain all permits had been made. While this situation is
theoretically possible, the environmental impact statement for this
rulemaking predicts that, on balance, the good faith/all permits
standard would be more environmentally protective than a takings
standard.
5. Why Did We Reject the Ownership and Authority Standard?
Many commenters argued that the legislative history of SMCRA, in
combination with court decisions concerning section 522(e) of the Act
and its implementing regulations, compel the adoption of an ownership
and authority standard for VER as the only effective means of complying
with the expressed intent of Congress to preserve property rights and
avoid infringement on State property law. Commenters also noted that
the ownership and authority standard has some of the favorable
characteristics that we ascribed to the good faith/all permits
standard. In particular, they stated that the ownership and authority
standard is a bright-line standard, easy to understand and administer,
and more objective than the takings standard.
We agree with the commenters that the ownership and authority
standard is a relatively bright-line standard, relatively easy to
understand and administer, and arguably more objective than the takings
standard. However, these characteristics are not the primary factors
that we considered in selecting the good faith/all permits standard. As
discussed in part VII.C.2. of this preamble, we believe that the good
faith/all permits standard best comports with the intent of Congress in
enacting section 522(e).
While the legislative history of SMCRA could be construed in a
manner consistent with an ownership and authority standard for VER
under section 522(e), we do not concur with the commenters' assertions
that the legislative history and judicial remarks concerning that
history compel the adoption of an ownership and authority standard.
Indeed, one of the cases frequently cited, NWF v. Hodel, 839 F.2d 694
(1988), states: ``Neither the statutory language nor the legislative
history elaborate on the meaning of the phrase ``valid existing
rights'' (``VER'').'' Id. at 749.
The legislative history of section 522(e) provides little clear or
dispositive guidance on the purpose or meaning of the VER exception
apart from the statement in both the Senate and House Committee reports
that the phrase ``subject to valid existing rights'' in section 522(e)
is intended to clarify that the prohibition on strip mining in the
national forests is subject to previous State court interpretations of
VER, such as the Polino decision in West Virginia. The congressional
reports further state that this phrase is ``in no way intended to open
up national forest lands to strip mining where previous legal
precedents have prohibited stripping.'' H. R. Rep. No. 95-218, at 95
(1977) and S. Rep. No. 95-128, at 94-95 (1977).
Commenters interpreted these passages, in combination with the
separate views that Congressman Lujan attached to the House report, as
meaning that Congress intended an ownership and authority standard for
VER. In his statement of separate views, Congressman Lujan argued that:
As the Committee Report indicates, this section's limitation
that the prohibition is ``subject to valid existing rights'' is not
intended to open up national forest lands to strip mining when
previous legal precedents have prohibited stripping. Naturally, the
bill's language is also subject to the corollary that it is not
intended to preclude mining where the owner of the mineral has the
legal right to extract the coal by surface mining method[s].
H.R. Rep. No. 95-218, at 189 (1977).
However, the interpretation that Congressman Lujan insists is a
corollary to the House committee report language appears only in his
statement of separate views. If a majority of the committee concurred
with his views, this corollary presumably would have appeared in the
committee report. Because the committee report does not endorse
Congressman Lujan's corollary, we are not persuaded that his
interpretation of the committee report and the bill's language is a
legitimate expression of the intent of Congress as a whole.
In addition, the interpretation advanced by Congressman Lujan and
endorsed by the commenters likely would negate the section 522(e)
prohibitions in most situations except those involving unleased Federal
coal. This result would be inconsistent with the frequently expressed
desire of Congress to prevent new surface coal mining operations in the
areas listed in section 522(e), with certain exceptions. See, e.g., S.
Rep. No. 95-128, at 55 (1977).
Therefore, we believe that the repeated legislative history
discussions of the Polino case and property rights on national forest
lands are best read as expressing Congress' intent that the VER clause
not be construed in a manner that would ignore limitations under State
property law. We believe that our reading receives support from the
statement in the committee reports that the VER clause in section
522(e) is ``in no way intended to open up national forest lands to
strip mining where previous legal precedents have prohibited
stripping.'' H.R. Rep. No. 95-218, at 95 (1977) and S. Rep. No. 95-128,
at 94-95 (1977). And, regardless of which reading is correct, there is
no clear indication that Congress intended these discussions to apply
to lands other than the ones listed in section 522(e)(2) (Federal lands
in national forests). See, e.g., 5 J. Min. L. & Pol'y 585, 591, 592,
596 (1990).
[[Page 70785]]
Some commenters cited a colloquy between Congressmen Delbert Latta
and Morris Udall during floor debate on the 1975 version of SMCRA as
supporting an ownership and authority standard for VER under section
522(e). In this colloquy, Congressman Latta asked ``whether this
legislation affects in any way the rights of an owner of mineral rights
situated below land owned by the Federal Government.'' 121 Cong. Rec. H
6679 (March 14, 1975). After a lengthy discussion, the colloquy
concludes with the following exchange:
Mr. LATTA. * * * [I]f I understood what you said, this bill does
not deal with the situation propounded in my question, meaning where
a private citizen has sold the surface to the Federal Government and
has retained the mineral rights. This bill would not in any way
affect the mineral rights of that private citizen?
Mr. UDALL. This is a bill that deals with how one mines coal in
that situation and every other situation, but we do not attempt to
change property rights in the situation the gentleman talks about
and thus the mineral rights are not affected.
121 Cong. Rec. H 6679 (1975).
Although this colloquy does not specifically mention section 522(e)
or VER, some commenters interpret Congressman Udall's concluding
response as equating property rights under State law with VER under
section 522(e). However, we believe that his response is better read as
expressing the congressman's opinion that those provisions of SMCRA
that govern how and where one may mine coal do not change mineral or
other property rights. In any event, as discussed in part VII.C.4. of
this preamble, legislative debates cannot be relied upon or accorded
substantial weight as an expression of congressional intent. See PSMRL
I, 627 F.2d 1346, 1362 (D.C. Cir. 1980) reh. den. July 10, 1980.
Furthermore, in 1975, the House rejected an amendment that would
have replaced the phrase ``subject to valid existing rights'' in
section 522(e) with a provision allowing surface coal mining operations
on Federal lands in national forests and grasslands whenever the deeds
conveying lands to the United States reserved the coal and specifically
provided for the use of surface mining methods. 121 Cong. Rec. H 7048-
50 (March 18, 1975). We find the House's rejection of an amendment
providing an express ownership and authority standard for VER on
Federal lands in national forests to be strongly suggestive of
congressional intent. That is, we believe that this rejection suggests
that Congress did not intend an ownership and authority standard for
VER.
Except for lands with unleased Federal coal, an ownership and
authority standard would offer no significant protection to section
522(e) lands beyond that independently afforded by the right-of-entry
provisions of SMCRA's permitting requirements. Those permitting
requirements apply to all surface coal mining operations on all lands.
We find it unlikely that Congress intended the VER exception to be so
broad that the prohibitions and restrictions of section 522(e) would
afford only marginal and duplicative protection to most lands listed in
that section. See the statements emphasizing the importance of
protecting these lands in S. Rep. No. 95-128, at 54-55 and 94 (1977).
Industry argues that the ownership and authority standard would
still give meaning to the prohibitions of section 522(e) because it
would prohibit surface coal mining operations on those lands in section
522(e) for which the Federal Government owns the mineral interests. We
do not agree with the commenters' argument. Federal coal leases in
existence at the time that land comes under the protection of section
522(e) and 30 CFR 761.11 might convey sufficient property rights to
satisfy an ownership and authority standard. Furthermore, we do not
believe that Congress intended to restrict the prohibitions in this
fashion. If it did, Congress could have achieved this result in a far
more straightforward manner by prohibiting any future leases of Federal
coal interests for the lands listed in section 522(e). In fact,
Congress did just that with respect to Federal lands designated as
unsuitable for all or certain types of surface coal mining operations
pursuant to section 522(b) of the Act. In addition, if this were
Congress' sole intent in creating section 522(e), Congress would have
had little reason to enact the prohibitions of paragraphs (e)(3)
through (e)(5) of that section, since these paragraphs apply primarily
to non-Federal lands.
Commenters favoring the ownership and authority standard and
opposing the good faith/all permits standard cite various Federal court
decisions involving the application of SMCRA requirements as supporting
their position. These cases include Meridian Land & Mineral Co. v.
Hodel, 843 F.2d 340, 346 (9th Cir. 1988); Ainsley v. U.S., 8 Cl.Ct.
394, 401 (1985); Otter Creek Coal Co. v. U.S., 231 Ct. Cl. 878, 880
(1982); Sunday Creek Coal Co. v. Hodel, C.A. No. C-2-88-0416 (S.D. Ohio
June 2, 1988); and Belville Mining Co. v. U.S., 763 F. Supp. 1411, 1420
(S.D. Ohio 1991) and 999 F.2d 989, 992 (6th Cir. 1993) (``Belville
II''). However, apart from Sunday Creek, which lacks precedential
effect outside the Southern District of Ohio, these cases do not
involve a challenge to the validity of the good faith/all permits
standard for VER. Indeed, except for Belville II and Sunday Creek, the
decisions do not even involve VER determinations. Therefore, to the
extent that the judicial opinions cited by the commenters theorize on
the meaning of VER under section 522(e), those statements of theory are
properly regarded as dicta because that question was not properly
before the court in any of these cases.
Furthermore, the theoretical discussions in these opinions
generally center on the colloquy between Congressmen Udall and Roncalio
concerning VER under section 601 of the Act. See 123 Cong. Rec. H 12878
(1977) (April 29, 1977). We believe that the colloquy, which does not
concern surface coal mining operations or section 522(e), has little
relevance to the meaning of VER under section 522(e). As discussed in
part VII.C.4. of this preamble, it cannot be relied upon or accorded
substantial weight as an expression of congressional intent concerning
VER under section 522(e). See PSMRL I, 627 F.2d 1346, 1362 (D.C. Cir.
1980) reh. den. July 10, 1980 (citations omitted).
In Belville II, the courts did not consider any regulatory
definition of VER in determining whether Belville had the right to
conduct surface coal mining operations on Federal lands within the
Wayne National Forest. Instead, they proceeded directly to an
examination of property rights under State law, finding that Belville
had VER under SMCRA whenever it had authority under State property law
to conduct surface coal mining operations. However, these decisions
lack precedential effect outside the Sixth Circuit.
For the reasons discussed above and in other portions of Part
VII.C. of this preamble, we decline to adopt the rationale advanced in
the Belville II decisions. We believe that the legislative history of
SMCRA either supports or is not demonstrably inconsistent with adoption
of a good faith/all permits standard for VER. In addition, we believe
that the good faith/all permits standard is the most reasonable policy
choice for a VER standard consistent with the purposes of section
522(e) as discussed in part VII.C.2. of this preamble.
Commenters also point to the decision of the U.S. Court of Appeals
for the Federal Circuit upholding the portion of the 1983 VER
definition that extended VER to existing operations on lands that
[[Page 70786]]
come under the protection of section 522(e) after August 3, 1977. In
its opinion, the court stated that:
The legislative history, however, is of some help. Although it
does not answer the specific question before us, it does suggest
that Congress did not intend to infringe on valid property rights or
effect takings through section 522(e).
NWF v. Hodel, 839 F.2d at 750 (1988) (footnote omitted).
However, the court did not identify any element of the Act's
legislative history that supports this conclusion. And its opinion also
states: ``Neither the statutory language nor the legislative history
elaborate on the meaning of the phrase `valid existing rights'
(``VER'').'' Id. at 749. Finally, we note that the entire VER
definition was not before the court--only the issue of VER for
operations in existence on lands coming under the protection of the Act
after August 3, 1977. Therefore, we cannot agree with the commenters
that the court's decision provides clear guidance concerning the
meaning of VER under section 522(e).
D. Paragraph (b)(2): ``Needed for and Adjacent'' Standard.
1. What Is the History of This Standard
The needed for and adjacent standard first appears in the
definition of VER promulgated on March 13, 1979 (44 FR 14902, 15342);
we did not include it in the 1978 proposed rule that preceded the 1979
final rule. The 1979 definition provided that a permit applicant with a
property right to produce coal by surface coal mining operations as of
August 3, 1977, possessed VER if the coal was both needed for and
immediately adjacent to an ongoing surface coal mining operation for
which all permits were obtained prior to August 3, 1977. The preamble
provides the following explanation of the basis for this standard:
In analyzing the value of the property, the courts have
distinguished an owner's value in an ongoing operation which must be
halted, as compared with value that an owner has paid for some
future operation that will be restricted. The taking cases reflect
less sympathy for property owners who are denied some future
opportunity to exploit their property interests based on prior
beliefs that the property would be available for development; but
most courts express concern over government interference with an
ongoing operation which causes a 100 percent diminution in value
unless it is a harmful use and falls within the noxious use
category. This distinction suggests that VER could be defined
differently for owners of coal which is essential to continue an
ongoing mine, as compared to property rights in coal for a potential
new mine.
44 FR 14992, March 13, 1979, col. 2.
The National Wildlife Federation challenged this standard as unduly
expanding the scope of the VER exception beyond that intended by
Congress. However, the court upheld the standard, finding it to be ``a
rational method of allowing mining when denial would gravely diminish
the value of the entire mining operation, thereby constituting a taking
under Supreme Court declarations.'' PSMRL I, Round I, 14 Env't Rep.
Cas. (BNA) at 1091-92 (1980).
On September 14, 1983 (48 FR 41312, 41349), we promulgated a
revised definition of VER that modified the needed for and adjacent
standard by deleting the requirement for a demonstration that the
property right to remove the coal by surface coal mining operations
existed as of August 3, 1977 (although our response to a comment
concerning this issue at 48 FR 41316 suggests that the deletion may
have been unintentional). In that rulemaking, we also defined ``needed
for'' as meaning that the extension of mining to the coal in question
is essential to make the surface coal mining operation as a whole
economically viable.
The National Wildlife Federation challenged these changes as being
both procedurally and substantively improper. The U.S. District Court
for the District of Columbia agreed in part, finding that we had failed
to comply with the Administrative Procedure Act (5 U.S.C. 553) by not
affording the public adequate notice and opportunity for comment on
these two changes. The court did not rule on the merits of the revised
standard. See PSMRL II, Round III-VER, 22 Env't Rep. Cas. (BNA) at
1566-67.
On November 20, 1986 (51 FR 41952, 41961), we suspended paragraph
(c) of the 1983 definition of VER. In the preamble to the suspension
notice, we stated that, pending adoption of a new rule, we would rely
upon the approved State program definition in primacy States. In non-
primacy States, the suspension had the effect of restoring the 1979
version of the needed for and adjacent standard, which did not contain
a definition of ``needed for.'' See 51 FR 41954-55, November 20, 1986.
On July 18, 1991 (56 FR 33152, 33164), we proposed to revise the
1983 definition by reinstating the property rights demonstration
requirement and by removing the sentence defining the ``needed for''
component of the standard. In the preamble to that proposed rule, we
stated that the explanation of ``needed for'' in the 1983 definition
did not substantively clarify the meaning or application of the needed
for and adjacent standard. In addition, we proposed to replace the
requirement that both the operation and the property rights to expand
the operation onto adjacent lands have been in existence on August 3,
1977, with a requirement that both have been in existence on the date
that the land for which the exception is sought came under the
protection of 30 CFR 761.11 and section 522(e) of the Act. The latter
change reflects the concept embodied in paragraph (d)(1) of the former
(1983) definition, which was upheld in NWF v. Hodel, 839 F.2d at 750
(1988).
2. How Did We Propose To Revise This Standard in 1997?
On January 31, 1997 (62 FR 4836, 4860), we proposed a needed for
and adjacent standard similar to the one proposed in 1991, with a few
modifications. In addition to the changes in the property rights
demonstration component (see Part VII.B. of this preamble), the 1997
proposed rule specified that the standard would apply to land, not just
coal, needed for an existing operation. Under State law, a permittee or
operator may have legitimate property interests in land apart from the
coal itself. Land may be essential to the operation for reasons other
than the coal it contains. For example, an operator has little leeway
in the location of ventilation shafts for underground mines. Part
VII.B. of this preamble contains a more extensive discussion of this
issue.
The definition proposed in 1997 also attempted to eliminate any
ambiguity caused by use of the term ``ongoing surface coal mining
operation'' in the 1979 and 1983 rules. In 1991, we essentially
proposed to replace ``ongoing'' with ``existing.'' However, comments
received on that proposal indicated some uncertainty as to whether
``ongoing'' or ``existing'' included operations that are fully approved
but inactive or unstarted. Accordingly, in 1997, we proposed to define
this standard to include land needed for and adjacent to surface coal
mining operations for which all permits had been obtained, or a good
faith effort to obtain such permits had been made, before the land came
under the protection of 30 CFR 761.11 and section 522(e) of the Act.
The preamble to the proposed rule explained that we could find no
rational basis for differentiating between active operations and those
that are approved but inactive or unstarted. Both categories of
operations engender the same type of investment-backed expectations.
Both involve situations in which the permittee has
[[Page 70787]]
made significant resource outlays in an effort to realize those
expectations.
3. How Does the Standard in the Final Rule Differ From the One That We
Proposed in 1997?
After evaluating the comments received, we are adopting the needed
for and adjacent standard as proposed in 1997, with several substantive
and editorial changes. To establish VER under the needed for and
adjacent standard in paragraph (b)(2) of the definition of VER in the
final rule, a person must (1) make the property rights demonstration
required by paragraph (a) of the definition, and (2) document that the
land is both needed for and immediately adjacent to a surface coal
mining operation for which all permits and other authorizations
required to conduct surface coal mining operations had been obtained,
or a good faith effort to obtain all necessary permits and
authorizations had been made, before the land came under the protection
of 30 CFR 761.11 and section 522(e) of the Act.
In addition, we are adding the following language to the rule in
response to comments:
To meet this standard, a person must demonstrate that
prohibiting expansion of the operation onto that land would unfairly
impact the viability of the operation as originally planned before
the land came under the protection of Sec. 761.11 or 30 U.S.C.
1272(e). Except for operations in existence before August 3, 1977,
or for which a good faith effort to obtain all necessary permits had
been made before August 3, 1977, this standard does not apply to
lands already under the protection of Sec. 761.11 or 30 U.S.C.
1272(e) when the regulatory authority approved the permit for the
original operation or when the good faith effort to obtain all
necessary permits for the original operation was made.
In evaluating whether a person meets this standard, the agency
making the determination may consider factors such as:
(i) The extent to which coal supply contracts or other legal and
business commitments that predate the time that the land came under
the protection of Sec. 761.11 depend upon use of that land for
surface coal mining operations.
(ii) The extent to which plans used to obtain financing for the
operation before the land came under the protection of Sec. 761.11
rely upon use of that land for surface coal mining operations.
(iii) The extent to which investments in the operation before
the land came under the protection of Sec. 761.11 rely upon use of
that land for surface coal mining operations.
(iv) Whether the land lies within the area identified on the
life-of-mine map submitted under Sec. 779.24(c) or Sec. 783.24(c) of
this chapter before the land came under the protection of
Sec. 761.11.
As stated in the preamble to the proposed rule, abandoned sites and
sites with expired or revoked permits, including permits that have
expired under section 506(c) of SMCRA, do not qualify as operations
that could form the basis for a VER determination under the needed for
and adjacent standard. Nor do long-inactive facilities for which no
permit was required before SMCRA and which would have to be
substantially or completely reconstructed before usage could resume.
Allowing defunct operations such as those listed above to qualify as
existing or authorized operations would contradict the plain meaning of
that term and would be inconsistent with the congressional intent to
prohibit, with certain exceptions, new surface coal mining operations
on the lands identified in section 522(e). See, for example, S. Rep.
No. 95-128, at 55 (1977).
4. What Comments Did We Receive on the Proposed Standard and How Did We
Dispose of Them?
Some commenters opposed reinstatement of any type of requirement
for a property rights demonstration as part of the needed for and
adjacent standard, arguing that Congress intended the exception for
existing operations in section 522(e) to apply to all lands needed by
existing surface coal mining operations, regardless of whether those
operations had the legal right to mine those lands when the land came
under the protection of section 522(e). We have revised the definition
in the final rule in a manner that will allow the needed for and
adjacent standard to be met even if the operation for which the land is
needed and to which it is adjacent does not yet own the requisite
property rights for the land. However, in that situation, the property
right to conduct the type of surface coal mining operations intended
must exist at the time that the land comes under the protection of 30
CFR 761.11 or section 522(e), and the property rights demonstration
required by paragraph (a) of the definition must be made as part of the
request for a VER determination.
One commenter expressed concern that the proposed rule did not
explicitly address ``the misconception that the land for which VER is
claimed must be `immediately adjacent' to an area covered by a permit
issued or applied for before the enactment of SMCRA.'' The commenter
noted that many large mining operations include sufficient reserves to
operate for 20 to 50 years, even though, at least in pre-SMCRA times,
most did not seek a permit for these lands that far in advance of
mining. Because of the investments in reserves, land, equipment, and
long-term coal supply contracts made on the assumption that these
reserves would be available for surface coal mining operations, the
commenter argued that all such lands should be considered part of, or
at least needed for, the surface coal mining operation in existence at
the time that the land came under the protection of 30 CFR 761.11 and
section 522(e).
As the commenter implicitly acknowledges, section 506(b) of SMCRA
authorizes the issuance of a permit with a term in excess of 5 years
when the applicant demonstrates a need for the longer term to obtain
necessary financing. Even if the applicant does not qualify for a
``life-of-mine'' permit term, nothing in SMCRA prohibits a company from
seeking a permit with a normal term for the entire area upon which it
plans to conduct operations for the life of the mine. Section 506(d) of
the Act provides that any valid permit has the right of successive
renewal upon expiration for lands within the permit area at that time.
Once a valid permit exists for an area, that area becomes part of an
existing operation and thus qualifies for the exception for existing
operations under 30 CFR 761.12. Therefore, we do not believe that the
commenter's concerns are valid with respect to post-SMCRA operations,
because the operator or permittee can avoid these problems with proper
planning.
However, we recognize the possibility that operations that started
before SMCRA may have a legitimate concern. Therefore, we have added
language to the definition to clarify that, in evaluating whether a
person meets the needed for and adjacent standard, the agency making
the determination may consider factors such as:
The extent to which coal supply contracts or other legal
and business commitments that predate the time that the land came under
the protection of section 522(e) or 30 CFR 761.11 depend upon use of
that land for surface coal mining operations.
The extent to which plans used to obtain financing for the
operation before the land came under the protection of section 522(e)
or 30 CFR 761.11 rely upon use of that land for surface coal mining
operations.
The extent to which investments in the operation before
the land came under the protection of section 522(e) or 30 CFR 761.11
rely upon use of that land for surface coal mining operations.
We believe that these provisions will adequately protect the
interests of companies that acquired contiguous
[[Page 70788]]
reserves for a pre-SMCRA operation with the expectation of being able
to obtain permits for those reserves in a sequential fashion.
One commenter also urged deletion of the ``immediately adjacent''
portion of the standard since, to meet market specifications, companies
may need coal of a different quality for an operation if the coal
immediately adjacent to the existing operation does not satisfy a
customer's demands. We do not agree that changing market conditions
provide a basis for VER under the needed for and adjacent standard.
This situation represents the normal risks of the marketplace--and we
do not believe that failure to anticipate changing market conditions
entitles an operation to protection from the prohibitions of 30 CFR
761.11 and section 522(e).
However, there may be situations in which the company has included
the coal in its mining plans but, for legitimate reasons, has been
unable to obtain a permit for that area before the land came under the
protection of section 522(e) and 30 CFR 761.11 despite efforts to do
so. Therefore, we have revised the definition to include language that
would allow the agency making the determination to consider lands
within the area identified on the life-of-mine map submitted under 30
CFR 779.24(c) or 783.24(c) before the land came under the protection of
30 CFR 761.11 and section 522(e) to be adjacent to the original
operation on a case-by-case basis. By adding this language, we do not
intend to imply that all lands within the area identified on the life-
of-mine map automatically qualify for the VER exception under the
needed for and adjacent standard. The agency responsible for the VER
determination must evaluate each situation on its merits and determine
whether the request meets all requirements of the needed for and
adjacent standard, including a demonstration that prohibiting expansion
of the operation onto those lands would unfairly impact the viability
of the operation as originally planned before the land came under the
protection of Sec. 761.11 or 30 U.S.C. 1272(e).
In addition, there is some flexibility in the term ``adjacent,''
which ``Black's Law Dictionary'' defines as:
Lying near or close to; sometimes, contiguous; neighboring.
Adjacent implies that the two objects are not widely separated;
though they may not actually touch, * * * while adjoining imports
that they are so joined or united to each other that no third object
intervenes.
Certainly, an intervening road, pipeline, stream, or power line
would not preclude land from being considered immediately adjacent to
an existing operation's permit boundaries. Beyond that point,
application of the needed for and adjacent standard is of necessity a
judgment call, best decided on a documented, case-by-case basis by the
agency responsible for the VER determination. In making this
determination, the agency must consider both the ``needed for'' and
``immediately adjacent to'' components of the standard. That is, a
determination that the land is immediately adjacent to an existing
operation, or an operation for which a good faith effort has been made
to obtain all necessary permits, is not sufficient to find that the
operation may proceed onto those lands under the VER exception. As
stated in the final rule, the agency also must find that prohibiting
expansion of the operation onto those lands would unfairly impact the
viability of the operation as originally planned before the land came
under the protection of 30 CFR 761.11 or section 522(e).
Several commenters argued that the scope of the needed for and
adjacent standard should be coextensive with that of the prime farmland
grandfather exemption in section 510(d)(2) of the Act. According to one
commenter, if an area has been determined to be part of an existing
surface coal mining operation for purposes of the prime farmland
grandfather exemption, then that area must qualify for the VER
exception under the needed for and adjacent standard. We do not agree.
The needed for and adjacent standard is part of the VER exception in
section 522(e), not the exception for existing operations. Furthermore,
the needed for and adjacent standard is created by rule, not by
statute. Therefore, the argument that Congress must have intended
similar terms to have similar meanings is not applicable, as Congress
did not devise the needed for and adjacent standard.
Some commenters asserted that because the needed for and adjacent
standard requires the existence of an operation for which all permits
have been obtained or a good faith effort to obtain all permits has
been made, this standard should be a component of the exception for
existing operations rather than the definition of VER. We disagree.
Section 522(e) does not define either VER or the exception for existing
operations, apart from describing the latter exception as including
``surface coal mining operations which exist on the date of enactment
of this Act.'' Therefore, we have considerable latitude in developing a
final rule to implement these provisions of the Act. We believe that
the final rule is a reasonable interpretation of both the VER exception
and the exception for existing operations.
In developing the 1997 proposed rule and this final rule, we
endeavored, for practical reasons, to limit the exception for existing
operations to those situations in which the operator has full
authorization to conduct surface coal mining operations on the lands in
question before those lands came under the protection of section 522(e)
and 30 CFR 761.11. In other words, the exception for existing
operations applies in those circumstances in which the regulatory
authority does not need to take any additional action before the
operator may continue or commence surface coal mining operations on the
newly protected lands. In contrast, a person planning to conduct
surface coal mining operations under the VER exception in the final
rule must (1) demonstrate the existence of VER, and (2) obtain a permit
from the regulatory authority before initiating surface coal mining
operations on protected lands. There is some overlap between the two
exceptions in that persons who have obtained all necessary permits and
authorizations to operate before the land comes under the protection of
30 CFR 761.11 and section 522(e) may either request a VER determination
or avail themselves of the exception for existing operations.
Some commenters argued that the needed for and adjacent standard
functioned purely as a transitional device between pre-SMCRA and post-
SMCRA regulatory schemes. Since that transition is now complete,
commenters assert that the standard is obsolete and should be removed
or at least limited to surface coal mining operations in existence on
August 3, 1977, the date of enactment of SMCRA. According to the
commenters, the Constitution provides no protection to speculative
investments. In addition, the commenters argue that the passage of
SMCRA placed all parties on notice that surface coal mining operations
in certain areas would be prohibited in the future, and that operators
therefore should have planned their operations and acquired property
and mining rights with a view to the existence of those prohibitions.
In other words, the commenters assert that there is no longer any basis
for anyone to have a reasonable expectation that properties outside the
boundary of a mining permit could be incorporated into the permit area
or mining plan.
[[Page 70789]]
As discussed earlier in this section of the preamble, the Act's
provisions allowing life-of-mine permit terms and granting a right of
successive renewal to permits with normal terms should minimize the
need for the needed for and adjacent standard for mines that begin
operations after August 3, 1977. However, we do not agree that this
standard has no post-transitional value. Nor do we agree that the
standard should be limited to operations in existence on August 3,
1977. The commenters' argument that the needed for and adjacent
standard is purely a transitional device for persons who did not
anticipate the enactment of SMCRA is true only if one assumes that no
one would have a reasonable expectation of being able to conduct
surface coal mining operations under the VER exception in section
522(e).
Since SMCRA does not define VER, this assumption is not necessarily
correct. In particular, we do not agree with the commenters that, after
the enactment of SMCRA, a person had a reasonable expectation of
conducting surface coal mining operations on the lands listed in
section 522(e) only if those lands were already under permit on August
3, 1977. The history of our attempts to define VER by regulation
provides some basis for persons to anticipate that the VER exception
sweeps more broadly than the good faith/all permits standard. And in
1983, we adopted a standard for ``continually created VER,'' which
provided for the determination of VER on the basis of rights and
documents in existence as of the date that the land came under the
protection of section 522(e) and 30 CFR 761.11 rather than as of August
3, 1977. The courts subsequently recognized this approach as valid. See
PSMRL II, Round III--VER, 22 Env't Rep. Cas. (BNA) at 1564 (1985), and
NWF v. Hodel, 839 F.2d at 749-751 (1988). Adoption and judicial
affirmation of this standard created the expectation that the VER
exception would not be limited to lands under permit on August 3, 1977,
or to operations in existence on that date. Similarly, our approval of
a takings standard for VER as part of the West Virginia program in 1983
and as part of the Illinois program in 1989 may have created the
expectation, at least in those States, that the VER exception is not
limited to the good faith/all permits standard and that a person may
have the right to conduct surface coal mining operations in protected
areas even if an operation was not in existence on August 3, 1977.
Therefore, the final rule retains the needed for and adjacent
standard and, as proposed, it extends that standard to lands needed for
and immediately adjacent to surface coal mining operations in existence
when those lands came under the protection of section 522(e) after
August 3, 1977. Extension of the standard to these lands is a fair
means of addressing the expectations discussed above. In addition, it
is consistent with the purpose of the continually created VER standard
that we adopted in 1983.
Some commenters challenged our extension of this standard to lands
needed for and immediately adjacent to operations for which a good
faith attempt had been made to obtain all necessary permits. They
argued that the standard should apply only to operations that had
already received all necessary permits since only those operations
could legitimately be considered existing operations. We do not agree.
The scope of the VER exception is not restricted by the scope of the
exception for existing operations in 30 CFR 761.12. We believe that the
needed for and adjacent standard should apply to lands needed for and
immediately adjacent to an operation for which a good faith attempt has
been made to obtain all necessary permits since there is no question
that such an operation has VER under paragraph (b)(1) of the definition
of VER in the final rule. Accordingly, we believe that inclusion of a
good faith component in the needed for and adjacent standard is
appropriate because it provides fair treatment of reasonable
expectations while avoiding significant impairment of the prohibitions
of section 522(e).
In the preamble to the proposed rule, we stated that, to avoid
subverting the congressional prohibitions in section 522(e), we
believed that VER determinations under the needed for and adjacent
standard must be based on an analysis of how denial of the claim would
affect the value, as of the date that the land came under the
protection of 30 CFR 761.11 and section 522(e), of the operation as a
whole from the time it began operation, not merely whether the
additional land or coal would prolong the operation's life or provide
increased profits. Otherwise, we stated, this standard could be used to
justify unlimited expansion of operations adjoining protected areas,
which could effectively nullify the prohibition. We suggested that this
approach receives implied support in PSMRL I, Round I, 14 Env't Rep.
Cas. (BNA) at 1091-92 (1980), in which the court upheld the needed for
and adjacent standard as a reasonable means of avoiding compensable
takings:
The need and adjacent [sic] component of the Secretary's
definition is consonant with Supreme Court declarations regarding
taking of property. This test allows the grant of a valid existing
right exemption when extension of mining to an adjacent area is
necessary to maintain, as a whole, the value of the mining
operation. Stated otherwise, the need and adjacent test requires a
valid existing right exemption when denial of mining on the adjacent
area will rob the mining operation, as a whole, of its value. See
Penn Central, supra, 438 U.S. 130 at 130-31; Goldblatt v. Hempstead,
369 U.S. 590, 8 L. Ed. 2d 130, 82 S. Ct. 987 (1962). The need and
adjacent test is thus a rational method of allowing mining when
denial would gravely diminish the value of the entire mining
operation, thereby constituting a taking under Supreme Court
declarations.
In the preamble to the proposed rule, we requested comment on
whether the rule language should be revised to explicitly incorporate
this interpretation. Most commenters did not respond to this request.
Of those who did, some favored codification of our preamble
interpretation as a welcome limit on the scope of the exception. Others
opposed this interpretation as too restrictive, too burdensome, and
inconsistent with our arguments in favor of the good faith/all permits
standard and against the takings standard. One commenter stated that it
is disingenuous for us to argue, on the one hand, that Congress did not
intend to define the VER exception in terms of avoiding compensable
takings, and then to propose to define or interpret the needed for and
adjacent standard in a manner that resembles a takings standard.
One commenter asserted that the interpretation in the preamble to
the proposed rule ignores the court's direction in PSMRL I, Round I, 14
Env't Rep. Cas. (BNA) at 1091-92 (1980), and is impermissibly
ambiguous. According to this commenter, the only legal interpretation
is the ``gravely diminish'' standard that the court cited in the
decision quoted above. We disagree. The court's reasoning does not
require or suggest that we apply a takings analysis in determining
whether a VER claim meets the needed for component of the needed for
and adjacent standard. The court merely found that the 1979 needed for
and adjacent standard was consistent with existing takings
jurisprudence.
After evaluating all comments received, we have decided not to
codify or otherwise adopt the interpretation of ``needed for'' that we
set forth in the preamble to the proposed rule. We believe that this
determination is best made on a case-by-case basis by the agency
responsible for the VER
[[Page 70790]]
determination, relying upon all available information. However, in
response to those commenters who expressed concern that the lack of a
definition of ``needed for'' would lead to abuse, we have revised the
rule to specify that the requester must demonstrate that prohibiting
expansion of an operation onto the land in question would unfairly
impact the viability of the operation as originally planned before the
land came under the protection of 30 CFR 761.11 or section 522(e). We
also added a list of examples of the type of factors that the agency
should consider in evaluating whether the land is needed for and
immediately adjacent to the existing operation. This list is not
exhaustive and it does not exclude consideration of other appropriate
factors.
Finally, in response to comments that the needed for and adjacent
standard was too broad, we have added a sentence to the definition to
clarify that, except for operations in existence before August 3, 1977,
or for which a good faith effort to obtain all necessary permits had
been made before August 3, 1977, this standard does not apply to lands
already under the protection of 30 CFR 761.11 and section 522(e) when
the regulatory authority approved the permit for the original operation
or when the good faith effort to obtain all necessary permits for the
original operation was made. We believe that this clarification is
appropriate because the operator or permittee would have no reasonable
expectation of being able to conduct surface coal mining operations on
those lands.
E. Paragraph (c): VER Standards for Roads
Paragraph (c) of the definition of VER in the final rule provides
that a person has VER for the use or construction of a road included
within the definition of ``surface coal mining operations'' in 30 CFR
700.5 and section 701(28) of the Act if one or more of the following
circumstances listed in paragraphs (c)(1) through (c)(4) of the
definition exist:
The road existed when the land upon which it is located
came under the protection of 30 CFR 761.11 or section 522(e), and the
person has a legal right to use the road for surface coal mining
operations.
A properly recorded right of way or easement for a road in
that location existed when the land came under the protection of 30 CFR
761.11 or section 522(e), and, under the document creating the right of
way or easement, and under subsequent conveyances, the person has a
legal right to use or construct a road across the right of way or
easement for surface coal mining operations.
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 30 CFR 761.11 or section 522(e).
A person has VER under paragraphs (a) and (b) of the
definition of VER.
With the exception of the modifications discussed below, the first
three standards resemble those in both the proposed rule and the
previous (1983) definition.
The last standard, which we have added as proposed, reflects the
fact that the definition of surface coal mining operations in section
701(28) of the Act and 30 CFR 700.5 includes ``all lands affected by
the construction of new roads or the improvement or use of existing
roads to gain access to the site of such activities and for haulage.''
Therefore, if a person demonstrates VER for surface coal mining
operations in general under the standards in paragraphs (a) and (b) of
the definition, there is no reason why that person should have to
separately demonstrate VER to use or construct roads on that land,
since those roads are part of the operations for which he or she has
already demonstrated VER. The standards in paragraphs (a) and (b) are
of equal or greater rigor when compared with those in paragraphs (c)(1)
through (c)(3). Accordingly, we have added paragraph (c)(4) to the
definition to clarify that a person has the option of using the
criteria and standards in paragraphs (a) and (b) of the definition to
demonstrate VER for roads.
One commenter found the phrase ``as of'' in paragraphs (b)(2) and
(b)(3) of the proposed rule confusing. We have revised the wording of
these paragraphs, which the final rule redesignates as paragraphs
(c)(2) and (c)(3), to clarify that a properly recorded right of way or
easement, or a valid permit, must have existed when the land came under
the protection of section 522(e) and 30 CFR 761.11.
As proposed, the final rule modifies the 1983 definition by
incorporating the concept that VER for lands coming under the
protection of section 522(e) or 30 CFR 761.11 after August 3, 1977,
will be determined on the basis of the circumstances that exist when
the land comes under the protection of section 522(e) and 30 CFR
761.11, not the circumstances that exist on August 3, 1977. Some
commenters supported this change, but others opposed it as inconsistent
with section 522(e) of SMCRA, which references the date of enactment
(August 3, 1977). As the commenters noted, the courts have held that
SMCRA does not compel adoption of this approach. However, the same
courts also have ruled that this approach is a reasonable
interpretation of SMCRA. See PSMRL II, Round III--VER, 22 Env't Rep.
Cas. (BNA) at 1564 (1985), and NWF v. Hodel, 839 F.2d at 749-751
(1988). Also, we believe that requiring that the road, easement, right
of way, or permit be in place when the land comes under the protection
of section 522(e) and 30 CFR 761.11 is more reasonable and consistent
with the principles of basic fairness than requiring that the road,
easement, right of way, or permit be in place on August 3, 1977, as the
commenters advocate.
One commenter opposed this change because it ``would doom all new
homeowners in coalfield areas to having their rights intruded upon by
the use of their roads as haul and access roads.'' The commenter
apparently was operating under the erroneous belief that the 300-foot
buffer zone for occupied dwellings under section 522(e)(5) and proposed
30 CFR 761.11(a)(5) [now 30 CFR 761.11(e)] would prohibit use of these
roads in the absence of VER. We have never interpreted section
522(e)(5) as prohibiting a surface coal mining operation from using a
public road that lies within 300 feet of an occupied dwelling.
