COALEX REPORT 250

	Coalex Report 250

This is the Office of Surface Mining's library of COALEX Research Reports. COALEX is a database of mining and reclamation information, including the Surface Mining Law and regulations, maintained in LEXIS-NEXIS -- a commercial, on-line research service. These reports have been compiled under a cooperative agreement between the Office of Surface Mining and the Interstate Mining Compact Commission, which represents most U.S. coal producing states. The following report includes an analysis of a specific issue requested by a state regulatory authority with responsibility for carrying out the Surface Mining Law. Copies of the research reports and attachments are available to the public, upon request. For additional information, or to obtain copies of the listed attachments, contact Ron Tarquinio by phone at (202) 208-2882 or by e-mail at rtarquin@osmre.gov.

                   
COALEX State Inquiry Report - 250
March, 1993

Michael Sponsler, Director
Division of Reclamation
Department of Natural Resources
P.O. Box 147; 210 W. Main Street
Jasonville, Indiana 47438
 
TOPIC: VER: RIGHTS-OF-WAY OR EASEMENTS FOR RAILROADS 
(Updates COALEX Report No. 149)

INQUIRY: An operator claims VER for an existing right-of-way, which, on August 3, 1977, was for a
railroad. After 1977, the tracks were removed and power poles erected on the raised bed. An
access road, used to maintain the poles, was built on the raised bed. Does the access road qualify
for VER? Please locate any materials that address this issue.

SEARCH RESULTS: Research was conducted using the COALEX Library, other materials in LEXIS
and prior COALEX State Inquiry Reports. No materials were identified that address the specific
issue of this Report. Only one case with some relevance was retrieved; this West Virginia decision
is attached. An existing COALEX Report on haul roads and VER which includes preambles to
Federal Register notices is attached along with some updating material. The Report and the
updating material are enclosed to provide general information on the issue of VER.

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

CHURNETTE v CALLAGHAN, 425 SE 2d 170 (W Va 1992).
   The issue of this case was whether a private road in existence prior to August 3, 1977 qualified
for the VER exception under West Virginia statutes and regulations. After analyzing what
constitutes VER for haul roads, the court held that the road in question did qualify for the VER
exception. 


COALEX STATE INQUIRY REPORT - 149, "Haul Roads and Valid Existing Rights" (1990).
   This inquiry requested materials on the hauling of coal on roads in existence prior to August 3,
1977. The only relevant material identified was regulatory-related: preambles to federal
regulations, an OSM Directive and a district court case that ruled on the federal regulations.

   This Report is updated by a more current OSM Directive on VER and a 1991 preamble to the
federal proposed rule published in the Federal Register.  See the ATTACHMENTS list below.


ATTACHMENTS
1.   CHURNETTE V CALLAGHAN, 425 SE 2d 170 (W Va 1992).
2.   COALEX STATE INQUIRY REPORT - 149, "Haul Roads and Valid Existing Rights" (1990).
     A.   TEMPORARY DIRECTIVE: Subject No. 88-1, Transmittal No. 419, "Interim
          Procedures for Determination of Valid Existing Rights" (January 1, 1988). 
     B.   54 FR 30557 (JULY 21, 1989). Withdrawal of proposed rule.
     C.   Excerpts from 53 FR 52374 (DECEMBER 27, 1988). Proposed rules.
     D.   Excerpts from 48 FR 41312 (SEPTEMBER 14, 1983). Final rules.
     E.   Excerpts from 47 FR 25278 (JUNE 10, 1982). Proposed rules.
     F.   Excerpts from 44 FR 14902 (MARCH 13, 1979). Permanent Program Final Preamble.
     G.   55 FR 22961 (JUNE 5, 1990). Request for Determination of Valid Existing Rights
          Within the Daniel Boone National Forest, Ky.
     H.   46 FR 36758 (JULY 15, 1981). Determination of Valid Existing Rights; Daniel Boone
          National Forest.
     I.   45 FR 61798 (SEPTEMBER 17, 1980). Determination of Valid Existing Rights Within
          Monongahela National Forest.
     J.   Excerpts from NATIONAL WILDLIFE FEDERATION v LUJAN, 1990 U.S. Dist. LEXIS
          11541 (D D C August 30, 1990).
3.   OSM TEMPORARY DIRECTIVE, Subject No. 90-03, Transmittal No. 587, "Interim Procedures
     for Determination of Valid Existing Rights" (Issued 11/30/89).
4.   56 FR 33152 (JULY 18, 1991). Proposed rule. Areas designated by Act of Congress.


Research conducted by: Joyce Zweben Scall

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