[Federal Register Volume 62, Number 242 (Wednesday, December 17, 1997)]
[Notices]
[Pages 66126-66128]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-32850]
-----------------------------------------------------------------------
DEPARTMENT OF THE INTERIOR
Office of Surface Mining Reclamation and Enforcement
Request for Determination of Valid Existing Rights Within the
Monongahela National Forest
AGENCY: Office of Surface Mining Reclamation and Enforcement, Interior.
ACTION: Notice of decision.
-----------------------------------------------------------------------
SUMMARY: The Office of Surface Mining Reclamation and Enforcement (OSM)
has been ordered by the United States District Court for the Northern
District of West Virginia to determine whether Walter D. Helmick has
valid existing rights (VER) to surface mine coal on 1,045.3 acres of
Federal lands within the Monongahela National Forest in Pocahontas
County, West Virginia. Mr. Helmick claims to hold certain coal rights
in these lands. Ernest J. Van Gilder had previously submitted a VER
request in connection with the same property. Prior to the court order,
OSM had suspended action on a VER determination request by Mr. Van
Gilder for surface mining, on the basis that his request was
administratively incomplete due to an unresolved dispute over whether
he possessed all of the necessary property rights to mine coal by the
intended method. Since there is still an unresolved property rights
dispute as to whether the current mineral holder, Mr. Helmick, has the
necessary property right to surface mine, OSM hereby determines that
Mr. Helmick has not demonstrated VER to surface mine the coal on the
1,045.3 acres of Federal lands within the Monongahela National Forest.
FOR FURTHER INFORMATION CONTACT:
Peter R. Michael, Office of Surface Mining Reclamation and Enforcement,
Appalachian Regional Coordinating Center, Room 218, Three Parkway
Center, Pittsburgh, PA 15200, Telephone: (412) 937-2867. E-mail
address: [email protected].
SUPPLEMENTARY INFORMATION:
I. Background
A. VER Requirements on National Forest Lands
Section 522(e) of the Surface Mining Control and Reclamation Act of
1977 (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), in relevant part, 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 and impacts are incident
to an underground coal mine.
Under section 523 of the Act (``Federal Lands'') and 30 CFR 740.11,
the approval State program (including the State definition of VER)
applies to all Federal lands within States with regulatory programs
approved under section 503 of SMCRA. 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).
Subsection 2.130 of the West Virginia Surface Mining Reclamation
Regulations provides, in relevant part, that VER exists in each case in
which a person demonstrates that the limitation provided for in Section
22-3-22(d) of the West Virginia Surface Coal Mining and Reclamation Act
(the State counterpart to section 522(e) of SMCRA) would result in the
unconstitutional taking of that person's rights. OSM approved this
definition as being no less effective than the 1983 version of the
Federal definition of VER at 30 CFR 761.5. Paragraphs (a) and (d) of
the 1983 Federal definition clarify that the takings standard for VER
applies only to those property interests that existed on August 3, 1977
[paragraph (a)], or any subsequent date that the lands come under the
protection of section 522(e) of SMCRA (paragraph (d)). See also 48 FR
41313, third column (September 14, 1983). The West Virginia program
does not specifically address this issue. However, in accordance with
OSM's basis for approval of the West Virginia provision, OSM is
interpreting the West Virginia definition consistent with the 1983
Federal definition. Because the lands in question came under the
protection of section 522(e) on August 3, 1977, OSM will consider only
the property interests as they existed on that date.
In this case, the critical property interest is the coal rights
beneath certain Federal lands within the Monongahela National Forest in
the Little Levels District of Pocahontas County, West Virginia
(hereafter, Tract 574). Administrative Record No. 2.1 (hereafter,
``A.R.______''). The threshold determation OSM must make is whether Mr.
Helmick has demonstrated the property right to mine the coal. If so,
OSM must then determine whether Mr. Helmick has demonstrated, as of
1977, that he or a predecessor in interest had the property right to
surface mine the coal.
