COALEX State Comparison Report - 164
December 17, 1990

Kelly Grimmet, Esquire
Division of Reclamation
Department of Natural Resources
309 W. Washington Street, Suite 201
Indianapolis, Indiana 46204

TOPIC: RIGHT OF ENTRY INFORMATION IN PERMIT APPLICATIONS

INQUIRY: In the application for a mining permit, an operator listed a pending lease as the
document substantiating his right to enter and begin mining operations. The pending lease is now
in dispute. What legal documents do other states require to prove right of entry? Do other states
require proof of the right of entry for the entire permitted area or for each increment as it is
mined?

SEARCH RESULTS: Research was conducted using the COALEX Library in LEXIS. Most state
statute sections identified generally follow the language found in SMCRA Section 507(b)(9) and
510(b)(6); state regulations follow the language found in 30 CFR Section 778.15. The states
require a description of the type of document on which the legal right to enter is based to be
included along with the date of execution and "the land to which [the documents] pertain";
however, none of the state statutory and regulatory materials found in COALEX listed specific
types of documents accepted as proof of the right of entry. 

Some states refer to providing documentation for "tracts" or "lands within the permit area" where
the private mineral estate to be mined is severed from the private surface estate; however, no
materials were found which differentiate documentation requirements for the entire permitted
area versus portions or increments to be mined. One statute section (from Louisiana) was
identified which states that, with certain provisos, a permit may not be denied because right of
entry consent for a portion of the permitted area has not been finalized at the time the
application is filed. 

The research findings are discussed below. Copies of relevant sections are attached, as indicated.
 
Included with this report are these additional materials: 

     Three cases: An Interior Board of Land Appeals (IBLA) decision, the Administrative Law
     Judge (ALJ) opinion from which it was appealed, and a Montana State Supreme Court
     case which rule on right of entry questions.   

     Three IMCC Reports: These reports on subsidence issues include discussions of state right
     to mine and right of entry regulations.

     Legislative History materials: Excerpts from two congressional hearings and a report are
     included for general background information. 

     Federal Register notices: Excerpts from preambles for amendments to Illinois and
     Pennsylvania permanent programs which discuss the states' right of entry regulations.

[NOTE: State program materials in COALEX are current through mid-1989. ALSO NOTE: An
asterisk following the state name indicates that a copy of the statute or regulation section for that
state is attached.]

~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~

STATE STATUTES
   Statute sections for these states are identical or substantially similar to permit application
language found in SMCRA Section 507(b)(9), requiring "the source", "the description", or "a
statement of the legal right to enter":

     Alabama
     Colorado
     Indiana
     Louisiana
     Missouri
     New Mexico
     Texas*
     Utah
     Virginia*
     West Virginia

   North Dakota* and Ohio* statutes require that "copies of documents upon which the permit
applicant bases his legal right to enter and commence coal mining operations" must be included
with the permit application. 

   The Louisiana* statute section corresponding to SMCRA Section 510 (b)(6) [the severance of
the private mineral estate from the private surface estate] requires the applicant to provide
documentation stating legal right to enter for the "tracts within the permit area". The same
section states that a permit may not be denied if the applicant does not have the legal right to
enter "all tracts of land within the permit area" at the time the application is filed, provided (1)
that the permit area can be mined "without mining of the tracts on which the applicant does not
have the legal right to enter"; and (2) the permittee notifies the commissioner when the legal
right to enter has been obtained. 

[NOTE: State sections corresponding to SMCRA Sec. 510(b)(6) are included only when they
specifically address "right to enter" or "right of entry".]


STATE REGULATIONS
   30 CFR 778.15 Right of Entry Information applies to applications for both surface and
underground operations. Section 782.15, which applied solely to underground operations, was
removed September 28, 1983 (48 FR 44344) [Excerpt attached].

