[Federal Register Volume 61, Number 42 (Friday, March 1, 1996)]
[Notices]
[Pages 8074-8075]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-4799]



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DEPARTMENT OF THE INTERIOR

Request for Determination of Valid Existing Rights Within the 
Wayne National Forest

AGENCY: Office of Surface Mining Reclamation and Enforcement, Interior.

ACTION: Notice of request for determination and invitation for 
interested persons to participate.

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SUMMARY: The Office of Surface Mining Reclamation and Enforcement (OSM) 
has received a request for a determination that Buckingham Coal Co., 
Inc. (the requester) has valid existing rights (VER) pursuant to 
section 522(e) of the Surface Mining Control and Reclamation Act of 
1977 (SMCRA) to mine coal by surface methods on 25.2 acres of Federal 
land within the Wayne National Forest in Perry County, Ohio. By this 
notice, OSM is inviting interested persons to participate in the 
proceeding and to submit relevant factual information on the matter.

DATES: OSM will accept written comments on this request until 5:00 p.m. 
local time on April 15, 1996.

ADDRESSES: Mail or hand deliver written comments to the Office of 
Surface Mining Reclamation and Enforcement, Appalachian Regional 
Coordinating Center, Room 218, Three Parkway Center, Pittsburgh, PA 
15220.
    The Administrative Record for this request is available for review 
at both the address above and OSM's Columbus Office, Eastland 
Professional Plaza, 4480 Refugee Road, Suite 201, Columbus, Ohio 43232 
during normal business hours, Monday through Friday, excluding 
holidays.

FOR FURTHER INFORMATION CONTACT:
Peter Michael, Office of Surface Mining Reclamation and Enforcement, 
Appalachian Regional Coordinating Center, Room 218, Three Parkway 
Center, Pittsburgh, PA 15220. Telephone: (412) 937-2867.

SUPPLEMENTARY INFORMATION:

I. Background on VER Requirements for National Forest Lands

    Section 522(e) of SMCRA (30 U.S.C. 1272(e)) prohibits surface coal 
mining operations on certain lands unless a person has VER to conduct 
such operations or unless the operation was in existence on August 3, 
1977. Section 522(e)(2) applies the prohibition to Federal lands within 
the boundaries of any national forest unless the Secretary of the 
Interior finds that there are no significant recreational, timber, 
economic, or other values that may be incompatible with surface coal 
mining operations and the surface operations 

[[Page 8075]]
and impacts are incident to an underground coal mine.
    Under section 523 of the Act and 30 CFR 740.11, the approved State 
program (including the State definition of VER) applies to all Federal 
lands within States with approved regulatory programs. However, under 
30 CFR 745.13, the Secretary has exclusive authority to determine VER 
for surface coal mining and reclamation operations on Federal lands 
within the boundaries of the areas specified in paragraphs (e)(1) and 
(e)(2) of section 522 of the Act. OSM reaffirmed these basic principles 
in the preamble to the suspension notice concerning VER published on 
November 20, 1986 (51 FR 41954) with the caveat that, in States with an 
all-permits standard for VER, OSM would apply the standard as if it 
contained a good-faith component.
    Ohio represents a special case in that OSM is not restricted to use 
of the State program definition of VER. In situations in which 
application of the State definition would result in a denial of 
permission to conduct surface coal mining operations, OSM may rely on a 
takings standard, in accordance with Belville Mining Co. v. Lujan, No. 
C-1-89-790 (S.D. Ohio 1991), Mot. for recons. granted, Sept. 18, 1992. 
In other words, OSM may find that a person has VER if application of 
the prohibitions of section 522(e) of the Act would result in a 
compensable taking under the Fifth and Fourteenth Amendments to the 
U.S. Constitution.

II. Request for VER Determination

    By letter dated August 14, 1995, James F. Graham of Buckingham Coal 
Company, Inc. requested that OSM determine whether he has VER to remove 
the No. 6 coal seam, using block cut, contour, and area mining methods, 
from 25.2 acres located within the Wayne National Forest in Perry 
County, Ohio. The requester alleges that he is the lessee of all coal 
underlying this tract. The United States of America purchased the 
surface rights from Daniel C. Jenkins, Jr. and other interested parties 
on April 24, 1967, and from Edward G. Blaire on May 1, 1967. The land 
is currently managed by the U.S. Department of Agriculture as part of 
the Wayne National Forest.
    The property extends from north to south along an ephemeral 
tributary of Pine Run and is about 1.8 miles northeast of the city of 
Shawnee, Ohio. Its southern limit is adjacent to County Route 43. The 
center of the property lies on the boundary between Sections 11 and 14 
on the New Straightsville, Ohio USGS Quadrangle. Its southern limit is 
adjacent to County Route 43.
    OSM invites interested persons to provide factual information as to 
whether the requester has the property right to mine by the proposed 
methods. OSM also solicits comment on whether the request meets the VER 
criteria of the approved Ohio program, as defined in OAC 1501:13-1-02 
of the Ohio Administrative Code; or whether application of the 
prohibitions in section 522(e)(2) of SMCRA or OAC 1501:13-3-03 of the 
Ohio Administrative Code would constitute a compensable taking of 
property under the Fifth and Fourteenth Amendments to the U.S. 
Constitution.
    If OSM determines that the requester has VER, he may apply for a 
permit from the Ohio Department of Natural Resources, which, if 
granted, would authorize surface coal mining operations on the property 
in question. If OSM determines that the requester does not have VER, no 
permits may be issued for surface coal mining operations. However, the 
lack of VER would not prohibit issuance of a permit for underground 
coal mining operations, provided the Secretary determines that such 
operations are compatible with the recreational, timber, economic, and 
other values associated with this property.

    Dated: February 7, 1996.
Ron Recker,
Acting Regional Director, Appalachian Regional Coordinating Center.
[FR Doc. 96-4799 Filed 2-29-96; 8:45 am]
BILLING CODE 4310-05-M