[Federal Register Volume 62, Number 242 (Wednesday, December 17, 1997)]
[Notices]
[Pages 66126-66128]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-32850]


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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 decision.

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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 1,045.3 acres of 
Federal lands within the Monongahela National Forest in Pocahontas 
County, West Virginia. Mr. Helmick claims to hold certain coal rights 
in these lands. Ernest J. Van Gilder had previously submitted a VER 
request in connection with the same property. Prior to the court order, 
OSM had suspended action on a VER determination request by Mr. Van 
Gilder for surface mining, on the basis that his request was 
administratively incomplete due to an unresolved dispute over whether 
he possessed all of the necessary property rights to mine coal by the 
intended method. Since there is still an unresolved property rights 
dispute as to whether the current mineral holder, Mr. Helmick, has the 
necessary property right to surface mine, OSM hereby determines that 
Mr. Helmick has not demonstrated VER to surface mine the coal on the 
1,045.3 acres of Federal lands within the Monongahela National Forest.

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. E-mail 
address: <a href="/cdn-cgi/l/email-protection#e595888c868d848089a58a96889780cb828a93"><span class="__cf_email__" data-cfemail="17677a7e747f76727b5778647a657239707861">[email protected]</span></a>.

SUPPLEMENTARY INFORMATION:

I. Background

A. VER Requirements on National Forest Lands

    Section 522(e) of the Surface Mining Control and Reclamation Act of 
1977 (30 U.S.C. 1272(e)) 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), in relevant part, 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 (``Federal Lands'') and 30 CFR 740.11, 
the approval State program (including the State definition of VER) 
applies to all Federal lands within States with regulatory programs 
approved under section 503 of SMCRA. 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).
    Subsection 2.130 of the West Virginia Surface Mining Reclamation 
Regulations provides, in relevant part, that VER exists 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 
(the State counterpart to section 522(e) of SMCRA) would result in the 
unconstitutional taking of that person's rights. OSM approved this 
definition as being no less effective than the 1983 version of the 
Federal definition of VER at 30 CFR 761.5. Paragraphs (a) and (d) of 
the 1983 Federal definition clarify that the takings standard for VER 
applies only to those property interests that existed on August 3, 1977 
[paragraph (a)], or any subsequent date that the lands come under the 
protection of section 522(e) of SMCRA (paragraph (d)). See also 48 FR 
41313, third column (September 14, 1983). The West Virginia program 
does not specifically address this issue. However, in accordance with 
OSM's basis for approval of the West Virginia provision, OSM is 
interpreting the West Virginia definition consistent with the 1983 
Federal definition. Because the lands in question came under the 
protection of section 522(e) on August 3, 1977, OSM will consider only 
the property interests as they existed on that date.
    In this case, the critical property interest is the coal rights 
beneath certain Federal lands within the Monongahela National Forest in 
the Little Levels District of Pocahontas County, West Virginia 
(hereafter, Tract 574). Administrative Record No. 2.1 (hereafter, 
``A.R.______''). The threshold determation OSM must make is whether Mr. 
Helmick has demonstrated the property right to mine the coal. If so, 
OSM must then determine whether Mr. Helmick has demonstrated, as of 
1977, that he or a predecessor in interest had the property right to 
surface mine the coal.

B. Factual Background

    The record before OSM indicates that, in September of 1990, Walter 
D. Helmick acquired from Cecil Nichols certain mineral rights in Tract 
574. This tract 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 Robbins Run, a tributary of Spring Creek. The property is 
located on Briery Knob. It was mined during the 1940's surface mining 
methods.\1\ The surface of this land is

[[Page 66127]]