The final rule differs from the previous and proposed definitions
in that it expressly applies to all roads included within the
definition of ``surface coal mining operations'' in 30 CFR 700.5 and
section 701(28) of the Act. The 1979 and 1983 versions of this
definition mentioned only haul roads. In the proposed rule, we used the
term ``access or haul road.'' One commenter supported the proposed
rule, noting that prior definitions were interpreted as including
access roads. The commenter viewed the references to haul roads in
those definitions as a product of draftsmanship, not intent. Another
commenter requested, without elaboration, that we revise the rule to
differentiate between access and haul roads to avoid future misunder-
standings. After evaluating these comments and reviewing the language
of the Act, we have decided to avoid any reference to either access or
haul roads. Instead, paragraph (c) of the definition in the final rule
applies to all roads included in the definition of surface coal mining
operations in 30 CFR 700.5 and section 701(28) of the Act. We believe
that this change is consistent with both the language of the Act and
our historic approach to the regulation of roads
[[Page 70791]]
under the Act. We do not interpret SMCRA as affording differential
treatment to roads based on whether they are access or haul roads.
The definition of surface coal mining operations in section 701(28)
of the Act includes ``all lands affected by the construction of new
roads or the improvement or use of existing roads to gain access to the
site of such activities and for haulage.'' Section 522(e)(4) refers to
``mine access roads or haulage roads.'' Section 515(b)(18) refers to
``the construction of roads.'' We have always interpreted section
515(b)(17), which refers to ``the construction, maintenance, and
postmining conditions of access roads into and across the site of
operations,'' as including both access and haul roads since a haul road
also provides access. No one has opposed this interpretation of section
515(b)(17), which, in part, provides authority for our regulations
governing roads that are used or constructed as part of surface coal
mining operations. Our regulations at 30 CFR 701.5 define ``road'' as
including both ``access and haul roads,'' but they do not define
``access road'' or ``haul road.'' And our road classification system
and performance standards at 30 CFR 816.150 and 817.150 do not
distinguish between access roads and haul roads. Therefore, we see no
reason to distinguish between access and haul roads when defining VER
under section 522(e).
One commenter opposed adoption of a separate, potentially less
rigorous standard for VER for roads. We find this comment untimely.
Both the 1979 and 1983 definitions similarly included separate,
potentially less rigorous standards for roads, but no one filed suit
challenging our authority to establish separate standards in those
rules. Furthermore, we did not propose to change, nor did we seek
comments on, this aspect of the definition. Like the 1979 and 1983
rules, both the 1997 proposed rule and this final rule include separate
standards for VER for roads.
Several commenters alleged that we improperly adopted the original
standard for VER for roads in 1979 without providing adequate public
notice and opportunity for comment as required by the Administrative
Procedure Act, 5 U.S.C. 551 et seq. One commenter stated that
justifying a VER standard on the basis of environmental impacts, as we
did in the preamble to the portion of the 1979 definition pertaining to
roads, is inappropriate. The commenter also argued that we failed to
provide documentation in the record of that rulemaking for our claim
that allowing VER for all existing roads would be less environmentally
disruptive than constructing new roads. We find these comments untimely
since the deadline for challenging the 1979 rules has passed.
One commenter asserted that there is no legal basis for providing a
lower VER standard for roads than for any other aspect of a regulated
surface coal mining operation because the statutory definition of
surface coal mining operations draws no distinction between roads and
the other activities and facilities that it includes. The commenter
argued that the person claiming VER must demonstrate investment-backed
expectations to use the road for surface coal mining operations.
According to the commenter, if the mere existence of a property right
to conduct surface coal mining operations does not suffice to
demonstrate VER under paragraphs (a) and (b) of the definition, then
the mere existence of a road should not suffice to demonstrate VER for
a road under paragraph (c)(1) of the definition.
As discussed in Parts VII.A. through VII.D. of this preamble, we
are not adopting a takings standard for VER. Hence, we do not agree
that a person must demonstrate investment-backed expectations to
qualify for VER. And, because the courts have held that the definition
of surface coal mining operations does not exclude all public roads, we
believe that a separate standard for VER for existing roads is
essential as a practical matter. Unless otherwise provided by the
agency with jurisdiction over the road, all persons have a right to use
a public road for any legitimate purpose, including access and haulage
associated with a surface coal mining operation.
One commenter noted that the concept of VER presupposes some claim
of right to use of the road, which the existing and proposed rules did
not require in all circumstances. The commenter further stated that the
VER standard for roads should rely upon either the good faith/all
permits standard or documentation that an existing road was actually in
use as an access or haul road as of August 3, 1977. Finally, the
commenter argued that the property rights demonstration required for
demonstration of VER under paragraph (a) of the definition also should
be a prerequisite for VER for roads.
The facets of the proposed definition to which the commenter
objects (VER for existing roads, regardless of whether the road has
ever been used for surface coal mining operations, and the lack of a
property rights demonstration requirement for VER for roads) have
remained essentially unchanged since we first adopted a definition of
VER on March 13, 1979. The deadline for challenging the validity of
that definition has passed. The proposed rule did not alter those
facets of the definition to which the comments pertain, nor did we seek
comment on whether they should be changed. Therefore, these comments
are neither timely nor within the scope of this rulemaking, and there
is no requirement to address them in this rulemaking.
However, we agree with the commenter that the concept of VER
presupposes some claim of right to use of the road under applicable
State law. Therefore, to avoid misapplication or abuse of the VER
standards for roads, we have revised the definition in the final rule
to clarify that, to qualify for VER under the existing road criterion
in paragraph (c)(1) of the definition, a person must demonstrate a
legal right to use the road for surface coal mining operations. In
addition, we have revised paragraph (c)(2) of the definition to clarify
that, to qualify for VER under the easement or right-of-way criterion,
a person must demonstrate that, under the document creating the right
of way or easement and under subsequent conveyances, that person has a
legal right to use or construct a road across the right of way or
easement for surface coal mining operations. These changes merely make
explicit an unstated assumption in both the existing and proposed
rules.
The commenter also asserted that the proposed rule would effect an
uncompensated taking by sanctioning physical intrusion through dust and
noise on properties adjoining such roads. We do not agree. The VER
standards for roads would not preclude any private remedy available to
affected parties under State law, including State trespass and nuisance
law. Therefore, this rule does not effect a facial taking.
F. How Does the Definition Address VER for Lands That Come Under the
Protection of Section 522(e) After August 3, 1977?
As we proposed, each standard in the definition of VER in the final
rule provides for determination of VER based on property rights and
other conditions in existence on the date that the land comes under the
protection of 30 CFR 761.11 and section 522(e) of the Act. This concept
has sometimes been referred to ``continually created VER.'' We have
included this concept in the definition of VER in the final rule
because houses, churches, roads, parks, and other features protected by
section 522(e) and 30 CFR 761.11 come into
[[Page 70792]]
existence and are expanded on an ongoing basis. In the interest of
fairness, persons claiming VER for lands coming under the protection of
the Act after the date of enactment should not have to demonstrate that
they owned the requisite property rights on August 3, 1977, the date of
enactment, as the 1979 definition required.
Some commenters opposed this change as being inconsistent with the
express language of section 522(e) of SMCRA, which reads: ``After the
enactment of this Act and subject to valid existing rights no surface
coal mining operation except those which exist on the date of enactment
of this Act shall be permitted'' on certain enumerated lands.
According to the commenters, this language means that the Act does
not authorize use of a date other than the date of enactment (August 3,
1977) when determining exceptions from the prohibitions of section
522(e). Under this interpretation, VER must be determined on the basis
of property rights and other conditions as they existed on August 3,
1977.
We disagree. The Act provides that the prohibitions of section
522(e) are subject to VER, but it neither defines VER nor specifies
that VER must be determined on the basis of property rights and other
conditions as they existed on the date of enactment. Because the lands
and features protected by 30 CFR 761.11 and section 522(e) are
continually changing, we believe that VER should be determined on the
basis of the property rights and circumstances that exist at the time
that lands come under the protection of section 522(e) and 30 CFR
761.11, not the date of enactment of SMCRA, which recedes ever further
into history.
The commenters argue that this approach violates the purpose of
section 522(e), which is to prohibit new surface coal mining operations
on certain lands. They assert that an industry as pervasively regulated
as coal mining had no reasonable expectation of being able to mine any
lands without addressing the potential extension of protection to those
lands once SMCRA became law. They state that the enactment of SMCRA
placed operators and other interested persons on notice that certain
lands are subject to the protections of section 522(e), even when the
features triggering that protection do not come into existence until
after the enactment of SMCRA. Therefore, according to the commenters,
any investments after that date are made with full knowledge of that
risk and are not entitled to protection from the prohibitions of
section 522(e), regardless of when the features listed in section
522(e) come into existence.
One commenter argued that the only way to avoid the proscriptions
of section 522(e) is to obtain a permit before the lands come under the
protection of section 522(e). Alternatively, some commenters stated,
persons conducting surface coal mining operations after the enactment
of SMCRA should have immediately procured all necessary property rights
(for example, purchased a 300-foot buffer around all planned minesites
to preclude application of the prohibition on surface coal mining
operations within 300 feet of an occupied dwelling) to avoid potential
adverse impacts from the creation of new protected areas after August
3, 1977.
These arguments are identical to those advanced by the National
Wildlife Federation in a challenge to paragraph (d) of the 1983
definition of VER, where this concept first appeared. The district
court rejected those arguments:
The court does not agree with plaintiffs that the legislative
history they cite, or the language of the statute[,] requires a
finding that the Secretary's concept of ``continually created VER''
is inconsistent with law. Given the language of the Act, and
Congress' concern with takings, the court finds that ``continually
created VER'' is in accord with law.
PSMRL II, Round III--VER, 22 Env't Rep. Cas. (BNA) at 1564 (1985).
The district court's decision was upheld on appeal. See NWF v.
Hodel, 839 F.2d at 749-751 (1988). ``We find such a rule to be a
reasonable interpretation of the Act, and thus affirm the decision of
the district court upholding the Secretary's VER regulation.'' Id. at
751.
These court decisions focused on paragraph (d)(1) of the 1983
definition of VER. This paragraph established a ``continually created
VER'' standard for existing operations. However, we believe that the
rationale underlying this paragraph applies with equal force to all
standards under the VER exception. In other words, when land comes
under the protection of 30 CFR 761.11 and section 522(e) after August
3, 1977, we believe that it is not fair to determine VER for those
lands on the basis of property rights and other conditions in existence
on August 3, 1977. Rights under the VER exception should be no less
important than rights under the exception for existing operations.
We previously endorsed this principle in adopting paragraph (d)(2)
of the 1983 definition of VER. This paragraph provided that, when land
comes under the protection of 30 CFR 761.11 and section 522(e) after
August 3, 1977, we would determine VER using a takings standard based
on the property rights that existed when the land came under the
protection of section 522(e) rather than on the property rights that
existed on August 3, 1977. The court subsequently remanded this portion
of the rule because we failed to provide adequate notice and
opportunity for comment on the takings standard. The court never
reached a decision on the merits of this paragraph. However, in
discussing the merits of paragraph (d) in general, the judge
specifically rejected the argument that the word ``existing'' in the
term valid existing rights means that those rights must have existed on
August 3, 1977, the date of enactment of SMCRA. See PSMRL II, Round
III--VER, 22 Env't Rep. Cas. (BNA) at 1564 (1985). And, in implementing
the remand order, we suspended paragraph (d)(2) of the 1983 definition
of VER only to the extent that it incorporated the takings standard.
See 51 FR 41952, 41961, November 20, 1986.
One commenter argued that this concept is inconsistent with the
decision in M&J Coal versus United States, 47 F.3d 1148 (Fed. Cir.
1995). The commenter argued that this case upheld the principle that
persons have no legitimate expectation of the right to conduct surface
coal mining operations on lands that come under the protection of the
Act after August 3, 1977. We do not agree. In M&J, the court ruled that
a person who acquires property after passage of a law restricting use
of that property does not have sufficient legal basis to support a
claim that the requirements of the law constitute a compensable taking.
However, this case involved a situation in which a regulatory authority
limited coal extraction from an underground mine to protect overlying
structures from the damage that could result from subsidence caused by
underground mining activities. It did not concern the applicability of
the VER exception to lands that come under the protection of 30 CFR
761.11 and section 522(e) after August 3, 1977, the date of enactment.
Therefore, we do not believe that this decision is relevant to this
rulemaking.
History and Disposition of Former 30 CFR 761.5(d), the Original
``Continually Created VER'' Provision
On September 14, 1983 (48 FR 41312, 41349), we added paragraph (d)
to the definition of VER to address situations where the prohibitions
of section 522(e) become applicable to a particular site after August
3, 1977, the date of enactment of SMCRA. This paragraph provided that:
[[Page 70793]]
Where an area comes under the protection of section 522(e) of
the Act after August 3, 1977, valid existing rights shall be found
if--
(1) On the date the protection comes into existence, a validly
authorized surface coal mining operation exists on that area; or
(2) The prohibition caused by section 522(e) of the Act, if
applied to the property interest that exists on the date the
protection comes into existence, would effect a taking of the
person's property which would entitle the person to just
compensation under the Fifth and Fourteenth Amendments to the United
States Constitution.
Paragraph (d)(1) extended the exception for existing operations to
validly authorized surface coal mining operations in existence on the
date that the land upon which they are located comes under the
protection of section 522(e). Paragraph (d)(2) extended the takings
standard for VER to property interests that existed on the date that
the land came under the protection of section 522(e), rather than
limiting its scope to property interests that existed on August 3,
1977.
In PSMRL II, Round III--VER, 22 Env't Rep. Cas. (BNA) at 1564
(1985), the district court upheld both paragraph (d)(1) and the concept
of determining VER based upon property rights and conditions in
existence on the date that land comes under the protection of section
522(e) rather than property rights and conditions in existence on
August 3, 1977, the date of enactment of SMCRA. However, the court
remanded paragraph (d)(2) because it incorporated the takings standard,
which, the court held, had not been subject to proper notice and
opportunity for comment under the Administrative Procedure Act. See 22
Env't Rep. Cas. (BNA) at 1564. The district court's decision was upheld
on appeal. See NWF versus Hodel, 839 F.2d at 749-751 (1988). To comply
with these decisions, we subsequently suspended paragraph (d)(2) to the
extent that it incorporated the takings standard. See 51 FR 41961,
November 20, 1986.
The VER definitions proposed on December 27, 1988, and July 18,
1991, would have deleted paragraph (d) in favor of replacing the
reference to August 3, 1977, in each of the VER standards in the other
paragraphs of the definition with a reference to the date that the
lands came under the protection of section 522(e) of the Act. However,
neither of the proposed definitions included a counterpart to paragraph
(d)(1) of the 1983 definition. This omission would have had the effect
of eliminating the VER standard for existing operations with respect to
lands that come under the protection of section 522(e) after August 3,
1977. We did not intend this result. As stated in the preamble to the
1991 proposal, although paragraph (d) of the 1983 VER definition ``is
rewritten and reorganized in this proposal, the basic intent and
application are not changed.'' 56 FR 33156, July 18, 1991.
Therefore, we have revised the exception for existing operations,
now located in 30 CFR 761.12, to incorporate language consistent with
paragraph (d)(1) of the 1983 definition. Specifically, 30 CFR 761.12
provides that the prohibitions of 30 CFR 761.11 do not apply to (1)
surface coal mining operations on land for which a valid permanent
program permit exists when the land comes under the protection of 30
CFR 761.11 or section 522(e) of SMCRA, or, (2) for surface coal mining
operations subject to the initial regulatory program in Subchapter B of
30 CFR Chapter VII, lands upon which validly authorized surface coal
mining operations exist on that date. Further discussion of this change
and the exception for existing operations appears in Part XVI of this
preamble.
VIII. How Does Our Definition of VER Compare With VER Under Other
Federal Statutes?
In the preamble to our proposed rule, we stated that the VER
exception in section 522(e) of SMCRA differs from VER under other
Federal laws because the section 522(e) VER exception applies to both
Federal and non-Federal lands while VER provisions under other Federal
laws apply only to lands in Federal ownership. Also, VER clauses and
case law under other Federal statutes and executive orders typically
relate to when a person may complete an already initiated process to
obtain a property interest in public lands if there is a change in the
laws or other requirements governing the vesting or perfecting of
interests in those lands. In contrast, the preamble to the proposed
rule explains, the VER exception in section 522(e) concerns a person's
right to use land for a particular purpose (conducting surface coal
mining operations) when that person already has fully vested property
rights in the land. We arrived at this conclusion because, unlike other
Federal statutes with VER provisions, section 522(e) of SMCRA does not
involve a transfer of property rights or interests from the Federal
government to another party. Instead, it prohibits surface coal mining
operations on certain lands, generally without regard to who owns those
lands.
Commenters disagreed with our explanation of the significance of
the difference between SMCRA and other Federal laws. Specifically, one
commenter argued that the only distinction is the source law used to
determine the nature of property interests and whether they are
entitled to protection as VER. According to the commenter, the source
law for VER under Federal statutes other than SMCRA is the Federal
statute that prescribes the requirements for creation of a non-Federal
right or interest in public lands. Conversely, the commenter argued,
the source law for VER under section 522(e) of SMCRA is State common
law, at least for non-Federal lands. As discussed in more detail later
in this section of the preamble, we cannot concur with this analysis
because to do so would effectively negate the prohibitions of section
522(e) in most situations.
The commenter attacked the good faith/all permits standard for VER
as ``an unlawful attempt to prevent not the mere acquisition of an
additional interest, but [to] preclude the use or enjoyment of an
existing property interest under state law.'' The commenter noted that
many public lands statutes prescribe certain steps or conditions that
are necessary to secure legal title, equitable title, or other forms of
property rights to use public lands or resources. According to the
commenter, the government, in its proprietary capacity, may preclude
someone from acquiring an additional property interest in public lands
if that person does not satisfy all necessary conditions, but the
government cannot extinguish an existing property interest. The
commenter further noted that the VER exception under section 522(e) of
SMCRA generally pertains to property rights under State law that are
fully perfected and vested and that are not conditioned upon the
satisfaction of any new requirements. Hence, the commenter argues,
since VER provisions under other Federal statutes have ``historically
protected unvested property rights in order to allow persons to perfect
a vested property interest against the United States in its proprietary
capacity, surely the same principles apply with more force to preserve
superior vested rights against impairment when the United States acts,
as it does under SMCRA, in its regulatory capacity.''
We do not find the commenter's arguments persuasive. As discussed
in more detail in Part VII.C. of this preamble, the definition of VER
in this final rule does not extinguish any property rights. We agree
with the commenter that, at least for non-Federal properties, State law
is the appropriate source law to determine property rights when making
a VER determination
[[Page 70794]]
under section 522(e) of SMCRA. But, as discussed below, we do not agree
that the VER inquiry should end with the property rights demonstration.
We continue to believe that VER under section 522(e) of SMCRA is
not analogous to VER under other Federal statutes. We found no
definitions of VER in other Federal statutes. Our review of these
statutes, applicable case law, and the literature discussing them
indicates that the VER provisions in these laws and pertinent executive
orders usually protect an expectation or property interest that arose
under an earlier law, which is normally a Federal public lands law but
may occasionally be State law. Generally, the protected interest is
less than vested title and is asserted against Federal title. See,
e.g., Laitos, The Nature and Consequences of ``Valid Existing Rights''
Status in Public Land Law, 5 J. Min. L. & Pol'y 399, 416-18 (1990).
As a commenter noted, the Supreme Court interpreted the phrase
``valid existing claims'' in a VER exception in an executive order
concerning the homestead laws in the following manner:
Obviously, this means something less than a vested right, such
as would follow from a completed final entry, since such a right
would require no exception to insure its preservation. The purpose
of the exception evidently was to save from the operation of the
order claims which had been lawfully initiated and which, upon full
compliance with the land laws, would ripen into a title.
Stockley v. United States, 260 U.S. 532, 544 (1923).
As another example of the meaning of VER under other Federal
statutes, we offer the following excerpt from one of the court
decisions cited by several commenters:
We conclude that ``valid existing rights'' does not necessarily
mean vested rights. Under the [Alaska Native Townsite] Act before
its repeal, a municipality, and all individuals who had occupied
specific lots within the subdivision limits, had a legitimate claim
for municipal control of any unoccupied lots * * *. It is rational
to conclude that when the Congress repealed the law and enacted a
savings clause for ``existing rights,'' that this claim would be
preserved. The term ``valid existing rights'' does not necessarily
mean present possessory rights, or even a future interest in the
property law sense of existing ownership that becomes possessory
upon the expiration of earlier estates. Legitimate expectations may
be recognized as valid existing rights, especially where the
expectancy is created by the government in the first instance. * * *
A government is most responsible when it recognizes as a right that
which is not strictly enforceable but which flows nevertheless from
the government's own prior representations. That in essence is what
the Secretary has done here. The Secretary's reading of the words
``valid existing rights'' to mean something other than ``vested'' is
reasonable.
Aleknagik Natives Ltd. v. U.S., 806 F.2d 924, 926-27 (9th Cir. 1986).
Thus, under Federal laws other than section 522(e) of SMCRA, the
term VER typically refers to the set of circumstances under which
persons who have unvested or incompletely vested interests or
expectations in Federal lands or minerals will be allowed to vest or
complete those interests or expectations as property rights against the
United States as the fee owner. In general, the VER provisions of those
statutes, or case law concerning VER under those statutes, apply to
situations in which the Federal government withdraws land from the
operation of a public lands statute or changes the eligibility criteria
or other requirements for vesting or completing of property rights. In
these cases, the term VER refers to the point at which a person who has
taken some action toward vesting or completing a property interest in
Federal lands or minerals has the right to complete the process
regardless of any statutory or regulatory changes to the contrary.
In some instances, the courts have indicated that Congress intended
for VER provisions under other Federal laws to operate as a means of
avoiding compensable takings. See Cameron v. United States, 252 U.S.
450 (1920) and Utah v. Andrus, 486 F. Supp. 995, 1011 (D. Utah 1979).
However, there is no consensus that this principle is always true or
even usually true. See, generally, 5 J. Min. L. & Pol'y No. 3. We
conclude that the record does not clearly establish that Congress
always intended avoidance of compensable takings to be an underlying
principle for all VER provisions. If Congress had this intent, VER
provisions would protect only those property rights that are protected
under the Fifth Amendment. However, the purpose of a VER provision may
be to protect expectations or interests that are not property for
purposes of the Fifth Amendment, or to preserve the status quo for
preexisting interests. See Arnold v. Morton, 529 F.2d 1101 (9th Cir.
1976); Solicitor's Opinion M-36910 (Supp.), 88 I.D. 909, 913 (Oct. 5,
1981); Sierra Club v. Hodel, 848 F.2d 1068, 1087-88 (10th Cir. 1988);
and Beard Oil Co., 111 IBLA 191 (1989).
For the reasons discussed below and in the first paragraph of this
portion of the preamble, we do not find that the meaning of VER under
other Federal laws provides useful guidance in determining the meaning
of VER for surface coal mining operations under section 522(e) of
SMCRA. First, section 522(e) and the VER exception in that section
apply to both Federal and non-Federal lands. Neither section 522(e) nor
the VER exception in that section involves a transfer of a property
right from the Federal government or a vesting of a property right vis-
a-vis the Federal government. As discussed in Part VII.C.2. of this
preamble, the VER exception in section 522(e) of SMCRA concerns a
person's eligibility to obtain a permit to conduct surface coal mining
operations when vested property rights already exist. In short, the VER
exception in section 522(e) differs from VER under other Federal laws
because SMCRA has a fundamentally different nature than the other
Federal laws to which the commenters refer. Unlike those laws, SMCRA
regulates the use of non-Federal lands.
Second, the section 522(e) VER exception applies in the context of
a regulatory program that already imposes a requirement that a permit
applicant demonstrate the property right to mine the coal by the method
intended. Thus, to provide that a person who has the necessary property
rights under State law is exempt from the prohibitions and restrictions
of section 522(e) would render the VER exception surplusage, or at best
insignificant, in relation to the independent permitting requirements
in the Act. Further, except in situations involving unleased Federal
coal, this interpretation would effectively render the protections of
section 522(e) void or insignificant. A fundamental principle of
statutory construction provides that `` `effect must be given, if
possible, to every word, clause and sentence of a statute' * * * so
that no part will be inoperative or superfluous, void, or
insignificant.'' PSMRL I, 627 F.2d at 1362, citing 2A Sutherland,
supra, at Sec. 46.06.
Third, a VER standard that is primarily intended to determine
whether, under Federal law, property rights may vest against the
Federal government, arguably would be irrelevant or inappropriate in
the circumstances to which section 522(e) applies. Property rights for
the lands listed in section 522(e) are already vested under State law.
Furthermore, application of this type of VER standard would be
inappropriate because SMCRA is not a statute under which Congress
intended to resolve title disputes or change the process for vesting
real property rights.
IX. Are VER Transferable?
In general, we view VER as transferable because, unless otherwise
[[Page 70795]]
provided by State law, the property rights, permits, and operations
that form the basis for VER determinations are transferable. There is
one significant exception to this principle. If an operation with VER
under the needed for and adjacent standard divests itself of the land
to which the VER determination pertains, the new owner does not have
the right to conduct surface coal mining operations on those lands
under the prior VER determination. That determination is no longer
valid because it was based on a representation that the lands were
needed for the operation. Of course, if the sale involves the entire
operation (as opposed to a portion of its reserves), the VER
determination would retain validity since there is no change in the
operation's need for the land.
However, the right to alienate or transfer real or personal
property is not absolute. Certain property interests such as leases,
licenses, and contracts may be inherently nontransferable or of limited
transferability, either by their terms or by operation of State law. If
a person's property interests are of this nature, then any VER resting
on those interests also would be nontransferable.
The VER exception in section 522(e) may be considered analogous to
a zoning variance, which, in the interest of equity, allows an
otherwise prohibited use to occur under certain fact-specific
circumstances even though that use was not in existence on the land in
question at the time that the zoning ordinance took effect. Zoning
variances typically convey with the title to the property even if the
rights conferred by the variance have not been exercised.
Some commenters objected strongly to our statements in the preamble
to the proposed rule that characterize VER as attaching to the property
interests. They argue that VER should attach only to the person, and
that these rights should expire if the person does not exercise them.
We do not find this argument persuasive. VER determinations are based
on property rights, permits, and/or operations, depending upon the
standard that applies. To the extent that State law and the conveyances
in question either authorize or do not prohibit the transfer of these
property rights, permits, and operations, we see no reason to prohibit
the transfer of any associated VER. Furthermore, as specified in
section 505(a) of the Act, SMCRA does not supersede any State law or
regulation unless the State law or regulation is inconsistent with the
Act. Since SMCRA does not address the transferability of VER, we have
no authority under the Act to limit the operation of State laws related
to or affecting transferability of VER.
In adopting this rule, we do not intend to create rights that do
not already exist in State law or expand upon those that do. Individual
States may prohibit VER transfers to the extent that they have the
authority to do so under State law. One commenter argued that any State
law or regulation that prohibits the transfer of VER would constitute
the taking of private property without compensation in violation of the
Fifth and Fourteenth Amendments to the U.S. Constitution. We do not
find it appropriate or necessary to respond to this theoretical
argument, which lies outside the scope of SMCRA and is best left to the
courts to address if the situation materializes.
One commenter argued that VER is not a property right, but a
recognition of some equitable consideration that Congress intended to
afford to persons whose mine plans were in substantial stages of
development on the date of enactment of SMCRA. According to the
commenter, VER should not be transferable because they are personal
rights intended to protect the legitimate expectations of the property
owner. The commenter expressed concern that allowing transfer of VER
would elevate an equitable consideration into an estate in land or a
property right. However, the commenter failed to cite any supporting
documentation for these arguments and characterizations of
Congressional intent regarding VER.
As summarized and excerpted in Part V of this preamble, the
legislative history of the VER exception in section 522(e) is quite
sparse; there is no passage that supports the commenter's claims. And
we are aware of no basis for the commenter's belief that VER are
personal rights and that allowing transfer of VER would convert an
equitable consideration into a property right. But, even if the
commenter is correct, we do not see how this distinction would preclude
transfer of VER. Unless otherwise specified by agreement of the
parties, a personal right to use property for a particular purpose or
in a particular manner may also be transferable if State law so
provides.
The commenter also argued that allowing individual States to
determine transferability of VER would result in disparate levels of
protection for both public and private lands. The commenter provided no
basis for this assertion. We know of no reason to expect that there
will be any significant difference in terms of disturbance of protected
lands between States that allow transferability and those that do not.
However, to the extent that a difference may exist, we do not find any
conflict with SMCRA. Section 505(a) of the Act provides that:
No State law or regulation in effect on the date of enactment of
this Act, or which may become effective thereafter, shall be
superseded by any provision of this Act or any regulation issued
pursuant thereto, except insofar as such State law or regulation is
inconsistent with the provisions of this Act.
Because SMCRA does not address the transferability of VER, we
believe that deferral to State law is appropriate.
The commenter also argued that to the extent that we allow transfer
of VER, we should restrict transfers in the same manner as zoning law
limits the transfer of a non-conforming use. According to the
commenter, the right to a non-conforming use generally lapses unless
exercised on a continuous basis. We do not accept the commenter's
argument. There is no indication in SMCRA, its legislative history, or
elsewhere that Congress intended the VER exception in section 522(e) to
operate as a nonconforming use does under zoning law. We see no
compelling reason to restrict transfer of VER in this fashion. And, as
previously discussed, restricting transfer in the manner advocated by
the commenter may run afoul of section 505(a) of the Act, which
preserves State law unless it is inconsistent with SMCRA.
One commenter expressed the fear that allowing transfer of VER
would expand the scope of the VER exception to the point where nearly
anyone with a backhoe could access protected lands in a devastating
fashion. We do not agree that allowing transfer of VER would create the
result feared by the commenter. The definition of VER in the final rule
provides appropriate limitations on the scope of the VER exception.
Finally, one commenter asserted, without further elaboration, that
transfer of VER is not permissible under current law, and that our rule
would create a new right contrary to law and in excess of our
authority. We disagree. Both SMCRA and its implementing regulations are
silent on the question of transferability.
X. Sections 740.4, 745.13, and 761.14(a): Who Is Responsible for
VER Determinations for Non-Federal Lands Within Section 522(e)(1)
areas?
A. Statutory Background and Rulemaking History
SMCRA does not directly address responsibilities for VER
determinations. However, section 503(a) of the Act
[[Page 70796]]
specifies that States with surface coal mining and reclamation
operations on non-Federal lands may assume exclusive jurisdiction over
the regulation of surface coal mining and reclamation operations within
their borders, except as otherwise provided in section 521 (Federal
oversight of State regulatory program implementation), section 523
(Federal lands), and Title IV of the Act (reclamation of abandoned mine
lands). In addition, section 101(f) of the Act asserts that ``the
primary governmental responsibility for developing, authorizing,
issuing, and enforcing regulations for surface coal mining and
reclamation operations subject to this Act should rest with the
States.'' In accordance with these principles, former 30 CFR 761.4, as
published on March 13, 1979 (44 FR 15341), assigned the responsibility
for VER determinations for non-Federal, non-Indian lands to the
regulatory authority, with the Secretary retaining responsibility for
VER determinations for Federal lands.
On February 16, 1983 (48 FR 6935), we revised the Federal lands
regulations at 30 CFR 740.4 by adding paragraph (a)(4). This paragraph
narrowed the Secretary's responsibility for VER determinations by
restricting it to proposed surface coal mining operations that would be
located on Federal lands within the boundaries of any areas listed in
section 522(e)(1) or (e)(2) of the Act. In the same rulemaking, we
added paragraph (o) to 30 CFR 745.13 to specify that the Secretary may
not delegate the responsibility for making VER determinations on
Federal lands within any areas listed in section 522(e)(1) or (e)(2) to
the State in a cooperative agreement for the regulation of surface coal
mining and reclamation operations on Federal lands. The preamble to
that rulemaking explains that exclusive authority for VER
determinations involving those lands is an integral component of the
Secretary's commitment to protect the areas listed in section 522(e)(1)
and (e)(2) in accordance with congressional direction and to prevent
mining on Federal lands within the National Park System. See 48 FR
6917, col. 2, February 16, 1983.
On September 14, 1983 (48 FR 41312), we removed 30 CFR 761.4
because we found it unnecessary in view of the provisions added to 30
CFR 740.4 and 745.13 on February 16, 1983. Citizen and environmental
groups filed a challenge to the removal. They also used this occasion
as an opportunity to argue that SMCRA requires that the Secretary make
VER determinations in all cases involving lands within the boundaries
of section 522(e)(1) areas, regardless of ownership. The court rejected
the plaintiffs' arguments, noting that section 503(a) of the Act
``permits States to assume exclusive jurisdiction over the regulation
of surface coal mining and reclamation operations on non-Federal
lands.'' PSMRL II, Round III--VER, 22 Env't Rep. Cas. (BNA) at 1566
(1985). The court also noted that nothing in section 523(c) of the Act,
which prohibits the Secretary from delegating to the States his
authority to designate Federal lands as unsuitable for mining under
section 522 of the Act, ``persuades the court to the contrary.'' Id.
However, in oral arguments defending against the challenge, counsel
for the Government stated that:
[I]n those situations where surface mining on private inholdings
will affect federal lands, that kicks in the Federal Lands Program,
and under the Federal Lands Program, the Secretary makes the VER
determination, so there may be circumstances where you have a
private inholding within the protected area, in which the Secretary
would make the VER determination, but he can't in the abstract know
when he's going to be required to make that determination, until he
knows what land is going to be mined, and what potential impact that
might have on federal lands.
Transcript of Oral Argument, Dec, 21, 1984, at 46; quoted in PSMRL II,
Round III--VER, 22 Env't Rep. Cas. (BNA) at 1566 (1985).
The court did not address the validity or interpretation of this
argument, which, taken at face value, would extend the reach of the
Federal lands program to lands in which there is no element of Federal
ownership.
On November 20, 1986 (51 FR 41952-62), we suspended a number of
regulations. Among other things, that Federal Register document, which
is known as the 1986 suspension notice, partially suspended the VER
definition published on September 14, 1983. In the preamble discussion
of the impact of this suspension on the Federal lands program, we
announced that the Secretary would make VER determinations for non-
Federal lands within the boundaries of the areas listed in section
522(e)(1) whenever surface coal mining operations on those lands would
affect the Federal interest (51 FR 41955). This policy is known as the
``affected by'' standard. However, the notice did not suspend or modify
30 CFR 740.4(a)(4) or any other rule to reflect this policy. (Section
740.4(a)(4) (1983) provides that the Secretary is responsible for VER
determinations for Federal lands, but it does not extend that
responsibility to non-Federal lands.)
The 1986 suspension notice does not explain the basis or origin of
the ``affected by'' standard. However, it appears to arise from the
Government's oral argument in PSMRL II, Round III--VER, as quoted in
the decision at 22 Env't Rep. Cas. (BNA) 1566 (1985). This argument
apparently derives from and expands upon language in the court's
earlier decision in In re Permanent Surface Mining Regulation II, Round
I, No. 79-1144 (D.D.C. July 6, 1984), slip op. at 11-15 (hereinafter
``PSMRL II, Round I''). In that decision, the court noted that the
definition of ``surface coal mining operations'' in section 701(28) of
the Act includes a broad ``affected by'' test and that under section
523(a) of SMCRA and the definition of ``Federal lands program'' in
section 701(5) of the Act, all surface coal mining and reclamation
operations on Federal lands are subject to the Federal lands program.
B. What Alternatives Did We Consider?
In the preamble to the proposed rule published on January 31, 1997
(see 62 FR 4838-40), we requested comment on four alternatives with
respect to responsibility for VER determinations for non-Federal lands
within the areas protected by section 522(e)(1):
(1) Reaffirming the 1983 version of 30 CFR 740.4(a)(4), which would
mean that we would be responsible for making all VER determinations for
Federal lands in section 522(e)(1) areas and that the regulatory
authority (which may be either OSM or the State) would be responsible
for making all determinations for non-Federal lands.
(2) Reaffirming the 1983 version of 30 CFR 740.4(a)(4) and revising
Part 761 to provide that the regulatory authority must obtain the
concurrence of the pertinent land management agency before finding that
a person has VER for any lands within the boundaries of the areas
listed in 30 CFR 761.11(a) and section 522(e)(1) of the Act. Under this
alternative, if the proposed operation would be located on land within
the boundaries of an area listed in section 522(e)(1), the agency
statutorily responsible for management of the protected lands would
have to concur with the regulatory authority's VER determination before
the determination could take effect.
(3) Revising 30 CFR 740.4(a)(4) and Part 761 to codify the
``affected by'' standard, which is the policy established in the 1986
suspension notice. This alternative relies upon the theory that the
scope of the Federal lands program is not necessarily limited to lands
included in the definition of Federal lands in section 701(4) of the
Act; i.e., lands in which the Federal
[[Page 70797]]
government has a property interest. Under this theory, the Federal
lands program would extend to include non-Federal lands within the
boundaries of section 522(e)(1) areas if surface coal mining operations
on those lands could affect the Federal interest by adversely impacting
the values for which the lands were designated as protected areas.
(4) Revising 30 CFR 740.4(a)(4) and Part 761 to require that we
make all VER determinations for both Federal and non-Federal lands
within the boundaries of the areas listed in 30 CFR 761.11(a) and
section 522(e)(1) of the Act. This alternative relies upon the same
theory as the ``affected by'' standard, with the additional argument
that because Congress or the President established the boundaries of
the areas identified in section 522(e)(1), all lands within those
boundaries must possess values of national significance or interest.
Therefore, surface coal mining operations on any lands within those
boundaries would automatically affect the Federal interest in some way.
C. Which Alternative Are We Adopting?
Commenters divided sharply on which alternative we should adopt.
After evaluating the comments and reviewing the Act, we have decided to
adopt the first alternative, which means that we are not making any
substantive changes to 30 CFR 740.4(a)(4). (We are making a few
editorial changes to reflect plain language principles and update
cross-references to other rules.) Under the final rule, the regulatory
authority has the responsibility for making VER determinations for all
non-Federal lands, including those within the areas listed in section
522(e)(1) of the Act.
Many commenters supported this alternative as the only one that is
fully consistent with SMCRA's provisions for State primacy in the
regulation of surface coal mining operations on non-Federal lands. We
agree. Section 101(f) of the Act asserts that ``the primary
governmental responsibility for developing, authorizing, issuing, and
enforcing regulations for surface coal mining and reclamation
operations subject to the Act should rest with the States.'' In
relevant part, section 503(a) provides that, once a State meets certain
conditions, it has the right to assume ``exclusive jurisdiction'' over
the regulation of surface coal mining and reclamation operations on
non-Federal lands within its borders, with the exception of the Federal
oversight and enforcement authority reserved under section 521 of the
Act. Other sections of the Act grant us specific, limited, additional
authority in States with primacy, such as the right to conduct
oversight inspections under section 517, but these rights and
authorities do not extend to making VER determinations on non-Federal
lands in those States.
