[Federal Register Volume 74, Number 215 (Monday, November 9, 2009)]
[Notices]
[Pages 57699-57701]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-26954]


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DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement


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

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

ACTION: Notice of decision.

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SUMMARY: This notice announces our decision on a request for a 
determination of valid existing rights (VER) under section 522(e) of 
the Surface Mining Control and Reclamation Act of 1977 (SMCRA or the 
Act). We have determined that Jag Energy LLC possesses VER for a coal 
haul road within the boundaries of the Daniel Boone National Forest in 
Leslie County, Kentucky. This decision will allow Jag Energy LLC to 
obtain a Kentucky surface coal mining and reclamation permit for the 
road in question and to use the road to access and haul coal from a 
surface mine located on adjacent private lands.

DATES: Effective Date: November 9, 2009,

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 We Processed the Request.
V. How We Made Our Decision.
VI. What Public Comments Were Received?
VII. How Can I Appeal the Determination?
VIII. Where Are the Records of This Determination Available?

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 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.
    On December 16, 2008, we published a notice in the Federal Register 
(73 FR 76382) in which we provided an opportunity for the public to 
comment on the request for a determination of 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 comment period closed on January 15, 2009. 
We received no comments.

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.''

[[Page 57700]]

    Based on other information available to us, we also considered 
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 
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, indicates 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 indicates 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; and,
    7. A copy of Special Use Permit RED 5064-01, issued by the USFS to 
Jag Energy LLC, authorizing the use of Forest Service Road 1669 to 
access the proposed mine site.

IV. How We Processed 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.
    As required by 30 CFR 761.16(d)(1), we published a notice in the 
Federal Register seeking public comment on the merits of the request on 
December 16, 2008 (73 FR 76382). We also published notices on December 
11, 2008, December 18, 2008, December 25, 2008, and January 1, 2009, in 
Leslie County News, Hyden, Kentucky, a newspaper of general circulation 
in Leslie County, Kentucky.
    After the close of the comment period on January 15, 2009, we 
reviewed the materials submitted with the request, and other relevant, 
reasonably available information and determined that the record was 
sufficiently complete and adequate to support a decision on the merits 
of the request upon issuance of the Forest Service Special Use permit 
for use of the road to which the VER request pertained.
    We evaluated the record in accordance with the requirements at 30 
CFR 761.16(e) as to whether the requester has demonstrated VER for the 
proposed access and haul road. For the reasons discussed below, we have 
determined that the requestor has demonstrated VER.

V. How We Made Our Decision

    As we stated above, Jag Energy LLC sought a VER determination under 
paragraph (c)(1) of the definition of VER at 30 CFR 761.5, which 
provides as follows:

    (1) The road existed when the land upon which it is located came 
under the protection of section 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.

    Based upon information contained in the VER request submitted by 
Jag Energy and information obtained from the USFS and DNR, the 
following facts were determined about this road:

    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. 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. Thus the road existed when the 
land upon which it is located came under the protection of section 
761.11 or 30 U.S.C. 1272(e).

    The VER standard in the definition of VER at 30 CFR 761.5 also 
requires that the person seeking VER must have ``a legal right to use 
the road for surface coal mining operations.'' That ``legal right'' 
standard was added to the definition of VER on December 17, 1999 (64 FR 
70766, 70832). In the preamble to that revision of the definition of 
VER, OSM stated that a person must demonstrate a legal right to use the 
road for surface coal mining operations. (See 64 FR 70791) That is, 
despite the fact that a road existed on August 3, 1977, that fact alone 
doesn't give the applicant the right to use the road for surface coal 
mining operations. To comply with this requirement, Jag Energy applied 
for and received a Road Use Permit for the road in question from the 
Forest Service dated June 26, 2009. That permit authorizes Jag Energy 
LLC to rehabilitate and maintain the road while using it to access the 
mine site.
    Therefore, we conclude that the June 26, 2009, Road Use Permit from 
the Forest Service is sufficient to prove that Jag Energy LLC has a 
legal right to use the road for surface coal mining operations.
    As stated previously, we also considered 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).'' In our 
review of the available information we were able to determine that a 
special use permit had been issued previously by the USFS for the road 
in question to William T. Gilbert. However we were unable to determine 
that the special use permit for the road was issued prior to SMCRA, or 
that the special use permit was for the purpose of conducting surface 
coal mining operations.
    Therefore we cannot conclude that the applicant has demonstrated 
VER under the standard contained in paragraph (c)(3) of the VER 
definition.
    Based on the information above, it is the decision of OSM that the 
Jag Energy LLC does have valid existing rights to use this road. This 
decision is based primarily on the finding that the road was in 
existence at this location prior to the enactment of SMCRA, and that 
the applicant does have a legal right to use this road for surface coal 
mining operations under the special use permit issued by the USFS on 
June 26, 2009.
    This finding is in accordance with the definition of VER pertaining 
to roads found at 30 CFR 761.5 subdivision (c)(1).

VI. What Public Comments Were Received?

    No public comments were received.

VII. How Can I Appeal the Determination?

    Our determination that VER exists is subject to administrative and 
judicial review under 30 CFR 775.11 and 775.13 of the Federal 
regulations.

VIII. Where Are the Records of this Determination Available?

    Our records on this determination are available for your inspection 
at the

[[Page 57701]]

Lexington Field Office at the location listed under FOR FURTHER 
INFORMATION CONTACT.

    Dated: August 24, 2009.
Thomas D. Shope,
Regional Director, Appalachian Region.
[FR Doc. E9-26954 Filed 11-6-09; 8:45 am]
BILLING CODE 4310-05-P