[Federal Register Volume 75, Number 168 (Tuesday, August 31, 2010)]
[Notices]
[Pages 53340-53342]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-21645]


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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 conduct surface 
coal mining operations on approximately 175 acres of land owned by the 
U.S. Forest Service within the Daniel Boone National Forest in Clay 
County, Kentucky.

DATES: We will accept electronic or written comments until 4 p.m. 
Eastern time on September 30, 2010. 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-Deliver/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) 260-3900. 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 June 7, 2010, the law offices of Napier & Associates, P.S.C., 
submitted a request on behalf of Jack Smith, Jerry Smith and Leovie 
Smith, for a determination of VER to conduct surface coal mining 
operations on approximately 175 acres of land owned by the U.S. Forest 
Service within the Daniel Boone National Forest in Clay County, 
Kentucky. Jack Smith, et al. is seeking a determination of VER pursuant 
to the ``good faith/all permits'' standard in accordance with 30 CFR 
761.16(b)(2).

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

[[Page 53341]]

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.
    At 30 CFR 761.16(b) we published the information needed for OSM to 
make a determination of VER, which includes information required for a 
``property rights demonstration'' in accordance with 30 CFR 
761.16(b)(1) and the ``good faith/all permits'' standard in accordance 
with 30 CFR 761.16(b)(2) or the ``needed for and adjacent'' standard in 
accordance with 761.16(b)(3).
    Jack Smith, et. al. is seeking a VER determination pursuant to the 
``good faith/all permits'' standard in accordance with 30 CFR 
761.16(b)(2). This standard requires the applicant to show that it has 
obtained, or made a good faith effort to obtain, all permits and other 
authorizations required to conduct surface coal mining operations, 
before the land came under the protection of 30 CFR 761.11(b).

III. What information is available relevant to the basis for the 
request?

    The following information has been submitted by Napier & Associates 
on behalf of Jack Smith, Jerry Smith and Leovie Smith:
    1. A legal description of the land to which the request pertains in 
the form of a deed dated June 6, 1951, deed book 103, page 215, from 
Joe D. Smith and Mallie Smith, to A.C. Smith, Jack Smith, and Jerry 
Smith.
    2. Several deeds documenting the chain of title for the surface and 
mineral estates subject to the VER request, specifically a deed of 
Guardian dated December 7, 1961, deed book 120, page 189, between 
Mallie Hyde, guardian of the estates of Jack and Jerry Smith, minors, 
the sellers, and A.C. Smith, the purchaser; a deed dated March 8, 1969, 
deed book 133, page 163, between A.C. Smith and Leovie Smith and Darby 
and Josephine Jackson; and a deed dated December 1, 1977, deed book 
158, page 457, between Darby and Josephine Jackson and the United 
States of America.
    3. A letter, dated February 19, 1969, from T.R. Frazier, District 
Ranger, to Ambrose C. Smith, regarding a land purchase option and 
contract.
    4. A request for a mineral report regarding Forest Service Tract 
758 dated September 22, 1976.
    5. A mineral report and Tract map regarding U.S. Tract 758 on the 
DBNF dated March 2, 1977, in Clay County, Ky.
    6. A Land Purchase Option and Contract--Darby Jackson et. al. & USA 
dated April 20, 1977, for Tract 758 on the DBNF.
    7. A survey plat of Tract 758 dated August, 1977.
    8. A map for a strip and auger mine permit 09243-2 in the 
name of Mountain Clay, Inc., dated May 15, 1970.
    9. A Ky. DNR Strip mining permit application, permit 3472-
74, in the name of Mark IV Coal Co., Inc., dated October 30, 1974.
    10. A Ky. DNR permit 3472-74 to engage in strip mining of 
coal in the name of Mark IV Coal Co., Inc., effective November 12, 
1974.
    11. A bond release map in the name of Mark IV Coal Co., Inc., 
permit 3472-74, dated April 17, 1978.
    12. Ky DNR Letter to USDA Forest Service dated December 20, 1978, 
indicating satisfactory reclamation on the Mark IV Coal Co. Permit 
3472-74.

IV. How will we process the request?

    We received the request on June 7, 2010, and determined that it was 
administratively complete on June 17, 2010. 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 Clay 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 surface coal mining 
operations. 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 Clay 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.

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) 260-3900 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.


[[Page 53342]]


    Dated: June 30, 2010.
Thomas D. Shope,
Regional Director, Appalachian Region.
[FR Doc. 2010-21645 Filed 8-30-10; 8:45 am]
BILLING CODE 4310-05-P