Commenters who supported this alternative opposed the second
alternative because it would effectively grant the Federal surface
management agency veto authority over all VER determinations for
section 522(e)(1) areas. They argued that nothing in SMCRA supports
this alternative and that Congress would have included a specific
concurrence requirement if it believed that one was needed, as it did
with respect to State program approval in section 503(b), compatibility
findings under section 522(e)(2), and joint agency approval under
section 522(e)(3). One commenter noted that delays in decision-making
as a result of the concurrence requirement could increase the
Government's exposure to compensable takings claims. On balance, we
find that these arguments, while not necessarily fatal, militate
against adoption of the second alternative, the concurrence
requirement.
These commenters also opposed the third and fourth alternatives as
inconsistent with section 503(a) of SMCRA, because those alternatives
would require us to make VER determinations on some or all non-Federal
lands within section 522(e)(1) areas. In contrast, section 503(a) of
the Act establishes a mechanism by which States may assume ``exclusive
jurisdiction'' over surface coal mining and reclamation operations on
non-Federal lands within their borders. As discussed at length in this
portion of the preamble, we concur with this comment.
Opponents of the alternative that we are adopting argue that
reserving VER determination authority for all lands listed in section
522(e)(1) to the Secretary would ensure national consistency and may
result in more favorable consideration of arguments advanced by the
Federal surface management agency with jurisdiction over the protected
site. However, the commenters offered no empirical evidence to support
this theory. Nor do we find it persuasive in view of SMCRA's emphasis
on State primacy.
Some commenters argued that the alternative that we are adopting
would provide insufficient protection for lands of national
significance, such as units of the National Park Service. In support of
this argument, the commenters cite various provisions of SMCRA's
legislative history in which Congress expresses dissatisfaction with
the quality of State regulation prior to the enactment of SMCRA.
We also find these arguments unpersuasive. Subchapter C of 30 CFR
Chapter VII provides that State regulatory programs must be no less
stringent than the Act and no less effective than the Federal
regulations in meeting the requirements of the Act. We conduct
oversight of the implementation of State regulatory programs to ensure
that each State is properly administering and enforcing its approved
program. The final rule requires that the regulatory authority use the
Federal definition of VER whenever it is making determinations for non-
Federal lands within section 522(e)(1) areas, so both we and the States
will use the same decision criteria for all lands within these areas.
Hence, there should be no significant difference in the degree of
environmental protection regardless of whether we or the States make
the VER determination.
The degree to which States failed to control the environmental
impacts of surface coal mining operations or engaged in lax enforcement
practices before the approval of permanent State regulatory programs
under section 503 of SMCRA is not relevant because, before that time,
States did not have to meet Federal standards. In addition, there was
no back-up Federal enforcement authority, apart from the brief dual
enforcement arrangement of the initial regulatory program under section
502 of SMCRA. Furthermore, States and local communities generally value
national parks and the other areas protected under section 522(e)(1) of
the Act. We have no reason to anticipate that States will be less than
conscientious in administering the VER determination provisions of
their approved programs.
Opponents of the alternative that we are adopting also express
concern that allowing State regulatory authorities to make VER
determinations for non-Federal inholdings within section 522(e)(1)
areas, in combination with their authority under former 30 CFR
761.12(f) [now redesignated as 30 CFR 761.17(d)] to determine whether
surface coal mining operations would adversely affect features
(including publicly owned parks) protected under section 522(e)(3),
would leave the protection of Federal lands in the hands of State
agencies. According to the commenters, these agencies are likely the
least knowledgeable of the proper management of those lands and least
able to determine whether mining would cause an adverse effect. The
commenters argue that the agencies that
[[Page 70798]]
manage the Federal lands are in the best position to determine whether
surface coal mining operations will adversely affect those lands, and
that only the Federal surface management agency has the expertise to
evaluate whether surface coal mining operations will adversely affect
the values for which the land was designated as a protected area. The
commenters further state that responsibility for VER determinations for
private inholdings should reside with the agency that Congress
designated to manage Federal lands within the protected area. According
to the commenters, Congress would not have extended categorical
protection to the areas in section 522(e) only to leave the protection
of those lands in the hands of State regulatory authorities.
We disagree with these comments. First, it is a matter of settled
law that the regulatory authority has the responsibility for
determining whether a proposed operation would adversely affect a
publicly owned park or historic place under section 522(e)(3) of the
Act. We adopted this provision as part of 30 CFR 761.12(f), now
redesignated as 30 CFR 761.17(d), on September 14, 1983. The National
Park Service expressed an interest in revisiting that version of 30 CFR
761.12(f) and the section 522(e)(3) adverse effect determination
process. However, this rulemaking is not the proper vehicle to do so
since we did not propose changes to, or request comment on, former 30
CFR 761.12(f).
Second, as already discussed, we disagree with the commenters'
unsubstantiated assertions concerning the capability of State
regulatory authorities and the integrity of their decision-making
procedures. Under section 503 of SMCRA, we may not approve State
programs unless they demonstrate possession of the technical expertise
necessary to administer all facets of the regulatory program, including
decisions relating to designation of lands as unsuitable for surface
coal mining operations under section 522 of the Act. See 30 CFR Parts
731 and 732. In addition, State regulatory authorities deal with
surface coal mining operations and their impacts on a daily basis,
while most agencies with management responsibility for the features
protected by section 522(e) rarely encounter such operations.
Therefore, we believe that State regulatory authorities will likely
have more technical expertise and greater familiarity with surface coal
mining operations and their environmental impacts than the agency with
jurisdiction over the protected feature.
Furthermore, the environmental impacts of any potential surface
coal mining operations are not germane to determining whether a person
has VER. Under the standards in the definition of VER that we are
adopting today, this decision is a strictly legal determination in
which the potential impacts of mining play no role. The regulatory
authority must address the impacts of any proposed surface coal mining
operations as part of the permitting process and during inspection and
enforcement activities.
Third, the commenters err in stating that Congress could not have
intended State regulatory authorities to determine whether a person has
VER for non-Federal lands within section 522(e)(1) areas. Section
503(a) of SMCRA clearly provides a mechanism for a State to assume
exclusive jurisdiction for the regulation of surface coal mining
operations on non-Federal lands within its borders. Congress did not
exclude either VER determinations for section 522(e)(1) areas or
adverse effect determinations under section 522(e)(3) from the reach of
section 503(a).
For the reasons discussed at length above, we reject the argument
advanced by one commenter that section 102(a) of the Act obligates us
to reserve the authority to make VER determinations for non-Federal
inholdings within section 522(e)(1) areas. Section 102(a) provides that
one of the purposes of the Act is ``to protect society and the
environment from the adverse effects of surface coal mining
operations.'' The commenter asserts that we must have authority over
all lands within the boundaries of section 522(e)(1) areas to
effectuate this purpose, since OSM authority is the only practical
remedy for a wide range of violations of the Act. The commenter claims
that reservation of this authority to the Secretary is consistent with
the Supreme Court's description of SMCRA's regulatory structure as one
of cooperative federalism:
The most that can be said is that the Surface Mining Act
establishes a program of cooperative federalism that allows the
States, within limits established by federal minimum standards, to
enact and administer their own regulatory programs, structured to
meet their own particular needs.
Hodel v. VSMRA, 452 U.S. at 289 (1981).
We strongly disagree with these comments. For the reasons discussed
above, we believe that States are fully capable of implementing the
Act. Commenters provided no evidence to support their inference that
States either cannot or will not protect section 522(e)(1) areas to the
extent required under SMCRA. The alternative that we have selected is
fully consistent with both section 102(a) of SMCRA and the Supreme
Court's description of the Act in Hodel v. VSMRA, supra, as
establishing a program of cooperative federalism in which the States
enact and administer their own regulatory programs within limits
established by federal minimum standards. Id. at 289. And the
commenters fail to take notice of section 102(g) of the Act, which
clearly indicates that Congress envisioned that States would develop
and implement ``a program to achieve the purposes of the Act,''
(including the purpose in section 102(a)); section 101(f), in which
Congress declares that ``the primary governmental responsibility'' for
the regulation of surface coal mining operations ``should rest with the
States;'' and section 503(a), in which Congress provides that States
may assume ``exclusive jurisdiction'' over the regulation of surface
coal mining operations on non-Federal lands.
To ensure that the interests of the Federal surface management
agency and other surface owners are taken into consideration, we have
added a provision to 30 CFR 761.16(b)(1) to require that each person
seeking a VER determination first notify and request comments from the
surface owner. Any comments received must be submitted as part of the
request for a VER determination. In addition, under 30 CFR
761.16(d)(2), the agency responsible for making the VER determination
must independently notify and provide opportunity to comment to both
the surface owner and, when applicable, any agency with primary
jurisdiction over the values or features that caused the land to come
under the protection of 30 CFR 761.11. Under 30 CFR 761.16(e)(1), when
making a decision on the request for a VER determination, the agency
must consider all comments received.
We also disagree with the commenters' argument that the National
Park Service Organic Act, 16 U.S.C. 1, prevents adoption of the
alternative that we selected. The commenters represent this act as
requiring the Secretary to ``promote and regulate'' units of the
National Park System ``to conserve the scenery and the nature and
historic objects and the wild life therein and * * * leave them
unimpaired for the enjoyment of future generations.'' However, 16
U.S.C. 1 assigns this responsibility to ``the service thus
established,'' not the Secretary. Thus, by its own terms, this
provision of the Organic Act applies only to the National
[[Page 70799]]
Park Service. It does not extend to other programs and other bureaus
within the Department. We believe that if Congress had intended the
National Park Service to have concurrent decision-making authority for
VER determinations for non-Federal lands within units of the National
Park System, it would have amended either the Organic Act or SMCRA to
provide the Service with this authority. We acknowledge that, as the
commenters note, the courts have held that the Organic Act and related
statutes provide the Park Service with broad rulemaking authority.
Wilkenson v. Dept. of Interior, 634 F. Supp. 1265, 1278-79 (D. Colo.
1986). However, we do not agree with the commenters' argument that the
reach of the Organic Act extends beyond the Park Service or that it
governs rulemakings that interpret and implement other statutes for
other bureaus within the Department.
We find nothing in the Organic Act that would allow us to override
the VER exception provided in section 522(e) of SMCRA or the State
primacy provisions of section 503(a) of the Act, which allow States to
assume exclusive jurisdiction for the regulation of surface coal mining
and reclamation operations on non-Federal lands within their borders.
Paragraphs (e)(1) and (e)(3) of section 522 of SMCRA provide special
protection for units of the National Park System, but there is no
indication that Congress intended to grant either the Federal land
management agency or us exclusive or concurrent authority for VER
determinations for non-Federal inholdings within those units. Whenever
Congress intended other Federal agencies to have a concurring role in
decisions made under SMCRA, it specifically provided for this role in
the Act. See, for example, section 501(a), which requires the
concurrence of the Environmental Protection Agency with respect to
certain rulemaking activities, and section 515(f), which requires the
concurrence of the U.S. Army Corps of Engineers with respect to
regulations governing coal mine waste impoundments. Furthermore, if
Congress had intended to subordinate SMCRA to the provisions of the
Organic Act, it would have included that statute in section 702(a) of
SMCRA, which lists the Federal laws to which SMCRA is subordinate. And,
as previously discussed, we find no basis for the assumption that
States will be lax in protecting units of the National Park System.
Several commenters argue that the Property Clause of the U.S.
Constitution provides us with the authority to reserve VER
determination responsibilities on non-Federal lands within section
522(e)(1) areas to the Secretary. The Property Clause (article IV,
section 3, clause 2) provides that ``Congress shall have the Power to
dispose of and make all needful Rules and Regulations respecting the
Territory or other property belonging to the United States.'' We agree
with the commenters that there is extensive case law supporting an
expansive interpretation of the Property Clause as it relates to the
ability of the Federal government to regulate activities on Federal
lands. However, SMCRA is not a public lands statute and OSM is not a
Federal land management agency. Therefore, we find no basis for
reliance upon the Property Clause as authority for rulemaking under
SMCRA. As previously discussed, in Hodel v. VSMRA, 452 U.S. at 275-283
(1981), and Hodel v. Indiana, 452 U.S. at 321-329 (1981), the Supreme
Court upheld Congress' authority to enact SMCRA under the Commerce
Clause.
Furthermore, our authority to regulate non-Federal lands under
section 522(e)(1) is not at issue in this rulemaking. That authority is
a matter of settled law under the two 1981 Hodel cases cited in the
preceding paragraph. The issue is whether, under SMCRA, that authority,
including the responsibility for VER determinations on non-Federal
lands, is properly delegated to States with primacy. Therefore, the
commenters' arguments concerning the meaning of the Property Clause are
not helpful or relevant to this rulemaking.
For the reasons discussed above, we believe that the alternative
that we have adopted in the final rule is the alternative that is most
consistent with SMCRA's emphasis on State primacy for the regulation of
surface coal mining operations on non-Federal lands. See sections
101(f), 102(g), and 503(a)) of the Act. As previously discussed, we
believe that this alternative will provide an appropriate level of
protection to these lands since, under 30 CFR 732.15(a) and 730.5,
State regulatory programs must be no less effective than the Federal
regulations in meeting the requirements of SMCRA. And, as discussed
above and in Part XI of this preamble, we believe that the final rule
provides for consistency in VER determinations for these lands by
requiring use of the Federal definition of VER in all cases.
One commenter argued that section 102(m) of SMCRA obligates us to
adopt an alternative that reserves to the Secretary the right to make
VER determinations on non-Federal inholdings within section 522(e)(1)
areas. The paragraph that the commenter cites provides that one of the
purposes of the Act is to ``wherever necessary, exercise the full reach
of Federal constitutional powers to insure the protection of the public
interest through effective control of surface coal mining operations.''
The commenter noted that under United States v. Vogler, 859 F.2d 638,
641 (9th Cir. 1988), cert. denied, 488 U.S. 1006 (1989), those
constitutional powers include the power to protect public lands from
``trespass and injury.'' As discussed above, we believe that States are
fully capable of protecting the public interest to the extent required
by SMCRA. And we believe that the alternative that we have adopted in
the final rule is the alternative that is most consistent with SMCRA's
emphasis on State primacy for the regulation of surface coal mining
operations on non-Federal lands. See sections 101(f), 102(g), and
503(a)) of the Act. Therefore, we do not agree that section 102(m) of
SMCRA requires adoption of the alternative favored by the commenter.
One commenter argued that the decisions in PSMRL II, Round I, No.
79-1144 (D.D.C. July 6, 1984), slip op. at 11-15, and PSMRL II, Round
III--VER, 22 Env't Rep. Cas. (BNA) at 1566 (1985), compel adoption of
an ``affected by'' standard. We disagree.
PSMRL II, Round I, supra, has no applicability here because the
issue that was before the court concerned Federal lands. In deciding
that case, the court struck down 30 CFR 740.11(a)(3) (1983) only to the
extent that that rule did not apply to the Federal lands program to all
Federal lands. Specifically, the court held that, with respect to the
jurisdiction of the Federal lands program, the Secretary is ``powerless
to limit'' the statutory definition of ``surface coal mining
operations'' in section 701(28) and that, ``if surface mining
activities take place on Federal lands, the Secretary is powerless to
exclude them from the Federal lands program.'' PSMRL II, Round I,
supra, at 14-15. The court rejected the Secretary's argument, as stated
in the preamble to the 1983 rulemaking, that,
because of the interaction of the State primacy provision, section
503 of the Act, with section 523 of the Act, the Federal lands
program can be interpreted to exclude State or privately-owned
surface overlying Federally-owned coal where the operation will not
involve mining the Federally-owned coal and where there will be no
disturbance of the Federally-owned estate.
48 FR 6921, February 16, 1983.
Nothing in the court's decision would compel extension of the
Federal lands program to lands in which there is no
[[Page 70800]]
Federal property interest, i.e., lands in which both the surface and
mineral estates are entirely in non-Federal ownership. There is no
indication that the court contemplated using the ``affected by'' test
in section 701(28) to extend the Federal lands program to lands in
which there is no Federal property interest. The court noted that
``[w]hen Congress discussed state administration of the Act, it
virtually always referred to non-federal lands.'' PSMRL II, Round I,
supra, at 14. Furthermore, when we repromulgated 30 CFR 740.11(a) in
1990 to address the judicial remand of the 1983 version of this rule in
PSMRL II, Round I, supra, we rejected a commenter's argument that the
court had explicitly endorsed an ``affected by'' test to determine the
jurisdiction of the Federal lands program. In declining to adopt an
``affected by'' standard, we stated that:
An ``affected by'' test would be very difficult to administer. A
determination that the Federal interest would or would not be
affected would have to be made on a case-by-case basis, and could be
subject to different interpretations.
55 FR 94001, March 13, 1990.
In PSMRL II, Round III-VER, 22 Env't Rep. Cas. (BNA) at 1566
(1985), the other decision cited by the commenters as supporting
adoption of an ``affected by'' standard, the court did not review the
merits of the ``affected by'' standard suggested in oral argument by
Government counsel. Hence, the court's mention of the Government's
representation at oral argument concerning the applicability of an
``affected by'' standard is purely dictum. Furthermore, the ``affected
by'' standard outlined in the Government's oral arguments as quoted in
the court's decision refers to section 701(28)(B) of the Act, which
specifies that ``all lands affected by the construction of new roads or
the improvement or use of existing roads to gain access to the site and
for haulage'' are included within the definition of surface coal mining
operations. Nothing in this definition differentiates between Federal
and non-Federal lands or addresses which agency is responsible for
regulating surface coal mining operations on those lands. Nor does it
suggest use of an ``affected by'' standard to extend the scope of the
Federal lands program to include non-Federal lands within section
522(e)(1) areas.
Therefore, we find no merit to the commenters' arguments in favor
of an ``affected by'' standard. In addition, we do not believe that
this standard is consistent with section 503(a) of SMCRA, which
provides for exclusive State jurisdiction over the regulation of
surface coal mining operations on non-Federal lands.
Under the final rules adopted today, we retain exclusive authority
for making VER determinations for Federal lands within the boundaries
of the areas listed in 30 CFR 761.11(a) and for Federal lands within
any national forest [the lands listed in 30 CFR 761.11(b)]. The
regulatory authority has sole responsibility for VER determinations for
all non-Federal lands, regardless of whether we or the State are the
regulatory authority. If a State has a regulatory program approved
under section 503 of SMCRA, but does not have a Federal lands
cooperative agreement pursuant to 30 CFR Part 745, we are responsible
for making VER determinations under the State program counterparts to
30 CFR 761.11(c) through (g) for Federal lands. In States with a
Federal lands cooperative agreement, the State regulatory authority is
responsible for making VER determinations under the State program
counterparts to 30 CFR 761.11(c) through (g) for Federal lands not
listed in 30 CFR 761.11(a) or (b), unless the cooperative agreement
specifies otherwise.
One commenter opposed any rule that would require that we make VER
determinations for Federal lands on which the State is otherwise the
regulatory authority under a cooperative agreement approved under 30
CFR Part 745 and section 523(c) of the Act. In the commenter's view,
section 523(c) grants States with cooperative agreements exclusive
authority to regulate surface coal mining and reclamation operations on
Federal lands, except as specifically provided to the contrary in the
Act. We disagree with the commenter's interpretation of the Act. While
section 523(c) specifies certain functions that the Secretary may not
delegate to a State, we find nothing in this section that expressly
requires delegation of all other, unlisted functions. This
interpretation forms the basis for the regulations governing
cooperative agreements in 30 CFR part 745.
XI. Sections 740.11 and 761.14(a): Which VER Definition (State or
Federal) Applies to Lands Listed in Section 522(e)(1) and (e)(2) of
the Act?
As proposed, the final rule modifies 30 CFR 740.11 by revising
paragraph (a) and adding paragraph (g) to specify that the Federal
definition of VER will apply to all VER determinations for the lands
listed in 30 CFR 761.11 (a) and (b), regardless of whether we or the
State are responsible for making the determination. Application of the
Federal definition will ensure that requests for VER determinations
involving lands of national interest and importance, as listed in 30
CFR 761.11 (a) and (b) and section 522(e)(1) and (2) of the Act, are
evaluated on the basis of the same criteria.
The final rules differ from the 1990 version of 30 CFR 740.11(a),
which required use of the State program definition in place of the
Federal definition. However, the new rules differ from the 1990 rules
only with respect to the lands listed in 30 CFR 761.11 (a) and (b). We
will continue to use the approved State program definition when making
VER determinations for Federal lands under the State program
counterparts to 30 CFR 761.11 (c) through (g). Similarly, in States
that assume responsibility for VER determinations under a Federal lands
cooperative agreement, the State regulatory authority will continue to
use the State program definition when making VER determinations under
the State program counterparts to 30 CFR 761.11 (c) through (g) for
Federal lands not listed in 30 CFR 761.11 (a) or (b).
We received few comments on this issue, but those persons who did
comment generally supported the approach adopted in the final rule. One
commenter opposed the change, arguing that all existing State program
VER definitions are illegal or improper and that we must require that
States amend their programs to adopt an ownership and authority
standard. As previously discussed, we do not agree that the Act
mandates adoption of an ownership and authority standard for VER under
section 522(e).
In addition, we disagree with the commenter's assertion that,
because the court remanded the 1979 and 1983 Federal definitions of
VER, State VER definitions based on those Federal definitions are
illegal or improper. We are not aware of any ruling of this nature that
is still in effect. The commenter may be referring to the initial
Belville decision in Ohio, but, in September 1992, the court modified
its order by vacating the portion of its ruling concerning the validity
of State program definitions of VER in States other than Ohio.
XII. What Other Changes Are We Making in the Federal Lands Program
Regulations in 30 CFR Parts 740 and 745?
We have revised 30 CFR 740.4(a)(5) and 30 CFR 745.13(p) to
incorporate references to the provisions of 30 CFR part 761 that
correspond to section 522(e) of SMCRA. In addition, to conform with the
language of section
[[Page 70801]]
522(e) of the Act, which refers only to surface coal mining operations,
we are replacing the term ``surface coal mining and reclamation
operations'' in 30 CFR 740.4(a)(4) and 745.13(o) with ``surface coal
mining operations.'' This change is consistent with the policy
established in the preamble to a final rule published on April 5, 1989
(54 FR 13814). In that preamble, we specify that SMCRA does not require
a permit or other regulatory authority approval as a prerequisite for
conducting reclamation work alone. In other words, this change in the
terminology of the final rule clarifies that the prohibitions and
restrictions of 30 CFR 761.11 and section 522(e) do not apply to
reclamation activities such as the restoration of abandoned mine lands
and bond forfeiture sites.
Some commenters objected to this clarification, stating that
reclamation work performed on abandoned mine lands or bond forfeiture
sites must be done in accordance with plans approved by the abandoned
mine land reclamation agency or the regulatory authority. We agree that
reclamation work performed under a contract executed by the abandoned
mine land reclamation agency under Title IV of the Act must adhere to
contract plans and specifications. Similarly, we agree that any bond
forfeiture reclamation activity conducted under 30 CFR 800.50 or its
State counterpart must adhere to plans approved by the regulatory
authority. However, neither the reclamation of abandoned mine lands nor
the reclamation of bond forfeiture sites is a surface coal mining
operation as 30 CFR 700.5 and section 701(28) of the Act define that
term. Therefore, as discussed at 54 FR 13814-18 (April 5, 1989), there
is no requirement for a permit for these reclamation activities. For
similar reasons, there is no requirement that these reclamation
activities comply with 30 CFR Part 761 or section 522(e) of the Act,
which apply only to surface coal mining operations. Also, third parties
that rely upon funds other than Title IV grants or bond forfeiture
proceeds may perform reclamation work without any approval or
involvement by the regulatory authority or the abandoned mine land
reclamation agency. Reclamation activities of this nature are beyond
the scope of SMCRA.
The commenters also sought clarification that this change would not
exempt reclamation work on illegally mined sites from the supervision
and approval of the regulatory authority. We agree that the regulatory
authority must monitor reclamation work performed by or for the illegal
miner in response to an enforcement action. Nothing in this rule alters
that responsibility. However, for the reasons discussed in the
preceding paragraph, other parties may reclaim the site without the
approval or involvement of the regulatory authority.
XIII. Why Are We Removing the Definition of ``Surface Coal Mining
Operations Which Exist on the Date of Enactment'' From 30 CFR
761.5?
For the reasons discussed in Part XVI of this preamble, we are
revising 30 CFR 761.12 to clarify that the statutory exception for
existing operations in section 522(e) of the Act applies to all surface
coal mining operations in existence before the land comes under the
protection of section 522(e) and 30 CFR 761.11. Under the previous
rule, this exception applied only to operations in existence on the
date of enactment of SMCRA. As a result of this change, the term
``surface coal mining operations which exist on the date of enactment''
no longer appears in the final rule or elsewhere in part 761.
Therefore, we are revising 30 CFR 761.5 to delete the definition of
this now-obsolete term.
One commenter opposed the deletion as contrary to the express
language of the Act, based on the mistaken impression that we were
eliminating the exception for existing operations in section 522(e) and
merging it with the definition of VER. In reality, the final rule
maintains separate exceptions for both VER and existing operations, as
does the Act. Any operation that would qualify for the exception for
existing operations under the Act or the previous rules would continue
to qualify for this exception under the revised rules.
XIV. Why Are We Adding Definitions of ``We'' and ``You'' and Their
Grammatical Forms to 30 CFR 761.5?
We are adding definitions of ``we'' and ``you'' and their
grammatical forms because we have revised the other sections of part
761 to reflect plain language principles, one of which requires the use
of ``we'' and ``you'' whenever practicable. ``We,'' ``us,'' and ``our''
refer to the Office of Surface Mining Reclamation and Enforcement.
``You'' and ``your'' refer to a person who claims or seeks to obtain an
exception or waiver authorized by 30 CFR 761.11 and section 522(e) of
the Act. In all other cases, we specifically identify the person or
agency to whom we are referring.
XV. How Have We Revised 30 CFR 761.11, Which Is the Regulatory
Counterpart to the Prohibitions and Limitations of Section 522(e)
of the Act?
We have reorganized and revised this section to incorporate plain
language principles, improve clarity, maintain consistency with
revisions to other sections of 30 CFR Part 761, and add informational
cross-references to 30 CFR 761.12 through 761.17 as appropriate. The
provisions concerning the exception for existing operations, which
originally appeared in the introductory language of this part and which
we proposed to revise and recodify as 30 CFR 761.11(b), now appear in
revised form in 30 CFR 761.12. (See part XVI of this preamble.) Except
for the removal of former paragraph (h) (see the discussion in part
XVII of this preamble), there are no other substantive changes from the
1983 version of this section.
XVI. Section 761.12: Which Operations Qualify for the Exception for
Existing Operations?
The exception for existing operations formerly appeared in the
introductory language of 30 CFR 761.11. The 1997 proposed rule would
have revised and recodified the exception as 30 CFR 761.11(b). To
better adhere to plain language principles, the final rule recodifies
this exception as a separate section, 30 CFR 761.12, and clearly
distinguishes between initial program operations and permanent program
operations. The exception for existing operations subject to the
permanent regulatory program appears as paragraph (a) of that section,
while the exception for existing operations subject to the initial
regulatory program appears in paragraph (b) of that section.
Paragraph (a) of the final rule provides that the prohibitions of
30 CFR 761.11 do not apply to surface coal mining operations for which
a valid permanent regulatory program permit exists when the land comes
under the protection of 30 CFR 761.11 or section 522(e) of the Act. The
rule further clarifies that this exception applies only to lands within
the permit area as it exists when the land comes under the protection
of 30 CFR 761.11.
To address situations in existence before completion of the
transition between the initial and permanent regulatory programs,
paragraph (b) of the final rule further specifies that, with respect to
operations subject to subchapter B of 30 CFR chapter VII, the exception
applies to all lands upon which validly authorized surface coal mining
operations exist when the land comes under the protection of section
522(e) of the Act or 30 CFR 761.11. This provision has no prospective
applicability apart from one remaining active initial program mine on
Indian lands.
[[Page 70802]]
As proposed, the exception for existing operations in the final
rule incorporates paragraph (d)(1) of the 1983 definition of VER. This
paragraph provided that validly authorized surface coal mining
operations in existence on the date that land comes under the
protection of section 522(e) after August 3, 1977, automatically have
VER. For this reason and the reasons discussed below and in part VII.F.
of this preamble, we believe that this former VER standard more
properly resides with the exception for existing operations.
As stated in the preamble to the proposed rule, illegal
(``wildcat'') operations and operations for which the permit has
expired or been revoked do not qualify as existing operations under 30
CFR 761.12(b). Because no valid permit exists in those situations,
there are no validly authorized surface coal mining operations.
Similarly, the exception does not apply to sites for which the
regulatory authority has terminated jurisdiction under 30 CFR
700.11(d)(1) or its State program counterpart.
On-site activity or physical disturbance of the protected land is
not a prerequisite for the exception. This interpretation is consistent
with the underlying language in section 522(e), which excludes surface
coal mining operations ``which exist on the date of enactment of this
Act'' from the prohibitions of that section. Nothing in the Act or the
term ``exist'' requires on-site activity or physical disturbance as
opposed to legal existence. Therefore, the final rule recognizes any
validly authorized operation as eligible for the exception for existing
operations regardless of whether the permittee has actually begun to
conduct surface coal mining operations on the site.
The exception for existing operations does not extend to abandoned
or reclaimed operations. As discussed in part VII.C.2. of this
preamble, in enacting section 522(e), Congress intended to prohibit new
surface coal mining operations on the lands listed in that section,
with certain exceptions. We believe that both that intent and the
express language of section 522(e) extends to the prohibition of new
operations on lands upon which surface coal mining operations
permanently ceased before the lands came under the protection of
section 522(e). Any person seeking to reactivate an abandoned mine or
facility or to remine an abandoned or reclaimed site must comply with
the prohibitions and limitations of section 522(e) and 30 CFR 761.11 as
a prerequisite for obtaining a permanent program permit. Allowing
abandoned or reclaimed operations to qualify for the exception for
existing operations would be inconsistent with both the purpose of
section 522(e) and the accepted meaning of ``existing.''
The proposed rule would have limited the scope of the exception for
existing operations to lands for which the permittee or operator had
the right under State property law, as demonstrated in accordance with
30 CFR 778.15, to enter and conduct surface coal mining operations as
of the date that the land in question came under the protection of 30
CFR 761.11 or section 522(e) of SMCRA. By limiting the exception for
existing operations in this fashion, the proposed rule effectively
required that the permittee seek and obtain a VER determination before
initiating surface coal mining operations on any lands within the
permit area for which no right of entry had been obtained before the
land came under the protection of section 522(e).
After evaluating the comments received, we have decided not to
include this provision in the final rule. In implementing other
requirements of SMCRA, we consider lands within the permit area for
which the permittee has not yet obtained right of entry to be distinct
from other lands within the permit area only in one respect: the
permittee may not disturb those lands before obtaining right of entry.
After obtaining right of entry, the permittee may enter those lands and
conduct surface coal mining operations to the extent authorized under
the permit.
We anticipate that this change from the proposed rule will have
little practical effect in terms of the actual right to mine. The final
rule specifies that the exception for existing operations includes all
lands covered by an approved permanent program permit at the time that
the lands come under the protection of 30 CFR 761.11. However, nothing
in SMCRA, its implementing regulations, or the permit authorizes the
permittee to disturb lands within the permit area before obtaining
proper right of entry. Therefore, if the permittee is unable to procure
right of entry for the lands within the permit area covered by the
exception for existing operations, there will be no surface coal mining
operations on those lands.
The final rule that we are adopting today is consistent with
paragraph (d)(1) of the 1983 VER definition, its preamble, and the
rationale used by the courts in upholding the concept of ``continually
created VER.'' In particular, the 1983 preamble states that paragraph
(d)(1) of the 1983 definition was intended to prevent the disruption of
mining or deprivation of the right to mine after the permittee made the
substantial investments required to obtain a permit. By way of
explanation, the preamble stated that to do otherwise would be totally
inconsistent with the framework of protection that SMCRA provides to
both permittees and citizens:
Without the protection provided by this provision, it would be
possible, for instance, for a person who objected to a mining
operation to move a mobile home to the edge of the property
adjoining a mine, and occupy it, thereby forcing the operator to
cease all operations within 300 feet of this occupied dwelling. OSM
does not believe that this is the intended result of section 522(e)
of the Act. Congress provided the public ample opportunity to review
and make objections to any proposed mining operation through the
permitting process. The regulatory authority is required to seek and
consider the views of the public [before] it issues or denies a
permit. To allow any person the opportunity to take extraordinary
means to disrupt mining or deprive the operator of a right to mine
after the operator has made the substantial investments required to
obtain a permit and begin operations is totally inconsistent with
the framework of protection the Act gives to both operators and
citizens.
48 FR 41315, September 14, 1983.
We relied upon the same rationale to develop the 1997 proposed rule
and this final rule.
In upholding paragraph (d)(1) of the 1983 definition, the U.S.
Court of Appeals for the District of Columbia Circuit relied primarily
on language in the legislative history of section 522 indicating that
Congress intended to allow the continuance of mines already in
existence at the time that land is determined to be unsuitable for
surface coal mining operations. The court held that this principle
``should apply equally to mines in existence as of August 3, 1977, or
to mines subsequently started on lands which have permits approved for
mining.'' NWF v. Hodel, 839 F.2d at 750 (1988). The court ruled that
the operative principle in determining whether an operation is exempt
from the section 522(e) prohibitions is whether it had been ``lawfully
established'' before the land came under the protection of section
522(e). Id. at 750-51. Although the court did not fully explain the
meaning of ``lawfully established,'' we believe that its
characterization of industry arguments is significant because it
ultimately ruled in favor of industry:
Industry, supporting the district court, argues that * * * once
a permit has been validly issued the permit area is insulated from
subsequent unsuitability designations.
[[Page 70803]]
Id. at 750.
Furthermore, once a permit is issued, there is no legal impediment
to initiating surface coal mining operations on the permit area, apart
from any restrictions imposed as permit conditions.
Therefore, the final rule considers an operation to be lawfully
established upon issuance of a permanent program permit. This approach
is consistent with 30 CFR 774.13, which provides that the regulatory
authority cannot summarily revise or revoke an approved permanent
program permit. Therefore, when lands covered by an approved permanent
program permit come under the protection of 30 CFR 761.11 and section
522(e) after permit issuance, the permittee has the right to continue
to operate on those lands under the exception for existing operations
unless the regulatory authority orders the permittee to revise the
permit to remove those lands from the permit area in accordance with
the procedures and criteria of 30 CFR 774.13. A person who believes
that a permit has been improperly issued because a protected feature
came into existence before rather than after permit issuance has the
option of either filing a timely challenge to approval of the permit
application or submitting a complaint to the regulatory authority in
accordance with the State program counterpart to 30 CFR 842.12 or to us
under 30 CFR 842.12. If the permit is ultimately found to be defective,
the regulatory authority must require that the permittee revise the
permit in accordance with 30 CFR 774.13.
With respect to initial program operations (operations subject to
Subchapter B of 30 CFR Chapter VII), the exception for existing
operations includes all lands covered by whatever permit existed when
the land came under the protection of section 522(e) or 30 CFR 761.11.
However, except for one operation on Indian lands, we and the State
regulatory authorities have completed the repermitting of initial
program operations as required by 30 CFR 773.11 and section 502(d) of
the Act. All initial program surface coal mining and reclamation
operations on non-Indian lands that remain subject to the initial
regulatory program are now abandoned, reclaimed, or in the process of
reclamation. Under 30 CFR 773.11(a), no further coal removal or
additional disturbance of these sites for purposes of conducting
surface coal mining operations is permissible unless the person first
obtains a permanent program permit under Subchapter G of 30 CFR Title
VII or its State program counterpart.
In addition, all States with the potential for coal production in
the foreseeable future now have either a permanent State regulatory
program approved under section 503 of SMCRA or a Federal regulatory
program approved under section 504 of SMCRA. Therefore, we do not
anticipate that there will be any new surface coal mining operations
under the initial regulatory program. For all practical purposes, the
rules that we are adopting today will be applied only to operations
with permanent program permits.
Some commenters argued that by its very terms, the phrase
``existing operation'' applies only to mines for which at least some
site preparation work has occurred. For the reasons discussed above, we
do not agree.
Some commenters argued that the exception for existing operations
should apply to all lands that the permittee contemplates mining as
part of the operation. Under this rationale, the exception would not be
restricted to lands under permit before the land comes under the
protection of section 522(e) and 30 CFR 761.11. We believe that such an
expansive interpretation of the exception for existing operations runs
contrary to the purpose for which Congress enacted section 522(e). To
foreclose the possibility of this interpretation, we have added
language to 30 CFR 761.12(a) to clarify that the exception applies only
to lands under permit at the time that the land comes under the
protection of 30 CFR 761.11.
XVII. Why Are We Removing the Prohibitions in Former 30 CFR
761.11(h)?
As proposed, we are removing former 30 CFR 761.11(h), which
provided that no coal exploration or surface coal mining operations
would be licensed or permitted on Federal lands within the National
Park System, the National Wildlife Refuge System, the National System
of Trails, the National Wilderness Preservation System, the Wild and
Scenic Rivers System, or National Recreation Areas unless specifically
authorized by acts of Congress. We published this provision on
September 14, 1983 (48 FR 41349), in response to numerous comments from
persons concerned that mining or drilling would occur in national parks
and other areas protected under section 522(e)(1) of the Act.
Industry challenged the rule on both procedural and substantive
grounds. Upon review, the court remanded the rule to the Secretary
because it found that he had failed to provide adequate notice and
opportunity for comment under the Administrative Procedure Act, 5
U.S.C. 553. The court also noted that there appeared to be no rational
basis for distinguishing between Federal and non-Federal lands in this
context since section 522(e)(1) of the Act prohibits surface coal
mining operations on any lands within the statutorily protected areas
listed in 30 CFR 761.11(h). See PSMRL II, Round III--VER, 22 Env't Rep.
Cas. (BNA) at 1565 (1985).
We subsequently suspended 30 CFR 761.11(h) to comply with the
court's order. See 51 FR 41952, 41956, November 20, 1986.
On September 22, 1988, the Department of the Interior issued a
policy statement explaining the actions that the Department would take
to prevent surface coal mining operations on lands protected under
section 522(e)(1) of the Act. The policy statement commits the
Department, subject to appropriation, to use available authorities
(including exchange, negotiated purchase and condemnation) to seek to
acquire mining rights within the areas listed in section 522(e)(1)
whenever a person attempts to exercise VER. Unlike 30 CFR 761.11(h),
the policy applies to all lands within the areas listed in section
522(e)(1), not just to Federal lands.
We published this policy statement in the Federal Register on
December 27, 1988 (53 FR 52384), in conjunction with a previous
proposed rule concerning VER. The policy remains in effect even though
we subsequently withdrew the proposed rule on July 21, 1989.
Contrary to the expectations of some commenters on our 1997
proposed rule, the policy statement will not, and is not intended to,
provide protection equivalent to that afforded by former 30 CFR
761.11(h). As the court noted in its decision remanding paragraph (h),
``an absolute proscription on any mining, permitting, licensing or
exploration within the 522(e)(1) protected areas might run directly
contrary to the statute's language that such proscriptions are subject
to VER.'' PSMRL II, Round III--VER, 22 Env't Rep. Cas. (BNA) at 1565
(1985). Furthermore, section 522(e) only applies to surface coal mining
operations, which section 701(28) of the Act specifically defines as
excluding coal exploration.