B. Factual Background
The record before OSM indicates that, in September of 1990, Walter
D. Helmick acquired from Cecil Nichols certain mineral rights in Tract
574. This tract contains 1,045.3 acres and is situated seven miles west
of Hillsboro, West Virginia, on the waters of Hills Creek and the
waters of Robbins Run, a tributary of Spring Creek. The property is
located on Briery Knob. It was mined during the 1940's surface mining
methods.\1\ The surface of this land is
[[Page 66127]]
owned by the United States of America and managed by the United States
Forest Service. (A.R. 2.352).
---------------------------------------------------------------------------
\1\ An additional property, Tract 372, was included in previous
requests for VER determinations relating to Tract 574. This parcel
is adjacent to Tract 574. However, neither the court order (A.R.
2.345) nor the materials submitted by Mr. Helmick (A.R. 2.368-2.510
and 2.516-2.523) mention or assert any interest in Tract 372. Mr.
Helmick's counsel has confirmed that this tract is no longer a
subject of this request. (A.R. 2.528).
---------------------------------------------------------------------------
One month before Mr. Helmick acquired the mineral rights, the
documents submitted by Mr. Helmick indicate he had deeded an undivided
one-half interest in those rights to Ernest J. Van Gilder. (A.R.
2.527). Mr. Van Gilder later requested a VER determination from OSM for
a surface mining operation on the property in question.\2\ (A.R.
2.317).
---------------------------------------------------------------------------
\2\ It is not clear from the record before OSM what, if any,
interest Mr. Van Gilder may have had in the property during the
pendency request, as the transfer from Mr. Helmick to Mr. Van Gilder
apparently occurred when Mr. Helmick had no documented interest in
the property. On December 4, 1997, Mr. Van Gilder quitclaimed back
to Mr. Helmick any interests ``that may have been acquired'' under
the August, 1990 deed (A.R. 2.527).
---------------------------------------------------------------------------
Five years later, in September of 1995, Mr. Helmick acquired the
remaining mineral interests in the property, by partition deed. (A.R.
2.527).
On November 17, 1989, in regard to a then-pending VER request on
Tract 574, the U.S. Department of Agriculture (USDA) Forest Service
advised OSM of the USDA Office of General Counsel's opinion that ``. .
. the owners did not reserve the right to remove the coal by surface
mining when these lands were acquired by the United States.'' (A.R.
2.260). This opinion was reaffirmed on February 6, 1991, after Mr. Van
Gilder asserted an interest in the coal and requested a VER
determination. (A.R. 2.333). On April 23, 1991, OSM informed Mr. Van
Gilder that the agency could not consider his request to be
administratively complete in light of ``. . . the unresolved difference
of opinion concerning the nature of the property rights you possess.''
(A.R. 2.337). In December 1995, Mr. Helmick filed an action in the
United States District Court for the Northern District of West
Virginia, claiming that his mineral interests had been taken without
just compensation when the Forest Service determined that Mr. Van
Gilder's interest in the tract did not include the right to conduct
surface mining. Helmick versus United States, No. 95-0115 (N.D. W. Va.)
After the Government filed a motion to dismiss for failure to state a
claim on February 15, 1996, Mr. Helmick amended his complaint by adding
the Department of the Interior as a party, by eliminating his claim of
a taking under the Tucker Act, and by substituting three new counts
seeking to review ``agency action'' under the Administrative Procedure
Act (APA). On October 20, 1997, the court in Helmick ordered the
Secretary of the Interior to render a final VER determination by
December 8, 1997.
In order to comply with the Court's order in the Helmick
litigation, and because of the time that had passed since OSM's last
administrative action in this matter, OSM believed it was appropriate
to reopen the administrative record to allow all interested persons to
provide any additional factual information as to whether Mr. Helmick
has the property right to mine by the proposed method, and as to
whether he has VER under the applicable standards. In a notice
published in the October 16, 1997, Federal Register (62 FR 53798), OSM
provided opportunity for public comment on the Helmick request until
October 31. In response to the request of Mr. Helmick's attorney, the
public comment period was reopened from November 4 to November 12,
1997. (62 FR 59731).
