[Federal Register Volume 73, Number 242 (Tuesday, December 16, 2008)]
[Notices]
[Pages 76382-76383]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-29758]


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DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement


Request for Determination of Valid Existing Rights Within the 
Daniel Boone National Forest, Kentucky

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

ACTION: Notice and request for comment.

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SUMMARY: We, the Office of Surface Mining Reclamation and Enforcement 
(OSM), are providing opportunity for the public to comment on a request 
for a determination of valid existing rights (VER) to use an existing 
Forest Service road as a coal mine access and haul road across Federal 
lands within the boundaries of the Daniel Boone National Forest in 
Leslie County, Kentucky. The remainder of the mine would be located on 
privately owned land.

DATES: We will accept electronic or written comments until 4 p.m. 
Eastern time on January 15, 2009. Requests for an extension of the 
comment period must be received by the same time.

ADDRESSES: You may submit comments by any of the following methods:
     Mail/Hand-Delivery/Courier: Joseph L. Blackburn, Director, 
Lexington Field Office, 2675 Regency Road, Lexington, Kentucky 40503.
     E-mail: [email protected].
    For detailed instructions on submitting comments, see ``V. How Do I 
Submit Comments on the Request?'' in the SUPPLEMENTARY INFORMATION 
section of this document.

FOR FURTHER INFORMATION CONTACT: Joseph L. Blackburn, Director, 
Lexington Field Office, 2675 Regency Road, Lexington, Kentucky 40503.
    Telephone: (859) 260-8402. Fax: (859) 260-8410. E-mail: 
[email protected].

SUPPLEMENTARY INFORMATION:
I. What Is the Nature of the VER Determination Request?
II. What Legal Requirements Apply to This Request?
III. What Information Is Available Relevant to the Basis for the 
Request?
IV. How Will We Process the Request?
V. How Do I Submit Comments on the Request?

I. What Is the Nature of the VER Determination Request?

    On October 21, 2008, Mr. John Begley II submitted a request for a 
determination of VER on behalf of Mr. William T. Gilbert of Jag Energy 
LLC. Jag Energy LLC has applied for a permit (Application 866-
0264) to conduct surface coal mining operations on privately owned land 
in Bear Branch, Leslie County, Kentucky. The property to be mined is 
adjacent to the Daniel Boone National Forest.
    William T. Gilbert is seeking a determination that Jag Energy LLC 
has VER under paragraph (c)(1) of the definition of VER in 30 CFR 761.5 
to use an existing road across Federal lands within the Daniel Boone 
National Forest as an access and haul road for the proposed mine. No 
other surface coal mining operations would be conducted on Federal 
lands within the Daniel Boone National Forest as part of this mine.

II. What Legal Requirements Apply to This Request?

    Section 522(e)(2) of the Surface Mining Control and Reclamation Act 
of 1977 (SMCRA or the Act), 30 U.S.C. 1272(e)(2), prohibits surface 
coal mining operations on Federal lands within the boundaries of any 
national forest, with two exceptions. The first exception pertains to 
surface operations and impacts incidental to an underground coal mine. 
The second relates to surface operations on lands within national 
forests west of the 100th meridian. Neither of those exceptions applies 
to the request now under consideration.
    The introductory paragraph of section 522(e) also provides two 
general exceptions to the prohibitions on surface coal mining 
operations in that section. Those exceptions apply to operations in 
existence on the date of enactment of the Act (August 3, 1977) and to 
land for which a person has VER. SMCRA does not define VER. We 
subsequently adopted regulations defining VER and clarifying that, for 
lands that come under the protection of 30 CFR 761.11 and section 
522(e) after the date of enactment of SMCRA, the applicable date is the 
date that the lands came under protection, not August 3, 1977.
    On December 17, 1999 (64 FR 70766-70838), we adopted a revised 
definition of VER, established a process for submission and review of 
requests for VER determinations, and otherwise modified the regulations 
implementing section 522(e). At 30 CFR 761.16(a), we published a table 
clarifying which agency (OSM or the State regulatory authority) is 
responsible for making VER determinations and which definition (State 
or Federal) will apply. That table specifies that OSM is responsible 
for VER determinations for Federal lands within national forests and 
that the Federal VER definition in 30 CFR 761.5 applies to those 
determinations.
    Paragraph (c) of the Federal definition of VER contains the 
standards applicable to VER for roads that lie within the definition of 
surface coal mining operations. Jag Energy LLC is seeking a VER 
determination under paragraph (c)(1), which provides that a person who 
claims VER to use or construct a road across the surface of lands 
protected by 30 CFR 761.11 or section 522(e) of SMCRA must demonstrate 
that the ``road existed when the land upon which it is located came 
under the protection of Sec.  761.11 or 30 U.S.C. 1272(e), and the 
person has a legal right to use the road for surface coal mining 
operations.''
    In addition, based upon the information provided in the VER 
request, we also are considering whether VER might exist under the 
standard in paragraph (c)(3), which requires a demonstration that a 
``valid permit for use or construction of a road in that location for 
surface coal mining operations existed when the land came under the 
protection of Sec.  761.11 or 30 U.S.C. 1272(e).''