Therefore, we believe that it would be inappropriate to
repromulgate the prohibitions in paragraph (h). The 1988 policy
statement expresses the Secretary's intent to acquire privately held
coal interests in areas of national significance to the extent
financial or other resources are available to do so. Any further
commitment would, in
[[Page 70804]]
most cases, exceed the Secretary's legal authority since most land
acquisition actions are subject to congressional authorization and
appropriation.
Some commenters questioned the utility of the policy since the
Department's discretionary funds for land acquisition are extremely
limited, there is little Federal land in the East available for
exchange, and the Federal Land Policy and Management Act places severe
constraints on the exchange of Federal coal for non-Federal coal across
State lines. The commenters also noted that most Federal lands in the
East are in the National Forest System, which is under the jurisdiction
of the Department of Agriculture and thus not available to the
Secretary for exchange purposes. We acknowledge these limitations. If
adequate funds or suitable exchange lands are not available, nothing in
the policy obligates the Secretary to acquire lands for which a person
has demonstrated VER.
Other commenters argued that the policy should be extended to cover
all lands protected under section 522(e), not just those areas listed
in paragraph (e)(1). We understand the commenters' interest in
protecting buffer zones for homes, schools, roads, and other features
listed in paragraphs (e)(3) through (e)(5) of section 522 of the Act.
However, the Secretary has neither the resources nor the authority to
acquire these lands without specific congressional authorization or
appropriation. Furthermore, in publishing the proposed rule, we did not
seek comments on the policy or propose any changes to the policy.
Therefore, both the policy and comments suggesting revision of the
policy are outside the scope of this rulemaking.
XVIII. Why Did We Reorganize Former 30 CFR 761.12 as Secs. 761.13
Through 761.17 and 762.14?
Former Sec. 761.12 included a number of mostly unrelated provisions
under the heading ``Procedures.'' Plain language principles encourage
the use of multiple short sections with informative headings that
address a single topic in preference to long, less focused sections
with headings that convey relatively little information about their
contents. We also determined that former 30 CFR 761.12(g), which
addressed the eligibility of lands listed in section 522(e) for
designation as unsuitable for surface coal mining operations under 30
CFR Parts 762, 764, and 769, would be better placed in 30 CFR Part 762,
which contains the criteria for designating lands as unsuitable for
mining pursuant to those parts of our regulations.
Therefore, we are reorganizing and recodifying former Sec. 761.12
as shown in the following table:
------------------------------------------------------------------------
Previous citation New citation
------------------------------------------------------------------------
761.12(a).................................. 761.17(a)
761.12(b)(1)............................... 761.17(b)
761.12(b)(2)............................... 761.17(c)
761.12(c).................................. 761.13
761.12(d).................................. 761.14
761.12(e).................................. 761.15
761.12(f).................................. 761.17(d)
761.12(g).................................. 762.14
761.12(h).................................. 761.16(f)
------------------------------------------------------------------------
In addition, we are consolidating all procedural requirements
related to VER determinations into a new Sec. 761.16 and expanding
those requirements to cover all steps of the VER determination process.
The portion of former 30 CFR 761.12(b)(2) that pertains to notification
of the National Park Service and the U.S. Fish and Wildlife Service no
longer appears as a separate requirement because the general
notification requirements of new 30 CFR 761.16(d) subsume this
provision.
As proposed, we are removing the portion of former 30 CFR 761.12(h)
that provided for administrative appeals of existing operation
determinations. The exception for existing operations in 30 CFR 761.12
does not require any affirmative action or decision on the part of
either the permittee or the regulatory authority. As explained in Part
XVI of this preamble, the exception for existing operations merely
allows an already permitted operation to continue operating within the
permit boundaries in existence at the time that the land comes under
the protection of section 522(e) and 30 CFR 761.11. Hence, there is no
action or decision to appeal.
XIX. Section 761.13: How Have We Revised the Procedural
Requirements for Compatibility Findings for Surface Coal Mining
Operations on Federal Lands in National Forests?
This new section revises and replaces former 30 CFR 761.12(c). No
commenters opposed the changes that we proposed. Nor did any commenter
suggest revisions to the proposed rule.
Paragraph (a) of the final rule provides that, if you intend to
rely upon the compatibility exception in 30 CFR 761.11(b) to conduct
surface coal mining operations on Federal lands in national forests,
you must request that we obtain the Secretarial findings required by 30
CFR 761.11(b). This paragraph does not differ substantively from the
corresponding sentence in the proposed rule.
Paragraph (b) of the final rule clarifies that you may submit a
request for these findings before you prepare and submit an application
for a permit or boundary revision. As we noted in the preamble to the
proposed rule, our experience has shown that evaluation of the entire
permit application is not essential to preparation of the requested
findings. In addition, this clarification is consistent with 43 CFR
4.1391(b)(1), which provides for administrative review of compatibility
findings that are made independently of a decision on a permit
application.
If your request is part of a permit application, that application
will usually include all the information that we and the U.S. Forest
Service need to determine compatibility.
However, if you seek a compatibility finding before preparing and
submitting a permit application, we will not have access to the
information normally included in the application. Therefore, paragraph
(b) of the final rule also specifies that, if you submit a request
independently of a permit application, your request must include
sufficiently comprehensive information about the proposed operation to
enable the U.S. Forest Service and us to properly evaluate the request
and prepare adequately documented determinations and findings.
To provide better guidance as to the meaning of this requirement,
the final rule fleshes out the proposed rule, which required
``information about the nature and location of the proposed surface
coal mining operations,'' by requiring that you submit a map of the
proposed operation and an explanation of how the proposed operation
would not damage the values listed in the definition of ``significant
recreational, timber, economic, or other values incompatible with
surface coal mining operations' in 30 CFR 761.5. (Under 30 CFR
761.11(b), one of the findings that the Secretary must make before the
regulatory authority may approve a permit application is that there are
no significant recreational, timber, economic, or other values that may
be incompatible with the proposed surface coal mining operations.)
Finally, paragraph (b) of the final rule specifies that we may request
that you provide any additional information that we determine is needed
to make the required findings. We believe that our authority to request
this information is inherent in our responsibility to make the
findings.
Paragraph (c) of the final rule provides that, when a proposed
surface
[[Page 70805]]
coal mining operation or a proposed boundary revision for an existing
surface coal mining operation includes Federal lands within a national
forest, the regulatory authority may not issue the permit or approve
the boundary revision before the Secretary makes the findings required
by 30 CFR 761.11(b). This paragraph does not differ substantively from
the corresponding sentence in the proposed rule. As proposed, the final
rule clarifies that this provision applies to all types of permit
applications that involve the addition of new acreage, including
incidental boundary revisions.
XX. How Do 30 CFR 761.14 and 761.15, Which Concern Waivers for
Buffer Zones for Public Roads and Occupied Dwellings, Differ From
Former 30 CFR 761.12(d) and (e)?
Sections 761.14 and 761.15 establish procedures for obtaining a
waiver from the prohibitions of 30 CFR 761.11(d) and (e) concerning
public roads and occupied dwellings. We did not propose any substantive
revisions to these rules, which previously appeared in 30 CFR 761.12(d)
and (e). However, one commenter expressed a general concern that the
proposed rule and its preamble did not clearly specify that the VER
exception, the exception for existing operations, and the variance and
waiver provisions of 30 CFR 761.11(c) through (e) operate independently
of each other; i.e., that a person who qualifies for one type of
exception or waiver does not need to comply with the requirements for
other types of exceptions or waivers. To address this concern, we have
added a new paragraph (a) to 30 CFR 761.14 and 761.15 to clarify that a
person need not obtain a waiver or variance under those sections if the
VER exception or the exception for existing operations applies. Section
761.14(a)(3) also recognizes that, under the conditions specified in 30
CFR 761.11(d)(2), a person need not obtain a waiver or variance under
30 CFR 761.14(b) to use or construct an access or haul road that joins
a public road. Similarly, 30 CFR 761.15(a)(3) recognizes that,
consistent with 30 CFR 761.11(e)(2), a person need not obtain a waiver
or variance under 30 CFR 761.15(b) to use or construct an access or
haul road that joins a public road on the opposite side of the public
road from an occupied dwelling.
There are no other substantive changes from the previous rules. We
have made some organizational and editorial changes to more closely
adhere to plain language principles and to reflect the addition of the
term ``you'' to the definitions in 30 CFR 761.5.
XXI. Section 761.16: What Are the Submission Requirements for
Requests for VER Determinations and How Will These Requests Be
Processed?
We are adding this new section to codify submission and processing
requirements for requests for VER determinations under section 522(e)
of the Act. Apart from a few provisions transferred from former 30 CFR
761.12(b)(2) and (h), this section has no counterpart in the previous
(1983) version of Part 761. In the proposed rule, this section appeared
in somewhat different form as 30 CFR 761.13.
SMCRA does not contain procedural requirements for VER
determinations under section 522(e), nor does it expressly require the
development of regulations establishing such requirements. However,
section 201(c)(2) of the Act provides sufficient authority for adoption
of these regulations. This provision requires that we ``publish and
promulgate such rules and regulations as may be necessary to carry out
the purposes and provisions of this Act.'' The regulations in 30 CFR
761.16 provide the procedural framework necessary to ensure that the
prohibitions of 30 CFR 761.11 and section 522(e) of the Act are fully
and properly implemented in the manner intended by Congress. These
rules are intended to ensure that all affected persons receive
equitable treatment and have adequate notice and opportunity to
participate in the decision-making process, consistent with the
Administrative Procedure Act (5 U.S.C. 551 et seq.) and section 102(i)
of SMCRA, which states that one of the purposes of SMCRA is to assure
that appropriate procedures are provided for public participation. Many
of the requirements in these regulations, especially those pertaining
to notice and comment, also address section 102(b) of SMCRA, which
states that one of the Act's purposes is to ``assure that the rights of
surface landowners and other persons with a legal interest in the land
or appurtenances thereto are fully protected from [surface coal mining]
operations.''
Most commenters either supported the addition of rules establishing
VER determination procedures or did not oppose such rules in principle.
However, some commenters took issue with individual aspects of the
proposed rules. As a result of these comments, the final rule contains
a number of substantive, editorial, and format changes from the
proposed rule.
I. In What Major Ways Does the Final Rule Differ From the Proposed
Rule?
1. Role of Federal Surface Management Agencies
If the coal interests have been severed from other property
interests and the surface estate is in Federal ownership, proposed 30
CFR 761.13(b)(2) would have required a person requesting a VER
determination for those lands to first obtain a title opinion or other
official statement from the Federal surface management agency
confirming that the requester has the property right to conduct the
type of surface coal mining operations intended. This proposed
requirement was intended to ensure that the requester and the Federal
surface management agency reach agreement on the underlying property
rights, or, if there is a dispute, that the parties obtain proper
adjudication of the dispute without involving the agency responsible
for processing VER determination requests.
Several commenters attacked this provision as effectively providing
the Federal surface management agency with veto authority over the VER
determination in violation of the principle of State primacy under
SMCRA. They argued that nothing in section 522(e) or other provisions
of SMCRA either requires or authorizes a decision-making role for the
Federal surface management agency in the VER determination process. One
commenter further noted that the proposed rule may be inconsistent with
section 510(b)(6) of the Act, which does not necessarily require
surface owner consent to a surface coal mining operation. Under that
section of the Act, the permit applicant has the option of
demonstrating the right to conduct surface coal mining operations
either under the terms of the instrument of conveyance or under State
law pertaining to interpretation of property conveyances.
We agree that the commenters' arguments have some validity. In
addition, SMCRA may provide insufficient basis for the proposed rule's
disparate treatment of Federal and non-Federal surface owners of lands
protected under section 522(e). When presented with a very similar
controversy involving 30 CFR 761.11(h) in the 1983 rules, the court
noted that there appeared to be no rational basis for distinguishing
between Federal and non-Federal lands in the context of section
522(e)(1) because Congress did not incorporate this distinction into
that provision of the Act. See PSMRL II, Round III--VER, 22 Env't Rep.
Cas. (BNA) at 1565 (1985). Therefore, we are
[[Page 70806]]
replacing proposed 30 CFR 761.13(b)(2)(vi) with two new paragraphs in
30 CFR 761.16. The new paragraphs apply to all situations in which the
coal rights have been severed from the surface estate, not just to
those situations in which the surface estate is in Federal ownership.
New paragraph (b)(2)(viii) of 30 CFR 761.16 provides that, if the
coal interests have been severed from other property interests, the
request for a VER determination must include documentation that the
requester has notified and provided reasonable opportunity for the
owners of all other property interests to comment on the validity of
the rights claimed by the requester. New paragraph (b)(2)(ix) provides
that the request must include copies of all comments received in
response to this solicitation. Under the final rule, any person
requesting a VER determination for Federal lands must seek and submit
the views of the Federal surface management agency, but, unlike the
proposed rule, the final rule does not require submission of a title
opinion or other official statement confirming the property rights
claimed by the requester. In other words, the final rule requires
consideration of information provided by the Federal surface management
agency, but, unlike the proposed rule, it does not provide that agency
with a veto authority over the VER determination process.
Some commenters expressed a desire for rules that would be more
protective of Federal lands than of other lands, based on the argument
that the national interest in Federal lands justifies special treatment
of those lands. We find nothing in section 522(e) to support this
argument. Congress did not provide for greater protection of the
Federal lands listed in that section relative to the non-Federal lands
listed therein. We believe that the final rule protects all section
522(e) lands in an equitable manner.
The final rule provides ample notice and comment opportunity to all
surface owners, including Federal surface management agencies. First,
under 30 CFR 761.16(b)(1)(viii) and (ix), the person requesting the VER
determination must seek comment from the surface owner and other
persons with a property interest in the land; any comments received
must be submitted as part of the request. Second, under 30 CFR
761.16(d)(2), upon finding that a request is administratively complete,
the agency responsible for the VER determination must notify both the
surface owner and, when applicable, any agency with primary
jurisdiction over the feature or values causing the land to come under
the protection of 30 CFR 761.11. Under 30 CFR 761.16(d)(3), the agency
responsible for the VER determination must provide a 30-day comment
period to all persons notified under 30 CFR 761.16(d)(2), with a
minimum of another 30 days available upon request. And, under 30 CFR
761.16(e)(1), the agency responsible for the VER determination must
evaluate the merits of all comments received and the information
presented by the requester before making a decision. Finally, the
surface owner or any other person with an interest in the land has the
option of filing a quiet title action in the appropriate administrative
or judicial forum at any time. Under 30 CFR 761.16(e)(3)(i), when such
an action is filed before or during the comment period on a request for
a VER determination, the agency making the VER determination must find
that the requester has not demonstrated VER, pending a final decision
in the litigation process.
One commenter argued that providing concurrence or veto authority
to another Federal agency would expose the government to liability for
both temporary or permanent takings claims under the Fifth Amendment to
the Constitution. As discussed above, the final rule does not provide
concurrence or veto authority to any other Federal agency, including
the surface management agency. While we will continue to seek input
from these agencies and consider all comments received, we will no
longer suspend processing of a request for a VER determination solely
because the surface management agency advises us that it does not
concur with the requester's property rights claims. In reaching a
decision on the request, we will evaluate the merits of all information
in the record, including that supplied by the requester and the surface
management agency.
2. Handling of Situations Involving Property Rights Disputes
In establishing right-of-entry requirements for permit applications
for surface coal mining operations, section 507(b)(9) of SMCRA provides
that ``nothing in this Act shall be construed as vesting in the
regulatory authority the jurisdiction to adjudicate property title
disputes.'' Similarly, in setting forth the findings that the
regulatory authority must make before approving a permit application,
section 510(b)(6)(C) of SMCRA provides that ``nothing in this Act shall
be construed to authorize the regulatory authority to adjudicate
property rights disputes.''
In deference to these provisos, proposed 30 CFR 761.13(d)(2) would
have required deferral of a decision on a request for a VER
determination if the underlying property rights are in dispute. The
preamble contained the following discussion of the meaning of the
proposed rule:
The deferral would remain in effect until the parties resolve
the dispute in the proper venue, which is normally the State courts.
To do otherwise would constitute de facto adjudication of the
property rights dispute in favor of one of the parties, a result
that would violate the prohibition on such adjudication in section
510(b)(6)(C) of SMCRA. In addition, deferral of a decision in
situations involving property rights disputes is consistent with
section 102(b) of SMCRA, which states that one of the Act's purposes
is to ``assure that the rights of surface landowners and other
persons with a legal interest in the land or appurtenances thereto
are fully protected from [surface coal mining] operations.''
OSM does not interpret section 510(b)(6)(C) of SMCRA as
requiring deferral of a decision if there is only a mere allegation
of a property rights dispute. For example, if the parties to the
alleged dispute are not diligently pursuing resolution of the
disagreement in the proper venue, then, depending on the facts of
the case, the agency processing the request for a VER determination
might reasonably conclude that the lack of any serious attempt to
resolve the dispute means that no bona fide dispute exists and,
therefore, that no deferral is necessary.
62 FR 4851, January 31, 1997, col. 3.
One commenter argued that because sections 510(b)(6) and 507(b)(9)
concern permitting requirements, their prohibitions on regulatory
authority adjudication of property rights disputes are not applicable
to VER determinations under section 522(e). We disagree. The sections
of the Act that the commenter references specifically provide that
``nothing in this Act'' authorizes regulatory authorities to adjudicate
property rights disputes. Clearly, Congress did not intend to limit the
scope of the prohibition to sections 507 and 510 of the Act, as the
commenter asserts. Furthermore, VER determinations are precursors to
the permitting process and they may be made as part of the permitting
process in situations in which the regulatory authority and the agency
responsible for the VER determination are the same.
Some commenters supported the proposed rule and its preamble
discussion. Others argued that, in view of Congress' expressed interest
in section 102(b) in protecting the rights of surface owners, we should
extend the deferral requirement to include all situations in which the
surface owner or other parties disagree with the property rights claims
made by the requester. For the reasons discussed later in this
[[Page 70807]]
section, we no longer believe that deferral is appropriate or
necessary.
Many commenters opposed the proposed deferral requirement, arguing
that deferring a decision is an abdication of our decision-making
responsibilities under SMCRA. One commenter expressed concern that
deferral would deprive persons of the right to a reasonably timely
decision under the Administrative Procedure Act (APA). At 5 U.S.C.
555(b), the APA provides that ``[w]ith due regard for the convenience
and necessity of the parties or their representatives and within a
reasonable time, each agency shall proceed to conclude a matter
presented to it.'' Some commenters argued that unreasonable delays in
the decision-making process would expose the government to temporary or
permanent takings claims.
Several commenters stated that property rights disputes do not
relieve the Secretary or the regulatory authority of the duty to render
a final decision on a matter before the agency. These commenters argue
that administrative decisions on requests for VER determinations would
not violate the statutory prohibition on adjudication of property
rights disputes because an aggrieved party still has the opportunity to
file a quiet title action in the appropriate forum even after a VER
determination is made. As discussed in greater detail later in this
section, the final rule requires that the agency make a decision on
each request for a VER determination. That decision must be made on the
merits of the information in the record unless the property rights are
the subject of pending litigation in an appropriate legal forum. If
there is pending litigation, we believe that the statutory prohibitions
on adjudication of property rights disputes apply. Therefore, in those
cases, the final rule at 30 CFR 761.16(e)(3)(i) requires that the
agency find that the requester has not demonstrated VER. This decision
will be subject to administrative and judicial review, and it will be
made without prejudice, meaning that the request may be refiled once
the property rights dispute is finally adjudicated.
Several commenters expressed concern that deferrals would deprive
persons requesting a VER determination of the opportunity for
administrative and judicial review. One commenter stated that the
effect of a refusal to process a request for a VER determination is the
same as a negative determination, with one important distinction:
unlike a negative determination, a deferral or other cessation of
processing means that there is no final agency action subject to
judicial review. As discussed in greater detail later in this section,
these comments have some merit and we have revised the rule
accordingly. The final rule at 30 CFR 761.16(e) requires that the
agency make a decision on each request for a VER determination that the
agency receives. The requester will always have the opportunity to
pursue administrative and judicial review of that decision.
One commenter argued that when a Federal surface management agency
asserts a title defect, the only vehicle to evaluate the merits of
property rights disputes is a decision on whether the requester has
demonstrated VER. We do not agree. Any person with a valid legal
interest has the right to file a timely quiet title action in a court
of competent jurisdiction to resolve a property rights dispute with a
Federal surface management agency, provided the statute of limitations
has not expired. There is no statutory or case law requiring an
administrative VER determination as a prerequisite for such action.
Other commenters argued that deferrals would violate the statutory
prohibition on adjudication of property rights disputes. According to
the commenters, a deferral is a de facto adjudication of the property
rights dispute in favor of the surface owner because it effectively
denies the requester the right to conduct surface coal mining
operations. These commenters advocated revising the rule to require
that the agency make an administrative decision on each request. They
noted that any person with standing who disagrees with the agency's
decision on the VER determination has the right to seek judicial review
of the decision.
For reasons discussed in greater detail later in this section, the
final rule at 30 CFR 761.16(e) requires that the agency make a decision
on each request for a VER determination that the agency receives. We
are not adopting the proposed rule that would have authorized deferral
of a decision under some circumstances. However, we do not agree with
the commenters that a deferral would be a de facto adjudication of the
property rights dispute in favor of the surface owner. Under the
proposed rule, the agency would have had to make a decision on the
request for a VER determination once the property rights dispute was
properly adjudicated or ceased to exist. Therefore, a deferral would
only temporarily delay a decision on whether the requester has
demonstrated the property right to conduct surface coal mining
operations.
One commenter stated that we should revise the proposed rule to
authorize the deferral, or dismissal without prejudice, of a request
for a VER determination only for situations in which the property
rights are currently the subject of pending litigation. The commenter
argued that section 507(b)(9) of the Act implies that this is the only
circumstance under which Congress did not envision that we or the
regulatory authority would make a decision purely on the basis of a
prima facie demonstration of property rights by the requester. As
discussed in greater detail later in this section, we concur that
section 507(b)(9) may reasonably be read in this manner. For this and
other reasons, final 30 CFR 761.16(e) provides that, unless the
underlying property rights are in litigation, the agency responsible
for the VER determination must make that determination based on the
merits of the information in the record. If the property rights are in
litigation, final 30 CFR 761.16(e)(3)(i) requires that the agency find
that the requester has not demonstrated VER. The final rule specifies
that this decision must be made without prejudice, as the commenter
suggested.
One commenter expressed concern that, under the proposed rule,
persons with no legal standing could allege a property rights dispute
and thus preclude a decision on the request for a VER determination.
The commenter urged that, at a minimum, we incorporate the preamble
restrictions on the meaning of the term ``property rights disputes''
into the rule itself. As discussed below, we have revised the final
rule to address the commenter's concerns.
Most commenters opposing the proposed rule and its deferral
requirement cited two Federal court decisions from the Eastern District
of Kentucky, Akers v. Baldwin, No. 84-88 (February 28, 1985) and Akers
v. Bradley, No. 84-88 (June 1988) as supporting their position. Both
decisions concern the same case, which dealt with the issue of what
action the regulatory authority could and should take on a permit
application while a property rights dispute is pending resolution in
State court. In its opinion, the court included the following
discussion of the meaning of the section 510(b)(6)(C) prohibition on
regulatory authority adjudication of property rights disputes:
The court finds itself simply unable to accept the arguments of
the state defendants and intervening defendants that Congress did
not intend that the state agency regulating surface mining not be
required to make a determination whether the permit
[[Page 70808]]
application reflects a prima facie right under state law to engage
in surface mining.
Such argument flies in the face of the plain and unambiguous
language of the statute and also its context and history. Thus, 30
U.S.C. Sec. 1260(b)(6) [section 510(b)(6) of SMCRA] requires the
mining company applicant for a permit to demonstrate in one of three
ways that it has the right to surface mine. This may be done by
furnishing the written consent of the surface owner, a conveyance
expressly granting the right to surface mine, or a deed which when
considered with applicable state law will reflect such right.
The state and intervening defendants argue that for the state
agency to construe a deed in the light of state law is to engage in
the resolution of a property dispute in violation of the language of
the federal statute. This construction is not borne out by the
legislative history.
* * * * *
Proper principles of statutory construction require the court to
construe the statute as a whole giving effect to all of its
language. [Citation omitted.] The only construction of 30 U.S.C.
1260(b)(6) which meets this criterion is that * * * Congress
intended that the state regulatory authority reviewing the permit
application administratively ascertain that a prima facie showing of
the right to surface mine under state law has been properly
documented by the applicant. To this extent, the agency is required
to make a legal determination. This is subject, of course, to the
right of the parties to resort to the courts for a final
determination, which the state agency must then respect.
The court concludes that the language so heavily relied upon by
the state and intervening defendants appearing at the end of
Sec. 1260(b)(6)(C)--
``Provided, That nothing in this [Act] shall be construed to
authorize the regulatory authority to adjudicate property rights
disputes''--means only that the regulatory agency would not have
power to determine whether any given conveyance had been obtained by
fraud, whether the consent obtained was signed by the proper heirs
to a particular tract of land, whether there was a boundary line or
other dispute concerning the realty's description, and other such
individualized matters.
Akers v. Baldwin, C.A. No. 84-88 (E.D. Ky, Feb. 28, 1985), slip op. at
9-12, emphasis added.
The court noted that, under SMCRA, the regulatory authority has no
administrative procedures for ruling on boundary line or fraud claims,
on who is the proper heir to a particular tract of real estate, or
other individualized disputes of similar nature. The court further
stated its belief that the regulatory authority could not prohibit
permit issuance on the basis of disputes of this nature. According to
the court, construing the Act in this manner ``could prevent issuance
of a permit even where a deed expressly granted the right to surface
mine,'' a result which the court found to be inconsistent with
Congressional intent. Akers v. Baldwin, supra, at 15.
In a June 20, 1988 decision finally disposing of this case, now
entitled Akers v. Bradley, the court reiterated its conclusion in Akers
v. Baldwin, supra, that ``[30] U.S.C. Sec. 1260(b)(6) [section
510(b)(6) of SMCRA] and the legislative history reflect a congressional
intent that the regulatory authority reviewing the permit application
make an administrative determination that the language of the severance
instrument is construed under state law to authorize surface mining.''
The court also rejected plaintiffs' argument that the regulatory
authority must withhold or suspend the permit if the agency receives an
objection disputing the applicant's right to mine coal by surface
methods: ``The court finds no clear indication that Congress intended
the permit process to be suspended in this circumstance * * *.'' Akers
v. Bradley, unpaginated slip op.
After considering the Akers court's analysis of the meaning of the
statutory prohibition on adjudication of property rights, commenters'
arguments concerning the deferral provisions of the proposed rule, and
the language of the Act, we have decided against adoption of proposed
30 CFR 761.13(d)(2)(ii), which would have required deferral of a
decision on a request for a VER determination whenever the underlying
property rights are in dispute. Our decision not to proceed with the
approach in the proposed rule also receives support from Helmick v.
United States, No. 95-0115 (N.D. W.Va. 1997), in which the court
ordered us to make a decision on a VER determination request even
though the surface and mineral owners disagreed about the proper
interpretation of the deeds for the property.
By requiring that the agency make an appealable decision on every
request, the final rule is consistent with the public policy interest
in expeditious decision-making. And, by requiring that the agency find
that the requester has not demonstrated VER if the property rights are
the subject of pending litigation, the final rule properly balances
that public policy interest with the need to protect the interests of
surface landowners and other persons with a legal interest in the
property, as directed by section 102(b) of SMCRA. In addition, the
final rule is consistent with the Interior Board of Land Appeals'
interpretation of section 510(b)(6)(C) of SMCRA in Marion A. Taylor,
125 IBLA 271, 277 (February 19, 1993), as discussed later in this
portion of the preamble.
The final rule that we are adopting today requires that the agency
make a decision on every request for a VER determination that it
receives. Under 30 CFR 761.16(e)(3)(i), the agency must determine that
the requester has not demonstrated VER whenever the property rights
claimed by the requester are the subject of pending litigation in a
court or administrative body with jurisdiction over the property rights
in question. That determination must be subject to administrative and
judicial review and it must be made without prejudice, meaning that the
requester may refile the request once the property rights dispute is
finally adjudicated. In all other cases involving property rights
disagreements, the final rule, at 30 CFR 761.16(e)(3)(ii), requires
that the agency evaluate the merits of the information in the record,
including all comments received, and determine whether the requester
has demonstrated that the requisite property rights exist in accordance
with paragraph (a), (c)(1), or (c)(2) of the definition of VER. In the
absence of pending litigation, the agency may not defer a decision on
the merits of the request merely because the surface owner, the surface
management agency, or other persons oppose the request or disagree with
the validity of the property rights claimed by the requester.
We believe that the final rule reflects good administrative
practice by reducing the lengthy delays that sometimes result from
deferring decisions until property rights disagreements are fully
resolved. The rule is responsive to those comments arguing for a more
expedited, understandable, and predictable decision-making process in
situations that involve property rights disagreements. The rule also is
consistent with commenters' desire for decisions that are subject to
administrative and judicial review. And it provides ample opportunity
for persons who disagree with the requester's property rights claims to
initiate legal action contesting those claims and thus activate the
provision of the rule that requires the agency to find that the
requester has not demonstrated VER, pending final adjudication of the
dispute.
We believe that 30 CFR 761.16(e)(3)(i), which requires that the
agency determine that the requester has not demonstrated VER whenever
the property rights claimed by the requester are the subject of pending
litigation, is consistent with section 102(b) of SMCRA. That section
states that one of the Act's purposes is to ``assure that the rights of
surface landowners and other
[[Page 70809]]
persons with a legal interest in the land or appurtenances thereto are
fully protected from [surface coal mining] operations.'' Section
102(m), which states that another purpose of SMCRA is ``protection of
the public interest,'' provides further support for this rule.
The final rule also is consistent with the court's assertion in the
Akers decision that the regulatory authority should not issue mining
permits prior to the conclusion of litigation concerning the
interpretation of property rights conveyances for lands within those
permit applications. In reaching this decision, the court found that:
[T]he public interest dictates that the physical integrity of
the surface lands be preserved until the constitutionality of the
statute discussed herein [relating to broad form deeds] has been
finally determined. The mining companies can always do their mining
after the statute is declared unconstitutional, if such is the
result. The lands, once strip mined, cannot be restored to their
pristine state.
Akers v. Baldwin, No. 84-88 (E.D. Ky. 1985), slip op. at 14-15.
We believe that a similar rationale should apply to VER
determinations under section 522(e), since these determinations are
precursors to permitting actions, and may be made as part of the
permitting process.
In addition, the final rule is consistent with the Interior Board
of Land Appeals' interpretation of section 510(b)(6)(C) of SMCRA in
Marion A. Taylor, 125 IBLA 271, 277 (February 19, 1993). In that case,
the Board held that, if the regulatory authority receives notice of a
legal dispute concerning the validity of property rights, but
nonetheless allows the applicant or permittee to conduct surface coal
mining operations on the disputed area, the regulatory authority has
effectively adjudicated the property rights dispute in favor of the
applicant or permittee in violation of section 510(b)(6)(C) of the Act.
The Board found that the existence of a legitimate ongoing legal
dispute means that the permit applicant was unable to demonstrate--and
the regulatory authority was unable to find--that the applicant had the
legal right to mine the coal by the method intended. VER determinations
are precursors to permitting actions, and may be made as part of the
permitting process. Therefore, the Board's rationale also would apply
to VER determinations in situations involving property rights disputes
that are pending resolution in a court of competent jurisdiction or
other appropriate legal venue.
However, we do not interpret the proviso in section 510(b)(6)(C) of
SMCRA as applying to situations in which there is only a mere
allegation of a property rights dispute. As stated in the preamble to
the proposed rule, if the parties are not diligently pursuing
resolution of their disagreement in the proper administrative or
judicial venue, then the agency processing the request for a VER
determination may reasonably conclude that the lack of any serious
attempt to resolve the disagreement in the appropriate legal venue
means that no bona fide dispute exists. We believe that the threshold
that 30 CFR 761.16(e)(3)(i) establishes for property rights disputes is
a reasonable approach that will comply with the requirements of the Act
while avoiding the potential disruption of the permitting process and
mining industry that could result from a lower threshold that
countenances unsupported or frivolous allegations. This threshold also
should resolve a commenter's concern that, under the proposed rule,
persons with no legal standing could allege a property rights dispute
and thus preclude a decision on the request for a VER determination.
Further, as one commenter noted, applying the statutory prohibition
on adjudication of property rights disputes only to those disputes
pending resolution in the appropriate legal venue is consistent with
section 507(b)(9) of the Act. This section, which, like section
510(b)(6)(C), contains a prohibition on regulatory authority
adjudication of property title disputes, provides that a permit
applicant must identify whether the claimed right of entry is the
subject of pending court litigation. Although not necessarily
conclusive, this provision does suggest that Congress did not consider
a property rights dispute to be bona fide in the absence of litigation.
Finally, in Akers v. Bradley, supra, the court held that there is
no indication that Congress intended section 510(b)(6)(C), the other
provision of SMCRA that contains a prohibition on adjudication of
property rights disputes, to be interpreted as requiring that the
regulatory authority withhold or suspend the permit whenever the agency
receives an objection disputing the applicant's right to mine coal by
surface methods.
Some commenters argued that a mere allegation of a property rights
dispute should suffice to invoke the prohibition on adjudication of
property rights disputes in section 510(b)(6)(C) of the Act because
many persons would likely become aware of a potential dispute only upon
receipt of the notice required by the rule. We recognize that the
situation posited by the commenters is likely to occur. However, we
believe that the final rule provides persons with legitimate property
rights concerns ample opportunity to initiate the appropriate legal or
administrative action during the comment period on the VER
determination request.
For clarity, we have revised the public notice content requirements
in 30 CFR 761.16(d)(1) by adding a new paragraph (iv) to require that
the notice include a statement specifying that the agency will not make
a decision on the merits of the request if, by the close of the comment
period on the request, a person with a legal interest in the property
initiates appropriate legal action to resolve the property rights
dispute in the proper venue. But even if a person is unable to take
legal action during this time, the property rights adjudication
prohibition of section 510(b)(6)(C) means that subsequent initiation of
litigation to resolve the property rights dispute can prevent
regulatory authority approval of any permit application that might
follow the VER determination. See Marion A. Taylor, 125 IBLA 271
(February 19, 1993).
One commenter argued that an agency determination that a person has
VER despite the presence of comments in the record that disagree with
the requester's property rights claims would expose the agency to
takings claims on the basis that the decision authorized physical
intrusion. According to the commenter, it would constitute ``an
official blessing of an improper usurpation of landowner and homeowner
rights to uninterrupted possession and enjoyment of property.'' We are
not aware of any case law supporting these assertions.
3. Action on Incomplete Requests
The proposed rule did not specify what action the agency
responsible for the VER determination could or should take if the
person requesting the VER determination does not respond to an agency
request for additional information. Final 30 CFR 761.16(c)(4) and
(e)(4) state that if you do not provide the necessary additional
information in a timely fashion, the agency must issue a determination
that you have not demonstrated VER.
The rules also specify that the agency must make these
determinations without prejudice, meaning that you may refile the
request at a later time if desired.
We are adding these provisions to the final rule in response to
several comments urging us to streamline the decision-making process to
minimize delays. One commenter requested that the final rules be
revised to ``avoid the inefficient and unfair delays attendant to the
agency's historic procedural
[[Page 70810]]
posturing to avoid disposition of issues critical to private property
rights.'' The commenter stated that prompt issuance of final decisions
also would reduce the agency's takings exposure and better comport with
5 U.S.C. 555(b), which provides that ``[w]ith due regard for the
convenience and necessity of the parties or their representatives and
within a reasonable time, each agency shall proceed to conclude a
matter presented to it.''
We do not agree that the commenter has accurately characterized the
agency's previous actions concerning VER determinations. However, we
agree that prompt decisions are desirable. Accordingly, we are adding
30 CFR 761.16(c)(4) and (e)(4) to avoid decision-making delays
resulting from incomplete submissions or failure to respond to agency
requests for additional information. Under those rules, when a person
does not supply the information requested by the agency under 30 CFR
761.16(b) or (e)(1) within the time specified, the agency must issue a
determination that the person has not demonstrated VER. A person who
receives this type of VER determination has the right to seek
administrative and judicial review of the determination. In addition,
the final rules specify that the agency must make these determinations
without prejudice, meaning that the request may be resubmitted at any
time.
We anticipate that this provision of the final rule will eliminate
the lengthy delays in decision-making that sometimes have occurred in
the past as a result of incomplete submissions. In addition, the final
rule is consistent with Helmick v. United States, No. 95-0115 (N.D.
W.Va. 1997), in which the court ordered us to issue a VER determination
even though the requester had not supplied all requested information.
Whenever an agency issues a decision under 30 CFR 761.16(c)(4) or
(e)(4), it will retain the materials submitted with the request. Those
materials will become part of the administrative record for the
decision. If the requester subsequently desires a new determination,
the agency may, at its discretion, either require complete resubmission
of the request or allow the requester to submit only the new materials
together with a request for reconsideration of the previous
determination.
4. Administrative Completeness Reviews.
When a person submits a request for a VER determination, the
proposed rule would have required the agency responsible for the VER
determination to initiate notice and comment procedures without first
reviewing the request to determine whether it contained all components
required under 30 CFR 761.13(b). We believe that this approach
represents an inefficient use of resources on the part of both the
agency and the requester because it could result in premature notice
and comment.
Therefore, the final rule includes a new 30 CFR 761.16(c), which
provides that, upon receipt of a request for a VER determination, the
agency must conduct an initial review to determine whether the request
includes all applicable components of the submission requirements of 30
CFR 761.16(b). This review addresses only the administrative
completeness of the request, not its legal or technical adequacy.
Under the final rule, the agency must proceed to implement the
notice and comment requirements of 30 CFR 761.16(d) if the request
includes all necessary components. However, if the request does not
include all necessary components, the rule requires that the agency
notify the requester and establish a reasonable time for submission of
the missing information. If the requester does not submit this
information within the specified time or any subsequent extensions, the
final rule requires that the agency issue a determination that the
requester has not demonstrated VER. Under the final rule, the agency
must issue this determination without prejudice, meaning that the
requester may refile the request at any time after obtaining the
missing information.
We believe that the addition of this step will streamline the
decision-making process, as desired by several commenters. It also will
promote more efficient use of resources by avoiding the expenses and
delays associated with providing notice and comment on an incomplete
request. And it is consistent with the permit application review
requirements of 30 CFR 773.13(a), which do not require initiation of
notice and comment procedures until the regulatory authority determines
that the application is administratively complete. Since VER
determinations are precursors to the permitting process, and may be
made as part of that process, we believe that the use of similar review
procedures is appropriate.
