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Kentucky Resources Council, PO Box 1070, Frankfort, KY 40602 Phone [502] 875-2428

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PO Box 1070, Frankfort, KY 40602  Phone 502.875.2428, Fax 502.875.2845

Use of National Forest Road for Coal Haulage Opposed  Posted: July 23, 2006
July 22, 2006

William J. Kovacic, Director
Office of Surface Mining
Lexington Field Office
2675 Regency Road
Lexington, Kentucky 40503

By email dbeam@osmre.gov

Re: Request for Determination of Valid Existing Rights Within the Daniel Boone National Forest, Kentucky
71 Fed. Reg. 35448 (June 20, 2006)

Dear Director:

These comments are submitted on behalf of the Kentucky Resources Council, Inc. in response to the Notice and request for comment published in the Federal Register on June 20, 2006.

KRC has reviewed the material submitted on behalf of Sturgeon Mining Company, Inc. in support of the request for a determination of “valid existing rights” (VER) with respect to the use of an existing Forest Service road as a coal mine access and haul road to support a 424-acre proposed mining operation on adjacent private lands.

For the reasons stated below, KRC believes that the information submitted does not support a finding that Sturgeon Mining Company, Inc. (Sturgeon) has valid existing rights to use Forest Service Road 1649A as a coal mine haulage and access road. KRC requests that the application be denied based on the information submitted and in light of the regulatory standards for determining VER with respect to roads.

1. OSMRE SHOULD COORDINATE WITH CORPS OF ENGINEERS AND FOREST SERVICE TO ACHIEVE NEPA COMPLIANCE

Prior to the discussion of the submitted material and the standards for determining VER, however, KRC believes that the Forest Service, OSMRE and the Corps of Engineers should coordinate regulatory reviews in order to satisfy the obligations of each agency under the National Environmental Policy Act. KRC was very troubled to discover that the Forest Service had issued a permit to Sturgeon for non-Federal commercial use of the road on May 18, 2006, and believes that issuance of that permit without first conducting an Environmental Assessment or EIS that encompassed the direct, indirect and cumulative impacts of both the road use and the surface coal mining activity that the road use will support, was imprudent and violative of NEPA. By this letter, KRC requests that the Forest Service provide all documentation evidencing that NEPA compliance has been achieved, and absent proper NEPA compliance evaluating the environmental impacts of both the road use and of the mining operation that the road would support, the Forest Service should withdraw the permit as imprudently granted.

KRC is also copying this letter to the Eastern Kentucky Regulatory Office of the U.S. Army Corps of Engineers, with a request to consult with OSMRE and the Forest Service on NEPA compliance. The VER determination, the “provisional” issuance of the non-Federal commercial use permit by the Daniel Boone National Forest, and potential issuance of a Section 404 permit for five (5) permanent spoil disposal fills and five temporary sediment ponds to support the proposed mining operation, are all federal actions which individually and cumulatively evince sufficient federal control and responsibility over the mining proposal to require that the environmental consequences of the entire mining operation be evaluated prior to issuance of any of the requested approvals.

2. THE REQUEST FOR A FINDING OF VER WITH RESPECT TO USE OF FOREST SERVICE ROAD 1649A SHOULD BE DENIED

It is beyond question that, absent a determination of “valid existing rights,” the use of Forest Service Road 1649A for coal haulage and mine access would be violative of Section 522(e)(2) of the Surface Mining Control and Reclamation Act of 1977, 30 U.S.C. 1272, since that section prohibits surface coal mining operations on federal lands within the boundaries of any national forest subject to two exceptions which are inapplicable to this proposed mining activity. Roads constructed or used for mine haulage and access are included within the definition of “surface coal mining operations” under 30 U.S.C. 1291(B).

On December 17, 1999, OSM adopted the current regulatory definition of VER. An applicant seeking to demonstrate VER with respect to roads can either meet one of the four criteria outlined in 30 CFR 761.5(c), or demonstrate that the person has VER under paragraphs (a) and (b) of the VER definition. 64 Fed. Reg. 70790 (December 17, 1999).

In this instance, the submitted material does not demonstrate VER under any of the 761.5(c) tests, nor does the material support a finding of VER under the more general “good faith/all permits” or “needed for and adjacent to” tests. A review of each standard in turn reflects that the requisite circumstances do not exist in this instance.