   Regulations of the following states are identical or substantially similar to the right of entry
information requirements found in Section 778.15:

     Alaska*
     Kansas     
     Virginia


   Regulations of these states are substantially similar to the federal section except that they state
that, for severed mineral estates, the application must include the required documentation "for
lands to be affected by those operations within the permit area":

     Alabama
     Arkansas
     Colorado*
     Illinois*
     Indiana*
     Iowa
     Kentucky
     Louisiana
     Maryland*
     Mississippi
     Missouri
     Montana
     New Mexico
     Ohio
     Oklahoma
     Pennsylvania*
     Texas
     Utah

   Illinois and Indiana applicants may substitute a notarized statement in place of copies of certain
documents.

 North Dakota* requires the permit application to "contain a narrative and supporting certified
copies of the appropriate documents".


ALJ AND IBLA DECISIONS
TURNER BROTHERS, INC. v OSM, Docket No. TU 4-40-R (1985).
   Turner Brothers was cited for permitting an area it did not have the right to mine: it did not list
a particular landowner in the permit package nor did it reference the fact that the right to enter
and mine that landowner's property was under negotiation. In affirming the validity of the notice
of violation (NOV), the ALJ agreed with OSM that the violation first existed when Turner Brothers
submitted its permit application and would continue until a permit revision was processed.


TURNER BROTHERS v OSM, 92 IBLA 381, IBLA 85-529 (1986).
   The Board affirmed the ALJ's decision, stating that the "appellant was correctly cited for failure
to document changes in its permit." OSM admitted it "did not consider it necessary to have a
lease to all lands in a permit application," so long as OSM was aware of the status of the lands
included in the application. Turner Brothers failed "to indicate anywhere in its permit application it
was negotiating for the right to mine part of the permit property" and then failed to delete the
property from its permit when lease negotiations failed. 


STATE CASE
WESTERN ENERGY CO. v GENIE LAND CO. AND MONTANA DEPT. OF STATE LANDS, 227 Mont
74, 737 P2d 478 (Mont 1987).
   Western Energy's coal lease provided it with the right to enter and use the surface to operate
its coal mine. Genie, citing to Montana's Owner Consent Statute which requires a waiver by the
surface owner to enter and begin mining, refused to give its consent. The court found the Owner
Consent Statute unconstitutional, concluding that "the denial of just compensation place[d] an
unreasonable burden on the mineral owners, in violation of due process."


LEGISLATIVE HISTORY
Surface Mining Control and Reclamation Act of 1997, Hearings on S. 7 before the Subcommittee
on Public Lands and Resources of the Senate Committee on Energy and Natural Resources, 95th
Cong, 1st Sess 193 (1977) (statement of Steven L. Friedman, Counsel, Pennsylvania Coal Mining
Association).
   The suggested amendment to what became SMCRA 507(b)(9) would have changed  the
highlighted phrase: "Evidence of the applicant's right to enter and commence surface mining
operations on the area affected" to "area to be bonded only".


Surface Mining Control and Reclamation Act of 1977, Hearings on HR 2 before the Subcommittee
on Energy and the Environment of the House Committee on Interior and Insular Affairs, 95th
Cong, 1st Sess 310 (1977) (statement by John C. Doyle, Jr., Environmental Policy Institute). 
   In reporting on its review of 28 state strip mining statutes, the Environmental Policy Institute
stressed the importance of written findings in the permit review process after "careful scrutiny" of
such factors as right of entry, plan of reclamation, etc. 

"The reviewing authority should also make a written finding from the permit application that the
operator has the clear legal right to mine through a surface estate to extract near-surface coal
resources, and that all legal surface-owner rights will be upheld and honored, or in the
alternative, that such rights have been clearly adjudicated by the courts before strip mining is
permitted."


Surface Mining Control and Reclamation Act of 1976, HR Rep No 95-218, 95th Cong, 1st Sess 156
(1977).
   The House Committee on Interior and Insular Affairs recommended that "in all cases a permit
applicant should demonstrate the legal right to enter and mine all portions of the area covered by
the application."


