OFFICE OF SURFACE MINING RECLAMATION AND ENFORCEMENT
Library of COALEX Research Reports
COALEX Research Reports are the products of research and analysis conducted on specific issues relating to the regulation of Surface Mining Control and Reclamation Act of 1977. The research is conducted in response to requests for information from State Regulatory Authorities, under a cooperative agreement between the Office of Surface Mining (OSM) and the Interstate Mining Compact Commission (IMCC).
COALEX refers to the Library of Surface Mining Materials maintained by OSM in LEXIS-NEXIS and is a major source for the research.
Each Report includes a list of resources which were sent as attachments to the individual who requested the research. To obtain a copy of the attachments or to obtain any additional information, contact Joyce Zweben Scall by phone at 202-686-9138 or by email at JZScall@aol.com.
COALEX STATE INQUIRY REPORT - 213
Robert J. Karl
Assistant Attorney General
Department of Natural Resources
Division of Reclamation
1855 Fountain Square
Columbus, Ohio 43224
TOPIC: LANDS UNSUITABLE; VALID EXISTING RIGHTS; TAKINGS (Includes COALEX Reports 139, 155, 156 and 189)
INQUIRY: Without considering additional briefings or testimony, the Court of Appeals added 830 acres to an area petitioned to be designated unsuitable for mining (the suit requested 15 acres be added). The court remanded the case for a new decision which would take into consideration the "future use" of the aquifer. I am interested in information on the following topics:
SEARCH RESULTS: The COALEX Library and other materials available in LEXIS were used to update the relevant topics and locate the requested documents. Items retrieved as a result of the research are discussed below. Copies are attached, as indicated.
I. RENEWABLE RESOURCE LANDS/AQUIFERS
A. COALEX STATE INQUIRY REPORT - 156, "Lands unsuitable for mining: definition of 'renewable resource' and 'fragile or historic lands'" (1990).
This Report provides a regulatory history of the terms indicated above; information on water supply and replacement; and sole-source aquifers.
B. VILLAGE OF PLEASANT CITY v DIV.OF RECLAMATION, 1991 Ohio App LEXIS 2198 (Ohio Ct App April 7, 1992).
The court reversed the finding of the Reclamation Board of Review and remanded the matter "to the Chief with instructions to modify his decision so that additional areas would be declared unsuitable for mining." The Village allegation that "mining could result in a substantial loss or reduction of long-range productivity of water supply, aquifers and aquifer recharge areas" was upheld.
NOTE: This is an update to a case listed in COALEX REPORT - 156.
C. Also see PENN CENTRAL CORP. v OHIO DEPT. OF NATURAL RESOURCES (DNR), Case No. C-2-90-208, slip op. (SD Ohio December 18, 1990).
Penn Central attempted to obtain compensation for DNR'S and the Village of Pleasant City's alleged taking of its property by designation of part of the property as unsuitable for mining. The motions were dismissed by the court on the grounds that Penn Central had failed to exhaust administrative remedies.
II. VER; CONTINUALLY CREATED VER
D. See JOURNAL OF MINERAL LAW & POLICY, Vol. 5, No. 3 (1989-90). "Symposium on Valid Existing Rights".
Compilation of papers presented at DOI symposium April 3-4, 1990. [Journal not attached.]
E. COALEX STATE INQUIRY REPORT - 139, "Valid existing rights" (1990).
This Report provides an overview of the history of the rule defining VER under 30 CFR 761.5 and includes Pennsylvania and Interior administrative decisions and state case law.
COALEX STATE INQUIRY REPORT - 13, "Valid existing rights" (1984) is included as part of Report 139. This Report, included as part of Report 139, provides information on the legislative intent of VER.
F. COALEX STATE INQUIRY REPORT - 155, "Lands unsuitable for mining and valid existing rights in a severed mineral situation" (1990).
This Report provides case law relates VER to the right to mine within 300 feet of an occupied dwelling.
G. OSM TEMPORARY DIRECTIVE, Subject No. 90-03, Transmittal No. 587, "Interim procedures for determination of valid existing rights" (Issued November 30, 1989).[Incorporates Directive No. 91-2 (December 11, 1990)]
1. Definitions. "b. VER Standard. The basis on which a determination of VER will be made. Standards are described as they are set forth in OSM's regulations. When a State's VER standard is applicable, the language of the approved State regulatory program VER standard will govern. Depending on the circumstances, one of the following VER standards will be applied:"
"(1) 'Continually Created' VER
(2) 'Good Faith/All Permits' VER
(3) Haul Road VER
(4) 'Needed for and Adjacent to' VER
(5) 'Takings' VER"
H. Also see OSM TEMPORARY DIRECTIVE, Subject No. 88-1, Transmittal No. 419, "Interim procedures for determination of valid existing rights" (Issued January 25, 1988).