30 CFR 761.5(c)(1) requires that

The road existed when the land came under the protection of 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 this instance, Sturgeon does not have a “legal right to use the road for surface coal mining operations.” Sturgeon possesses a “road use permit” issued on May 18, 2006 which confers a non-exclusive use privilege for a period of one year (until May 31, 2007 unless extended by the Forest Service) and which is explicitly conditioned on a prior demonstration of Valid Existing Rights. Section 7(9) of the road use permit states that:

Improvements to the road or use of the road cannot commence until a Valid Existing Right is shown to exist to use FSR 1649 as a coal haul road for the permittee’s adjacent surface mine . . . .

The conditional privilege that Sturgeon possesses in the May 18, 2006 road use permit cannot be relied upon to demonstrate a “legal right to use the road” under 30 CFR 761.5(c)(1) since that conditional privilege is expressly conditioned on a prior determination that such a “legal right” already exists. Absent an independent basis for a finding of a “legal right” to use FSR 1649 as a coal haul road, 30 CFR 761.5(c)(1) is not satisfied.

The documentation submitted in support of the VER finding included a special use record for use of 5.65 acres / .77 miles of a Class D Road on a portion of U.S. Tract #417 by River Mining Company, Inc., dated 9/24/76, and expiring in 1986. Assuming that the River Mining special use record covered the same road in question here, whatever privilege River Mining might have had has long-since expired and is insufficient to support a claim of a current legal right in possession of an unrelated entity.

Nor is 30 CFR 761.5(c)(2) satisfied in this instance, since there is no information documenting a “properly recorded right of way or easement for a road in that location” that existed on or before August 3, 1977 that confers on Sturgeon Mining Company a “legal right to use or construct a road across the right of way or easement for surface coal mining operations.”

Likewise, 30 CFR 761.5(c)(3) is not satisfied in this instance. That subsection requires 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 761.11 or 30 U.S.C. 1272(e).

The only evidence of which KRC is aware concerning the issuance of a “permit” allowing use or construction of a road is the special use record indicating that River Mining Company, Inc. (R.C. Durr) had been authorized to use a portion of U.S. Tract #417 for a length of .77 miles and an area of 5.65 acres. There is no indication of whether the special use record authorized coal haulage, nor is it clear that the “Class D Road” located on a “Portion of U.S. Tract #417” is in fact the same road now identified as FS 1649A.

In any event, assuming that the road identified in the 1976 special use record is FS 1649A and that the permit authorized use in support of the River Mining surface mining operation, that permit has since expired and does not confer on Sturgeon Mining Company a “valid existing right.” Such valid existing rights as River Mining might have asserted due to the existence of the special use record have been extinguished due to the expiration of that permit, and there is no evidence or allegation that Sturgeon Mining Company succeeded to those rights or interests from River Mining Company.

30 CFR 761.5(c)(3) cannot be read to mean that VER will be found on behalf of a current permit applicant simply because an unrelated entity possessed a “valid permit” in August, 1977 but which had expired 20 years ago. As the agency has acknowledged in the context of the “good faith/all permits standard,” “once a permit expires, lapses, or is revoked, a person who requests a VER determination subsequent to the expiration, lapse, or revocation of that permit cannot rely upon the prior existence of that permit[.]” 64 Fed. Reg. 70777 (December 17, 1999). The concept of transferability of VER presumes that the applicant seeking a finding of valid existing rights can demonstrate entitlement to such a finding because of a relationship with the party that held such rights at the time the property became subject to the protections of the federal act, and that such a right has not been extinguished in the intervening time. In this instance, whatever privileges might have been conferred on River Mining under the 1976 special use record do not support Sturgeon’s claim of VER with respect to use of that road, in the absence of a demonstration that the 1976 permit continued, was transferable, and was in fact transferred to Sturgeon. None of those circumstances appear to be the case here.

For these reasons, KRC does not believe that the standards for a finding that Sturgeon Mining Company possesses valid existing rights for use of FS Road 1649A as a coal haulage and access road have been met. Thank you for your consideration of these comments.

Cordially,
Tom FitzGerald
Director

cc: Darvin Messer, USACE
Mitchell Gandy, USFS, DBNF


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