After the close of the reopened comment period and upon reviewing
the administrative record, OSM determined that the record contained no
legally cognizable documentation of any current interest of Mr. Helmick
in Tract 574. OSM therefore contacted Mr. Helmick's counsel and advised
him of this lack of title documentation. Mr. Helmick's counsel
subsequently provided OSM with relevant documentation. That
documentation has been entered in the administrative record, and is
reflected in this decision document.\3\
---------------------------------------------------------------------------
\3\ OSM does not believe that accepting this documentation after
the close of the comment period affects the fairness of the
proceedings. Because of the court's order in the pending Helmick
litigation, OSM believes it would have been constrained to issue a
VER determination even in the absence of the late documentation. If
the record did not demonstrate that Mr. Helmick owned the property,
OSM would have made its VER determination with regard to the most
recent holder shown in the record before it. If the record
established that VER existed in 1977, then VER would have conveyed
in any subsequent conveyances. And if VER was not demonstrated as of
1977, then VER could not have been created in any subsequent
conveyances.
---------------------------------------------------------------------------
II. VER Determination
In order to establish that Mr. Helmick has VER for surface coal
mining on the property in question, OSM must first determine that he
has demonstrated all necessary property rights to surface mine the coal
.
In a November 11, 1997, letter to OSM, Mr. Helmick provided
comments pertaining to the disputed USDA title opinion and to OSM's
responsibilities in VER determinations. (A.R. 2.517). Mr. Helmick
claims he has the property right to surface mine by virtue of two
things: first, the use of the word, ``stripping'' in a December 4,
1939, deed in which a predecessor in title conveyed the surface estate
in Tract 574 to the United States of America; and second, evidence that
allegedly shows that surface mining was a known and accepted method of
mining in the area surrounding the subject property. Mr. Helmick also
posits that ``. . . the OSM may not simply defer to an opinion of the
Forest Service or the U.S. Department of Agriculture in rendering the
property rights determinations which form the underlying basis of a VER
determination.'' Further, he stated that, ``The OSM also may not refuse
to render the necessary determinations in reliance upon a Memorandum of
Understanding (MOU) between the Forest Service and the OSM, which was
not adopted as a rule after notice and comment in accordance with the
required procedures of the APA.''
OSM did not defer to the opinion of the U.S. Forest Service on Mr.
Helmick's property rights; and does not rely on the MOU with the U.S.
Forest Service to establish the basis and standards for OSM's actions
in this case. Rather, the aforementioned MOU delineates the process by
which OSM verifies whether a property rights dispute exists regarding
requests for VER determinations on lands where the U.S. Forest Service
is the surface owner. Under section 510(b)(6) of the Surface Mining
Control and Reclamation Act of 1977, OSM is not authorized to
adjudicate a property rights dispute. This section of SMCRA sets out
specific requirements to be met prior to approval of a permit or
revision application for surface mining and forbids approval in cases
where ``. . .the private mineral estate has been severed from the
private surface estate, . . .'' unless the applicant has submitted:
``(A) the written consent of the surface owner to the extraction
coal by surface mining methods; or
(B) a conveyance that expressly grants or reserves the right to
extract the coal by surface mining methods; or
(C) if the conveyance does not expressly grant the right to
extract coal by surface mining methods, the surface-subsurface legal
relationship shall be determined in accordance with State law:
Provided, That nothing in this act shall be construed to authorize
the regulatory authority to adjudicate property rights disputes.''
