COALEX REPORT 307

	Coalex Report 307

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 - 307
November, 1994

Ted Biggs, Esquire
Department of Natural Resources
Indiana Government Center South
402 West Washington Street
Suite 295
Indianapolis, Indiana 46204

TOPIC: DEFINITION OF "OCCUPIED DWELLING"; ADJUDICATION OF PROPERTY RIGHTS (Includes
COALEX Reports Nos. 72 & 288)

INQUIRY: Is a 30-foot trailer on wheels which is used occasionally and is not hooked up to any
utilities considered an "occupied dwelling"? What is the state regulatory authority's responsibility
when the operator owns the land on which the trailer sits but the ownership of the trailer itself is in
dispute? 

SEARCH RESULTS: Using COALEX, LEXIS and existing COALEX Reports a number of relevant items
were identified. These include a regulatory history of the definition of "occupied dwelling", a
number of Interior administrative decisions ruling on whether or not certain structures were
"occupied dwellings" and administrative decisions from prior COALEX Reports discussing the issue
of property rights. However, none of materials identified has a fact situation close to the subject of
this Report. Items listed below are attached.

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

I. DEFINITION OF "OCCUPIED DWELLING"
REGULATORY HISTORY
COALEX STATE INQUIRY REPORT - 72, "Occupied dwellings" (1986).
  Included in this Report are the regulatory history of the definition of "occupied dwelling" from
Federal Register preambles to federal regulations and definitions of the phrase from several state
programs. The Report is supplemented by additional federal state regulatory items. 

  In the March 13, 1979 permanent program regulations, "occupied dwelling" was defined as "any
building that is currently being used on a regular or temporary basis for human habitation",
including conventionally built homes and mobile homes with full-time and part-time occupancy.

  The June 10, 1982 proposed revisions would have defined "temporary" to mean use "for not less
than three consecutive months each year." However, in the September 14, 1983 final rules, the
original definition was retained since OSM believed it provided enough flexibility to deal with the
issue of what constitutes an occupied dwelling on a case-by-case basis.

  [See the Report and attachments for further detail.]


INTERIOR ADMINISTRATIVE DECISIONS
RONALD W. JOHNSON, 5 IBSMA 19, IBSMA 80-86-1 (1983). RONALD W. JOHNSON, 5 IBSMA 19,
IBSMA 80-86 (1981).
  The Board affirmed that Peabody had VER to conduct surface mining within 300 feet of two
occupied dwellings (mobile homes) owned by Johnson.


GATEWAY COAL CO. v OSM, STOUT, INTERVENOR, 118 IBLA 129, IBLA 89-158 (1991).
  The Board found that Stout's home, from which she operated a full-time antiques business, fell
"within the scope of the regulatory definition" of "occupied dwelling".


A.L. PHIPPS v OSM AND AM-LE-CO, Inc. AND NEW BIG CREEK MINING CO., Docket No. NX 4-39-R
(1986).
  Included as an exhibit to this ruling on an award of costs and expenses is the ALJ's ruling that
OSM failed to include a second house in its NOV issued for mining within 300 feet of an occupied
dwelling and ordered the NOV modified. The ALJ concluded that the second house was an
occupied dwelling even though no one was living in the house at the time the active mining took
place.


BROOKS RUN COAL CO. v OSM, JUNE MACKEY, INTERVENOR, Docket Nos. CH 0-244-R & CH 1-21-P (1981). BROOKS RUN COAL CO. v OSM, JUNE MACKEY, INTERVENOR, Docket Nos. CH 0-244-R
(1980).
  A hunting cabin used occasionally during the hunting season and on occasional weekends, which
was not the "usual and ordinary place of abode" of the Intervenor or her father, was not ruled to
be an occupied dwelling.


GREEN COAL CO. v OSM, Docket No. NX 9-112-R (1980).
  A home located within 1000 feet of a blast site, which had been unoccupied at the time a pre-blast survey was conducted but occupied at the time of the blast, was ruled to be an occupied
dwelling.