5. Notification Requirements for Lands Listed in 30 CFR 761.11(a)
As published on September 14, 1983, 30 CFR 761.12(b)(2) included a
requirement that the agency responsible for the VER determination
notify the National Park Service or the U.S. Fish and Wildlife Service
of any request for a VER determination for lands within the boundaries
of an area over which one of those agencies has jurisdiction. Proposed
30 CFR 761.13(c)(4) would have applied this requirement to all areas
protected under section 522(e)(1) of SMCRA and 30 CFR 761.11(a), not
just to those areas under the jurisdiction of the National Park Service
or the Fish and Wildlife Service.
However, upon reconsideration, we find no basis for disparate
treatment of section 522(e)(1) lands relative to other lands protected
under section 522(e). In enacting section 522(e), Congress did not
establish a hierarchy of protection or make any other substantive
distinction among the lands protected under that section. Furthermore,
this provision is largely duplicative of proposed 30 CFR
761.13(c)(1)(iv) and (2), which would have required that the agency
provide notice and reasonable opportunity to comment to the owner of
the structure or feature causing the land to come under the protection
of 30 CFR 761.11.
Therefore, we are not adopting proposed 30 CFR 761.13(c)(4).
Instead, we are modifying the notice and comment provisions of proposed
30 CFR 761.13(c)(1)(iv) and (2) to incorporate the minimum comment
period requirements of proposed 30 CFR 761.13(c)(4) and the 1983
version of 30 CFR 761.12(b)(2). In the final rule, those requirements
appear at 30 CFR 761.16(d)(1)(vi) and (vii), (2)(ii), and (3), which
provide for a minimum initial comment period of 30 days from the date
that the agency with primary jurisdiction over the values or feature
causing the land to come under the protection of 30 CFR 761.11 receives
the notice, with another 30 days automatically available upon request.
We have also added a proviso to 30 CFR 761.16(d)(3) stating that the
agency responsible for the VER determination may grant additional time
for good cause upon request. The latter provision is intended to cover
extenuating and unusual circumstances such as situations in which
critical agency personnel or one or more persons listed in 30 CFR
761.16(d)(2) are legitimately absent or unavailable during the comment
period. Another example would be a situation in which a surface owner
or surface management agency is unable to complete the necessary legal
research within 60 days despite reasonably diligent efforts to do so.
[[Page 70811]]
B. Paragraph (a): To Which Agency Must You Submit a Request for a VER
Determination?
Final 30 CFR 761.16(a) provides that we will make all VER
determinations for Federal lands within the areas listed in 30 CFR
761.11 (a) and (b). Those areas correspond to the areas listed in
paragraphs (e)(1) and (e)(2) of section 522 of SMCRA. VER
determinations for all other lands, including non-Federal lands within
the areas listed in 30 CFR 761.11(a), are the responsibility of the
regulatory authority. The final rule thus reflects the revised Federal
lands regulations at 30 CFR 740.4(a)(4) and 745.13(o).
Consistent with revised 30 CFR 740.11(g), the final rule also
specifies that the definition of VER in 30 CFR 761.5 applies to all VER
determinations for lands protected under 30 CFR 761.11 (a) or (b),
including non-Federal lands within the areas listed in 30 CFR
761.11(a), regardless of whether we or the State make the
determination. For all other lands, both we and State regulatory
authorities must use the definition of VER in the appropriate approved
regulatory program. Within primacy States without a cooperative
agreement under 30 CFR part 745, and in any State with a cooperative
agreement that does not delegate VER determination responsibility to
the State, we will apply the approved State program definition of VER
when making VER determinations for Federal lands outside the areas
listed in 30 CFR 761.11 (a) and (b), as required by 30 CFR 740.11(a).
In keeping with plain language principles and a request from a
commenter, final 30 CFR 761.16(a) presents these requirements in
tabular form:
----------------------------------------------------------------------------------------------------------------
Type of land to Agency
Paragraph of Sec. 761.11 Protected which request responsible for Applicable definition of
that provides protection feature pertains determination valid existing rights
----------------------------------------------------------------------------------------------------------------
(a).......................... National parks, Federal........ OSM............ Federal. \1\
wildlife
refuges, etc.
(a).......................... National parks, Non-Federal.... Regulatory Federal. \1\
wildlife authority.
refuges, etc.
(b).......................... Federal lands in Federal........ OSM............ Federal. \1\
national
forests \3\.
(c).......................... Public parks and Does not matter Regulatory Regulatory program.\2\
historic places. authority.
(d).......................... Public roads.... Does not matter Regulatory Regulatory program.\2\
authority.
(e).......................... Occupied Does not matter Regulatory Regulatory program.\2\
dwellings. authority.
(f).......................... Schools, Does not matter Regulatory Regulatory program.\2\
churches, authority.
parks, etc.
(g).......................... Cemeteries...... Does not matter Regulatory Regulatory program.\2\
authority.
----------------------------------------------------------------------------------------------------------------
\1\ Definition in 30 CFR 761.5.
\2\ Definition in applicable State or Federal regulatory program in 30 CFR Chapter VII, Subchapter T.
\3\ Neither section 522(e) of SMCRA nor 30 CFR 761.11 provides special protection for non-Federal lands within
national forests. Therefore, this table does not include a category for those lands.
See Parts X and XI of this preamble for a discussion of the
comments received on this aspect of the proposed rule.
C. May a Request for a VER Determination Be Submitted Separately From a
Permit Application?
Paragraph (b) of 30 CFR 761.16 expressly states that you may submit
a request for a VER determination before preparing and submitting a
permit application, unless the applicable regulatory program provides
otherwise. The final rule thus codifies existing policy, as stated in
the preambles to the 1983 final rule (see 48 FR 41322, September 14,
1983) and the 1991 proposed rule (see 56 FR 33161, July 18, 1991), and
removes language in conflict with that policy. It also is consistent
with 43 CFR 4.1391(b)(1), which provides for administrative review of
VER determinations that are made independently of a decision on a
permit application.
Surface coal mining operations may not always be technically
feasible, legally permissible, or economically viable in the absence of
VER. Therefore, a requirement that requests for VER determinations be
accompanied by a permit application may be unreasonably burdensome in
that it could result in significant permit application preparation
expenditures that would be futile if the agency ultimately determines
that the requester does not have VER and consequently is ineligible to
receive a permit. This is especially true of Federal lands within the
areas specified in 30 CFR 761.11 (a) and (b), for which we have sole
authority to process requests for VER determinations even when we are
not the regulatory authority responsible for reviewing permit
applications.
However, our adoption of this rule does not prevent States from
requiring that requests for VER determinations be accompanied by a
permit application. Sections 503 and 505 of SMCRA afford States
considerable discretionary authority to adopt requirements that either
have no Federal counterparts or are more stringent than their Federal
counterparts in achieving the requirements and purposes of the Act.
Furthermore, before reaching a decision on a request for a VER
determination, we reserve the right to request information normally
submitted as part of a permit application. We will make this request
only if we determine, on a case-specific basis, that we need that
information to properly evaluate the request for a VER determination.
D. Paragraph (b): What Information Must You Include in a Request for a
VER Determination?
Paragraph (b) of 30 CFR 761.16 contains submission and content
requirements for requests for VER determinations. As discussed in the
preamble to the proposed rule, we derived these requirements primarily
from provisions that we proposed as 30 CFR 761.12(a)(1) on July 18,
1991, which, in turn, are similar to guidelines in the preamble to the
1983 definition of VER. See 48 FR 41314, September 14, 1983. However,
because the definition of VER that we are adopting today does not
contain a takings standard, the final rule does not include items from
the 1983 and 1991 documents that pertain only to that standard.
Paragraph (b)(1): Submission Requirements for Property Rights
Demonstration
All requests for VER determinations for surface coal mining
operations other than roads must include the information
[[Page 70812]]
required by 30 CFR 761.16(b)(1). The agency responsible for making the
VER determination will use this information to evaluate whether you
have met the property rights demonstration requirement of paragraph (a)
of the definition of VER in 30 CFR 761.5.
Paragraphs (b)(1) (i) through (vi) of the final rule are
substantively identical to paragraphs (b)(2) (i) through (v) and (vii)
of 30 CFR 761.13 in the proposed rule. These paragraphs require a legal
description of the land; complete documentation of the character and
extent of the requester's current interests in the surface and mineral
estates in question; a complete chain of title and discussion of any
title instrument provisions concerning mining or mining-related surface
disturbances or facilities; a description of the nature and ownership
of all property rights for the surface or mineral estates in question
as of the date that the land came under the protection of 30 CFR
761.11; and a description of the type and extent of surface coal mining
operations planned, including the intended method of mining and any
mining-related surface facilities, and an explanation of how the
planned operations are consistent with State property law.
Some commenters opposed these information requirements as
excessive, overly burdensome, and improper. They argue that the rule
should require no more documentation of property rights than the right-
of-entry information that must be submitted under 30 CFR 778.15 as part
of a permit application. We do not agree. In enacting the prohibitions
of section 522(e) of the Act, Congress clearly wished to minimize
surface coal mining operations on the lands listed in that section. See
the discussion in Part VII.C. of this preamble. Therefore, we and State
regulatory authorities have an obligation to ensure that a person
seeking to conduct surface coal mining operations on those lands
provides complete documentation of the requisite property rights. It
has been our experience that a simple description of the permit
applicant's basis for claiming the right to enter and begin surface
coal mining operations, which is all that 30 CFR 778.15 requires to
obtain a permit, does not satisfy this obligation.
We believe that the requirements of 30 CFR 761.16(b)(1) are the
minimum necessary to ensure that the agency has a record which
accurately and completely documents that the necessary property rights
exist. Property rights and related legal issues can be very complex.
The previous rules provided little guidance on what information must be
submitted as part of a request for a VER determination. We have found
that persons requesting VER under those rules sometimes had difficulty
understanding exactly what information was necessary or what legal
issues needed to be addressed. Incomplete submissions resulted in
repeated requests for additional information. These requests and the
time required to collect and review the additional documentation
sometimes caused significant delays in the decision process and
occasionally the permitting process. Therefore, in this final rule, we
are establishing specific information requirements in an attempt to
ensure that a person knows what documentation must be submitted as part
of a request for a VER determination. These requirements should
expedite the decision-making process.
Proposed 30 CFR 761.13(b)(2)(vi) provided that, if the coal
interests have been severed from other property interests and the
surface estate is in Federal ownership, the request must include a
title opinion or other official statement from the Federal surface
management agency confirming that the requester has a property right to
conduct the type of surface coal mining operations intended. However,
several commenters opposed this provision of the proposed rule as
improperly providing the Federal surface management agency with a veto
authority over the VER determination in violation of the principle of
State primacy under SMCRA.
For the reasons discussed in Part XXI.A.1. of this preamble, we are
replacing proposed paragraph (b)(2)(vi) with two new paragraphs in the
final rule. New 30 CFR 761.16(b)(1)(viii) provides that, if the coal
interests have been severed from other property interests, the request
for a VER determination must include documentation that the requester
has notified and provided reasonable opportunity for the owners of all
other property interests to comment on the validity of the property
rights claimed by the requester. New 30 CFR 761.16(b)(1)(ix) provides
that the request must include copies of all comments received in
response to that solicitation.
Finally, in response to a request from a State regulatory
authority, we are adding 30 CFR 761.16(b)(1)(vii) to clarify that the
proposed rule's requirement for complete documentation of the nature
and ownership of all property interests includes the names and
addresses of all current owners of the surface and mineral estates in
the land. As the commenter noted, the agency needs that information to
comply with the notification requirements of 30 CFR 761.16(d)(2).
Paragraph (b)(2): Submission Requirements for Good Faith/All Permits
Standard
Final 30 CFR 761.16(b)(2) provides that, if your request relies
upon the good faith/all permits standard in paragraph (b)(1) of the
definition of VER in 30 CFR 761.5, you must submit the property rights
information required by 30 CFR 761.16(b)(1). In addition, the final
rule requires that you submit the following information about permits,
licenses, and authorizations for surface coal mining operations on the
land to which your request pertains:
Approval and issuance dates and identification numbers for
any permits, licenses, and authorizations that you or a predecessor in
interest obtained before the land came under the protection of 30 CFR
761.11 or section 522(e). [30 CFR 761.16(b)(2)(i)]
Application dates and identification numbers for permits,
licenses, and authorizations for which you or a predecessor in interest
submitted an application before the land came under the protection of
30 CFR 761.11 or section 522(e). [30 CFR 761.16(b)(2)(ii)]
An explanation of any other good faith effort that you or
a predecessor in interest made to obtain the necessary permits,
licenses, and authorizations as of the date that the land came under
the protection of 30 CFR 761.11 or section 522(e). [30 CFR
761.16(b)(2)(iii)]
Relevant permits and authorizations may include, but are not
limited to, State or Federal surface or underground coal mining
permits, site-specific wetlands disturbance permits, zoning or other
local governmental approvals, National Pollutant Discharge Elimination
System permits, State air pollution control permits, Mine Safety and
Health Administration authorizations, U.S. Forest Service special use
permits, and (for some types of facilities such as coal preparation
plants and ventilation housing for underground mines) building permits.
This list is not exhaustive, nor does it imply that every surface coal
mining operation will require each of these permits and authorizations.
Except for 30 CFR 761.16(b)(2)(iii), the requirements in the final
rule are substantively identical to those that we proposed as 30 CFR
761.13(b)(2)(ix) in 1997. We have added the third item because, under
the good faith/all permits standard, a good faith effort does not
necessarily mean that an application has been filed for all
[[Page 70813]]
required permits, licenses, and authorizations. See Part VII.C.2. of
the preamble to this rulemaking for a full discussion of what a good
faith effort entails.
The agency responsible for the VER determination needs the
information required by this rule to determine whether you have met the
requirements of paragraph (b)(1) of the definition of VER in 30 CFR
761.5 and to establish a documented record of the basis for that
determination.
Paragraph (b)(3): Submission Requirements for Needed for and Adjacent
Standard
Final 30 CFR 761.16(b)(3), which we proposed as 30 CFR
761.13(b)(1)(viii), provides that, if your request relies upon the
needed for and adjacent standard in paragraph (b)(2) of the definition
of VER in 30 CFR 761.5, you must explain how and why the land is needed
for and immediately adjacent to the operation upon which the request is
based. This explanation must include a demonstration that prohibiting
expansion of the operation onto that land would unfairly impact the
viability of the operation as originally planned before the land came
under the protection of 30 CFR 761.11 or section 522(e). You also must
supply the property rights information required by 30 CFR 761.16(b)(1).
The agency responsible for the VER determination needs the information
required by this rule to determine whether you have met the
requirements of paragraph (b)(2) of the definition of VER in 30 CFR
761.5 and to establish a documented record of the basis for that
determination.
The final rule contains three substantive differences from the
proposed rule. First, the final rule applies to land needed for the
operation. The proposed rule referred to coal needed for the operation.
The change from coal to land ensures consistency with the revised
definition of VER, which, in both the proposed and final rules, applies
the needed for and adjacent standard to lands, not just coal reserves,
that are needed for any activity or facility included in the definition
of surface coal mining operations.
Second, the final rule requires an explanation of how and why the
land is needed for and immediately adjacent to the operation upon which
the request is based. The proposed rule only applied this requirement
to the ``needed for'' component of the standard.
However, because paragraph (b)(2) of the definition of VER requires
a demonstration that the land is both needed for and immediately
adjacent to the operation upon which the request is based, we believe
that a request for a VER determination under this standard must include
an explanation of how and why the land meets both the ``needed for''
and ``immediately adjacent to'' components of the standard.
Third, the final rule adds the requirement that the explanation of
how and why the land is needed for the operation upon which the request
is based must include a demonstration that prohibiting expansion of the
operation onto the land would unfairly impact the viability of the
operation as originally planned before the land came under the
protection of 30 CFR 761.11 or section 522(e). This addition is
consistent with paragraph (b)(2) of the definition of VER in 30 CFR
761.5, which establishes that requirement as part of the needed for and
adjacent standard.
The new language also is responsive to those commenters who urged
us to include a requirement that the requester explain how and why the
land is needed to ensure the economic viability of the operation.
However, we do not fully agree with the commenters' argument that the
land must be necessary to ensure the economic viability of the
operation. As provided in the final rule and discussed in Part VII.D.3.
of the preamble to this rule, we believe that the ``needed for''
element of the needed for and adjacent standard may be satisfied by a
demonstration that prohibiting expansion of the operation onto the land
would unfairly impact the viability of the operation as originally
planned before the land came under the protection of 30 CFR 761.11 or
section 522(e).
Paragraph (b)(4): Submission Requirements for Roads
The VER standards for roads in paragraphs (c)(1) through (c)(3) of
the definition of VER in 30 CFR 761.5 do not include the property
rights demonstration required by paragraph (a) of the definition of
VER. Therefore, there is no need for requests for VER determinations
for roads under those standards to include all information required to
make that demonstration. Accordingly, the final rule establishes
separate information requirements at 30 CFR 761.16(b)(4) for requests
for VER determinations for roads. The final rule is substantively
identical to the one that we proposed as 30 CFR 761.13(b)(1), except
for the revisions needed to conform with the changes to the VER
standards for roads in paragraph (c) of the definition of VER in 30 CFR
761.5, as discussed in Part VII.E. of this preamble.
If your request relies upon one of the VER standards for roads in
paragraphs (c)(1) through (c)(3) of the definition of VER, you must
submit satisfactory documentation that at least one of the following
statements is true:
The road existed when the land upon which it is located
came under the protection of 30 CFR 761.11 and section 522(e), and you
have a legal right to use the road for surface coal mining operations.
[30 CFR 761.16(b)(4)(i)]
A properly recorded right of way or easement for a road in
that location existed when the land came under the protection of 30 CFR
761.11 and section 522(e), and, under the document creating the right
of way or easement, and under any subsequent conveyances, you have a
legal right to use or construct a road across the right of way or
easement to conduct surface coal mining operations. [30 CFR
761.16(b)(4)(ii)]
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 30 CFR 761.11 and section 522(e). [30 CFR
761.16(b)(4)(iii)]
Paragraph (c)(4) of the definition of VER in 30 CFR 761.5 provides
that you may elect to demonstrate VER for roads by demonstrating VER
under either the good faith/all permits standard or the needed for and
adjacent standard under paragraph (b) of the definition of VER.
Therefore, if your request relies upon the standard in paragraph (c)(4)
of the definition, you must submit the information required by 30 CFR
761.16(b)(1), which relates to the property rights demonstration
required under paragraph (a) of the definition. You also must submit
the information required by either 30 CFR 761.16(b)(2) (for the good
faith/all permits standard) or 30 CFR 761.16(b)(3) (for the needed for
and adjacent standard).
E. Paragraph (c): How Will the Agency Initially Review My Request?
For the reasons discussed in Part XXI.A.4. of this preamble, the
final rule includes a new 30 CFR 761.16(c). Under paragraph (c)(1) of
this rule, upon receipt of your request for a VER determination, the
agency must conduct an initial review to determine whether the request
includes all applicable components of the submission requirements of 30
CFR 761.16(b). This review will address only the administrative
completeness of your request, not its legal or technical adequacy. If
your request includes all necessary components, paragraph (c)(3) of the
final rule requires that the agency
[[Page 70814]]
implement the notice and comment requirements of 30 CFR 761.16(d).
Under paragraph (c)(2) of the final rule, if your request does not
include all components required by 30 CFR 761.16(b), the agency must
notify you of the missing components and establish a reasonable time
within which you must submit this information. If you do not submit
this information within the specified time or any subsequent extensions
that the agency approves, paragraph (c)(4) of the final rule requires
that the agency issue a determination that you have not demonstrated
VER. The rule specifies that the agency will issue this determination
without prejudice, meaning that you may refile the request at any time.
Whenever an agency issues a determination that you have not
demonstrated VER, it will retain the materials that you submitted with
the request. These materials will become part of the administrative
record of the decision. If you subsequently desire a new determination,
the agency may, at its discretion, either require complete resubmission
of the request or allow you to submit only the new materials together
with a request for reconsideration of the previous determination.
We believe that the addition of this step will streamline the
decision-making process, as desired by several commenters. It also will
promote more efficient use of resources by avoiding the expenses and
delays associated with providing notice and comment on an incomplete
request.
F. Paragraph (d): What Notice and Comment Requirements Apply to the VER
Determination Process?
Paragraph (d) of 30 CFR 761.16 establishes notice and comment
requirements and provisions for public participation in the VER
determination process. We proposed those requirements as 30 CFR
761.13(c), but, because of organizational changes, they appear as 30
CFR 761.16(d) in the final rule.
As we noted in the preamble to the proposed rule, the notice and
comment requirements in 30 CFR 761.16(d) generally parallel those that
we previously used for VER determinations. We have tailored these
requirements to minimize resource demands on affected persons while
maintaining consistency with section 102(i) of SMCRA, which states that
one of purposes of the Act is to assure that appropriate procedures are
provided for public participation.
Under paragraph (d)(1) of the final rule, when the agency
responsible for the VER determination finds that a request meets the
requirements of 30 CFR 761.16(c)(3), the agency must publish a notice
in a newspaper of general circulation in the county in which the land
is located. The notice must invite comment on the merits of the
request. In response to a comment, we have revised the final rule to
clarify that the agency may require that the requester publish this
notice and provide the agency with a copy of the published notice. As
proposed, the final rule specifies that we will also publish the notice
in the Federal Register if the request involves Federal lands listed in
30 CFR 761.11(a) or (b).
The final rule requires that the notice describe the location of
the land involved, the type of surface coal mining operations planned,
the applicable VER standard, and the procedures that the agency will
follow in processing the request. See 30 CFR 761.16(d)(1)(i), (ii),
(iii), and (v). It also requires that the notice include the name and
address of the agency office at which a copy of the request is
available for public inspection and to which comments should be sent,
the closing date of the comment period, and a statement that an
additional 30 days are available upon request. See 30 CFR
761.16(d)(1)(vi) through (viii). We added the portion of 30 CFR
761.16(d)(1)(viii) that requires the name and address of the agency
office at which a copy of the request is available for public
inspection in response to a comment expressing concern about the
proposed rule's lack of a provision for public access to requests for
VER determinations.
Proposed 30 CFR 761.13(c)(1)(iv) would have required that the
comment period be of sufficient length to afford interested persons a
reasonable opportunity to prepare and submit comments. However, for the
reasons discussed in Part XXI.A.5. of this preamble, final 30 CFR
761.16(d)(1)(vi) and (vii) provide that the comment period must be a
minimum of 30 days after the publication date, with another 30 days
automatically available upon request.
As proposed, the final rule requires that the notice describe the
property rights claimed and the basis for that claim. See 30 CFR
761.16(d)(1)(iii)(A). Because the definition of VER in 30 CFR 761.5
only requires a property rights demonstration as part of requests for
VER determinations based upon one of the standards in paragraph (b) of
the definition, we are restricting the scope of 30 CFR
761.16(d)(1)(iii)(A) to requests for VER determinations based upon the
good faith/all permits standard or the needed for and adjacent standard
under paragraph (b) of the definition of VER.
Certain property rights also may be a component of the VER
determination process for requests based upon one of the standards for
roads in paragraphs (c)(1) and (c)(2) of the definition of VER.
Therefore, we are adding two paragraphs to the final rule to address
these situations. Under 30 CFR 761.16(d)(iii)(B), if your request
relies upon the standard in paragraph (c)(1) of the definition of valid
existing rights, the notice must include a description of the basis for
your claim that the road existed when the land came under the
protection of 30 CFR 761.11 or section 522(e). In addition, the notice
must include a description of the basis for your claim that you have a
legal right to use that road for surface coal mining operations. Under
30 CFR 761.16(d)(iii)(C), if your request relies upon the standard in
paragraph (c)(2) of the definition of valid existing rights, the notice
must include a description of the basis for your claim that a properly
recorded right of way or easement for a road in that location existed
when the land came under the protection of 30 CFR 761.11 or section
522(e). In addition, the notice must include a description of the basis
for your claim that, under the document creating the right of way or
easement, and under any subsequent conveyances, you have a legal right
to use or construct a road across the right of way or easement to
conduct surface coal mining operations.
In response to commenters' concerns about property rights disputes,
we have added 30 CFR 761.16(d)(1)(iv). This new paragraph requires that
the notice include a statement that the agency will not make a decision
on the merits of the VER determination 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 property initiates
appropriate legal action to resolve the property rights dispute in the
proper venue. See Part XXI.A.2. of this preamble for further discussion
of the background of and reasons for this requirement. We are
restricting this provision to requests for VER determinations based
upon one or more of the standards in paragraphs (b), (c)(1), or (c)(2)
of the definition of VER in 30 CFR 761.5 because only those standards
have the potential for property rights disputes as part of the VER
determination process.
We have combined proposed 30 CFR 761.13(c)(2) and (c)(3) into 30
CFR 761.16(d)(2) in the final rule. That paragraph requires that the
agency promptly provide a copy of the notice required under 30 CFR
761.16(d)(1) to (i) all reasonably locatable owners of
[[Page 70815]]
surface and mineral estates in the land included in the request, and
(ii) the owner of the feature causing the land to come under the
protection of 30 CFR 761.11, and, when applicable, to the agency with
primary jurisdiction over that feature with respect to the values
causing the land to come under the protection of 30 CFR 761.11. The
final rule differs from the proposed rule in two respects.
First, paragraph (d)(2)(i) requires notification of all owners of
surface and mineral estates in the land included in the request. The
proposed rule would have only required notification of these owners if
the land involved severed estates or divided interests. The final rule
does not include this limitation because, upon further evaluation, we
find no basis or reason for restricting notification in this fashion.
Second, paragraph (d)(2)(ii) requires notification of both the
owner of the feature causing the land to come under the protection of
30 CFR 761.11, and, when applicable, the agency with primary
jurisdiction over that feature with respect to the values causing the
land to come under the protection of 30 CFR 761.11. The proposed rule
would have required notification of only the owner of the feature. The
change from the proposed rule to the final rule recognizes that the
agency with jurisdiction over the protected feature may not own the
feature or certain lands within the feature. For example, many sites
listed on the National Register of Historic Places are privately owned.
Similarly, some lands within section 522(e)(1) areas, such as national
parks and national wildlife refuges, are in non-Federal ownership. In
situations such as these, we believe that, in the interest of fairness,
the agency with jurisdiction over the protected feature also should
receive notice and opportunity to comment. For lands and features owned
by the United States or by a State, notification of the Federal or
State agency with responsibility for managing the land or feature will
fully satisfy the requirements of 30 CFR 761.16(d)(2)(ii).
One commenter expressed concern that the notification requirements
of proposed 30 CFR 761.13(c)(3) could impose a significant burden on
the agency responsible for the VER determination unless we revised the
submission requirements to specify that the requester must provide
names and addresses of all owners of interest. As discussed in Part
XXI.D. of this preamble, we agree. Final 30 CFR 761.16(b)(1)(vii)
requires that the requester supply current names and addresses of the
owners of all property interests in the land. In adopting 30 CFR
761.16(b)(1)(vii) and 761.16(d)(2)(i), we do not intend to impose an
unreasonable burden to locate owners of property interests if that
information is not readily available from established sources.
Therefore, the final rule provides that the notification requirements
of 30 CFR 761.16(d)(2)(i) extend only to reasonably locatable owners.
If comments received on the request or other available information
indicates that the names and addresses supplied by the requester are
either inaccurate or incomplete, the agency may either conduct its own
title research or require the requester to correct the deficiencies in
the original submittal.
Under final 30 CFR 761.16(d)(3), the letter transmitting the notice
required under 30 CFR 761.16(d)(2) must clarify that the comment period
for persons receiving notice is 30 days from the date of service of the
notice, with another 30 days available upon request. At its discretion,
the agency responsible for the VER determination may grant additional
time for good cause upon request. These times originally appeared in
proposed 30 CFR 761.13(c)(4), which would have applied only to requests
for VER determinations involving land within an area under the
protection of 30 CFR 761.11(a) and section 522(e)(1) of the Act. As
discussed in Part XXI.A.5. of this preamble, we are not adopting
proposed 30 CFR 761.13(c)(4). That paragraph of the proposed rule would
duplicate the requirements of final 30 CFR 761.16(d)(1)(vi) and (vii),
(2), and (3). In addition, we find no basis in SMCRA to establish
notice and comment provisions that differ based upon which paragraph of
section 522(e) protects the land.
G. Paragraph (e): How Will a Decision Be Made?
Paragraph (e), which we proposed as 30 CFR 761.13(d), contains
procedural requirements and decision-making criteria for the evaluation
of requests for VER determinations. Under paragraph (e)(1) of the final
rule, the agency responsible for the VER determination must review the
materials submitted with the request, the information received during
the comment period, 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. This
language differs slightly from that of the proposed rule, which would
have required a determination of whether the record was adequate to
support a decision in favor of the requester. The new language reflects
the fact that, under the Administrative Procedure Act, any agency
decision must be supported by an adequate administrative record.
If the record is not sufficiently complete and adequate to support
a decision on the merits of the request, paragraph (e)(1) of the final
rule requires that the agency notify the requester in writing,
explaining the inadequacy of the record and requesting submittal,
within a specified reasonable time, of any additional information that
the agency deems necessary to remedy the inadequacy. The proposed rule
did not specify what action the agency responsible for the VER
determination could or should take if the person requesting the VER
determination does not respond to the request for additional
information. However, under paragraph (e)(4) of the final rule, if the
necessary information is not submitted within the time specified or as
subsequently extended, the agency must issue a determination that the
requester has not demonstrated VER. Under the final rule, the agency
must issue these determinations without prejudice, meaning that the
person could refile the request at a later time. See Part XXI.A.3. of
this preamble for a discussion of the reasons and basis for this final
rule.
Like the proposed rule, paragraph (e)(2) of the final rule provides
that, once the record is complete and adequate, the agency must
determine whether the requester has demonstrated VER. Under the rule,
the decision document must explain how the requester has or has not
satisfied all applicable elements of the definition of VER. Paragraph
(e)(2) of the final rule also incorporates proposed 30 CFR
761.13(d)(2)(i). Like that paragraph of the proposed rule, the final
rule requires that the decision document also set forth relevant
findings of fact and conclusions and specify the reasons for the
conclusions.
Paragraph (d)(2)(ii) of the proposed rule would have required that
the agency defer a decision until all outstanding property rights
disputes were resolved. For the reasons discussed in Part XXI.A.2. of
this preamble, we are not adopting that paragraph of the proposed rule.
Instead, the final rule includes a new paragraph (e)(3), which requires
that the agency make a determination on the merits of the record unless
the conflicting property rights claims are the subject of pending
litigation in a court or administrative body of competent jurisdiction.
If the property rights are the subject of such litigation, the final
rule requires that the agency determine
[[Page 70816]]
that the requester has not demonstrated VER. The agency must make this
determination without prejudice, meaning that the requester may refile
the request at any time. See Part XXI.A.2. of this preamble for a more
extensive discussion of this paragraph of the final rule. The final
rule also clarifies that paragraph (e)(3) applies only to requests for
VER determinations that rely upon one or more of the standards in
paragraphs (b), (c)(1), and (c)(2) of the definition of VER in 30 CFR
761.5. Only requests based upon those standards have the potential for
a property rights dispute as part of the VER determination process.
Under paragraph (e)(5)(i) of the final rule, which we proposed as
30 CFR 761.13(d)(3)(i), the agency must provide a copy of the
determination to the requester, the owner or owners of the land to
which the determination applies, to the owner of the feature causing
the land to come under the protection of 30 CFR 761.11, and, when
applicable, to the agency with primary jurisdiction over the feature
with respect to the values that caused the land to come under the
protection of 30 CFR 761.11. The final rule differs from the proposed
rule in two ways. First, the final rule includes a requirement to
provide a copy of the determination to the owner or owners of the land
to which the determination applies. We believe that, in the interest of
fairness, landowners should receive the same notification as the
requester and the agency with primary jurisdiction over the protected
feature. Second, the final rule replaces the disjunctive ``or'' in the
proposed rule with ``and'' to clarify that both the owner of the
feature causing the land to come under the protection of 30 CFR 761.11
and any agency with primary jurisdiction over that feature must receive
notification, not just one or the other as the proposed rule could have
been read to mean. As with the first change, we believe that, in the
interest of fairness, both the owner of the feature and the agency with
primary jurisdiction over that feature should receive notification of
the decision. In addition, the final rule adds a requirement that the
agency provide an explanation of appeal rights and procedures along
with a copy of the determination. We believe that this provision is
necessary to ensure that all persons are aware of those rights and
procedures.
Paragraph (e)(5)(ii) of the final rule, which we proposed as 30 CFR
761.13(d)(3)(ii), requires that the agency publish notice of the
determination in a newspaper of general circulation in the county in
which the land is located. At the request of a commenter, the final
rule clarifies that the agency may require that the requester publish
this notice and provide a copy of the published notice to the agency.
When the request includes Federal lands within the areas listed in 30
CFR 761.11(a) or (b), the final rule requires that we publish the
determination in the Federal Register. The final rule adds a
requirement that both the notice of decision published in the newspaper
and the determination published in the Federal Register must provide an
explanation of appeal rights and procedures. We believe that this
provision is necessary to ensure that all persons are aware of those
rights and procedures.
H. Paragraph (f): How May a VER Determination Be Appealed?
Paragraph (f), which we proposed as 30 CFR 761.13(e), provides that
VER determinations are subject to administrative and judicial review
under 30 CFR 775.11 and 775.13, which contain administrative and
judicial review requirements for permitting decisions. This provision
is substantively identical to the appeal rights for VER determinations
in both the 1979 and 1983 versions of 30 CFR 761.12(h).
Some commenters urged that we modify this provision to eliminate
the requirement to exhaust administrative remedies before seeking
judicial review of VER determinations. The commenters argued that these
decisions are final for purposes of section 10(c) of the Administrative
Procedure Act because SMCRA does not specifically require VER
determinations. They also cite a series of Federal court decisions
concerning SMCRA that have held that adherence to an administrative
review process is a prerequisite to judicial review only when the Act
expressly requires administrative review.
We do not agree with the commenters' arguments. VER determinations
are a threshold requirement in the permitting process and an inherent
component of the permit application approval finding required by
section 510(b)(4) of SMCRA and 30 CFR 773.15(c)(3)(ii). Hence, VER
determinations are appropriately subject to the same administrative and
judicial review requirements as apply to any other type of permitting
decision under the Act; in this case, the regulations at 30 CFR 775.11
and 775.13. In addition, providing the right of administrative review
maximizes the opportunity for public participation in the VER
determination process. Thus, the final rule is consistent with section
102(i) of SMCRA, which states that one of the purposes of the Act is to
assure that appropriate procedures are provided for public
participation.
II. Paragraph (g): To What Extent and in What Manner Must Records
Related to the VER Determination Process Be Made Available to the
Public?
Final 30 CFR 761.16(g) provides that, if a request for a VER
determination is subject to the notice and comment requirements of 30
CFR 761.16(d), the agency responsible for processing the request must
make a copy of that request available to the public in the same manner
as the agency, when acting as the regulatory authority, must make
permit applications available to the public under 30 CFR 773.13(d). The
final rule also specifies that the agency must make records associated
with that request and any subsequent determination under 30 CFR
761.16(e) available to the public in accordance with the requirements
and procedures of either 30 CFR 840.14 or 30 CFR 842.16.
We added this paragraph to the final rule in response to a
commenter who argued that requests for VER determinations should be
placed on file in the local courthouse or other accessible office for
public inspection and copying, just as 30 CFR 773.13(a)(2) and section
507(e) of the Act require for permit applications. We did not adopt the
specific requirement sought by the commenter. Because requests for VER
determinations are not complete permit applications, they are not
necessarily subject to all statutory and regulatory provisions
concerning permit applications.
However, requests for VER determinations are subject to section
517(f) of the Act, which requires that copies of any information that
the regulatory authority obtains under Title V of SMCRA ``be made
immediately available to the public at central and sufficient locations
in the county, multicounty, and State area of mining so that they are
conveniently available to residents in the areas of mining.''
Therefore, to address the commenter's concern, the final rule expressly
requires that records associated with requests for VER determinations
be made available for public review in accordance with the regulations
that implement this statutory requirement: 30 CFR 773.13(d) and either
30 CFR 840.14 (when a State regulatory authority is responsible for the
VER determination) or 842.16 (when we are responsible for the VER
determination). Under those rules, the agency has the option of making
copies of records available to the public by mail upon
[[Page 70817]]
request instead of placing them on file in a government or other public
office in the county to which the records pertain.
We do not intend to require disclosure of proprietary information
that is not otherwise available for public review as a matter of law.
Requests for VER determinations may include information concerning
property interests and the chemical and physical properties of coal.
Under paragraphs (a)(12) and (b) of section 508 of SMCRA, with certain
exceptions, the regulatory authority must hold that information in
confidence unless it is on public file pursuant to State law. We see no
reason why information should be treated differently when it is
submitted as part of a request for a VER determination, especially
since 30 CFR 761.16(b) allows a request for a VER determination to be
submitted either as part of or in advance of a permit application.
Therefore, under the final rule, the confidentiality provisions of 30
CFR 773.13(d)(3) also apply to requests for VER determinations under 30
CFR 761.16.
J. May the Regulatory Authority Reconsider VER Determinations During
Review of a Subsequent Permit Application?
Commenters divided on the question of whether VER determinations
made in advance of submission of a permit application would or should
be subject to comment and reevaluation at the time of permit
application review. As discussed in Part XXI.C. of this preamble and in
the preamble to the proposed rule, the intent of the provision in the
final rule authorizing advance VER determinations is to allow VER
questions to be fully settled in advance of permit application
preparation and review. We anticipate that advance VER determinations
would be subject to reconsideration during a subsequent permit
application review process only under exceptional circumstances, as
discussed below and in the preamble to the proposed rule. The final
rule establishes notice, comment, and public participation requirements
for the submission and processing of requests for VER determinations.
Therefore, the lack of opportunity for reconsideration of advance VER
determinations during a subsequent permit application review process
would not improperly abridge or violate the rights of citizens to
participate in the permitting process, as some commenters alleged.
Circumstances that might justify reconsideration of an advance VER
determination include, but are not limited to, a material
misrepresentation of fact, discovery of new information that
significantly alters the basis of the VER determination, or a
substantial change in the nature of the intended operation (e.g., a
switch from underground mining methods to surface mining techniques).
Under 30 CFR 773.15(c)(3)(ii), the regulatory authority may not
approve a permit application unless the agency first finds that the
proposed permit area is not within an area subject to the prohibitions
or limitations of 30 CFR 761.11. Therefore, when the permit application
review process documents or provides reason to believe that the basis
for a prior VER determination is false or inaccurate, the regulatory
authority has an obligation to withhold approval of the application
pending reevaluation of the VER determination by the agency responsible
for that determination. Without VER, the application would not meet the
criteria for permit approval in section 510(b)(4) of the Act
(documentation that ``the area proposed to be mined is not included
within an area designated unsuitable for surface coal mining pursuant
to section 522'') or 30 CFR 773.15(c)(3)(ii) (a demonstration that the
permit area is not subject to the prohibitions and limitations of 30
CFR 761.11).
We recognize that the regulatory authority or the agency
responsible for the VER determination may not become aware of a
defective VER determination until after permit issuance. In these
circumstances, the regulatory authority should refer the information to
us, if we are responsible for the determination, or reconsider the
determination, if the regulatory authority is responsible for the
determination. Then, using any reconsidered VER determination, the
regulatory authority should, based upon written findings and subject to
administrative and judicial review, order that the permit be revised to
correct any deficiencies. See 30 CFR 774.11(b) and (c).