owned by the United States of America and managed by the United States 
Forest Service. (A.R. 2.352).
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    \1\ An additional property, Tract 372, was included in previous 
requests for VER determinations relating to Tract 574. This parcel 
is adjacent to Tract 574. However, neither the court order (A.R. 
2.345) nor the materials submitted by Mr. Helmick (A.R. 2.368-2.510 
and 2.516-2.523) mention or assert any interest in Tract 372. Mr. 
Helmick's counsel has confirmed that this tract is no longer a 
subject of this request. (A.R. 2.528).
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    One month before Mr. Helmick acquired the mineral rights, the 
documents submitted by Mr. Helmick indicate he had deeded an undivided 
one-half interest in those rights to Ernest J. Van Gilder. (A.R. 
2.527). Mr. Van Gilder later requested a VER determination from OSM for 
a surface mining operation on the property in question.\2\ (A.R. 
2.317).
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    \2\ It is not clear from the record before OSM what, if any, 
interest Mr. Van Gilder may have had in the property during the 
pendency request, as the transfer from Mr. Helmick to Mr. Van Gilder 
apparently occurred when Mr. Helmick had no documented interest in 
the property. On December 4, 1997, Mr. Van Gilder quitclaimed back 
to Mr. Helmick any interests ``that may have been acquired'' under 
the August, 1990 deed (A.R. 2.527).
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    Five years later, in September of 1995, Mr. Helmick acquired the 
remaining mineral interests in the property, by partition deed. (A.R. 
2.527).
    On November 17, 1989, in regard to a then-pending VER request on 
Tract 574, 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.'' (A.R. 
2.260). This opinion was reaffirmed on February 6, 1991, after Mr. Van 
Gilder asserted an interest in the coal and requested a VER 
determination. (A.R. 2.333). 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.'' 
(A.R. 2.337). 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 versus 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 Administrative Procedure 
Act (APA). On October 20, 1997, the court in Helmick ordered the 
Secretary of the Interior to render a final VER determination by 
December 8, 1997.
    In order to comply with the Court's order in the Helmick 
litigation, and because of the time that had passed since OSM's last 
administrative action in this matter, OSM believed it was appropriate 
to reopen the administrative record to allow all interested persons to 
provide any additional factual information as to whether Mr. Helmick 
has the property right to mine by the proposed method, and as to 
whether he has VER under the applicable standards. In a notice 
published in the October 16, 1997, Federal Register (62 FR 53798), OSM 
provided opportunity for public comment on the Helmick request until 
October 31. In response to the request of Mr. Helmick's attorney, the 
public comment period was reopened from November 4 to November 12, 
1997. (62 FR 59731).
    After the close of the reopened comment period and upon reviewing 
the administrative record, OSM determined that the record contained no 
legally cognizable documentation of any current interest of Mr. Helmick 
in Tract 574. OSM therefore contacted Mr. Helmick's counsel and advised 
him of this lack of title documentation. Mr. Helmick's counsel 
subsequently provided OSM with relevant documentation. That 
documentation has been entered in the administrative record, and is 
reflected in this decision document.\3\
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    \3\ OSM does not believe that accepting this documentation after 
the close of the comment period affects the fairness of the 
proceedings. Because of the court's order in the pending Helmick 
litigation, OSM believes it would have been constrained to issue a 
VER determination even in the absence of the late documentation. If 
the record did not demonstrate that Mr. Helmick owned the property, 
OSM would have made its VER determination with regard to the most 
recent holder shown in the record before it. If the record 
established that VER existed in 1977, then VER would have conveyed 
in any subsequent conveyances. And if VER was not demonstrated as of 
1977, then VER could not have been created in any subsequent 
conveyances.
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II. VER Determination

    In order to establish that Mr. Helmick has VER for surface coal 
mining on the property in question, OSM must first determine that he 
has demonstrated all necessary property rights to surface mine the coal 
.
    In a November 11, 1997, letter to OSM, Mr. Helmick provided 
comments pertaining to the disputed USDA title opinion and to OSM's 
responsibilities in VER determinations. (A.R. 2.517). Mr. Helmick 
claims he has the property right to surface mine by virtue of two 
things: first, the use of the word, ``stripping'' in a December 4, 
1939, deed in which a predecessor in title conveyed the surface estate 
in Tract 574 to the United States of America; and second, evidence that 
allegedly shows that surface mining was a known and accepted method of 
mining in the area surrounding the subject property. Mr. Helmick also 
posits that ``. . . the OSM may not simply defer to an opinion of the 
Forest Service or the U.S. Department of Agriculture in rendering the 
property rights determinations which form the underlying basis of a VER 
determination.'' Further, he stated that, ``The OSM also may not refuse 
to render the necessary determinations in reliance upon a Memorandum of 
Understanding (MOU) between the Forest Service and the OSM, which was 
not adopted as a rule after notice and comment in accordance with the 
required procedures of the APA.''
    OSM did not defer to the opinion of the U.S. Forest Service on Mr. 
Helmick's property rights; and does not rely on the MOU with the U.S. 
Forest Service to establish the basis and standards for OSM's actions 
in this case. Rather, the aforementioned MOU delineates the process by 
which OSM verifies whether a property rights dispute exists regarding 
requests for VER determinations on lands where the U.S. Forest Service 
is the surface owner. Under section 510(b)(6) of the Surface Mining 
Control and Reclamation Act of 1977, OSM is not authorized to 
adjudicate a property rights dispute. This section of SMCRA sets out 
specific requirements to be met prior to approval of a permit or 
revision application for surface mining and forbids approval in cases 
where ``. . .the private mineral estate has been severed from the 
private surface estate, . . .'' unless the applicant has submitted:

    ``(A) the written consent of the surface owner to the extraction 
coal by surface mining methods; or
    (B) a conveyance that expressly grants or reserves the right to 
extract the coal by surface mining methods; or
    (C) if the conveyance does not expressly grant the right to 
extract coal by surface mining methods, the surface-subsurface legal 
relationship shall be determined in accordance with State law: 
Provided, That nothing in this act shall be construed to authorize 
the regulatory authority to adjudicate property rights disputes.''

