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 - 290
Ted Biggs, Esquire
Department of Natural Resources
Division of Reclamation
402 W. Washington Street
Indianapolis, Indiana 46204
TOPIC:DEFINITION OF "HIGHER AND BETTER USE"
INQUIRY: A mine operator, who is also the landowner, desires to change a sites' post-mining land use from cropland to pastureland, claiming it is a "higher and better use" of the land. Is there any material defines "higher and better use" or provides a hierarchy of uses?
SEARCH RESULTS: Using the COALEX Library and LEXIS, some SMCRA legislative history and regulatory information was retrieved that discusses post-mining land use in general, as well as variances from pre-mining land use. These findings are discussed below. Copies of the materials are attached. Also included are several Interior administrative decisions that address some aspect of alternative post-mining land use.
LEGISLATIVE HISTORY MATERIALS
Discussions on post-mining land use printed in the Congressional Record, presentations made at congressional hearings, and committee reports on proposed bills from 1974 through 1977 indicated the following:
PREAMBLES TO FINAL RULES
Permanent Program Final Rules. 44 FR 14902 (MARCH 13, 1979).
Section 701.5 Definition of "land use". These rules provide basic categories for post-mining land use plus (limited) variance determinations to provide some flexibility while controlling land use decisions. "Higher or better land use" will be determined on a site-by-site basis by the individual landowner or manager and regulatory authority. Cropland, pastureland and grazingland are all viable agricultural land uses.
Section 785 Prime farmland. There is less flexibility here in post-mining land use. Land use must remain agricultural and must provide equal or higher production to pre-mining production.
Section 816.133 Post-mining land use. Proposed post-mining land use must be reasonable, feasible and be "planned in accordance with the particular needs of the area". The land use must maintain or enhance "the potential utility of land for a variety of purposes, ensure consistency in land use decisions" and provide sufficient flexibility to the operator and the regulatory authority and be approved by the landowner.
Section 824 Mountaintop removal.
Also see these attached Federal Register preambles to final rules:
INTERIOR ADMINISTRATIVE DECISIONS
BANNOCK COAL CO. v OSM, 93 IBLA 225 IBLA 85-156 (1986). BANNOCK COAL CO. v OSM, Docket Nos. CH 4 27-R, CH 4-28 R, CH 5-1-P, CH 5-2-P (1984).
The post-mining use of the permitted prime farmland was listed as "pastureland". Bannock was required to provide crop yield data showing compliance with state and federal regulations. The regulations require restoration and reclamation of all prime farmland areas to equivalent levels of yields of non-mined land of the same soil type in the area. [Implied: crop land is a higher use than pastureland.]
IN THE MATTER OF WILLIAM H. PULLEN, JR., IBLA 88-452 (1992).
The Pullens, landowners of the permitted site, objected to Phase I bond release and permit revisions that changed the intended post-mining land use from pasture to forest in certain areas. The Board quoted the OSM Hearing Officer who had inspected the sites and "believed that the use of some of the land as forest was compatible with the pasture lands, and was perhaps even a higher use of the land."
DAVID EXCAVATING CO., INC. v OSM, Docket Nos. IN 1-23-R, IN 1-7-P, IN 1-11-P, IN 1-12-P, IN 1-13-P (1983).
David Excavating never followed through on their stated goal "of changing the post-mining land use from pasture and hay either to pasture and hay with impoundments or to residential and thereby precluding the necessity of grading to eliminate highwalls". The permittee remained responsible for reclamation requirements and was subject to the assessed penalty.
DENNIS ZACCAGNINI, 96 IBLA 97, IBLA 85-762 (1987).
The Board found that the permitted area met the requirements of return to AOC: it blended into the surrounding terrain with a surface configuration capable of supporting the proposed post-mining land use (pasture/grazing) and, conceivably, higher or better land uses."
TURNER BROS., INC. v OSM, 101 IBLA 84, IBLA 85-440 (1988).
In a footnote, the Board reported that TBI had applied for a revision in post-mining land use from natural pasture to wildlife habitat, in accordance with the wishes of the landowner.
Research conducted by: Joyce Zweben Scall