A State regulatory authority may not reconsider or overturn a VER
determination that we make for lands for which we have exclusive
responsibility for VER determinations. However, the State may and
should notify us of any concerns, changes in fact, or apparent errors
in the determination. We will then reconsider the determination.
In the preamble to the proposed rule, we referred to
reconsideration as de novo review. One commenter opposed allowing de
novo review of advance VER determinations under any circumstances,
arguing that to do so would violate the principles of res judicata. We
do not agree. In Belville Mining Co. v. U.S., 999 F.2d 989 (6th Cir.
1993), the court held that we have the authority to reconsider VER
determinations:
Even where there is no express reconsideration authority for an
agency, however, the general rule is that an agency has inherent
authority to reconsider its decision, provided that reconsideration
occurs within a reasonable time after the first decision.
Id. at 997 (citations omitted).
The court also found that section 201(c)(1) of SMCRA, which
provides that the Secretary, acting through OSM, shall ``review and
vacate or modify or approve orders and decisions * * *,'' expressly
authorizes us to review and vacate erroneous VER determinations. Id.
Reconsideration may take one of several pathways. If the reason for
reconsideration is an alleged misrepresentation of material facts,
reconsideration might involve reopening the record to enter new
information, investigating to determine whether misrepresentation of a
material fact occurred, and issuing a reconsidered VER determination
based on the record as supplemented by the new information. If the
reason for reconsideration is discovery of new information that
significantly alters the basis of the determination, reconsideration
might involve reopening the record and issuing a reconsidered VER
determination based on the record as supplemented by the new
information. If the reason for reconsideration is a substantial change
in the operation, such as a change from underground to surface mining,
reconsideration might involve seeking comment on whether the person has
demonstrated the property rights for that type of mining, reopening the
record to enter new information, and issuing a reconsidered VER
determination based on the revised record.
One commenter argued that a change in the type of mining would
necessitate a completely new VER determination since each determination
is specific to a particular type of mining. We agree that a change of
this magnitude should involve a new notice and comment period. However,
we do not agree that a person must submit a completely new request for
a VER determination if there is a change in the type of surface coal
mining operations planned for the site. There is no need to resubmit
those parts of the original request and determination that are
unaffected by the
[[Page 70818]]
change. Completely discarding the original record and determination
could result in an unnecessary duplication of effort and waste of
resources on the part of both the requester and the reviewing agency.
We believe that the agency should determine the scope of the
reconsideration on a case-by-case basis. This approach also is
consistent with the goals established by the Paperwork Reduction Act,
44 U.S.C. 3501 et seq.
The commenter also stated that misrepresentation of a material fact
does not justify de novo review, or, as we refer to it in this
preamble, reconsideration, of a VER determination. Instead, in his
view, the agency should seek judicial review, issuance of an
injunction, and possibly prosecution for fraud. For the reasons
discussed above, we do not agree that the agency is limited to these
alternatives or that reconsideration of the VER determination is
inappropriate. However, the alternatives listed by the commenter may be
useful measures to prevent the harm that may otherwise result from an
inaccurate or defective VER determination.
XXII. How Does New 30 CFR 761.17, Which Concerns Regulatory
Authority Obligations at the Time of Permit Application Review,
Differ From Its Predecessor Provisions in Former 30 CFR 761.12?
As discussed in Part XVIII of this preamble, we have revised and
redesignated paragraphs (a), (b)(1), (b)(2), and (f) of former 30 CFR
761.12 as paragraphs (a) through (d), respectively, of new 30 CFR
761.17. This section identifies actions that the regulatory authority
must take upon receipt of an application for a permit for surface coal
mining operations.
Apart from minor organizational and editorial changes, paragraphs
(a) through (c) of 30 CFR 761.17 are substantively identical to the
rules that we proposed as 30 CFR 761.12(a) and (b) on January 31, 1997.
Most of our revisions reflect plain language principles. In addition,
we have corrected obsolete cross-references, added new cross-references
for clarity, more accurately characterized the exception provided in 30
CFR 761.11(c), and modified these paragraphs to maintain consistency
with the changes to the definition of VER in 30 CFR 761.5 and the
exception for existing operations in 30 CFR 761.12.
To be consistent with changes in terminology adopted as part of the
permitting rules published on September 28, 1983 (48 FR 44349), we have
replaced the obsolete term ``complete application'' in paragraph (a)
with its current equivalent, ``administratively complete application.''
We also are revising paragraph (a) to clarify that its requirements
apply to both applications for new permits and all applications for
permit revisions (including incidental boundary revisions) that involve
the addition of acreage not previously included within the permit
boundaries. Although we always have interpreted the somewhat ambiguous
term ``application for a surface coal mining operation permit'' in 30
CFR 761.12 as including applications for all types of permit boundary
revisions, this change will remove any question as to its meaning.
We did not propose to revise former 30 CFR 761.12(f), which we have
now redesignated as 30 CFR 761.17(d). This paragraph of the rules
establishes procedures that the regulatory authority must follow when
it determines that a proposed surface coal mining operation will
adversely affect a publicly owned park or a place listed on the
National Register of Historic Places. However, one commenter expressed
the general concern that the proposed rule and its preamble did not
clearly specify that the VER exception, the exception for existing
operations, and the waivers and exceptions authorized by 30 CFR
761.11(c) through (e) operate independently of each other; i.e., that a
person who qualifies for one type of exception or waiver does not need
to comply with the requirements for other types of exceptions or
waivers. To address this concern, we have added paragraph (d)(3) to 30
CFR 761.17 to clarify that the joint approval requirements of 30 CFR
761.11(c) and the related procedural requirements of 30 CFR 761.17(d)
do not apply to lands to which the VER exception or exception for
existing operations applies.
Section 761.17(d) contains no other substantive changes from former
Sec. 761.12(f). We have made some editorial and organizational changes
to more closely adhere to plain language principles.
XXIII. How and Why Are We Revising Part 762, Which Contains
Criteria for the Designation of Lands as Unsuitable for Surface
Coal Mining Operations?
Former 30 CFR 761.12(g) provided that, pursuant to petition, the
regulatory authority could consider lands listed in section 522(e) of
the Act for designation as unsuitable for surface coal mining
operations under 30 CFR Parts 762, 764, and 769. As discussed in Part
XVIII of this preamble, we determined that this paragraph would be more
appropriately placed in 30 CFR Part 762, which contains criteria and
other requirements for designation pursuant to the petition process.
Therefore, we are redesignating former 30 CFR 761.12(g) as 30 CFR
762.14. To accommodate this addition to Part 762, we are redesignating
former 30 CFR 762.14 as 30 CFR 762.15.
We have revised the language of new 30 CFR 762.14 for clarity and
conformity with Part 762 and plain language principles. We intend no
substantive changes from former 30 CFR 761.12(g).
XXIV. Section 772.12: What Are the Requirements for Coal
Exploration on Lands Designated Unsuitable for Surface Coal Mining
Operations?
Under 30 CFR 772.11(a) and 772.12(a), a person who intends to
conduct any type of coal exploration on lands designated as unsuitable
for surface coal mining operations under subchapter F of 30 CFR Chapter
VII, which includes 30 CFR 761.11, must first obtain a permit in
accordance with 30 CFR 772.12. These regulations do not require
compliance with the prohibitions, restrictions, and procedural
requirements of 30 CFR Part 761. On June 22, 1988 (53 FR 23532), we
proposed a rule that would have required a VER demonstration as a
prerequisite for approval or issuance of an exploration permit on the
lands listed in 30 CFR 761.11 and section 522(e). However, we did not
adopt that provision as part of the final rule published on December
29, 1988 (53 FR 52942). At 53 FR 52945, the preamble to that rule
stated that we would reconsider the issue of VER demonstration
requirements for coal exploration after we adopted a new definition of
VER.
The National Wildlife Federation and other groups challenged our
failure to adopt this provision of the proposed rule. Upon judicial
review, the U.S. District Court for the District of Columbia held that
we had failed to articulate a proper rationale for not adopting the
proposed rule. National Wildlife Fed'n v. Lujan, Nos. 89-0504, 89-1221
and 89-1614, slip op. at 25-33 (D.D.C. September 5, 1990). In response,
on July 18, 1991 (56 FR 33152), we proposed to add paragraph (b)(5) to
30 CFR 772.14 to require a VER demonstration as a prerequisite for
approval of coal exploration activities on the lands listed in 30 CFR
761.11 and section 522(e) if coal is to be removed for sale or
commercial use.
On January 31, 1997 (62 FR 4836), we withdrew the 1991 proposal. In
its place, we proposed to add a new paragraph (b)(14) to 30 CFR 772.12,
the
[[Page 70819]]
section that contains permitting requirements for exploration that will
remove more than 250 tons of coal or that will occur on lands
designated as unsuitable for surface coal mining operations. Under the
proposed rule, a person planning to conduct exploration on lands listed
in section 522(e) or 30 CFR 761.11 would have had to submit an
application that includes a demonstration that (1) the exploration
activities will not substantially disturb the protected lands, (2) the
owner of the coal has demonstrated VER, (3) the exploration is needed
for mineral valuation purposes or is authorized by judicial order, or
(4) the applicant has obtained a waiver or exception authorized under
proposed 30 CFR 761.11(a)(2) through (5) [now 30 CFR 761.11(a) through
(e)].
Similarly, the proposed rule would have added a new paragraph
(d)(2)(iv) to 30 CFR 772.12 to provide that the regulatory authority
may not approve an application for exploration unless it first finds
that the exploration activities described in the application will not
substantially disturb any lands listed in 30 CFR 761.11. If exploration
would substantially disturb those lands, the proposed rule would have
authorized approval of the application only when the regulatory
authority finds that the applicant has (1) demonstrated VER, (2)
obtained one of the waivers or exceptions authorized under proposed 30
CFR 761.11(a)(2) through (5) [now 30 CFR 761.11(a) through (e)], or (3)
demonstrated that the exploration is needed for mineral valuation
purposes or authorized by judicial order.
Commenters were sharply divided on the merits and legality of the
proposed rules. After careful consideration, we have decided not to
proceed with the rules as proposed. Section 512 of SMCRA governs coal
exploration, and that section does not mention section 522(e) as one of
the provisions of the Act with which exploration must comply. Section
522(e) specifically limits the scope of its prohibitions and
restrictions to surface coal mining operations. And the definition of
surface coal mining operations in section 701(28) of the Act expressly
excludes ``coal explorations subject to section 512 of this Act.''
Therefore, we believe that the Act provides insufficient basis for
rules that would impose a requirement for a VER demonstration as a
prerequisite for coal exploration on the lands listed in 30 CFR 761.11
and section 522(e).
The preamble to the proposed rule also sought comment on whether we
should revise 30 CFR Part 772 and/or Part 761 to include a provision
similar to 30 CFR 762.14, which we are redesignating as 30 CFR 762.15,
either in addition to or in place of the proposed revisions to 30 CFR
772.12. Redesignated 30 CFR 762.15 provides that the regulatory
authority has an obligation to use the exploration permit application
review and approval process to ensure that exploration activities will
not interfere with any of the values for which the area has been
designated unsuitable for surface coal mining operations. However, this
section applies only to lands designated as unsuitable for surface coal
mining operations under the petition process in 30 CFR Part 762 and
section 522(a) of the Act.
We have decided to adopt a modified version of this option rather
than the rule language that we proposed. Under the final rule, coal
exploration on lands listed in 30 CFR 761.11 and section 522(e) must be
designed to minimize, but not necessarily prevent, interference with
the values for which those lands were designated as unsuitable for
surface coal mining operations. In other words, to gain the approval of
the regulatory authority, an application for coal exploration on
protected lands must demonstrate that, to the extent technologically
and economically feasible, the operation has been designed to minimize
interference with the values for which the land was designated as
unsuitable for surface coal mining operations. However, the application
need not demonstrate that the operation will prevent all interference
with those values. Unlike the proposed rule language and, to some
extent, the alternative discussed in the preamble to that rule, the
provisions that we are adopting as part of the final rule do not
include any conditions that would prohibit coal exploration. Therefore,
we believe that the new provisions are consistent with the overall
regulatory scheme for coal exploration under section 512 of SMCRA
because they govern how coal exploration may be conducted, not whether
it may be conducted.
The final rule modifies 30 CFR 772.12(b)(14) to require that each
application for coal exploration include, for any lands listed in 30
CFR 761.11, a demonstration that, to the extent technologically and
economically feasible, the proposed exploration activities have been
designed to minimize interference with the values for which those lands
were designated as unsuitable for surface coal mining operations. In
addition, the final rule requires that the application include
documentation of consultation with the owner of the feature causing the
land to come under the protection of 30 CFR 761.11, and, when
applicable, with the agency with primary jurisdiction over the feature
with respect to the values that caused the land to come under the
protection of 30 CFR 761.11. We added this provision in response to
comments that expressed concern about the potential impacts of coal
exploration on the lands listed in 30 CFR 761.11 and that urged the
inclusion of the agency with jurisdiction over the protected feature in
the decision-making process.
The final rule also modifies 30 CFR 772.12(d)(2) by adding a new
paragraph (iv). That paragraph requires that, as a prerequisite for
issuance of a coal exploration permit for any lands listed in 30 CFR
761.11, the regulatory authority must find that the applicant has
demonstrated that, to the extent technologically and economically
feasible, the exploration and reclamation described in the application
will minimize interference with the values for which those lands were
designated as unsuitable for surface coal mining operations. Before
making this finding, the regulatory authority must provide reasonable
opportunity to the owner of the feature causing the land to come under
the protection of 30 CFR 761.11, and, when applicable, to the agency
with primary jurisdiction over the feature with respect to the values
that caused the land to come under the protection of 30 CFR 761.11, to
comment on whether the finding is appropriate.
We added the latter provision in response to comments that
expressed concern about the potential impacts of coal exploration on
the lands listed in 30 CFR 761.11. The new provision also responds to
those commenters who urged us to revise the decision-making process to
include the agency with jurisdiction over the protected feature.
However, the final rule does not afford veto authority to the agency
with jurisdiction over the protected feature. To do so would be
inconsistent with the principles of State primacy under section 503 of
SMCRA. Instead, the new provision requires that the regulatory
authority consult with the agency with jurisdiction over the protected
feature in determining which values are important and how exploration
activities may be planned and conducted to minimize interference with
those values. The administrative record of the decision on the
exploration applications should indicate the disposition of all
relevant comments received from the agency with jurisdiction over the
protected feature.
These rules do not ban exploration on any lands. Instead, they
require that the
[[Page 70820]]
adverse impacts of exploration activities on lands protected under
section 522(e) of the Act be minimized to the extent technologically
and economically feasible. In this respect, they are more protective of
the environment than the rule language that we proposed, which would
not have placed any unique restrictions on exploration if the
regulatory authority determined that a person had VER or qualified for
one of the other exceptions proposed in 30 CFR 772.12(b)(14).
Finally, as a housekeeping measure, the final rule revises 30 CFR
772.12(d)(2)(ii) and (iii) to correct the manner in which they cite the
Endangered Species Act and the National Historic Preservation Act.
XXV. Technical Amendments to Parts 773, 778, 780, and 784
As shown in the following table, the organizational changes to Part
761 require revision of cross-references to Part 761 in other portions
of our regulations:
----------------------------------------------------------------------------------------------------------------
Regulation Old cross-reference New cross-reference
----------------------------------------------------------------------------------------------------------------
Sec. 773.13(a)(1)(v).................... Sec. 761.12(d)............. Sec. 761.14
Sec. 773.15(c)(3)(ii)................... Secs. 761.11 and 761.12.... Sec. 761.11
Sec. 778.16(c).......................... Sec. 761.12................ Sec. 761.14 or 761.15
Sec. 780.31(a)(2)....................... Sec. 761.12(f)............. Sec. 761.17(d)
Sec. 780.33............................. 30 CFR 761.12(d)............ Sec. 761.14
Sec. 784.17(a)(2)....................... Sec. 761.12(f)............. Sec. 761.17(d)
Sec. 784.18............................. 30 CFR 761.12(d)............ Sec. 761.14
----------------------------------------------------------------------------------------------------------------
To achieve consistency with the language of section 522(e) of the
Act, we also made the following technical corrections to the language
of those regulations:
We replaced the term ``surface coal mining activities'' in
30 CFR 778.16(c) with ``surface coal mining operations.'' Part 778
applies to both surface and underground mines. Therefore, since section
522(e) applies to surface coal mining operations in general, the
information requirements of 30 CFR 778.16(c) for permit applications
that propose to disturb lands within the buffer zones for occupied
dwellings and public roads must apply to all proposed surface coal
mining operations within those buffer zones, not just to surface coal
mining activities.
We revised the titles of 30 CFR 780.31 and 784.17 by
replacing the term ``public parks'' with ``publicly owned parks.'' We
separately define these terms in 30 CFR 761.5, and ``publicly owned
parks'' is the term that appears in section 522(e)(3) of the Act,
which, in relevant part, provides the basis for these regulations.
We replaced the term ``underground mining activities'' in
30 CFR 784.18(a) with ``surface coal mining operations.'' Paragraph (b)
of the definition of ``underground mining activities'' in 30 CFR 701.5
includes underground operations that are not included in the definition
of surface coal mining operations in 30 CFR 700.5 and section 701(28)
of the Act. Since section 522(e) applies only to surface coal mining
operations, the underground operations described in paragraph (b) of
the definition of underground mining activities are not subject to the
provisions of 30 CFR Part 761 and section 522(e).
In addition, since both 30 CFR 780.31(a)(2) and 784.17(a)(2) use
the term ``valid existing rights,'' we revised those rules to include a
cross-reference to the new VER determination rules at 30 CFR 761.16.
Finally, we made minor editorial revisions to 30 CFR
773.15(c)(3)(ii), 778.16(c), 780.31(a)(2), and 784.17(a)(2) to improve
their accuracy, clarity, and consistency with plain language principles
and to better accommodate the new or revised cross-references.
XXVI. What Effect Will This Rule Have in Federal Program States and
on Indian Lands?
Through cross-referencing in the respective regulatory programs,
this final rule applies to all lands in States with Federal regulatory
programs. States with Federal regulatory programs include Arizona,
California, Georgia, Idaho, Massachusetts, Michigan, North Carolina,
Oregon, Rhode Island, South Dakota, Tennessee and Washington. These
programs are codified at 30 CFR Parts 903, 905, 910, 912, 921, 922,
933, 937, 939, 941, 942, and 947, respectively.
The revisions to 30 CFR Part 761 apply to Indian lands by virtue of
the incorporation of this part by reference in 30 CFR 750.14. Revised
30 CFR Part 772 applies to coal exploration on Indian lands to the
extent provided in 30 CFR 750.15.
In the preamble to the proposed rule, we invited the public to
comment on whether there are unique conditions in any Federal program
States or on Indian lands that should be reflected in the national
rules or as specific amendments to the Federal programs or Indian lands
rules. Since no commenters identified any unique conditions or
amendment needs, the final rules do not include any changes to the
Indian lands rules or individual Federal programs.
One commenter stated that we should not adopt a final rule without
seeking input from affected Indian nations and obtaining approval from
both recognized Indian governmental entities and traditional elders who
hold to native religions and traditions. As described in Part I of this
preamble, we provided the public and all other interested parties ample
notice and opportunity to comment on the proposed rule, as required by
the Administrative Procedure Act, 5 U.S.C. 553. In developing the final
rule, we gave serious consideration to all substantive comments
received. Neither SMCRA nor any other Federal law or regulation
requires that we obtain the approval of Indian governmental entities
and traditional elders (or any other potentially affected parties)
before adopting a final rule.
XXVII. How Will This Rule Affect State Programs?
We will evaluate State regulatory programs approved under 30 CFR
Part 732 and section 503 of the Act to determine whether any changes in
these programs are necessary to maintain consistency with Federal
requirements. If we determine that a State program provision needs to
be amended as a result of these revisions to the Federal rules, we will
notify the State in accordance with 30 CFR 732.17(d).
Section 505(a) of the Act and 30 CFR 730.11(a) provide that SMCRA
and Federal regulations adopted under SMCRA do not supersede any State
law or regulation unless that law or regulation is inconsistent with
the Act or the Federal regulations adopted under the Act. Section
505(b) of the Act
[[Page 70821]]
and 30 CFR 730.11(b) provide that we may not construe existing State
laws and regulations, or State laws and regulations adopted in the
future, as inconsistent with SMCRA or the Federal regulations if these
State laws and regulations either provide for more stringent land use
and environmental controls and regulations or have no counterpart in
the Act or the Federal regulations.
Under 30 CFR 732.15(a), State programs must provide for the State
to carry out the provisions of, and meet the purposes of, the Act and
its implementing regulations. In addition, that rule requires that
State laws and regulations be in accordance with the provisions of the
Act and consistent with the Federal regulations. As defined in 30 CFR
730.5, ``consistent with'' and ``in accordance with'' mean that the
State laws and regulations are no less stringent than, meet the minimum
requirements of, and include all applicable provisions of the Act. The
definition also provides that these terms mean that the State laws and
regulations are no less effective than the Federal regulations in
meeting the requirements of the Act. Under 30 CFR 732.17(e)(1), we may
require a State program amendment if, as a result of changes in SMCRA
or the Federal regulations, the approved State program no longer meets
the requirements of SMCRA or the Federal regulations.
In the preamble to the proposed rule, we solicited comments on
whether State program VER definitions must be amended to include
standards identical to those of the revised Federal definition to be no
less effective than the revised Federal definition. We received few
comments on this point, and those that we did receive took opposing
positions. In general, commenters from both industry and the
environmental community argued that we should require that States adopt
definitions identical to ours if we adopted the particular VER
definition that the commenter advocated. Otherwise, they favored
allowing States to retain their existing definitions. We did not find
these comments logical or persuasive.
One commenter argued that States should not have to change their
VER definitions and procedures merely because we adopt a new definition
and procedures, especially since States have not experienced problems
using their current definitions and procedures. We do not agree. Under
30 CFR 730.5 and 732.17(e)(1), the standard for determining whether a
program change is necessary in response to a new or revised Federal
rule is whether the State program provisions are no less effective than
our regulations in meeting the requirements of the Act. Our adoption of
a new definition of VER and related procedural rules determines the
extent to which persons are eligible to receive permits for surface
coal mining operations on lands protected under section 522(e) of the
Act. Therefore, we will evaluate State programs to determine whether
existing State program provisions would protect the lands listed in
section 522(e) to the same extent as our rules and whether they would
provide similar opportunity for public participation in the decision-
making process. Contrary to the commenter's arguments, past performance
and the question of whether the public has identified problems with
existing State program provisions are not relevant to this
determination since this final rule alters the standards for VER (and
hence the degree of protection for section 522(e) lands), as well as
the opportunity for public participation.
We specifically sought comment on whether we should require those
States with an approved takings standard for VER to remove this
standard or whether the rationale that we relied upon to approve the
takings standard in the Illinois definition of VER remains valid. See
30 CFR 917.15(j) and 54 FR 123, January 4, 1989. In other words, could
the takings standard be considered no less effective than the good
faith/all permits standard in achieving the purposes and requirements
of the Act even though it purportedly balances the purposes of the Act
and section 522(e) in a different manner with potentially different
results in terms of the level of protection afforded to the areas
listed in section 522(e) of the Act? Commenters were divided on this
issue as well, depending upon which VER definition they favored.
As previously noted, under 30 CFR 730.5 and 732.17(e)(1), the
standard for determining whether a State program amendment is necessary
in response to new or revised Federal regulations is whether the State
program provisions are no less effective than our regulations in
meeting the requirements of the Act. The final environmental impact
statement (EIS) for this rulemaking describes the takings standard as
likely to be somewhat less protective of the lands listed in section
522(e) than the good faith/all permits standard. Specifically, the
model used in the EIS analysis predicts that application of a takings
standard nationwide would result in the mining of an additional 185
acres of section 522(e)(1) lands, 1,686 acres of Federal lands in
eastern national forests, and 984 acres in State parks between 1995 and
2015. See Table V-1 of the EIS. Therefore, we anticipate that States
would have difficulty justifying retention of a takings standard for
VER unless they can convincingly demonstrate that the State program
would ensure that application of the takings standard would be no less
protective of section 522(e) lands than the good faith/all permits
standard in the rule that we are adopting today.
One commenter noted that we previously approved the takings
standard in the Illinois program partly on the basis of the argument
that section 522(e) has multiple purposes of equal importance. In the
preamble to that decision, we stated that the purposes of section
522(e) include protection of the lands listed therein, preservation of
valid property rights, and avoidance of compensable takings. According
to the preamble, the takings standard is consistent with the Act and no
less effective than the good faith/all permits standard even though the
takings standard accords greater weight to protection of the rights of
mineral owners and avoidance of compensable takings than it does to
protection of the lands listed in section 522(e). See 54 FR 120,
January 4, 1989. The commenter argued that we should apply the same
principle in evaluating State VER definitions today. We disagree.
We no longer adhere to the position stated in the 1989 preamble. As
discussed in Part VII.C. of this preamble, we believe that the purpose
of section 522(e) is to prohibit new surface coal mining operations on
the lands listed in that section, with certain exceptions. And, as we
state in that discussion, in view of the purpose of section 522(e), we
do not agree that VER must or should be defined in a way that would
avoid all compensable takings. Therefore, we do not expect that an
argument that the takings standard is more protective of the rights of
the mineral owners and is more likely to avoid compensable takings than
the good faith/all permits standard will provide sufficient
justification for retention of the takings standard as no less
effective than the good faith/all permits standard in protecting the
lands listed in section 522(e).
One commenter argued that since we had previously approved the
Illinois takings standard as no less effective than the good faith/all
permits standard, we could not now find Illinois' use of the takings
standard to be less effective than the good faith/all permits standard
in our proposed rule. We disagree. We based our prior approval of the
Illinois standard on, among other things, an interpretation of the
legislative history
[[Page 70822]]
of SMCRA and pertinent court decisions that we no longer believe to be
appropriate. As discussed in Part VII.C. of this preamble, we no longer
believe that the legislative history of SMCRA requires that we define
VER in a way that completely avoids compensable takings. Therefore, the
fact that we also based our prior approval of the Illinois definition
on the argument that a takings standard is appropriate and necessary to
avoid compensable takings under the Illinois Constitution is not
relevant to an evaluation of whether the Illinois takings standard is
no less effective than the good faith/all permits standard.
XXVIII. How Does This Rule Impact Information Collection
Requirements?
The final rule does not alter the information collection burden
associated with Parts 740, 745, 772, 773, 778, 780, and 784. However,
the final rule includes editorial revisions to Secs. 740.10, 745.10,
and 772.10 to maintain consistency with Departmental guidance
concerning the format and content of these sections.
In addition, we have revised section 761.10 to reflect the
information collection burden changes resulting from the rule changes
that we are adopting today.
XXIX. Procedural Matters
A. Executive Order 12866: Regulatory Planning and Review
This document is a significant rule and has been reviewed by the
Office of Management and Budget under Executive Order 12866.
(1) This rule will not have an effect of $100 million or more on
the economy. It will not adversely affect in a material way the
economy, productivity, competition, jobs, the environment, public
health or safety, or State, local, or tribal governments or
communities. This determination is based on a cost-benefit analysis
prepared for the final rule. The cost-benefit analysis indicated that
the cost increase resulting from the rule will be negligible. A copy of
the analysis is available for inspection at the Office of Surface
Mining, Administrative Record--Room 101, 1951 Constitution Avenue,
N.W., Washington, DC 20240. You may obtain a single copy by writing us
or calling 202-208-2847. You may also request a copy via the Internet
at osmrules@osmre.gov.
(2) This rule will not create a serious inconsistency or otherwise
interfere with an action taken or planned by another agency. The rule
will not significantly change costs to industry or to the Federal,
State, or local governments. Furthermore, the rule will have no adverse
effects on competition, employment, investment, productivity,
innovation, or the ability of United States enterprises to compete with
foreign-based enterprises in domestic or export markets.
(3) This rule does not alter the budgetary effects of entitlements,
grants, user fees, or loan programs or the rights or obligations of
their recipients because the rule does not affect such items.
(4) This rule raises novel legal and policy issues as discussed in
the preamble.
B. Regulatory Flexibility Act
Pursuant to the Regulatory Flexibility Act, 5 U.S.C. 601 et seq.,
the Department of the Interior certifies that this rule will not have a
significant economic impact on a substantial number of small entities.
This certification is based on the findings that the rule will not
significantly change costs to industry or to Federal, State, or local
governments. Furthermore, the rule will have no adverse effects on
competition, employment, investment, productivity, innovation, or the
ability of United States enterprises to compete with foreign-based
enterprises in domestic or export markets.
C. Small Business Regulatory Enforcement Fairness Act
This rule is not a major rule under 5 U.S.C. 804(2), the Small
Business Regulatory Enforcement Fairness Act, because it will not:
Have an annual effect on the economy of $100 million or
more.
Cause a major increase in costs or prices for consumers;
individual industries; Federal, State, or local government agencies; or
geographic regions because the rule does not impose any substantial new
requirements on the coal mining industry, consumers, or State and local
governments. It essentially codifies current policy.
Have significant adverse effects on competition,
employment, investment, productivity, innovation, or the ability of
U.S.-based enterprises to compete with foreign-based enterprises for
the reasons stated above.
D. Unfunded Mandates Reform Act of 1995
This rule does not impose an unfunded mandate on State, local, or
Tribal governments or the private sector of more than $100 million per
year. The rule does not have a significant or unique effect on State,
local, or Tribal governments or the private sector. Therefore, a
statement containing the information required by the Unfunded Mandates
Reform Act, 1 U.S.C. 1531, et seq., is not required.
E. Executive Order 12630: Takings
In accordance with Executive Order 12630 (March 18, 1988) and the
``Attorney General's Guidelines for the Evaluation of Risk and
Avoidance of Unanticipated Takings,'' dated June 30, 1988, the
Department has prepared a takings implication assessment, which has
been made a part of the administrative record for this rulemaking and
is set forth below:
Section 522(e) of SMCRA provides that, subject to VER (and with
certain other specified exceptions), no surface coal mining operations
shall be permitted on certain lands designated by Congress. As stated
in the preceding parts of this preamble, the final rule defining VER
establishes a good faith/all permits standard for VER under section
522(e).
Under the good faith/all permits standard, a person would have VER
if, prior to the date the land came under the protection of section
522(e), the person or a predecessor in interest had all necessary
property rights and had obtained, or made a good faith effort to
obtain, all State and Federal permits and other authorizations required
to conduct surface coal mining operations.
The final rule may have some significant, but unquantifiable,
takings implications. We do not expect that a court would find that
this final rule constitutes a facial taking, because, as discussed in
Part VI of this preamble, that issue was litigated in 1979-80, in PSMRL
I, Round I, 14 Env't Rep. Cas. (BNA) 1083 (1980).
1. No Facial Takings
It is unlikely that the good faith/all permits standard would be
determined to constitute a facial taking. This standard is a
modification of the ``all permits'' standard adopted on March 13, 1979,
which required that a person demonstrate valid issuance by August 3,
1977 of all necessary State and Federal permits.
The rule was challenged in PSMRL I, Round I, 14 Env't Rep. Cas.
(BNA) at 1090-92 (1980), as effecting a compensable taking of property.
While the court declined to address the constitutionality of the VER
definition, it found that a person who applies for all permits, but
fails to receive one or more through government delay, engenders the
same investments and expectations as a person who has obtained all
permits. Therefore, the court found that a good faith attempt to
[[Page 70823]]
obtain all permits before August 3, 1977, should suffice for purposes
of VER. The court remanded to the Secretary that portion of the
definition that required the property owner actually to have obtained
all permits necessary to mine.
2. Likelihood of Compensable Takings
In evaluating takings claims for compensation concerning government
regulatory actions, the courts have typically considered three factors
on a fact-specific, case-by-case basis: the character of the
governmental action, the economic impact of the action, and the extent
to which the government action interferes with reasonable investment-
backed expectations. See Penn Cent. Transp. Co. v. New York City, 438
U.S. 104, 124 (1978). Because of the scope of the final rule and the
lack of information on specific property interests that might be
affected, this assessment cannot predict or evaluate the effects of the
final rule on property rights. However, most States have been applying
the good faith/all permits standard or a similar standard since the
inception of state regulatory primacy under SMCRA, so experience to
date with this standard provides some indication of the likelihood of
future compensable takings. In light of this history, the assessment
will discuss generally the anticipated impacts of the final rule, and
compare them to the impacts of the other alternatives considered.
a. History. History does not suggest that the promulgation of a
good faith/all permits standard would result in a significant number of
takings compensation awards. Twenty State programs currently include
either the good faith/all permits standard (15 States) or the all
permits standard (5 States); we also have used the good faith/all
permits standard for a number of years. Two State programs use a
takings standard, one uses only the needed for and adjacent standard,
and one State has no VER definition. We are not aware of any instance
in which the States' use of these standards has resulted in a judicial
determination of a compensable taking.
Likewise, use of these standards has not resulted in any financial
compensation in those instances where our application of the standard
has resulted in litigation.
The question of whether application of the good faith/all permits
standard for VER effects a compensable taking was examined by the court
in Sunday Creek Coal Co. v. Hodel (``Sunday Creek''), No. 88-0416, slip
op. (S.D. Ohio June 2, 1988). In Sunday Creek, applying Ohio's
counterpart to the good faith/all permits standard, we found that the
plaintiff did not have VER. The court ruled that our application of
Ohio's VER standard would deprive Sunday Creek of its property rights
in violation of the Fifth Amendment. The court therefore reversed our
negative VER determination. In another case that considered the
question of VER, Belville Mining Co. v. United States (``Belville
II''), No. C-1-89-874 (S.D. Ohio), the court simply assumed that if an
applicant could demonstrate a right to strip mine, then denial of VER
would constitute a ``taking'' of that applicant's interest. These two
decisions indicate that, at least in Ohio, a Federal court would be
likely to conclude that application of the good faith/all permits
standard for VER would effect a compensable taking. However, the United
States Court of Federal Claims has exclusive jurisdiction to hear
takings claims against the Federal government.
While the likelihood of some degree of financial exposure exists,
based on the above data, we believe that adoption of a good faith/all
permits standard will not result in any change in the Government's
financial exposure.
b. Character of the Governmental Action. The purpose served and the
statutory provisions implemented by this final rulemaking are discussed
in the preamble to the final rule. The final rule substantially
advances a legitimate public purpose. The legitimate public purpose is
the implementation of the protections for specified areas set forth in
section 522(e) of SMCRA. In that section, Congress determined that
subject to certain exceptions, including valid existing rights, surface
coal mining is prohibited on specified lands because such mining is
incompatible with the values for which those lands were designated as
unsuitable for surface coal mining operations.
The final rule substantially advances that purpose in several
respects.
First, the final rule informs interested persons of what our
interpretation and application of section 522(e) will be. Further, the
rule sets out the procedures to be followed in implementation of
section 522(e). Thus, the rule provides greater certainty, clarity, and
predictability in implementation of section 522(e).
Second, the rule advances Congress' purpose of protecting the areas
specified in section 522(e), by providing that the primary VER
exception for mining in those protected areas applies only to the
extent that a person can demonstrate that a good faith effort had been
made to obtain all required permits for a surface coal mining operation
before the area came under the protection of section 522(e). (As
discussed in the preamble to the final rule, the rulemaking also
addresses other VER standards that may apply, and other exceptions to
section 522(e).) The final definition of VER thus advances the
regulatory scheme Congress developed to prevent the harms which surface
coal mining operations would cause in those areas.
We do not know of any other property use or actions that would
significantly contribute to the problems caused by surface coal mining
operations in such areas.
c. Economic Impact.
Affected Property Interests
The property interests that could be affected by this rule are
primarily coal rights in section 522(e) areas. We cannot determine in
advance which coal rights would be affected by the eventual application
of this final rule, or what value those rights would have. However,
under both the good faith/all permits standard and the needed for and
adjacent standard in this final rule, the person requesting the VER
determination must first demonstrate the requisite underlying property
right to mine the coal by the proposed method. Thus, those coal owners
that cannot demonstrate the requisite property right would not be able
to demonstrate VER.
In many instances, a coal holder may not be able to demonstrate the
requisite property right to surface mine coal. This is the case when
the coal rights were severed at such an early date that, under state
property law, no right to surface mine was conveyed. In those cases,
denial of VER to surface mine would not be a compensable taking,
because no property rights would have been taken. See the discussion of
this topic in Final Environmental Impact Statement OSM-EIS-29, entitled
``Proposed Revisions to the Permanent Program Regulations Implementing
Section 522(e) of the Surface Mining Control and Reclamation Act of
1977 and Proposed Rulemaking Clarifying the Applicability of Section
522(e) to Subsidence from Underground Mining'' (July, 1999), and the
accompanying Final Economic Analysis (EA) entitled ``Proposed Revisions
to the Permanent Program Regulations Implementing Section 522(e) of the
Surface Mining Control and Reclamation Act of 1977 and Proposed
Rulemaking Clarifying the Applicability of Section 522(e) to Subsidence
from Underground Mining'' (July, 1999). As discussed in the EIS and EA,
we have no means of precisely
[[Page 70824]]
estimating how many such instances will occur.
In all other instances, if we find that a person does not have VER
and a takings claim is filed with the United States Court of Federal
Claims, that court would evaluate the claim. Because of the
geographical scope and complexity of this rulemaking, we do not have
sufficient information to accurately predict or evaluate the incidence
of such claims, or their likely merits. There is no data base that
definitively or reliably lists all properties protected under section
522(e), or the nature or extent of individual coal rights included in
such areas. Such a list would not remain current for any appreciable
time because individual properties would be added or removed on a
continual basis as protected features come into existence, evolve, and
sometimes disappear. Even if it could be determined which coal rights
are subject to section 522(e), it cannot reliably be predicted which
coal an owner might seek to mine or for which lands a VER determination
would be necessary.
Likely Degree of Economic Impact, Character and Present Use of
Property, and Mitigating Benefits
Similarly, because we cannot predict what VER determinations may be
necessary, we cannot predict the likely degree of economic impact on
the underlying property interests from application of this final rule.
However, in general, application of the final rule might result in more
economic impact on underlying property interests than would occur under
the other alternatives considered. This greater impact could occur
because, compared to those other alternatives, more holders of coal
rights may be unable to mine the coal under the final rule because they
could not demonstrate VER under the good faith/all permits standard.
However, as discussed in the EIS and in this preamble, holders of
coal rights do access the coal on lands protected by section 522(e) by
methods other than the VER exception. These methods include the
compatibility findings, waivers and joint approvals authorized under
paragraphs (e)(2) through (e)(4) of section 522 as well as outright
purchase of a protected feature such as an occupied dwelling to remove
it from protected status.
We do not have information on the character and present use of
individual affected properties. Likewise, we do not have the specific
information necessary to evaluate the extent to which, in particular
cases, the benefits to the property holder from applying the
prohibitions of section 522(e) offset or otherwise mitigate the adverse
economic impact of applying those prohibitions. In general, application
of the prohibitions is expected to ensure that incompatible use is not
made of such lands, where Congress has determined that surface coal
mining operations are an incompatible use. The availability of other
alternatives to the final rule is discussed below.
d. Interference with reasonable investment-backed expectations.