    OSM, which acts as a regulatory authority when it issues VER 
determinations, does not, and cannot, adjudicate property rights 
between competing claimants. See 30 U.S.C. 1260(b); 54 FR 52469. OSM 
regulations specifically provide that, when the Secretary acts in an 
enforcement capacity or other regulatory capacity, he

[[Page 66128]]

constitutes the ``regulatory authority.'' 30 CFR 700.5; see also 44 FR 
14913 (March 13, 1979). In his role with respect to federal lands 
programs, the Secretary of the Interior is a regulatory authority 
subject to SMCRA sections 507(b)(9) and 510(b)(6)(C). Thus, when the 
Secretary makes VER determinations on federal lands, he is acting as 
the regulatory authority. See National Wildlife Federation v. Lujan, 
950 F.2d 765, 767 (D.C.Cir. 1991), citing 30 CFR 700.5.
    Mr. Helmick argues that he has an express right to strip mine the 
subject property because a boiler plate regulation incorporated into 
the deed of severance references ``stripping.'' But that reference 
explicitly relates to a separate tract of property, Tract 574-I, that 
is not an issue in this determination. The deed is silent as to 
``stripping'' on Tract 574. If any inference can be drawn from the 
reference to stripping for one tract (574-I) and exclusion of the 
language for the second tract (574), it is that strip mining was 
expressly not intended for the second tract (574).
    A property rights dispute presently exists between the U.S. Forest 
Service and Mr. Helmick. Mr. Helmick has alleged in the 1995 lawsuit, 
that he has the right to surface mine the property in question. The 
U.S. Forest Service contested that allegation. The trial court has not 
ruled on the issue of whether the requester has the property right to 
surface mine. Moreover, the U.S. Forest Service has reiterated its 
position, in a letter to OSM, that it is of the opinion that Mr. 
Helmick does not possess the right to surface mine in the Monongahela 
National Forest. (A.R. 2.352). As a result, the dispute remains 
unresolved in the record before OSM. And, for the reasons set out 
above, section 510(b)(6) precludes OSM from adjudicating that property 
rights dispute. Thus the record before OSM does not demonstrate 
whether, under applicable State law, Mr. Helmick holds the property 
right to surface mine tract 574.
    Consequently, based on the record before it, OSM has reached the 
following conclusions in this matter: First, the written consent of the 
surface owner to surface mine was not provided, and is not in the 
record. Second, the 1939 deed which severed the coal rights did not 
expressly reserve the right to extract the coal on Tract 574 by surface 
mining methods. Finally; in light of the pending unresolved dispute 
concerning the property right to surface mine this coal, Mr. Helmick 
has not met his burden of demonstrating the property right to mine by 
the method intended. Therefore, OSM must also conclude that Mr. Helmick 
has not demonstrated VER to surface mine the property in question.\4\
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    \4\ Because the record does not demonstrate that Mr. Helmick 
holds the necessary property rights, OSM will not address the second 
stage of a takings analysis, the analysis of whether, as of 1977, 
application of the section 522(e) prohibition to Mr. Helmick's 
property rights would effect a compensable taking. (OSM notes that 
judicial case law concerning compensable takings would also require 
a threshold determination as to whether Mr. Helmick has demonstrated 
the property right to surface mine the coal. See Lucas v. South 
Carolina Coastal Council, 505 U.S. 1003, 1027 (1992).)
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III. Summary and Disposition of Comments

    OSM received numerous comments opposed to VER requests pertinent to 
Tract 574, most of which were submitted in January and February 1990, 
in response to an application by Cecil E. Nichols. (A.R. 2.73). The 
protests focus on property rights, environmental concerns, and economic 
issues. In this decision, OSM is not responding to comments as to 
whether the coal holder has the necessary rights, because, as explained 
above, OSM cannot adjudicate the property rights dispute between the 
U.S. Forest Service and the current requester, Mr. Helmick. OSM is not 
addressing the remaining comments, because this decision cannot reach 
the takings analysis to which those comments may relate.

IV. Appeals

    Any person who is or may be adversely affected by this decision may 
appeal to the Interior Board of Land Appeals under 43 CFR 4.1390. 
Notice of intent to appeal must be filed within 30 days after receipt 
of the determination by a person who has received a copy by certified 
mail or overnight delivery service; or within 30 days of the date of 
publication of this notice of decision in the Federal Register by any 
person who has not received a copy by certified mail or overnight 
delivery service.

    Dated: December 9, 1997.
Allen D. Klein,
Regional Director, Appalachian Regional Coordinating Center.
[FR Doc. 97-32850 Filed 12-16-97; 8:45 am]
BILLING CODE 4310-05-M


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