II. ADJUDICATION OF PROPERTY RIGHTS
COALEX STATE INQUIRY REPORT - 288, "Right of entry on navigable waterway" (1994).  
  Adjudication of property rights and right of entry were issues researched as part of this Report.
Relevant Interior and Pennsylvania administrative decisions and Federal Register preambles from
Report - 288 are attached.


COALEX STATE COMPARISON REPORT - 164, "Right of entry information in permit applications"
(1990). 
  Included as part of Report - 288, Report - 164 is also enclosed, without attachments.


ATTACHMENTS
1.   COALEX STATE INQUIRY REPORT - 72, "Occupied dwellings" (1986).
2.   44 FR 14902 (MARCH 13, 1979). Final rules. 
     30 CFR Section 761.5 Definitions. Occupied dwelling. 
     30 CFR Section 817.123. Deleted section re: premining           survey.
3.   47 FR 25278 (JUNE 10, 1982). Proposed rules. Lands unsuitable. Definition of occupied
     dwelling.
4.   47 FR 16152 (APRIL 14, 1982). Proposed rule. Postmining land uses and variances from
     AOC.
5.   48 FR 41312 (SEPTEMBER 14, 1983). Final rules. Lands unsuitable. Definition of occupied
     dwelling.
6.   Excerpts from comments on state program definitions of "occupied dwelling":
       Georgia (1980)
       Kentucky (1980)
       West Virginia (1981)
       Illinois (1982)
       Multi-state (1982)
7.   RONALD W. JOHNSON, 5 IBSMA 19, IBSMA 80-86-1 (1983). 
8.   RONALD W. JOHNSON, 5 IBSMA 19, IBSMA 80-86 (1981).
9.   GATEWAY COAL CO. v OSM, STOUT, INTERVENOR, 118 IBLA 129, IBLA 89-158 (1991).
10.  A.L. PHIPPS v OSM AND AM-LE-CO, INC. AND NEW BIG CREEK MINING CO., Docket No.
     NX 4-39-R (1986).
11.  BROOKS RUN COAL CO. v OSM, JUNE MACKEY, INTERVENOR, Docket Nos. CH 0-244-R &
     CH 1-21-P (1981). 
12.  BROOKS RUN COAL CO. v OSM, JUNE MACKEY, INTERVENOR, Docket Nos. CH 0-244-R
     (1980).
13.  GREEN COAL CO. v OSM, Docket No. NX 9-112-R (1980).
14.  COALEX STATE INQUIRY REPORT - 288, "Right of entry on navigable waterway" (1994).  
     A.   PAUL F. KUHN, 120 IBLA, IBLA 89-539 (1991).
     B.   MARION A. TAYLOR, 125 IBLA 271, IBLA 92-184 (1993).
     C.   LYDIA DEMSKI v OSM, Docket No. NX 92-2-PR (1993).
     D.   TURNER BROS., INC. v OSM, 92 IBLA 381, IBLA 85-529 (1986).
     E.   GEORGE M. LUCCHINO v PADER, EHB Docket No. 91-117-MJ, 1994 Pa Envirn LEXIS
          11 (1994).
     F.   CRONER, INC. AND POPOVICK v PADER, EHB Docket No. 91-460-E, 1993 Pa Envirn
          LEXIS 35 (1993).
     G.   EMPIRE COAL MINING AND DEVELOPMENT, INC. v PADER, 615 A 2d 829 (Pa
          Commw Ct 1992). 
     H.   EMPIRE COAL MINING AND DEVELOPMENT, INC. v PADER, DOCKET No. 91-115-MR, 1992 Pa Envirn LEXIS 8 (1992).
     I.   MACKEY, ET AL. v PADER, EHB Docket No. 86-078-G, 1988 Pa Envirn LEXIS 24
          (1988).
     GG.  48 FR 44344 (SEPTEMBER 28, 1983). Final rule. Permitting - Related information
          requirements of applications.
     HH.  44 FR 14902 (MARCH 13, 1979). Permanent program final preamble - Final rule.
          Part 778 Permitting - Related information requirements of applications.
     II.  COALEX STATE COMPARISON REPORT - 164, "Right of entry information in permit
          applications" (1990). [Enclosed without attachments.]


Research conducted by: Joyce Zweben Scall

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