Whether a coal holder has reasonable investment-backed expectations,
and the degree to which application of the final rule might interfere
with those expectations, cannot be determined until the coal holder has
requested a determination or finding that a particular exception to the
prohibitions and restrictions of section 522(e) applies. However,
application of the final rule might result in more interference with
reasonable investment-backed expectations than would occur under the
other alternatives considered. Compared to the other alternatives, more
holders of coal rights may be unable to mine the coal under the final
rule because they could not demonstrate VER under the good faith/all
permits standard. However, any such interference could be limited by
factors such as the following:
In many cases, holders of coal rights in section 522(e) areas will
not request VER, either because the holder determines that the coal is
not economically minable, or because the holder determines that it is
less costly to obtain some other exception, such as a compatibility
finding or a waiver, from the prohibitions of section 522(e).
In other cases, under State property law, where the mineral rights
have been severed from the surface estate, we expect that holders of
coal rights would not have the necessary property right to surface mine
the coal, as discussed in more detail in the EIS and EA. These holders
could have no reasonable expectation of surface mining the coal.
If the holder of coal rights purchased those rights after the land
came under the protections of section 522(e), the purchaser would be on
notice of the applicability of the prohibitions in section 522(e). If
the purchaser unsuccessfully requested a determination or finding that
a particular exception under section 522(e) applied, and filed a
takings claim concerning denial of the request, it is likely that the
United States Court of Federal Claims would deem the purchaser to be on
notice concerning the prohibitions and the exceptions. Thus, we would
expect the court to find that the purchaser could have no reasonable
expectation of evading the application of those requirements. In some
cases, it is also likely that the court would find no reasonable
expectation of mining under an exception. And if there is no reasonable
expectation of mining, we would not expect the court to find that
reasonable investment-backed expectations exist.
If a coal holder has made no significant expenditures, the holder
probably would be unable to demonstrate sufficient investment-backed
expectations to support a takings claim. Similarly, if VER for surface
mining were denied, but underground mining were possible and
economical, we expect that a takings claim would be difficult to
sustain. Also, if a coal holder does not demonstrate VER, the holder
may nonetheless be eligible for another exception to the prohibitions
and restrictions of section 522(e), such as a compatibility finding or
a waiver. The prohibitions and restrictions would not apply if the coal
holder demonstrated that the other exception applies. We expect that a
takings claim for denial of VER would be difficult to sustain if the
holder failed to utilize another available exception--particularly in
light of the fact that these other exceptions are used relatively
often.
Summary of Takings Implications for Section 522(e) Lands
To provide a basis for comparing the relative environmental and
economic impacts of the final rule and the alternatives, we developed
impact estimates by using a model that relied on specific methodologies
and assumptions. For purposes of this assessment, the evaluation of
takings implications utilizes in part the analyses set out in the EIS
and EA for the final rule. The EIS and EA discussions of the
alternatives summarize the number of acres estimated to be disturbed
under each VER alternative over a 20-year period.
Because of the difficulty in predicting the extent of actual mining
in protected areas under this rule, we could not predict the actual
impacts of the alternatives. Therefore, the EIS and EA estimates of
coal acreage that could be mined under the good faith/all permits
alternative and the other alternatives are relevant to this assessment
only to the limited extent that they show the anticipated relative
economic impacts of the final rule, compared to the other alternatives.
Tables V-1 through V-5 of the EIS show relative amounts of coal acreage
estimated to be mined over a 20-year period under the different
[[Page 70825]]
alternatives, as calculated using the model.
Generally speaking, these analyses assume that:
(1) Relatively few persons would be able to demonstrate VER under a
good faith/all permits standard.
(2) For some categories of lands, more persons might be able to
demonstrate VER under a good faith/all permits or takings standard, and
that in some cases, even more persons might be able to demonstrate VER
under an ownership and authority standard.
(3) The impacts of the bifurcated alternative would be somewhere
between the impacts of the good faith/all permits standard and those of
the ownership and authority standard.
In general, as stated, the good faith/all permits standard is more
likely to limit surface coal mining operations. As a result, more
takings claims would be expected to be filed under a good faith/all
permits standard. Whether courts would find that a negative VER
determination under the good faith/all permits standard constituted a
compensable taking should turn on the specific property rights
involved.
Based upon available information, including the EIS and EA for the
final rule, and a survey of historical data concerning permitting, we
anticipate that the final rule will have the following takings impacts.
Section 522(e)(1) lands: These areas include National Park lands,
National Wildlife Refuge lands, National Trails, National Wilderness
Areas, Wild and Scenic Rivers and study rivers, and National Recreation
Areas. We anticipate relatively few takings impacts in (e)(1) areas
because there has been a relative dearth of VER determinations and any
resulting takings claims concerning (e)(1) areas since the enactment of
SMCRA.
Further, as previously discussed, the Secretary's 1988 policy
concerning exercise of VER in (e)(1) areas remains in effect. That
policy states that, if a person acts to exercise VER on (e)(1) lands,
then, subject to appropriation, the Secretary will use available
authorities to seek to acquire the rights through exchange, negotiated
purchase, or condemnation.
All of this suggests that there may continue to be few VER
requests, little economic impact, few takings cases, and even fewer
takings awards in (e)(1) areas.
Surface mining: As discussed in the EA, we anticipate that in many
cases a compensable taking for denial of VER to surface mine would not
be found, because the requisite property right to surface mine coal
could not be demonstrated. And in many cases, if VER for surface mining
were denied, underground mining would still be a reasonable remaining
use of the coal, so a takings award would not be likely for denial of
VER to surface mine in section 522 (e)(1) areas.
Underground mining: As explained in a separate rulemaking published
in today's Federal Register, the prohibitions of section 522(e) do not
apply to subsidence from underground mining operations. Therefore, we
expect that any takings award for denial of VER for surface activities
in connection with underground mining would be limited to coal that
could not be mined from portals outside the (e)(1) area.
Section 522(e)(2) lands: These areas consist of Federal lands
within national forests. For the reasons summarized below, we
anticipate relatively few takings from VER determinations on (e)(2)
lands.
Surface mining: We anticipate that no takings claims would arise
from application of the good faith/all permits standard in surface
mining VER determinations in western national forests and national
grasslands. Coal owners in the western (e)(2) areas have never pursued
surface mining VER determinations, but rather have obtained
compatibility findings under section 522(e)(2). We anticipate that some
acreage might be precluded from surface mining, and some takings claims
might arise, concerning surface mining VER determinations in eastern
national forests.
For surface coal mining, we do not expect that a court would find
that a compensable taking exists if underground mining is an
economically and technically feasible alternative. In the absence of
VER for surface mining, most owners could qualify for a compatibility
exception for underground mining, so underground mining would be a
reasonable remaining use. As discussed in the EIS and EA, we anticipate
that in a substantial number of cases (a higher proportion in the
eastern coal fields), a court would find no property right to surface
mine under State property laws. This is because the coal in many cases
was severed from the surface rights relatively early, when surface
mining was not common at the time and place of severance. As a result,
under State property law, typically the coal owner would not have the
necessary right to surface mine. We do not have information on actual
dates of severance of coal rights. There might also be mitigation of
takings in those limited instances where the United States decides to
purchase coal rights.
Underground mining: The (e)(2) compatibility exception would
continue to apply. Therefore, we expect few takings claims from denial
of VER for underground mining in national forests, because we assume
that virtually all underground mining could qualify for a compatibility
finding. This is based in part on the fact that the Multiple-Use
Sustained Yield Act and the National Forest Management Act establish
multiple use as the guiding principle for management of national forest
lands, and in part on the fact that, in the past, requests for
compatibility findings have never been denied. Surface operations and
impacts associated with underground mining generally disturb only a
relatively minimal amount of the land surface. Roads and surface
facilities can generally be sited in such a way as to avoid significant
impacts on other land uses such as timber production, livestock
grazing, and recreation.
Section 522(e)(3) lands: These areas include lands where surface
coal mining operations would adversely affect a publicly owned park or
site on the National Register of Historic Places. We do not anticipate
that any significant takings would occur on (e)(3) lands as a result of
surface or underground mining VER determinations. Pursuant to (e)(3),
jurisdictional agencies, together with the regulatory authority, may
approve mining in the vicinity of protected areas, and thus waive the
prohibition of (e)(3). A sampling of permit records indicated that some
such mining has occurred, but no VER requests were located for such
areas. Therefore, we anticipate that, in many cases, operations may
avoid such sites or resolve any jurisdictional agency concerns about
mining impacts, so that the jurisdictional agency and the regulatory
authority would jointly approve mining pursuant to (e)(3). In such
cases, a VER determination would be unnecessary.
Section 522(e)(4) lands: These areas include lands within one
hundred feet of the right of way of a public road. We anticipate
relatively few takings claims concerning VER determinations for (e)(4)
areas. Coal mines now tend to avoid areas with numerous roads and
streets because of increased acquisition and public safety-related
costs of mining in such areas. In the vast majority of cases, an
exception to the prohibition of (e)(4) is obtained under the waiver
provision of (e)(4), rather than through a VER determination.
Therefore, we do not expect the choice of a VER standard to have a
major effect on takings claims for coal located within the buffer zones
for public roads. As noted above, our
[[Page 70826]]
survey of permitting data located only a few instances of VER
determinations for (e)(4) areas.
Section 522(e)(5) lands: These areas include lands within 300 feet
of an occupied dwelling, public building, school, church, community or
institutional building, or public park, or within 100 feet of a
cemetery. We anticipate relatively little economic impact for takings
purposes on (e)(5) areas other than (e)(5) public park lands.
The survey of permit files indicated that in most cases (more than
85%), mining near dwellings occurs because (e)(5) waivers are
negotiated with dwelling owners. Therefore, we expect that VER would
not be necessary and would continue not to be pursued in most such
areas. Proposals to mine in areas occupied by public buildings,
schools, churches, and cemeteries are typically limited. It is usually
less expensive for the operator to avoid such areas, rather than to pay
the costs of seeking VER, avoiding material damage where prohibited,
and paying reclamation costs.
In addition, the permit survey did not disclose any instances of
VER requests for mining in the areas around non-NPS public parks
protected under (e)(5). However, our model does anticipate that in the
next 20 years substantial coal acreage in (e)(5) public parks might be
precluded from mining as a result of underground mining VER
determinations under the final rule, and a relatively smaller but still
significant acreage might be precluded from surface mining as a result
of surface mining VER determinations under the final rule. Some portion
of that acreage could result in takings awards.
3. Alternatives to the Final Rule
As summarized above in this assessment, and as discussed in detail
in the EIS and the EA, we developed and considered three alternatives
to the good faith/all permits standard for VER. They are the good
faith/all permits or takings (GFAP/T) standard, the ownership and
authority standard, and the bifurcated alternative. The good faith/all
permits standard has the greatest potential for takings implications,
and we have found no way to minimize the takings implications of the
final rule except by selecting one of the other alternatives. However,
we do not believe that such a selection is justified. We believe that
the good faith/all permits standard adopted as part of the final rule
is the best alternative because it best protects the areas listed in
section 522(e) from surface coal mining operations, as Congress
intended.
GFAP/T Standard
Under this standard, a person could demonstrate VER by (1)
demonstrating compliance with the good faith/all permits standard, or
(2) demonstrating that denial of VER as of the date that the area
became subject to section 522(e) would reasonably be expected to result
in a compensable taking.
We would expect no takings implications from the GFAP/T standard
because in all cases, VER should be granted if denial would result in a
compensable taking. However, as noted in the preamble to the final
rule, when we proposed the GFAP/T alternative in 1991, it elicited some
of the strongest opposition that we have ever received on a proposed
rule. We received approximately 750 comments, and virtually every
comment emphatically opposed the GFAP/T standard. Opponents charged
that this standard would be impossibly burdensome for States to
implement. Some commenters charged that it was too complex,
unpredictable, and uncertain. Many commenters urged adoption of a
``bright-line'' standard instead. Some charged that it was not
protective enough of section 522(e) areas, and others charged that it
was inappropriately restrictive of mining in section 522(e) areas. Some
commenters felt that State regulatory authorities had no authority
under State law to apply the standard. Every category of commenter
rejected the GFAP/T standard as unworkable, unacceptable, or
demonstrably inferior to some other alternative.
Ownership and Authority Standard
Under this standard, a person would have VER upon demonstrating
ownership of the coal rights plus the property right under State law to
remove the coal by the method intended. The ownership and authority
standard would require demonstrating, as of the date that the land came
under the protection of section 522(e), the property right to mine the
coal by underground methods if VER for underground mining were sought,
and by surface mining methods if VER for surface mining were sought.
We would not expect the ownership and authority standard to have
significant takings implications. If a person could not demonstrate the
right to mine the coal by the method intended, there would be no denial
of or interference with property rights for which compensation would be
due under takings law, since a person must have the property right to a
particular use to be compensated for denial of that use.
Although the ownership and authority standard would have no
significant takings implications, we believe that it suffers from a
serious shortcoming in that it would effectively eviscerate the
protections afforded under section 522(e) to lands underlain by non-
Federal coal. This evisceration would result from the fact that the
ownership and authority alternative would result in a finding of VER
whenever a person met the permit application requirements for property
rights. As a result, except for lands overlying unleased Federal coal,
the prohibitions of section 522(e) would be meaningless and without
practical effect, because they would add almost nothing to the
protection already offered by the SMCRA permit requirements. Such a
result would clearly be inconsistent with congressional intent.
Bifurcated Alternative
Under this alternative, when the mineral and surface estates have
been severed, the date of severance would determine whether the
ownership and authority or the good faith/all permits standard for VER
would be used. When the mineral estate was severed from the surface
estate before the land came under the protection of section 522(e), the
ownership and authority standard would be used to determine VER. When
the mineral estate was severed from the surface estate after the date
the land came under the protection of section 522(e), the good faith/
all permits standard would be used. Thus, we believe the takings
implications of this alternative would be somewhere between those of
the ownership and authority and the good faith/all permits standards.
We did not propose this alternative, because we concluded that it was
questionable whether there is a basis in SMCRA for applying two
different VER standards, depending on the date of severance.
4. Estimate of Potential Financial Exposure From the Final Rule
The Attorney General's guidelines and the Department's supplemental
guidelines for takings implications assessments provide that the
assessment should set out an estimate of the financial exposure if the
final rule were held to effect a compensable taking. Given the
geographic scope of this final rule, however, and the lack of
information on the effects on individual property rights, a meaningful
estimate of financial exposure is impossible. Instead, as discussed
above, this assessment discusses generally the
[[Page 70827]]
anticipated takings impacts of the final rule, relative to the other
alternatives considered. Federal financial exposure is greatest from
claims concerning VER denials in the eastern United States in section
522(e)(2) areas or from the costs associated with acquisition of
property rights in section 522(e)(1) areas pursuant to the Secretary's
1988 policy statement, as discussed above.
5. Conclusion
The final rule for VER is expected to have a greater potential for
takings implications than the other alternatives considered. More
significant takings implications are anticipated primarily in some
(e)(2) areas (Federal lands in eastern national forests) and (e)(5)
areas (State and local parks). In light of the Secretary's 1988 policy
on exercise of VER for (e)(1) areas, takings implications are less
likely in (e)(1) areas. Takings implications are also substantially
less likely in (e)(3) through (e)(5) areas other than public parks.
Case-by-case application of the regulation might result in takings
implications, but such an analysis is beyond the scope of this
assessment and cannot be made until the rule is actually applied. Thus,
insufficient information is available to enable an accurate assessment
of the extent to which significant takings consequences might result
from adoption and application of this rule.
Under the standards set forth in the ``Attorney General's
Guidelines For the Evaluation of Risk and Avoidance of Unanticipated
Takings,'' dated June 30, 1988, and the Supplementary Takings
Guidelines of the Department of the Interior, we therefore conclude
that this rulemaking has significant takings implications.
F. Executive Order 13132: Federalism
In accordance with Executive Order 13132, this rule does not have
Federalism implications. The rule does not have substantial direct
effects on the States, on the relationship between the national
government and the States, or on the distribution of power and
responsibilities among the various levels of government.
SMCRA delineates the roles of the Federal and State governments
with regard to the regulation of surface coal mining and reclamation
operations. One of the purposes of SMCRA is to ``establish a nationwide
program to protect society and the environment from the adverse effects
of surface coal mining operations.'' States are not required to
regulate surface coal mining and reclamation operations under SMCRA,
but they may do so if they wish and if they meet certain requirements.
The Act also provides for Federal funding of 50% of the cost of
administering State regulatory programs approved under SMCRA. Section
503(a)(1) of SMCRA requires that State laws regulating surface coal
mining and reclamation operations be ``in accordance with'' the
requirements of SMCRA, and section 503(a)(7) requires that State
programs contain rules and regulations ``consistent with'' regulations
issued by the Secretary pursuant to SMCRA. Further, section 505 of
SMCRA provides for the preemption of State laws and regulations that
are inconsistent with the provisions of SMCRA.
G. Executive Order 12988: Civil Justice Reform
In accordance with Executive Order 12988, the Office of the
Solicitor has determined that this rule (1) does not unduly burden the
judicial system and (2) meets the requirements of sections 3(a) and
3(b)(2) of the order.
H. Paperwork Reduction Act
Under the Paperwork Reduction Act, agencies may not conduct or
sponsor a collection of information unless the collection displays a
currently valid Office of Management and Budget (OMB) control number.
Also, no person must respond to an information collection request
unless the form or regulation requesting the information has a
currently valid OMB control number. Therefore, in accordance with 44
U.S.C. 3501 et seq, we submitted the information collection and
recordkeeping requirements of 30 CFR Parts 761 and 772 to OMB for
review and approval. OMB subsequently approved the collection
activities and assigned them OMB control numbers 1029-0111 and 1029-
0112, respectively.
I. National Environmental Policy Act of 1969 and Record of Decision
This rule, issued in conjunction with the rule concerning the
applicability of the prohibitions of section 522(e) of SMCRA to
subsidence from underground mining operations (RIN 1029-AB82),
constitutes a major Federal action significantly affecting the quality
of the human environment under the National Environmental Policy Act of
1969 (NEPA). Therefore, we have prepared a final environmental impact
statement (EIS) pursuant to section 102(2)(C) of NEPA, 42 U.S.C.
4332(2)(C). The Environmental Protection Agency has published a
separate notice of the availability of the EIS in today's edition of
the Federal Register. A copy of the EIS, which is entitled ``Proposed
Revisions to the Permanent Program Regulations Implementing Section
522(e) of the Surface Mining Control and Reclamation Act of 1977 and
Proposed Rulemaking Clarifying the Applicability of Section 522(e) to
Subsidence from Underground Mining: Final Environmental Impact
Statement OSM-EIS-29 (July, 1999),'' is available for inspection at the
Office of Surface Mining, Administrative Record--Room 101, 1951
Constitution Avenue, N.W., Washington, DC 20240. You may obtain a
single copy by writing us or calling 202-208-2847. You also may request
a copy via the Internet at osmrules@osmre.gov.
The preamble to this final rule serves as the ``Record of
Decision'' under NEPA. Because of the length of the preamble, we have
prepared the following concise summary of the EIS and the decisions
made in the final rule relative to the alternatives considered in the
EIS.
The EIS addressed the general setting of the proposal, its purpose
and need, the alternatives considered, existing environmental
protection measures, the affected environment, the environmental
consequences, and overall consultation and coordination activities. In
addition, the EIS discussed the regulatory protections of SMCRA, the
history of VER, and related rulemaking issues such as coal exploration
on protected lands, the transferability of VER, procedural requirements
for VER determinations, and responsibility for VER determinations for
non-Federal inholdings within the areas listed in section 522(e)(1) of
the Act.
We used a generic mine impact analysis on a hypothetical site-
specific basis to describe impacts to certain resources when surface
and underground mining operations are conducted within, and adjacent
to, section 522(e) areas (see Chapter IV of the EIS). In addition, we
estimated the coal resources within the areas defined by section 522(e)
and subjected them to various tests and assumptions to provide an
estimate of the number of acres that could be affected over a 20-year
period (1995 to 2015). Using the generic mine impact analysis and the
potentially affected acreage of section 522(e) areas, we were able to
provide a measure of the relative degree of potential environmental
impacts under each alternative.
Because of the comments the we received on the proposed rule, the
final rule differs somewhat from the proposed rule. In making these
changes, we used the EIS to understand the potential environmental
impacts. We
[[Page 70828]]
determined that there are no measurable environmental impacts
associated with these changes, and that, in terms of environmental
impacts, the changes do not constitute a significant departure from the
alternatives evaluated in the EIS.
Alternatives Considered
We identified five alternatives for implementing the VER exception
in section 522(e) of SMCRA. These alternatives are no action, good
faith/all permits (the preferred alternative), good faith/all permits
or takings, ownership and authority, and bifurcated. The last
alternative is a combination of the good faith/all permits and the
ownership and authority alternatives.
No Action (NA) Alternative: Under the no action alternative, we
would not adopt a rule defining VER and establishing implementing
procedures; the status quo would continue. We would make VER
determinations using the policy established in the suspension notice
published November 20, 1986 (51 FR 41954) in all States except Ohio. In
Ohio, we would use a takings standard. We would continue to make VER
determinations for Federal lands in section 522(e)(1) and (2) areas. We
also would continue to make VER determinations for non-Federal lands
within section 522(e)(1) areas when surface coal mining operations on
those lands would affect the Federal interest. States would continue to
use their current standards and procedures for determining VER.
Good Faith/All Permits Alternative: Under the good faith/all
permits standard, a person has VER if, prior to the date that the land
came under the protection of section 522(e), the person or a
predecessor in interest had obtained, or made a good faith effort to
obtain, all permits and other authorizations required to conduct
surface coal mining operations.
Good Faith/All Permits or Takings Alternative: Under this
alternative, a person must either comply with the good faith/all
permits standard or demonstrate that denial of VER would result in a
compensable taking. VER would be found to exist whenever the agency
making the VER determination finds that, based on existing takings
jurisprudence, denial of VER would be expected to result in a
compensable taking of property under the Fifth and Fourteenth
Amendments to the Constitution.
Ownership and Authority Alternative: Under this alternative, an
individual could establish VER by demonstrating possession of both a
right to the coal and the right to mine it by the method intended.
Adoption of the ownership and authority alternative would likely result
in the greatest number of determinations that VER did exist.
Bifurcated Alternative: Under this alternative, VER standards would
be based on the date of severance of the mineral and surface estates in
relation to the date that the land came under the protection of section
522(e). When the mineral estate was severed from the surface estate
before the land came under the protections of section 522(e), VER would
be determined based on the ownership and authority standard. When the
mineral estate had not been severed from the surface estate before the
land came under the protection of section 522(e), VER would be based on
the good faith/all permits standard.
Decision
The final rule establishes the good faith/all permits alternative
as the standard for VER. This decision is based upon the belief that
the good faith/all permits standard best achieves protection of the
lands listed in section 522(e) in a manner consistent with
congressional intent at the time of SMCRA's enactment. At the same
time, it protects the interests of those persons who had taken concrete
steps to obtain regulatory approval for surface coal mining operations
on lands listed in section 522(e) before those lands came under the
protection of section 522(e). And, since 20 of the 24 approved State
regulatory programs already rely upon either the good faith/all permits
standard or the all permits standard, adoption of a good faith/all
permits standard would cause the least disruption to existing State
regulatory programs.
The good faith/all permits standard is consistent with the
legislative history of section 522(e), which indicates that Congress'
purpose in enacting section 522(e) was to prevent new surface coal
mining operations on the lands listed in that section, either to
protect human health or safety, or because the environmental values and
other features associated with those lands are generally incompatible
with surface coal mining operations.
The analysis of environmental impacts indicated that, compared with
the other alternatives considered, the good faith/all permits standard
is the most protective of the lands listed in section 522(e). Adoption
of the takings standard in place of the good faith/all permits standard
would result in surface coal mining operations on an estimated
additional 2,855 acres of protected lands between 1995 and 2015.
Adoption of either the bifurcated standard or the ownership and
authority standard would result in surface coal mining operations on an
estimated additional 3,062 acres of protected lands during that time
frame. Therefore, adoption of the good faith/all permits standard for
VER will best fulfil the intent of Congress to prohibit, with certain
exceptions, new surface coal mining operations on the lands protected
by section 522(e).
The EIS also identified certain issues common to the VER
alternatives. We discussed these issues and their potential impacts in
Chapters II and V of the EIS. As discussed below, we made the following
decisions with respect to these issues.
VER Definition Applicable to Section 522(e)(1) and (e)(2) Lands:
Under 30 CFR Title VII, Subchapter C, State regulatory programs under
SMCRA must be no less effective than the Federal regulations in meeting
the requirements of the Act. Therefore, we expect that there would be
no differences in the environmental impacts of the two alternatives
that we considered (use of State versus Federal definition). The final
rule specifies that the Federal definition of VER, not the approved
State program definition, will apply to all VER determinations for the
lands listed in section 522(e)(1) and (e)(2) of SMCRA, regardless of
whether OSM or the State regulatory authority is responsible for making
the determination. Application of the Federal definition will ensure
that requests for VER determinations involving lands of national
interest and importance are evaluated on the basis of the same
criteria.
Continually Created VER: The definition of VER in the final rule
provides for determination of VER based on property rights and
circumstances in existence when the land comes under the protection of
section 522(e) of SMCRA. This concept has sometimes been referred to as
``continually created VER.'' We first adopted it as a separate standard
in the 1983 definition of VER. In the final rule, we are removing the
separate standard and incorporating the concept into each VER standard
and the exception for existing operations. The EIS found the
differences in environmental impact between the existing and proposed
(now final) rules to be negligible.
Transferability of VER: The final rule provides that, in general,
VER are transferable because, unless otherwise provided by State law,
the property rights, permits, and operations that form the basis for
VER determinations are transferable. There is one significant
exception. If an operation with VER
[[Page 70829]]
under the needed for and adjacent standard divests itself of the land
to which the VER determination pertains, the new owner does not have
the right to conduct surface coal mining operations on those lands
under the prior VER determination. States may prohibit VER transfers to
the extent that they have the authority to do so under State law.
Needed for and Adjacent Standard: The final rule adopts the needed
for and adjacent standard as proposed in 1997, with several changes. To
establish VER under the needed for and adjacent standard, a person must
(1) make the required property rights demonstration, and (2) document
that the land is both needed for and immediately adjacent to a surface
coal mining operation for which all permits and other authorizations
required to conduct surface coal mining operations had been obtained,
or a good faith effort to obtain all necessary permits and
authorizations had been made, before the land came under the protection
of section 522(e) of SMCRA. Except for operations in existence before
August 3, 1977, or for which a good faith effort to obtain all
necessary permits had been made before August 3, 1977, this standard
does not apply to lands already under the protection of section 522(e)
when the regulatory authority approved the permit for the original
operation or when the good faith effort to obtain all necessary permits
was made. As stated in Chapter V of the EIS, we found that application
of this standard would have no more than minor environmental impacts
overall.
Procedural Requirements for VER Determinations: The existing rules
had few requirements governing the submission and processing of
requests for VER determinations. The final rule includes more complete
requirements to promote public participation and establish consistent
review and decision-making procedures. As discussed in Chapter V of the
EIS, we found that adoption of more complete procedural requirements
would result in minor to significant environmental benefits by
improving decision accuracy and ensuring consideration of all relevant
information.
Responsibility for VER Determinations for Non-Federal Inholdings in
Section 522(e)(1) Areas: As discussed in Chapter V of the EIS, we
determined that the environmental impacts of the alternatives that we
considered for this issue would be determined more by the applicable
VER standard than by which agency is responsible for making VER
determinations for non-Federal lands within section 522(e)(1) areas.
Under the final rule, the regulatory authority has the responsibility
for making VER determinations for all non-Federal lands within the
areas listed in section 522(e)(1), but, as noted above, the agency must
use the Federal definition of VER when doing so.
VER for Coal Exploration Operations: Of the five alternatives under
consideration regarding requirements for coal exploration on the lands
protected by section 522(e), we decided that the no action alternative
best conforms with the provisions of SMCRA. The prohibitions of section
522(e) apply only to surface coal mining operations, and SMCRA
specifically excludes coal exploration from the definition of surface
coal mining operations. Therefore, we decided not to add any VER
demonstration requirements or other potentially prohibitory barriers to
coal exploration on the lands listed in section 522(e). However, as
discussed in Chapter V of the EIS, the no action alternative is the
least protective of the environment. To mitigate the environmental
impacts of this alternative, we have revised our rules to add a
requirement that each application for coal exploration on lands listed
in section 522(e) include a demonstration that the proposed exploration
activities have been designed to minimize interference with the values
for which those lands were designated as unsuitable for surface coal
mining operations. The final rule also provides that, before approving
an application for coal exploration on lands listed in section 522(e),
the regulatory authority must find that the proposed exploration
activities have been designed to minimize interference with the values
for which those lands were designated as unsuitable for surface coal
mining operations.
Environmental Effects of the Alternatives
The areas most likely to be impacted by surface coal mining
operations as a result of the VER exception are the lands listed in
section 522(e)(1), State and local parks, and eastern national forests.
Rather than claiming VER, operators generally use the waivers and
compatibility findings authorized under SMCRA to gain access to coal
resources within western national forests, adjacent to historic sites,
or within the buffer zones for roads and occupied dwellings. While
access to coal within the buffer zones for public parks, churches,
schools, public buildings, and cemeteries is generally dependent upon
establishing VER, mining operations can generally avoid these protected
areas without difficulty.
Good Faith/All Permits Alternative: According to our model, the
good faith/all permits alternative would have the least environmental
impact. It also would provide surface owners and resource management
agencies with the greatest degree of control over surface coal mining
operations and any resultant adverse impacts in protected areas. Our
model predicts that the only section 522(e) areas that would be
disturbed by surface coal mining operations between 1995 and 2015
pursuant to VER determinations under this alternative would be 883
acres of Federal lands in eastern national forests, 996 acres within
the buffer zones for public roads, and 4,823 acres within the buffer
zones for occupied dwellings. Therefore, the good faith/all permits
alternative is the environmentally preferable alternative for the VER
rulemaking.
No Action Alternative: The impacts of this alternative would likely
resemble those of the good faith/all permits alternative. However, this
alternative would allow use of the takings standard in Ohio and in
those States that have adopted the takings standard as part of their
approved regulatory programs. Therefore, some areas protected by
section 522(e) would be mined under this alternative that would not be
mined under the good faith/all permits alternative. The model used in
the EIS predicts that, relative to the good faith/all permits
alternative, the no action alternative would result in surface coal
mining operations on an additional 711 acres of Federal lands in
eastern national forests between 1995 and 2015.
All Other VER Alternatives: The ownership and authority,
bifurcated, and good faith/all permits or takings alternatives afford
the greatest potential for mining-related disturbances in protected
areas. Our model predicts that use of one of these alternatives in
place of the good faith/all permits alternative would result in surface
coal mining operations on an additional 185 to 304 acres of section
522(e)(1) lands (national parks, national wildlife refuges, and
national recreation areas), 1,686 to 1,761 acres of Federal lands in
eastern national forests, and 984 to 997 acres of State park lands
because of VER determinations under these alternatives between 1995 and
2015. See Figure V-1 of the EIS.
The potentially affected section 522(e)(1) acreage appears to be
confined to one National Park unit in the Central Appalachian region,
several wildlife refuge system units within North Dakota, and, to a
lesser degree, two
[[Page 70830]]
national recreation areas in the Central Appalachian region. The
estimated cost to implement the Department's policy to acquire the
interests of persons with VER who plan to conduct surface coal mining
operations in section 522(e)(1) areas is $4.185 million during the 20-
year time frame covered by our model.
VER Alternatives in Combination with Alternatives for Companion
Rulemaking: As discussed above, the good faith/all permits standard is
the most environmentally preferable of the alternatives considered for
the VER definition. However, the EIS also considered the impact of the
VER alternatives in combination with the alternatives for the
rulemaking concerning the applicability of the prohibitions of section
522(e) to subsidence from underground mining. Based upon the number of
acres of section 522(e) lands that could be subject to either surface
coal mining operations or subsidence from underground mining, the
combination of the good faith/all permits alternative for the VER rule
and the ``prohibitions apply'' (PA) alternative for the prohibitions
rulemaking would be the most environmentally protective of all
potential combinations of alternatives for the two rulemakings.
However, for reasons discussed in the preamble to the rulemaking
concerning the applicability of the prohibitions of section 522(e) to
subsidence from underground mining, we have selected the ``prohibitions
do not apply'' alternative rather than any of the PA alternatives for
that rulemaking.
Mitigation, Monitoring and Enforcement
We have adopted all practicable means to avoid or minimize
environmental harm from the alternatives selected. Congress enacted
SMCRA to establish a nationwide program to protect society and the
environment from the adverse effects of surface coal mining operations;
assure that the rights of surface landowners and other persons with a
legal interest in the land are fully protected from such operations;
assure that surface coal mining operations are not conducted where
reclamation required by SMCRA is not feasible; and assure that surface
coal mining operations are conducted so as to protect the environment.
SMCRA's permitting requirements and performance standards generally
require avoidance, minimization, or mitigation of impacts to important
environmental resources, and our regulations do likewise. Each SMCRA
regulatory program includes five major elements: permitting
requirements and procedures, performance bonds to guarantee reclamation
in the event that the permittee defaults on any reclamation
obligations, performance standards to which the operator must adhere,
inspection and enforcement to maintain compliance with performance
standards and the terms and conditions of the permit, and designation
of lands as unsuitable for surface coal mining operations. Each State
regulatory program must be no less effective than our regulations in
achieving the requirements of the Act. And we conduct oversight of each
State's implementation of its approved regulatory program.
Timing of Agency Action
The regulations of the Council on Environmental Quality at 40 CFR
1506.10(b)(2) allow an agency engaged in rulemaking under the
Administrative Procedure Act to publish a decision on the final rule
simultaneous with the publication of the notice of availability of the
final EIS. Under section 526(a) of SMCRA, 30 U.S.C. 1276(a), anyone
wishing to challenge the agency's decision may do so by filing suit in
the United States District Court for the District of Columbia within 60
days of the date that the final rule is published in the Federal
Register.
Author: The principal author of this rule is Dennis G. Rice,
Division of Technical Support, Office of Surface Mining Reclamation and
Enforcement, 1951 Constitution Avenue, N.W., Washington, DC 20240;
Telephone (202) 208-2829. E-mail address: drice@osmre.gov.
List of Subjects
30 CFR Part 740
Public lands, Mineral resources, Reporting and recordkeeping
requirements, Surety bonds, Surface mining, Underground mining.
30 CFR Part 745
Intergovernmental relations, Public lands, Mineral resources,
Reporting and recordkeeping requirements, Surface mining, Underground
mining.
30 CFR Part 761
Historic preservation, National forests, National parks, National
trails system, National wild and scenic rivers system, Surface mining,
Underground mining, Wilderness areas, Wildlife refuges.
30 CFR Part 762
Historic preservation, Surface mining, Underground mining.
30 CFR Part 772
Reporting and recordkeeping requirements, Surface mining,
Underground mining.
30 CFR Part 773
Administrative practice and procedure, Reporting and recordkeeping
requirements, Surface mining, Underground mining.
30 CFR Part 778
Reporting and recordkeeping requirements, Surface mining,
Underground mining.
30 CFR Part 780
Reporting and recordkeeping requirements, Surface mining.
30 CFR Part 784
Reporting and recordkeeping requirements, Underground mining.
Dated: September 3, 1999.
Sylvia V. Baca,
Acting Assistant Secretary, Land and Minerals Management.
For the reasons set forth in the preamble, the Department is
amending 30 CFR Parts 740, 745, 761, 762, 772, 773, 778, 780, and 784
as set forth below:
PART 740--GENERAL REQUIREMENTS FOR SURFACE COAL MINING AND
RECLAMATION OPERATIONS ON FEDERAL LANDS
1. The authority citation for Part 740 continues to read as
follows:
Authority: 30 U.S.C. 1201 et seq. and 30 U.S.C. 181 et seq.
2. Section 740.4 is amended by deleting the word ``and'' at the end
of paragraph (a)(2), replacing the period at the end of paragraph
(a)(3) with a semicolon, and revising paragraphs (a)(4) and (a)(5) to
read as follows:
Sec. 740.4 Responsibilities.
(a) * * *
* * * * *
(4) Decisions on requests to determine whether a person possesses
valid existing rights to conduct surface coal mining operations on
Federal lands within the areas specified in Sec. 761.11(a) and (b) of
this chapter; and
(5) Issuance of findings concerning whether there are significant
recreational, timber, economic, or other values that may be
incompatible with surface coal mining operations on Federal lands
within a national forest, as specified in Sec. 761.11(b) of this
chapter.
3. Section 740.10 is revised to read as follows:
[[Page 70831]]
Sec. 740.10 Information collection.
(a) In accordance with 44 U.S.C. 3501 et seq., the Office of
Management and Budget (OMB) has approved the information collection
requirements of this part. The OMB clearance number is 1029-0027. This
information is needed to implement section 523 of the Act, which
governs surface coal mining operations on Federal lands. Persons
intending to conduct such operations must respond to obtain a benefit.
(b) OSM estimates that the public reporting burden for this part
will average 26 hours per respondent, including time spent reviewing
instructions, searching existing data sources, gathering and
maintaining the data needed, and completing and reviewing the
collection of information. Send comments regarding this burden estimate
or any other aspect of these information collection requirements,
including suggestions for reducing the burden, to the Office of Surface
Mining Reclamation and Enforcement, Information Collection Clearance
Officer, 1951 Constitution Avenue, NW, Washington, DC 20240; and the
Office of Management and Budget, Office of Information and Regulatory
Affairs, Attention: Interior Desk Officer, 725 17th Street, N.W,
Washington, DC 20503. Please refer to OMB Control Number 1029-0027 in
any correspondence.
4. In Sec. 740.11, paragraph (a) is revised and paragraph (g) is
added to read as follows:
Sec. 740.11 Applicability.
(a) Except as provided in paragraph (g) of this section, both this
subchapter and the pertinent State or Federal regulatory program in
subchapter T of this chapter apply to:
* * * * *
(g) The definition of valid existing rights in Sec. 761.5 of this
chapter applies to any decision on a request for a determination of
valid existing rights to conduct surface coal mining operations on the
lands specified in Sec. 761.11(a) and (b) of this chapter.
PART 745--STATE-FEDERAL COOPERATIVE AGREEMENTS
5. The authority citation for Part 745 continues to read as
follows:
Authority: 30 U.S.C. 1201 et seq. and 30 U.S.C. 181 et seq.
6. Section 745.10 is revised to read as follows:
Sec. 745.10 Information collection.
(a) In accordance with 44 U.S.C. 3501 et seq., the Office of
Management and Budget (OMB) has approved the information collection
requirements of this part. The OMB clearance number is 1029-0092. This
information is needed to implement section 523(c) of the Act, which
allows States to regulate surface coal mining operations on Federal
lands under certain conditions. States that desire to enter into
cooperative agreements to do so must respond to obtain a benefit.