I. BELVILLE MINING CO. v UNITED STATES, 763 F Supp 1411 (S.D. Ohio 1991).
The court found that under various deeds of severance, Belville Mining had the right to surface mine three of four tracts of land in the Wayne National Forest in Ohio.
J. Also see BELVILLE MINING CO. v LUJAN, 1991 U.S. Dist. LEXIS 12821 (S.D. Ohio 1991).
The court ordered OSM to begin proceedings to promulgate a final rule defining VER; enjoined OSM from applying a November, 1986 Federal Register notice that announced OSM's intention to use state program definitions of VER pending further rulemaking; and directed OSM to begin proceedings to disapprove state program definitions of VER that adopted the "all permits" test.
K. THE STEARNS CO., 110 IBLA 345, IBLA 87-262 (1989).
The Board found "that appellant had not shown valid existing rights to engage in surface coal mining operations on land within the Daniel Boone National Forest". Stearns acknowledged not having applied for all necessary permits to mine as of August 3, 1977, the enactment of SMCRA.
III. REGULATORY HISTORY: STATE AND FEDERAL PROCESSES FOR DESIGNATING LANDS UNSUITABLE FOR MINING (30 CFR Parts 764 and 769)
This is the list of Federal Register preambles and federal cases in which the processes for designating lands unsuitable for surface coal mining are discussed. Some of these notices overlap the VER notices listed in REPORT No. 139. Copies of the notices are attached, as indicated.
L. 44 FR 14902 (MARCH 13, 1979). Permanent program preamble - final rule.
M. 44 FR 77440 (DECEMBER 31, 1979). Final rule. Reclamation operations.
N. 47 FR 25278 (JUNE 10, 1982). Proposed rule. Areas unsuitable for surface coal mining: Areas designated by Act of Congress; Criteria for designating areas; State processes for designating areas; Designating lands as unsuitable. [Excerpts in REPORT No. 139]
O. 48 FR 41312 (SEPTEMBER 14, 1983). Final rule. Areas unsuitable for surface coal mining: Areas designated by Act of Congress; Criteria for designating areas; State processes for designating areas ; Designating lands as unsuitable. [Excerpts included in REPORT No. 139.]
P. IN RE: PERMANENT SURFACE MINING REGULATION LITIGATION, (D.C. D.C. July 15, 1985).
The court upheld the Secretary's petition process, however, certain portions of the rule were remanded. [Included in REPORT - 156]
Q. 51 FR 41952 (NOVEMBER 20, 1986) Compliance with court order. Suspension of processing unsuitability petitions. [Entire notice included in REPORT No. 139.]
R. 52 FR 21904 (JUNE 9, 1987). Proposed rule. Designating lands unsuitable.
S. 52 FR 49322 (DECEMBER 30, 1987). Final rule. Designating lands unsuitable.
T. 52 FR 30557 (JULY 21, 1989). Withdrawal of proposed rule. Areas unsuitable for mining; Areas designated by Act of Congress. [Included in REPORT 139]
U. 56 FR 33152 (JULY 18, 1991). Proposed rule. Areas unsuitable for mining; Areas designated by Act of Congress.
V. 56 FR 65612 (DECEMBER 17, 1991). Final rule. Areas unsuitable for mining. [Excerpt]
Listed here are the Federal Register notices regarding petitions for designation of lands as unsuitable for surface coal mining operations. The materials are organized by petition area; relevant case law has also been included. Copies of these notices and decisions are attached, unless noted otherwise.
W. COLORADO: Adams County.
The Secretary for Lands and Minerals Management decided to designate certain lands adjacent to the Front Range Airport unsuitable for mining. The petition area is part of the safety zone for the Front Range Airport.
X. MONTANA: Southeastern area near the Tongue River.
The petitions alleged that surface coal mining on lands near the Tongue River would harm the water quality of the River and the ground water, and that soil conditions would make reclamation technically and economically infeasible.
Y. NORTH CAROLINA: Deep River Basin
The petition was returned because the allegations lacked serious merit. One of the allegations stated that mining could result in substantial pollution of the water supply.