III. What Information Is Available Relevant to the Basis for the 
Request?

    The following information has been submitted by Jag Energy LLC or 
obtained from the United States Forest Service (USFS) or the Kentucky

[[Page 76383]]

Department for Natural Resources (DNR):
    1. A 1.76 mile long x 12 foot wide road designated USFS road FSR 
1669 exists on the land to which the VER determination request 
pertains.
    2. The land upon which the road is located was in Federal ownership 
as part of the Daniel Boone National Forest on August 3, 1977, the date 
of enactment of SMCRA.
    3. A letter from USFS District Ranger, John Kinney, indicating that 
William Gilbert has applied for a special use permit for the use of 
Forest Service Road 1669 to access his property in Bear Branch, Ky.
    4. An affidavit from John Hollen, a resident of Bear Branch in 
Leslie County, Ky indicating that the proposed haul road contained in 
Jag Energy LLC application 866-0264 crossing the USFS property 
was used prior to 1977 as a coal haul road.
    5. A coal lease between William T. Gilbert et al. Lessors, and 
Kenneth C. Smith, Lessee, for the Number four coal seam on lands 
described in Deed Book 34, page 464 and an Affidavit of Descent of John 
and Sally B. Gilbert in the records of the Leslie County, Ky. Court 
Clerk's office.
    6. A copy of the deed and Affidavit of Descent referenced in the 
coal lease.

IV. How Will We Process the Request?

    We received the request on October 21, 2008, and determined that it 
was administratively complete on October 30, 2008. That review did not 
include an assessment of the technical or legal adequacy of the 
materials submitted with the request.
    The process by which we will further review the request is set out 
in 30 CFR 761.16(d) and (e). As required by 30 CFR 761.16(d)(1), we are 
publishing this notice to seek public comment on the merits of the 
request. A similar notice will also be published in a newspaper of 
general circulation in Leslie County, Kentucky.
    After the close of the comment period, we will review the materials 
submitted with the request, all comments received in response to this 
and other notices, and any other relevant, reasonably available 
information to determine whether the record is sufficiently complete 
and adequate to support a decision on the merits of the request. If 
not, we will notify the requester, in writing, explaining the 
inadequacy of the record and requesting submittal, within a specified 
time, of any material needed to remedy the deficiency.
    Once the record is complete and adequate, we will determine whether 
the requester has demonstrated VER for the proposed access and haul 
road. Our decision document will contain findings of fact and 
conclusions, along with an explanation of the reasons for our 
conclusions. We will publish a notice of the decision in the Federal 
Register and a newspaper of general circulation in Leslie County, 
Kentucky.
    However, as provided in 30 CFR 761.16(d)(1)(iv), we will not make a 
decision on the merits of the request, if, by the close of the comment 
period under this notice or the notice required by 30 CFR 761.16(d)(3), 
a person with a legal interest in the land to which the request 
pertains initiates appropriate legal action in the proper venue to 
resolve any differences concerning the validity or interpretation of 
the deed, lease, easement, or other documents that form the basis of 
the request. This provision applies only if our decision is based upon 
the standard in paragraph (c)(1) of the definition of VER in 30 CFR 
761.5. It will not apply if we base our decision on the standard in 
paragraph (c)(3) of the definition.

V. How Do I Submit Comments on the Request?

    We will make the VER determination request and associated materials 
available to you for review as prescribed in 30 CFR 842.16, except to 
the extent that the confidentiality provisions of 30 CFR 773.6(d) 
apply. Subject to those restrictions, you may review a copy of the 
request for the VER determination and all comments received in response 
to this request at the Lexington Field Office (see ADDRESSES). 
Documents contained in the administrative record are available for 
public review at the Field Office during normal business hours, Monday 
through Friday, excluding holidays.

Electronic or Written Comments

    If you wish to comment on the merits of the request for a VER 
determination, please send electronic or written comments to us at the 
addresses above (see ADDRESSES) by the close of the comment period (see 
DATES). Under 30 CFR 761.16(d)(1)(vii), you may request a 30-day 
extension of the comment period. Requests for extension of the public 
comment period must be submitted to the same addresses by the date 
indicated.
    If you submit comments by e-mail, please include your name and 
return address in your message. You may contact the Lexington Field 
Office at (859) 260-8402 if you wish to confirm receipt of your 
message.

Public Availability of Comments

    Before including your address, phone number, e-mail address, or 
other personal identifying information in your comment, you should be 
aware that your entire comment--including your personal identifying 
information--may be made publicly available at any time. While you can 
ask us in your comment to withhold your personal identifying 
information from public review, we cannot guarantee that we will be 
able to do so.

    Dated: November 18, 2008.
Michael K. Robinson,
Acting Regional Director, Appalachian Region.
[FR Doc. E8-29758 Filed 12-15-08; 8:45 am]
BILLING CODE 4310-05-P