(b) OSM estimates that the public reporting burden for this part
will average 1,364 hours per respondent, including time spent reviewing
instructions, searching existing data sources, gathering and
maintaining the data needed, and completing and reviewing the
collection of information. Send comments regarding this burden estimate
or any other aspect of these information collection requirements,
including suggestions for reducing the burden, to the Office of Surface
Mining Reclamation and Enforcement, Information Collection Clearance
Officer, 1951 Constitution Avenue, N.W., Washington, DC 20240; and the
Office of Management and Budget, Office of Information and Regulatory
Affairs, Attention: Interior Desk Officer, 725 17th Street, N.W.,
Washington, DC 20503. Please refer to OMB Control Number 1029-0092 in
any correspondence.
7. In Sec. 745.13, paragraphs (o) and (p) are revised to read as
follows:
Sec. 745.13 Authority reserved by the Secretary.
* * * * *
(o) Determine whether a person has valid existing rights to conduct
surface coal mining operations on Federal lands within the areas
specified in Sec. 761.11(a) and (b) of this chapter; or
(p) Issue findings on whether there are significant recreational,
timber, economic, or other values that may be incompatible with surface
coal mining operations on Federal lands within a national forest, as
specified in Sec. 761.11(b) of this chapter.
PART 761--AREAS DESIGNATED BY ACT OF CONGRESS
8. The authority citation for Part 761 continues to read as
follows:
Authority: 30 U.S.C. 1201 et seq.
9. Section 761.5 is amended by removing the definition of ``surface
coal mining operations which exist on the date of enactment,'' adding
definitions of ``we, us, and our'' and ``you and your'' in alphabetical
order, and revising the definition of ``valid existing rights'' to read
as follows:
Sec. 761.5 Definitions.
* * * * *
Valid existing rights means a set of circumstances under which a
person may, subject to regulatory authority approval, conduct surface
coal mining operations on lands where 30 U.S.C. 1272(e) and Sec. 761.11
would otherwise prohibit such operations. Possession of valid existing
rights only confers an exception from the prohibitions of Sec. 761.11
and 30 U.S.C. 1272(e). A person seeking to exercise valid existing
rights must comply with all other pertinent requirements of the Act and
the applicable regulatory program.
(a) Property rights demonstration. Except as provided in paragraph
(c) of this definition, a person claiming valid existing rights must
demonstrate that a legally binding conveyance, lease, deed, contract,
or other document vests that person, or a predecessor in interest, with
the right to conduct the type of surface coal mining operations
intended. This right must exist at the time that the land came under
the protection of Sec. 761.11 or 30 U.S.C. 1272(e). Applicable State
statutory or case law will govern interpretation of documents relied
upon to establish property rights, unless Federal law provides
otherwise. If no applicable State law exists, custom and generally
accepted usage at the time and place that the documents came into
existence will govern their interpretation.
(b) Except as provided in paragraph (c) of this definition, a
person claiming valid existing rights also must demonstrate compliance
with one of the following standards:
(1) Good faith/all permits standard. All permits and other
authorizations required to conduct surface coal mining operations had
been obtained, or a good faith effort to obtain all necessary permits
and authorizations had been made, before the land came under the
protection of Sec. 761.11 or 30 U.S.C. 1272(e). At a minimum, an
application must have been submitted for any permit required under
subchapter G of this chapter or its State program counterpart.
(2) Needed for and adjacent standard. The land is needed for and
immediately adjacent to a surface coal mining operation for which all
permits and other authorizations required to conduct surface coal
mining operations had been obtained, or a good faith attempt to obtain
all permits and authorizations had been made, before the land came
under the protection of Sec. 761.11 or 30 U.S.C. 1272(e). To meet this
standard, a person must demonstrate that prohibiting expansion of the
operation onto that land would unfairly impact
[[Page 70832]]
the viability of the operation as originally planned before the land
came under the protection of Sec. 761.11 or 30 U.S.C. 1272(e). Except
for operations in existence before August 3, 1977, or for which a good
faith effort to obtain all necessary permits had been made before
August 3, 1977, this standard does not apply to lands already under the
protection of Sec. 761.11 or 30 U.S.C. 1272(e) when the regulatory
authority approved the permit for the original operation or when the
good faith effort to obtain all necessary permits for the original
operation was made. In evaluating whether a person meets this standard,
the agency making the determination may consider factors such as:
(i) The extent to which coal supply contracts or other legal and
business commitments that predate the time that the land came under the
protection of Sec. 761.11 or 30 U.S.C. 1272(e) depend upon use of that
land for surface coal mining operations.
(ii) The extent to which plans used to obtain financing for the
operation before the land came under the protection of Sec. 761.11 or
30 U.S.C. 1272(e) rely upon use of that land for surface coal mining
operations.
(iii) The extent to which investments in the operation before the
land came under the protection of Sec. 761.11 or 30 U.S.C. 1272(e) rely
upon use of that land for surface coal mining operations.
(iv) Whether the land lies within the area identified on the life-
of-mine map submitted under Sec. 779.24(c) or Sec. 783.24(c) of this
chapter before the land came under the protection of Sec. 761.11.
(c) Roads. A person who claims valid existing rights to use or
construct a road across the surface of lands protected by Sec. 761.11
or 30 U.S.C. 1272(e) must demonstrate that one or more of the following
circumstances exist if the road is included within the definition of
``surface coal mining operations'' in Sec. 700.5 of this chapter:
(1) The road existed when the land upon which it is located came
under the protection of Sec. 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.
(2) A properly recorded right of way or easement for a road in that
location existed when the land came under the protection of Sec. 761.11
or 30 U.S.C. 1272(e), and, under the document creating the right of way
or easement, and under subsequent conveyances, the person has a legal
right to use or construct a road across the right of way or easement
for surface coal mining operations.
(3) 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 Sec. 761.11 or 30 U.S.C. 1272(e).
(4) Valid existing rights exist under paragraphs (a) and (b) of
this definition.
We, us, and our refer to the Office of Surface Mining Reclamation
and Enforcement.
You and your refer to a person who claims or seeks to obtain an
exception or waiver authorized by Sec. 761.11 or 30 U.S.C. 1272(e).
10. Section 761.10 is added to read as follows:
Sec. 761.10 Information collection.
(a) In accordance with 44 U.S.C. 3501 et seq., the Office of
Management and Budget (OMB) has approved the information collection
requirements of this part. The OMB clearance number is 1029-0111. The
regulatory authority or other responsible agency will use this
information to determine whether a person has valid existing rights or
qualifies for one of the other waivers or exemptions from the general
prohibition on conducting surface coal mining operations in the areas
listed in 30 U.S.C. 1272(e). Persons seeking to conduct surface coal
mining operations on these lands must respond to obtain a benefit in
accordance with 30 U.S.C. 1272(e).
(b) We estimate that the public reporting and recordkeeping burden
for this part will average 15 hours per response under Sec. 761.13, 0.5
hour per response under Sec. 761.14, 2 hours per response under
Sec. 761.15, 14 hours per response under Sec. 761.16, 2 hours per
response under Sec. 761.17(c), and 2 hours per response under
Sec. 761.17(d), including time spent reviewing instructions, searching
existing data sources, gathering and maintaining the data needed, and
completing and reviewing the collection of information. The burden for
Sec. 761.16 includes 6 hours for the person seeking the determination
and 8 hours for the agency processing the request. Send comments
regarding this burden estimate or any other aspect of these information
collection and recordkeeping requirements, including suggestions for
reducing the burden, to the Office of Surface Mining Reclamation and
Enforcement, Information Collection Clearance Officer, 1951
Constitution Avenue, N.W., Washington, DC 20240; and the Office of
Management and Budget, Office of Information and Regulatory Affairs,
Attention: Interior Desk Officer, 725 17th Street, N.W., Washington, DC
20503. Please refer to OMB Control Number 1029-0111 in any
correspondence.
11. Sections 761.11 and 761.12 are revised and new Secs. 761.13
through 761.17 are added to read as follows:
Sec. 761.11 Areas where surface coal mining operations are prohibited
or limited.
You may not conduct surface coal mining operations on the following
lands unless you either have valid existing rights, as determined under
Sec. 761.16, or qualify for the exception for existing operations under
Sec. 761.12:
(a) Any lands within the boundaries of:
(1) The National Park System;
(2) The National Wildlife Refuge System;
(3) The National System of Trails;
(4) The National Wilderness Preservation System;
(5) The Wild and Scenic Rivers System, including study rivers
designated under section 5(a) of the Wild and Scenic Rivers Act, 16
U.S.C. 1276(a), or study rivers or study river corridors established in
any guidelines issued under that Act; or
(6) National Recreation Areas designated by Act of Congress.
(b) Any Federal lands within a national forest. This prohibition
does not apply if the Secretary finds that there are no significant
recreational, timber, economic, or other values that may be
incompatible with surface coal mining operations, and:
(1) Any surface operations and impacts will be incident to an
underground coal mine; or
(2) With respect to lands that do not have significant forest cover
within national forests west of the 100th meridian, the Secretary of
Agriculture has determined that surface mining is in compliance with
the Act, the Multiple-Use Sustained Yield Act of 1960, 16 U.S.C. 528-
531; the Federal Coal Leasing Amendments Act of 1975, 30 U.S.C. 181 et
seq.; and the National Forest Management Act of 1976, 16 U.S.C. 1600 et
seq. This provision does not apply to the Custer National Forest.
(c) Any lands where the operation would adversely affect any
publicly owned park or any place in the National Register of Historic
Places. This prohibition does not apply if, as provided in
Sec. 761.17(d), the regulatory authority and the Federal, State, or
local agency with jurisdiction over the park or place jointly approve
the operation.
(d) Within 100 feet, measured horizontally, of the outside right-
of-way line of any public road. This prohibition does not apply:
(1) Where a mine access or haul road joins a public road, or
[[Page 70833]]
(2) When, as provided in Sec. 761.14, the regulatory authority (or
the appropriate public road authority designated by the regulatory
authority) allows the public road to be relocated or closed, or the
area within the protected zone to be affected by the surface coal
mining operation, after:
(i) Providing public notice and opportunity for a public hearing;
and
(ii) Finding in writing that the interests of the affected public
and landowners will be protected.
(e) Within 300 feet, measured horizontally, of any occupied
dwelling. This prohibition does not apply when:
(1) The owner of the dwelling has provided a written waiver
consenting to surface coal mining operations within the protected zone,
as provided in Sec. 761.15; or
(2) The part of the operation to be located closer than 300 feet to
the dwelling is an access or haul road that connects with an existing
public road on the side of the public road opposite the dwelling.
(f) Within 300 feet, measured horizontally, of any public building,
school, church, community or institutional building, or public park.
(g) Within 100 feet, measured horizontally, of a cemetery. This
prohibition does not apply if the cemetery is relocated in accordance
with all applicable laws and regulations.
Sec. 761.12 Exception for existing operations.
The prohibitions and limitations of Sec. 761.11 do not apply to:
(a) Surface coal mining operations for which a valid permit, issued
under Subchapter G of this chapter or an approved State regulatory
program, exists when the land comes under the protection of
Sec. 761.11. This exception applies only to lands within the permit
area as it exists when the land comes under the protection of
Sec. 761.11.
(b) With respect to operations subject to Subchapter B of this
chapter, lands upon which validly authorized surface coal mining
operations exist when the land comes under the protection of 30 U.S.C.
1272(e) or Sec. 761.11.
Sec. 761.13 Procedures for compatibility findings for surface coal
mining operations on Federal lands in national forests.
(a) If you intend to rely upon the exception provided in
Sec. 761.11(b) to conduct surface coal mining operations on Federal
lands within a national forest, you must request that we obtain the
Secretarial findings required by Sec. 761.11(b).
(b) You may submit a request to us before preparing and submitting
an application for a permit or boundary revision. If you do, you must
explain how the proposed operation would not damage the values listed
in the definition of ``significant recreational, timber, economic, or
other values incompatible with surface coal mining operations'' in
Sec. 761.5. You must include a map and sufficient information about the
nature of the proposed operation for the Secretary to make adequately
documented findings. We may request that you provide any additional
information that we determine is needed to make the required findings.
(c) When a proposed surface coal mining operation or proposed
boundary revision for an existing surface coal mining operation
includes Federal lands within a national forest, the regulatory
authority may not issue the permit or approve the boundary revision
before the Secretary makes the findings required by Sec. 761.11(b).
Sec. 761.14 Procedures for relocating or closing a public road or
waiving the prohibition on surface coal mining operations within the
buffer zone of a public road.
(a) This section does not apply to:
(1) Lands for which a person has valid existing rights, as
determined under Sec. 761.16.
(2) Lands within the scope of the exception for existing operations
in Sec. 761.12.
(3) Access or haul roads that join a public road, as described in
Sec. 761.11(d)(1).
(b) You must obtain any necessary approvals from the authority with
jurisdiction over the road if you propose to:
(1) Relocate a public road;
(2) Close a public road; or
(3) Conduct surface coal mining operations within 100 feet,
measured horizontally, of the outside right-of-way line of a public
road.
(c) Before approving an action proposed under paragraph (b) of this
section, the regulatory authority, or a public road authority that it
designates, must determine that the interests of the public and
affected landowners will be protected. Before making this
determination, the authority must:
(1) Provide a public comment period and opportunity to request a
public hearing in the locality of the proposed operation;
(2) If a public hearing is requested, publish appropriate advance
notice at least two weeks before the hearing in a newspaper of general
circulation in the affected locality; and
(3) Based upon information received from the public, make a written
finding as to whether the interests of the public and affected
landowners will be protected. If a hearing was held, the authority must
make this finding within 30 days after the hearing. If no hearing was
held, the authority must make this finding within 30 days after the end
of the public comment period.
Sec. 761.15 Procedures for waiving the prohibition on surface coal
mining operations within the buffer zone of an occupied dwelling.
(a) This section does not apply to:
(1) Lands for which a person has valid existing rights, as
determined under Sec. 761.16.
(2) Lands within the scope of the exception for existing operations
in Sec. 761.12.
(3) Access or haul roads that connect with an existing public road
on the side of the public road opposite the dwelling, as provided in
Sec. 761.11(e)(2).
(b) If you propose to conduct surface coal mining operations within
300 feet, measured horizontally, of any occupied dwelling, the permit
application must include a written waiver by lease, deed, or other
conveyance from the owner of the dwelling. The waiver must clarify that
the owner and signator had the legal right to deny mining and knowingly
waived that right. The waiver will act as consent to surface coal
mining operations within a closer distance of the dwelling as
specified.
(c) If you obtained a valid waiver before August 3, 1977, from the
owner of an occupied dwelling to conduct operations within 300 feet of
the dwelling, you need not submit a new waiver.
(d) If you obtain a valid waiver from the owner of an occupied
dwelling, that waiver will remain effective against subsequent
purchasers who had actual or constructive knowledge of the existing
waiver at the time of purchase. A subsequent purchaser will be deemed
to have constructive knowledge if the waiver has been properly filed in
public property records pursuant to State laws or if surface coal
mining operations have entered the 300-foot zone before the date of
purchase.
Sec. 761.16 Submission and processing of requests for valid existing
rights determinations.
(a) Basic framework for valid existing rights determinations. The
following table identifies the agency responsible for making a valid
existing rights determination and the definition that it must use,
based upon which paragraph of Sec. 761.11 applies and whether the
request includes Federal lands.
[[Page 70834]]
----------------------------------------------------------------------------------------------------------------
Type of land to Agency
Paragraph of Sec. 761.11 Protected which request responsible for Applicable definition of
that provides protection feature pertains determination valid existing rights
----------------------------------------------------------------------------------------------------------------
(a).......................... National parks, Federal........ OSM............ Federal \1\
wildlife
refuges, etc..
(a).......................... National parks, Non-Federal.... Regulatory Federal \1\
wildlife authority.
refuges, etc..
(b).......................... Federal lands in Federal........ OSM............ Federal \1\
national
forests \3\.
(c).......................... Public parks and Does not matter Regulatory Regulatory program \2\
historic places. authority.
(d).......................... Public roads.... Does not matter Regulatory Regulatory program \2\
authority.
(e).......................... Occupied Does not matter Regulatory Regulatory program \2\
dwellings. authority.
(f).......................... Schools, Does not matter Regulatory Regulatory program \2\
churches, authority.
parks, etc..
(g).......................... Cemeteries...... Does not matter Regulatory Regulatory program \2\
authority.
----------------------------------------------------------------------------------------------------------------
\1\ Definition in 30 CFR 761.5.
\2\ Definition in applicable State or Federal regulatory program under 30 CFR Chapter VII, Subchapter T.
\3\ Neither 30 U.S.C. 1272(e) nor 30 CFR 761.11 provides special protection for non-Federal lands within
national forests. Therefore, this table does not include a category for those lands.
(b) What you must submit as part of a request for a valid existing
rights determination. You must submit a request for a valid existing
rights determination to the appropriate agency under paragraph (a) of
this section if you intend to conduct surface coal mining operations on
the basis of valid existing rights under Sec. 761.11 or wish to confirm
the right to do so. You may submit this request before preparing and
submitting an application for a permit or boundary revision for the
land, unless the applicable regulatory program provides otherwise.
(1) Requirements for property rights demonstration. You must
provide a property rights demonstration under paragraph (a) of the
definition of valid existing rights in Sec. 761.5 if your request
relies upon the good faith/all permits standard or the needed for and
adjacent standard in paragraph (b) of the definition of valid existing
rights in Sec. 761.5. This demonstration must include the following
items:
(i) A legal description of the land to which your request pertains.
(ii) Complete documentation of the character and extent of your
current interests in the surface and mineral estates of the land to
which your request pertains.
(iii) A complete chain of title for the surface and mineral estates
of the land to which your request pertains.
(iv) A description of the nature and effect of each title
instrument that forms the basis for your request, including any
provision pertaining to the type or method of mining or mining-related
surface disturbances and facilities.
(v) A description of the type and extent of surface coal mining
operations that you claim the right to conduct, including the method of
mining, any mining-related surface activities and facilities, and an
explanation of how those operations would be consistent with State
property law.
(vi) Complete documentation of the nature and ownership, as of the
date that the land came under the protection of Sec. 761.11 or 30
U.S.C. 1272(e), of all property rights for the surface and mineral
estates of the land to which your request pertains.
(vii) Names and addresses of the current owners of the surface and
mineral estates of the land to which your request pertains.
(viii) If the coal interests have been severed from other property
interests, documentation that you have notified and provided reasonable
opportunity for the owners of other property interests in the land to
which your request pertains to comment on the validity of your property
rights claims.
(ix) Any comments that you receive in response to the notification
provided under paragraph (b)(1)(viii) of this section.
(2) Requirements for good faith/all permits standard. If your
request relies upon the good faith/all permits standard in paragraph
(b)(1) of the definition of valid existing rights in Sec. 761.5, you
must submit the information required under paragraph (b)(1) of this
section. You also must submit the following information about permits,
licenses, and authorizations for surface coal mining operations on the
land to which your request pertains:
(i) Approval and issuance dates and identification numbers for any
permits, licenses, and authorizations that you or a predecessor in
interest obtained before the land came under the protection of
Sec. 761.11 or 30 U.S.C. 1272(e).
(ii) Application dates and identification numbers for any permits,
licenses, and authorizations for which you or a predecessor in interest
submitted an application before the land came under the protection of
Sec. 761.11 or 30 U.S.C. 1272(e).
(iii) An explanation of any other good faith effort that you or a
predecessor in interest made to obtain the necessary permits, licenses,
and authorizations as of the date that the land came under the
protection of Sec. 761.11 or 30 U.S.C. 1272(e).
(3) Requirements for needed for and adjacent standard. If your
request relies upon the needed for and adjacent standard in paragraph
(b)(2) of the definition of valid existing rights in Sec. 761.5, you
must submit the information required under paragraph (b)(1) of this
section. In addition, you must explain how and why the land is needed
for and immediately adjacent to the operation upon which your request
is based, including a demonstration that prohibiting expansion of the
operation onto that land would unfairly impact the viability of the
operation as originally planned before the land came under the
protection of Sec. 761.11 or 30 U.S.C. 1272(e).
(4) Requirements for standards for mine roads. If your request
relies upon one of the standards for roads in paragraphs (c)(1) through
(c)(3) of the definition of valid existing rights in Sec. 761.5, you
must submit satisfactory documentation that:
(i) The road existed when the land upon which it is located came
under the protection of Sec. 761.11 or 30 U.S.C. 1272(e), and you have
a legal right to use the road for surface coal mining operations;
(ii) A properly recorded right of way or easement for a road in
that location existed when the land came under the protection of
Sec. 761.11 or 30 U.S.C. 1272(e), and, under the document creating the
right of way or easement, and under any subsequent conveyances, you
have a legal right to use or construct
[[Page 70835]]
a road across that right of way or easement to conduct surface coal
mining operations; or
(iii) 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 Sec. 761.11 or 30 U.S.C. 1272(e).
(c) Initial review of request. (1) The agency must conduct an
initial review to determine whether your request includes all
applicable components of the submission requirements of paragraph (b)
of this section. This review pertains only to the completeness of the
request, not the legal or technical adequacy of the materials
submitted.
(2) If your request does not include all applicable components of
the submission requirements of paragraph (b) of this section, the
agency must notify you and establish a reasonable time for submission
of the missing information.
(3) When your request includes all applicable components of the
submission requirements of paragraph (b) of this section, the agency
must implement the notice and comment requirements of paragraph (d) of
this section.
(4) If you do not provide information that the agency requests
under paragraph (c)(2) of this section within the time specified or as
subsequently extended, the agency must issue a determination that you
have not demonstrated valid existing rights, as provided in paragraph
(e)(4) of this section.
(d) Notice and comment requirements and procedures. (1) When your
request satisfies the completeness requirements of paragraph (c) of
this section, the agency must publish a notice in a newspaper of
general circulation in the county in which the land is located. This
notice must invite comment on the merits of the request. Alternatively,
the agency may require that you publish this notice and provide the
agency with a copy of the published notice. We will publish a similar
notice in the Federal Register if your request involves Federal lands
within an area listed in Sec. 761.11(a) or (b). Each notice must
include:
(i) The location of the land to which the request pertains.
(ii) A description of the type of surface coal mining operations
planned.
(iii) A reference to and brief description of the applicable
standard(s) under the definition of valid existing rights in
Sec. 761.5.
(A) If your request relies upon the good faith/all permits standard
or the needed for and adjacent standard in paragraph (b) of the
definition of valid existing rights in Sec. 761.5, the notice also must
include a description of the property rights that you claim and the
basis for your claim.
(B) If your request relies upon the standard in paragraph (c)(1) of
the definition of valid existing rights in Sec. 761.5, the notice also
must include a description of the basis for your claim that the road
existed when the land came under the protection of Sec. 761.11 or 30
U.S.C. 1272(e). In addition, the notice must include a description of
the basis for your claim that you have a legal right to use that road
for surface coal mining operations.
(C) If your request relies upon the standard in paragraph (c)(2) of
the definition of valid existing rights in Sec. 761.5, the notice also
must include a description of the basis for your claim that a properly
recorded right of way or easement for a road in that location existed
when the land came under the protection of Sec. 761.11 or 30 U.S.C.
1272(e). In addition, the notice must include a description of the
basis for your claim that, under the document creating the right of way
or easement, and under any subsequent conveyances, you have a legal
right to use or construct a road across the right of way or easement to
conduct surface coal mining operations.
(iv) If your request relies upon one or more of the standards in
paragraphs (b), (c)(1), and (c)(2) of the definition of valid existing
rights in Sec. 761.5, a statement that the agency will not make a
decision on the merits of your request if, by the close of the comment
period under this notice or the notice required by paragraph (d)(3) of
this section, a person with a legal interest in the land 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 your claim.
(v) A description of the procedures that the agency will follow in
processing your request.
(vi) The closing date of the comment period, which must be a
minimum of 30 days after the publication date of the notice.
(vii) A statement that interested persons may obtain a 30-day
extension of the comment period upon request.
(viii) The name and address of the agency office where a copy of
the request is available for public inspection and to which comments
and requests for extension of the comment period should be sent.
(2) The agency must promptly provide a copy of the notice required
under paragraph (d)(1) of this section to:
(i) All reasonably locatable owners of surface and mineral estates
in the land included in your request.
(ii) The owner of the feature causing the land to come under the
protection of Sec. 761.11, and, when applicable, the agency with
primary jurisdiction over the feature with respect to the values
causing the land to come under the protection of Sec. 761.11. For
example, both the landowner and the State Historic Preservation Officer
must be notified if surface coal mining operations would adversely
impact any site listed on the National Register of Historic Places. As
another example, both the surface owner and the National Park Service
must be notified if the request includes non-Federal lands within the
authorized boundaries of a unit of the National Park System.
(3) The letter transmitting the notice required under paragraph
(d)(2) of this section must provide a 30-day comment period, starting
from the date of service of the letter, and specify that another 30
days is available upon request. At its discretion, the agency
responsible for the determination of valid existing rights may grant
additional time for good cause upon request. The agency need not
necessarily consider comments received after the closing date of the
comment period.
(e) How a decision will be made. (1) The agency responsible for
making the determination of valid existing rights must review the
materials submitted under paragraph (b) of this section, comments
received under paragraph (d) of this section, 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, the agency must notify you in writing,
explaining the inadequacy of the record and requesting submittal,
within a specified reasonable time, of any additional information that
the agency deems necessary to remedy the inadequacy.
(2) Once the record is complete and adequate, the responsible
agency must determine whether you have demonstrated valid existing
rights. The decision document must explain how you have or have not
satisfied all applicable elements of the definition of valid existing
rights in Sec. 761.5. It must contain findings of fact and conclusions,
and it must specify the reasons for the conclusions.
(3) Impact of property rights disagreements. This paragraph applies
only when your request relies upon one
[[Page 70836]]
or more of the standards in paragraphs (b), (c)(1), and (c)(2) of the
definition of valid existing rights in Sec. 761.5.
(i) The agency must issue a determination that you have not
demonstrated valid existing rights if your property rights claims are
the subject of pending litigation in a court or administrative body
with jurisdiction over the property rights in question. The agency will
make this determination without prejudice, meaning that you may refile
the request once the property rights dispute is finally adjudicated.
This paragraph applies only to situations in which legal action has
been initiated as of the closing date of the comment period under
paragraph (d)(1) or (d)(3) of this section.
(ii) If the record indicates disagreement as to the accuracy of
your property rights claims, but this disagreement is not the subject
of pending litigation in a court or administrative agency of competent
jurisdiction, the agency must evaluate the merits of the information in
the record and determine whether you have demonstrated that the
requisite property rights exist under paragraph (a), (c)(1), or (c)(2)
of the definition of valid existing rights in Sec. 761.5, as
appropriate. The agency must then proceed with the decision process
under paragraph (e)(2) of this section.
(4) The agency must issue a determination that you have not
demonstrated valid existing rights if you do not submit information
that the agency requests under paragraph (c)(2) or (e)(1) of this
section within the time specified or as subsequently extended. The
agency will make this determination without prejudice, meaning that you
may refile a revised request at any time.
(5) After making a determination, the agency must:
(i) Provide a copy of the determination, together with an
explanation of appeal rights and procedures, to you, to the owner or
owners of the land to which the determination applies, to the owner of
the feature causing the land to come under the protection of
Sec. 761.11, and, when applicable, to the agency with primary
jurisdiction over the feature with respect to the values that caused
the land to come under the protection of Sec. 761.11.
(ii) Publish notice of the determination in a newspaper of general
circulation in the county in which the land is located. Alternatively,
the agency may require that you publish this notice and provide a copy
of the published notice to the agency. We will publish the
determination, together with an explanation of appeal rights and
procedures, in the Federal Register if your request includes Federal
lands within an area listed in Sec. 761.11(a) or (b).
(f) Administrative and judicial review. A determination that you
have or do not have valid existing rights is subject to administrative
and judicial review under Secs. 775.11 and 775.13 of this chapter.
(g) Availability of records. The agency responsible for processing
a request subject to notice and comment under paragraph (d) of this
section must make a copy of that request available to the public in the
same manner as the agency, when acting as the regulatory authority,
must make permit applications available to the public under
Sec. 773.13(d) of this chapter. In addition, the agency must make
records associated with that request, and any subsequent determination
under paragraph (e) of this section, available to the public in
accordance with the requirements and procedures of Sec. 840.14 or
Sec. 842.16 of this chapter.
Sec. 761.17 Regulatory authority obligations at time of permit
application review.
(a) Upon receipt of an administratively complete application for a
permit for a surface coal mining operation, or an administratively
complete application for revision of the boundaries of a surface coal
mining operation permit, the regulatory authority must review the
application to determine whether the proposed surface coal mining
operation would be located on any lands protected under Sec. 761.11.
(b) The regulatory authority must reject any portion of the
application that would locate surface coal mining operations on land
protected under Sec. 761.11 unless:
(1) The site qualifies for the exception for existing operations
under Sec. 761.12;
(2) A person has valid existing rights for the land, as determined
under Sec. 761.16;
(3) The applicant obtains a waiver or exception from the
prohibitions of Sec. 761.11 in accordance with Secs. 761.13 through
761.15; or
(4) For lands protected by Sec. 761.11(c), both the regulatory
authority and the agency with jurisdiction over the park or place
jointly approve the proposed operation in accordance with paragraph (d)
of this section.
(c) Location verification. If the regulatory authority has
difficulty determining whether an application includes land within an
area specified in Sec. 761.11(a) or within the specified distance from
a structure or feature listed in Sec. 761.11(f) or (g), the regulatory
authority must request that the Federal, State, or local governmental
agency with jurisdiction over the protected land, structure, or feature
verify the location.
(1) The request for location verification must:
(i) Include relevant portions of the permit application.
(ii) Provide the agency with 30 days after receipt to respond, with
a notice that another 30 days is available upon request.
(iii) Specify that the regulatory authority will not necessarily
consider a response received after the comment period provided under
paragraph (c)(1)(ii) of this section.
(2) If the agency does not respond in a timely manner, the
regulatory authority may make the necessary determination based on
available information.
(d) Procedures for joint approval of surface coal mining operations
that will adversely affect publicly owned parks or historic places.
(1) If the regulatory authority determines that the proposed
surface coal mining operation will adversely affect any publicly owned
park or any place included in the National Register of Historic Places,
the regulatory authority must request that the Federal, State, or local
agency with jurisdiction over the park or place either approve or
object to the proposed operation. The request must:
(i) Include a copy of applicable parts of the permit application.
(ii) Provide the agency with 30 days after receipt to respond, with
a notice that another 30 days is available upon request.
(iii) State that failure to interpose an objection within the time
specified under paragraph (d)(1)(ii) of this section will constitute
approval of the proposed operation.
(2) The regulatory authority may not issue a permit for a proposed
operation subject to paragraph (d)(1) of this section unless all
affected agencies jointly approve.
(3) Paragraphs (d)(1) and (d)(2) of this section do not apply to:
(i) Lands for which a person has valid existing rights, as
determined under Sec. 761.16.
(ii) Lands within the scope of the exception for existing
operations in Sec. 761.12.
PART 762--CRITERIA FOR DESIGNATING AREAS AS UNSUITABLE FOR SURFACE
COAL MINING OPERATIONS
12. The authority citation for part 762 is revised to read as
follows:
[[Page 70837]]
Authority: 30 U.S.C. 1201 et seq.
13. Section 762.14 is redesignated as Sec. 762.15 and a new
Sec. 762.14 is added to read as follows:
Sec. 762.14 Applicability to lands designated as unsuitable by
Congress.
Pursuant to appropriate petitions, lands listed in Sec. 761.11 of
this chapter are subject to designation as unsuitable for all or
certain types of surface coal mining operations under this part and
parts 764 and 769 of this chapter.
PART 772--REQUIREMENTS FOR COAL EXPLORATION
14. The authority citation for part 772 is revised to read as
follows:
Authority: 30 U.S.C. 1201 et seq. and 16 U.S.C. 470 et seq.
15. Section 772.10 is revised to read as follows:
Sec. 772.10 Information collection.
(a) In accordance with 44 U.S.C. 3501 et seq., the Office of
Management and Budget (OMB) has approved the information collection and
recordkeeping requirements of this part. The OMB clearance number is
1029-0112. OSM and State regulatory authorities use the information
collected under this part to maintain knowledge of coal exploration
activities, evaluate the need for an exploration permit, and ensure
that exploration activities comply with the environmental protection,
public participation, and reclamation requirements of parts 772 and 815
of this chapter and 30 U.S.C. 1262. Persons seeking to conduct coal
exploration must respond to obtain a benefit.
(b) OSM estimates that the combined public reporting and
recordkeeping burden for all respondents under this part will average
11 hours per notice or application submitted, including time spent
reviewing instructions, searching existing data sources, gathering and
maintaining the data needed, and completing and reviewing the
collection of information. Specifically, OSM estimates that preparation
of a notice of intent to explore under Sec. 772.11 will require an
average of 10 hours per notice, preparation and processing of an
application for coal exploration under Sec. 772.12 will require an
average of 103 hours per application, compliance with Sec. 772.14 will
require an average of 18 hours per application, and recordkeeping and
information collection under Sec. 772.15 will require an average of
approximately 1 hour per response. Send comments regarding this burden
estimate or any other aspect of these information collection
requirements, including suggestions for reducing the burden, to the
Office of Surface Mining Reclamation and Enforcement, Information
Collection Clearance Officer, 1951 Constitution Avenue, N.W.,
Washington, DC 20240; and the Office of Management and Budget, Office
of Information and Regulatory Affairs, Attention: Interior Desk
Officer, 725 17th Street, N.W., Washington, DC 20503. Please refer to
OMB Control Number 1029-0112 in any correspondence.
16. Section 772.12 is amended by revising the section heading,
adding paragraph (b)(14), revising paragraphs (d)(2)(ii) and
(d)(2)(iii), and adding paragraph (d)(2)(iv) to read as follows:
Sec. 772.12 Permit requirements for exploration that will remove more
than 250 tons of coal or that will occur on lands designated as
unsuitable for surface coal mining operations.
* * * * *
(b) * * *
(14) For any lands listed in Sec. 761.11 of this chapter, a
demonstration that, to the extent technologically and economically
feasible, the proposed exploration activities have been designed to
minimize interference with the values for which those lands were
designated as unsuitable for surface coal mining operations. The
application must include documentation of consultation with the owner
of the feature causing the land to come under the protection of
Sec. 761.11 of this chapter, and, when applicable, with the agency with
primary jurisdiction over the feature with respect to the values that
caused the land to come under the protection of Sec. 761.11 of this
chapter.
* * * * *
(d) * * *
(2) * * *
(ii) Not jeopardize the continued existence of an endangered or
threatened species listed pursuant to section 4 of the Endangered
Species Act of 1973, 16 U.S.C. 1533, or result in the destruction or
adverse modification of critical habitat of those species;
(iii) Not adversely affect any cultural or historical resources
listed on the National Register of Historic Places pursuant to the
National Historic Preservation Act, 16 U.S.C. 470 et seq., unless the
proposed exploration has been approved by both the regulatory authority
and the agency with jurisdiction over the resources to be affected; and
(iv) With respect to exploration activities on any lands protected
under Sec. 761.11 of this chapter, minimize interference, to the extent
technologically and economically feasible, with the values for which
those lands were designated as unsuitable for surface coal mining
operations. Before making this finding, the regulatory authority must
provide reasonable opportunity to the owner of the feature causing the
land to come under the protection of Sec. 761.11 of this chapter, and,
when applicable, to the agency with primary jurisdiction over the
feature with respect to the values that caused the land to come under
the protection of Sec. 761.11 of this chapter, to comment on whether
the finding is appropriate.
* * * * *
PART 773--REQUIREMENTS FOR PERMITS AND PERMIT PROCESSING
17. The authority citation for Part 773 is revised to read as
follows:
Authority: 30 U.S.C. 1201 et seq., 16 U.S.C. 470 et seq., 16
U.S.C. 661 et seq., 16 U.S.C. 703 et seq., 16 U.S.C. 668a et seq.,
16 U.S.C. 469 et seq., and 16 U.S.C. 1531 et seq.
Sec. 773.13 [Amended]
18. In paragraph (a)(1)(v) of Sec. 773.13, ``Sec. 761.12(d)'' is
revised to read ``Sec. 761.14''.
19. In Sec. 773.15, paragraph (c)(3)(ii) is revised to read as
follows:
Sec. 773.15 Review of permit applications.
* * * * *
(c) * * *
(3) * * *
(ii) Not within an area designated as unsuitable for surface coal
mining operations under parts 762 and 764 or 769 of this chapter or
within an area subject to the prohibitions of Sec. 761.11 of this
chapter.
PART 778--PERMIT APPLICATIONS--MINIMUM REQUIREMENTS FOR LEGAL,
FINANCIAL, COMPLIANCE, AND RELATED INFORMATION
20. The authority citation for Part 778 is revised to read as
follows:
Authority: 30 U.S.C. 1201 et seq.
21. In Sec. 778.16, paragraph (c) is revised to read as follows:
Sec. 778.16 Status of unsuitability claims.
* * * * *
(c) An application that proposes to conduct surface coal mining
operations within 100 feet of a public road or within 300 feet of an
occupied dwelling must meet the requirements of Sec. 761.14 or
Sec. 761.15 of this chapter, respectively.
[[Page 70838]]
PART 780--SURFACE MINING PERMIT APPLICATIONS--MINIMUM REQUIREMENTS
FOR RECLAMATION AND OPERATION PLAN
22. The authority citation for part 780 is revised to read as
follows:
Authority: 30 U.S.C. 1201 et seq. and 16 U.S.C. 470 et seq.
23. In Sec. 780.31, the section heading and paragraph (a)(2) are
revised to read as follows:
Sec. 780.31 Protection of publicly owned parks and historic places.
(a) * * *
(2) If a person has valid existing rights, as determined under
Sec. 761.16 of this chapter, or if joint agency approval is to be
obtained under Sec. 761.17(d) of this chapter, to minimize adverse
impacts.
* * * * *
Sec. 780.33 [Amended]
24. In Sec. 780.33, ``30 CFR 761.12(d)'' is revised to read
``Sec. 761.14 of this chapter''.
PART 784--UNDERGROUND MINING PERMIT APPLICATIONS--MINIMUM
REQUIREMENTS FOR RECLAMATION AND OPERATION PLAN
25. The authority citation for part 784 is revised to read as
follows:
Authority: 30 U.S.C. 1201 et seq. and 16 U.S.C. 470 et seq.
26. In Sec. 784.17, the section heading and paragraph (a)(2) are
revised to read as follows:
Sec. 784.17 Protection of publicly owned parks and historic places.
(a) * * *
(2) If a person has valid existing rights, as determined under
Sec. 761.16 of this chapter, or if joint agency approval is to be
obtained under Sec. 761.17(d) of this chapter, to minimize adverse
impacts.
Sec. 784.18 [Amended]
27. In Sec. 784.18:
a. In the introductory paragraph, ``30 CFR 761.12(d)'' is revised
to read ``Sec. 761.14 of this chapter''; and
b. In paragraph (a), ``underground mining activities'' is revised
to read ``surface coal mining operations.''
[FR Doc. 99-30892 Filed 12-16-99; 8:45 am]
BILLING CODE 4310-05-p