OSM, which acts as a regulatory authority when it issues VER
determinations, does not, and cannot, adjudicate property rights
between competing claimants. See 30 U.S.C. 1260(b); 54 FR 52469. OSM
regulations specifically provide that, when the Secretary acts in an
enforcement capacity or other regulatory capacity, he
[[Page 66128]]
constitutes the ``regulatory authority.'' 30 CFR 700.5; see also 44 FR
14913 (March 13, 1979). In his role with respect to federal lands
programs, the Secretary of the Interior is a regulatory authority
subject to SMCRA sections 507(b)(9) and 510(b)(6)(C). Thus, when the
Secretary makes VER determinations on federal lands, he is acting as
the regulatory authority. See National Wildlife Federation v. Lujan,
950 F.2d 765, 767 (D.C.Cir. 1991), citing 30 CFR 700.5.
Mr. Helmick argues that he has an express right to strip mine the
subject property because a boiler plate regulation incorporated into
the deed of severance references ``stripping.'' But that reference
explicitly relates to a separate tract of property, Tract 574-I, that
is not an issue in this determination. The deed is silent as to
``stripping'' on Tract 574. If any inference can be drawn from the
reference to stripping for one tract (574-I) and exclusion of the
language for the second tract (574), it is that strip mining was
expressly not intended for the second tract (574).
A property rights dispute presently exists between the U.S. Forest
Service and Mr. Helmick. Mr. Helmick has alleged in the 1995 lawsuit,
that he has the right to surface mine the property in question. The
U.S. Forest Service contested that allegation. The trial court has not
ruled on the issue of whether the requester has the property right to
surface mine. Moreover, the U.S. Forest Service has reiterated its
position, in a letter to OSM, that it is of the opinion that Mr.
Helmick does not possess the right to surface mine in the Monongahela
National Forest. (A.R. 2.352). As a result, the dispute remains
unresolved in the record before OSM. And, for the reasons set out
above, section 510(b)(6) precludes OSM from adjudicating that property
rights dispute. Thus the record before OSM does not demonstrate
whether, under applicable State law, Mr. Helmick holds the property
right to surface mine tract 574.
Consequently, based on the record before it, OSM has reached the
following conclusions in this matter: First, the written consent of the
surface owner to surface mine was not provided, and is not in the
record. Second, the 1939 deed which severed the coal rights did not
expressly reserve the right to extract the coal on Tract 574 by surface
mining methods. Finally; in light of the pending unresolved dispute
concerning the property right to surface mine this coal, Mr. Helmick
has not met his burden of demonstrating the property right to mine by
the method intended. Therefore, OSM must also conclude that Mr. Helmick
has not demonstrated VER to surface mine the property in question.\4\
---------------------------------------------------------------------------
\4\ Because the record does not demonstrate that Mr. Helmick
holds the necessary property rights, OSM will not address the second
stage of a takings analysis, the analysis of whether, as of 1977,
application of the section 522(e) prohibition to Mr. Helmick's
property rights would effect a compensable taking. (OSM notes that
judicial case law concerning compensable takings would also require
a threshold determination as to whether Mr. Helmick has demonstrated
the property right to surface mine the coal. See Lucas v. South
Carolina Coastal Council, 505 U.S. 1003, 1027 (1992).)
---------------------------------------------------------------------------
III. Summary and Disposition of Comments
OSM received numerous comments opposed to VER requests pertinent to
Tract 574, most of which were submitted in January and February 1990,
in response to an application by Cecil E. Nichols. (A.R. 2.73). The
protests focus on property rights, environmental concerns, and economic
issues. In this decision, OSM is not responding to comments as to
whether the coal holder has the necessary rights, because, as explained
above, OSM cannot adjudicate the property rights dispute between the
U.S. Forest Service and the current requester, Mr. Helmick. OSM is not
addressing the remaining comments, because this decision cannot reach
the takings analysis to which those comments may relate.
IV. Appeals
Any person who is or may be adversely affected by this decision may
appeal to the Interior Board of Land Appeals under 43 CFR 4.1390.
Notice of intent to appeal must be filed within 30 days after receipt
of the determination by a person who has received a copy by certified
mail or overnight delivery service; or within 30 days of the date of
publication of this notice of decision in the Federal Register by any
person who has not received a copy by certified mail or overnight
delivery service.
Dated: December 9, 1997.
Allen D. Klein,
Regional Director, Appalachian Regional Coordinating Center.
[FR Doc. 97-32850 Filed 12-16-97; 8:45 am]
BILLING CODE 4310-05-M