[Federal Register Volume 62, Number 200 (Thursday, October 16, 1997)]
[Notices]
[Pages 53798-53799]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-27349]


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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 request for determination of valid existing rights 
and invitation for interested persons to participate.

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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 Federal lands 
within the Monongahela National Forest in Pocahontas County, West 
Virginia. Mr. Helmick is successor in interest to Ernest J. Van Gilder, 
who previously submitted a VER request in connection with the same 
property. By this notice, OSM is inviting interested persons to 
participate in the proceeding and to submit relevant factual material 
on the matter. OSM intends to develop a complete administrative record 
and will render a final agency decision on whether Mr. Helmick has VER.

DATES: OSM will accept written materials on this request for a VER 
determination until 5 p.m. local time on October 31, 1997.

ADDRESSES: Hand deliver or mail written materials to: Peter R. Michael, 
Office of Surface Mining Reclamation and Enforcement, Appalachian 
Regional Coordinating Center, room 218, Three Parkway Center, 
Pittsburgh, PA 15200.
    Documents contained in the Administrative Record are available for 
public review at the locations listed below during normal business 
hours, Monday through Friday, excluding holidays.

Office of Surface Mining Reclamation and Enforcement Appalachian 
Regional Coordinating Center, Room 218, Three Parkway Center, 
Pittsburgh, PA 15200, Telephone: (412) 937-2867.
Office of Surface Mining Reclamation and Enforcement Charleston Field 
Office, 1027 Virginia Street E, Charleston, WV 25301, Telephone: (304) 
347-7158.

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.

SUPPLEMENTARY INFORMATION: Section 522(e) of the Surface Mining Control 
and Reclamation Act of 1977 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) 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 and 30 CFR 740.11, the approved State 
program (including the State definition of VER) applies to all Federal 
lands within States with approved regulatory programs. 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).
    The term VER is defined in Subsection 2.130 of the West Virginia 
Surface Mining Reclamation Regulations. Subsection 2.130 provides that 
VER exists, except for haul roads, 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 would result 
in the unconstitutional taking of that person's rights.
    In 1994, Walter D. Helmick re-acquired from Ernest J. Van Gilder 
certain mineral rights beneath Federal lands within the Monongahela 
National Forest in the Little Levels District of Pocahontas County, 
West Virginia. Mr. Van Gilder had purchased the mineral rights from Mr. 
Helmick in 1990 and later requested a VER determination from OSM for 
his planned surface mining operation on the property in question. Mr. 
Helmick's current VER request incorporates as part of the 
administrative record all supporting documents and public comments 
received by OSM in response to the request of Mr. Van Gilder and 
previous interested parties.
    Mr. Helmick alleges that he owns mineral rights on two adjacent 
tracts of

[[Page 53799]]

land, the surface of which is owned by the United States of America and 
managed by the United States Forest Service. Tract 574 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 Robins Run, a tributary of 
Spring Creek. The second tract, known as the Killingsworth Tract, 
contains 179 acres and is situated on the headwaters of Spruce Run, a 
tributary of the Greenbrier River. Both properties are located on 
Briery Knob. They each were mined during the 1940's by surface mining 
methods. A face-up area for an underground coal mine under permit by 
the West Virginia Department of Energy is located on Tract 574.
    In order to establish that the requester has VER for surface coal 
mining on the properties in question, OSM must first determine that the 
requester has demonstrated all necessary rights to surface mine the 
coal. On November 17, 1989, 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.'' This opinion was reaffirmed on February 6, 1991, subsequent 
to Mr. Van Gilder's acquisition of the coal and his VER determination 
request. 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.''
    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 
v. 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 APA. On September 8, 1997, the court in 
Helmick ordered the Secretary of the Interior to render a final VER 
determination by December 6, 1997.
    In order to comply with the Court's order, and because of the time 
that has passed since OSM's last administrative action in this matter, 
OSM believes it is appropriate to reopen the administrative record to 
allow all interested persons to provide any additional factual 
information as to whether the requester has the property right to mine 
by the proposed method, and as to whether the requester has VER under 
the applicable standards. If OSM determines that Walter D. Helmick has 
VER, he may apply to the West Virginia Department of Energy for a 
permit authorizing the surface and auger mining of coal on the two 
tracts in question. If it is determined that Mr. Helmick does not have 
VER, no surface or auger mining will be permitted.

    Dated: October 9, 1997.
Allen D. Klein,
Regional Director, Appalachian Regional Coordinating Center.
[FR Doc. 97-27349 Filed 10-15-97; 8:45 am]
BILLING CODE 4310-05-M