Z. TENNESSEE: Flat Fork Creek watershed.
The IBLA ruled that "final unsuitability designations made under the Tennessee State program shall remain valid unless and until terminated." The Tennessee Department of Health and Environment had designated Flat Fork as unsuitable for mining at about the time the federal program for Tennessee became effective. The petition alleged, among other things, that mining could result in substantial loss or reduction of the water supply and that mining would be incompatible with land-use plans. All parts of the petition area were designated unsuitable; however, continued use of the existing haulage road through the petition areas was allowed.
AA. TENNESSEE: North Chichamauga Creek watershed.
The petition alleged that the area was incompatible with land-use plans, would affect fragile and historic lands, could result in substantial loss or reduction of long-range productivity of water supply, etc. OSM decided not to designate any part of the petition area unsuitable for surface coal mining.
BB. TENNESSEE: Rock Creek watershed.
The petition area was designated as "unsuitable for surface coal mining and surface disturbance incident to underground mining." The petition alleged that lands within the area were fragile lands, operations would adversely affect renewable resource lands, etc.
CC. TEXAS: Camp Swift Military Reservation, Bastrop County.
The Court of Appeals upheld the district court's decision and OSM's determination that the area not be designated as unsuitable for surface coal mining. The court rejected the petitioner's challenge "that the Secretary acted arbitrarily and capriciously in his decision by failing to adequately consider the 'economic feasibility' of reclamation of the Camp Swift area."
*NOTE: Case sites several law journal and review articles which may be of interest. These are not included here.
DD. UTAH: Southern Utah near Bryce Canyon National Park.
Petitioners raised these issues: air quality, visibility, noise, deep ground water, reclamability, blasting effects and impacts on the local economy.
EE. UTAH: Kane County.
"The Director made a decision not to grant the determination of substantial legal and financial commitments."
FF. WASHINGTON: Black Diamond and John Henry Mine No. 1.
Part of the "curtailed petition area" was designated as unsuitable for mining, other portions were not so designated. The John Henry Mine area was part of the petition was not processes because mine No. 1 that area was permitted prior to receipt of the petition. The petitioners alleged mining in the area would be unsuitable on natural-hazard lands, on fragile lands and in close proximity to population.
GG. WEST VIRGINIA: Monongahela National Forest.
The Director's preliminary findings indicated that the Mower Lumber Company had VER to conduct underground mining operations on federal land in the Forest.
HH. WYOMING: Medicine Bow.
OSM rejected a petition for designation of lands as unsuitable for surface mining, finding that "no new evidence was presented in the petition that was not considered by BLM in their...unsuitability review".
II. WYOMING: Red Rim coal lease tract.
OSM and the Wyoming Department of Environmental Quality jointly prepared an Evaluation Document/EIS on the suitability of surface coal mining in the Red Rim area. OSM determined that lands within the petition area were fragile lands which surface mining would affect, but OSM declined to designate the area as unsuitable for mining, opting to set permit conditions for mining instead.
JJ. COALEX STATE INQUIRY REPORT - 189, "Subsidence and public land use; takings" (1991).
This REPORT provides information on general "takings" law and SMCRA-related law from Annotations and case law.
KK. BOARD OF SUPERVISORS OF SHENANGO TWP. v MCCLIMANS, 597 A2d 738 (Pa Commw Ct 1991).
The court affirmed prior rulings which found that the Shenango Township zoning ordinance prevented Amerikohl Land Company (landowner and lessee) from gaining access to their coal effecting a taking of the property without just compensation.
LL. GARDNER, et al. v COMMONWEALTH OF PENN., DEPT. OF ENVIRONMENTAL RESOURCES, 603 A 2d 279 (Pa Commw Ct January 31, 1992).
The Commonwealth Court affirmed the trial court's findings that the "landowners' de facto taking claim was not ripe because an administrative remedy was 'arguably' available."
Attached for the record is this decision sent by Robert Karl:
MM. EAST OHIO GAS CO. (EOG) v DIV. OF RECLAMATION AND OHIO VALLEY COAL CO., Reclamation Board of Review Case No. RBR-5-91-072 (March 19, 1992).
The Board concluded that EOG's pipelines which crossed an area permitted for longwall mining were "privately owned structures, which [were] privately used to transport gas for sale.... [T]hey are simply not of a public character." The Board also found that the Subsidence Control Plan provided for "planned, predictable and controlled" subsidence above the "development area" and adequate protection against imminent harm to the public.
NOTE: Gaps in the lettering scheme indicate that a particular document, according to the indication above, is either not attached or is part of one of the enclosed Reports.
Research conducted by: Joyce Zweben Scall