ATTACHMENTS
A.   TEXAS: Sec. 14. Contents of Permit Application. Surface Coal Mining and Reclamation Act,
     Texas Legislative Service, H B 1424 (1979).
B.   VIRGINIA: Sec. 45.1-181. Chap. 16. Permits for Certain Mining Operations. Va. Code Ann.
     (1980) and Cumulative Supplement (1979).
C.   NORTH DAKOTA: Sec. 38-14.1-14. Permit Applications. N.D. Cent. Code (1985).
D.   OHIO: Sec. 1513.07. Permits. Coal Mining and Reclamation Law [as amended by the
     115th General Assemble of the State of Ohio, Sec. 1] (1985).
E.   LOUISIANA: Sec. 910 Permit Approval or Denial. La. Surface Mining and Reclamation Act,
     tit. 30 (1980). 
F.   Excerpts from 48 FR 44344 (SEPTEMBER 28, 1983). Final Rule.
G.   ALASKA: 11 AAC 90.025 (1982). General Permit Application Information Requirements.
     Authority to Enter. [AAC = Alaska Administrative Code]
H.   COLORADO: Sec. 2.03.6. Application for Permit; Right of Entry and Operation Information.
     Rules and Regulations of the Colorado Mined Land Reclamation Board Pursuant to the
     Colorado Surface Coal Mining Reclamation Act (1982).
I.   ILLINOIS: Sec. 1778.15. Permit Applications. Right of Entry Information. Ill. Admin. Code
     tit. 62 (1986).
J.   INDIANA: Sec. 310 IAC 12-3-21 (1982). Permitting Procedures. Right of Entry and
     Operation Information. [IAC = Indiana Administrative Code]
K.   MARYLAND: Sec. 08.13.09.02. Permit Applications. General Requirements. Code of Md.
     Regs. (1985).
L.   PENNSYLVANIA: Sec. 86.64. Permits. Right of Entry. Pa. Dept. of Environmental
     Resources Coal Mining Regs. (1982).
M.   NORTH DAKOTA: Sec. 69-05.2-06-03. Permit Applications. Right of Entry and Operation
     Information. N. D. Rules Governing the Reclamation of Surface-Mined Land, as revised
     June, 1983.
N.   TURNER BORTHERS, INC. v OSM, Docket No. TU 4-40-R (1985). 
O.   TURNER BROTHERS v OSM, 92 IBLA 381, IBLA 85-529 (1986).
P.   WESTERN ENERGY CO. v GENIE LAND CO. AND MONTANA DEPT. OF STATE LANDS, 227
     Mont 74, 737 P2d 478 (Mont 1987).
Q.   Excerpts from Surface Mining Control and Reclamation Act of 1997, Hearings on S. 7
     before the Subcommittee on Public Lands and Resources of the Senate Committee on
     Energy and Natural Resources, 95th Cong, 1st Sess 193 (1977) (statement of Steven L.
     Friedman, Counsel, Pennsylvania Coal Mining Association).
R.   Excerpts from Surface Mining Control and Reclamation Act of 1977, Hearings on HR 2
     before the Subcommittee on Energy and the Environment of the House Committee on
     Interior and Insular Affairs, 95th Cong, 1st Sess 310 (1977) (statement by John C. Doyle,
     Jr., Environmental Policy Institute). 
S.   Excerpts from Surface Mining Control and Reclamation Act of 1976, HR Rep No 95-218,
     95th Cong, 1st Sess 156 (1977).
T.   COALEX STATE INQUIRY REPORT - 101, "Permit Information re. the Right to Subside"
     (1988).
U.   COALEX SIGNIFICANT ISSUE REPORT - 116, "Subsidence: An Oversight of Significant
     Issues" (1989).
V.   COALEX SIGNIFICANT ISSUE REPORT - 151, "Subsidence: An Oversight of Significant
     Issues" (1990).
W.   55 FR 6647 (FEBRUARY 26, 1990). Pa. Program Proposed Rule.
X.   52 FR 26300 (JULY 14, 1987). Pa. Program Final Rule.
Y.   53 FR 43112 (OCTOBER 25, 1988). Ill. Program Final Rule.


Research conducted by: Joyce Zweben Scall