66126 Federal Register / Vol. 62, No. 242 / Wednesday, December 17, 1997 / Notices

1An 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).

DEPARTMENT OF THE INTERIOR

Bureau of Land Management

[ES–960–1910–00–4488; ES–49260, Group

179, Minnesota]

Notice of Filing of Plat of Survey;

Minnesota

The plat of the dependent resurvey

and survey of the U.S. Bureau of Mines,

Twin Cities Research Center, located

within the Fort Snelling Military

Reservation in Township 28 North,

Range 23 West, Fourth Principal

Meridian, Minnesota, will be officially

filed in Eastern States, Springfield,

Virginia at 7:30 a.m., on January 20,

1998.

The survey was requested by the U.S.

Bureau of Mines.

All inquiries or protests concerning

the technical aspects of the survey must

be sent to the Chief Cadastral Surveyor,

Eastern States, Bureau of Land

Management, 7450 Boston Boulevard,

Springfield, Virginia 22153, prior to

7:30 a.m., January 20, 1998.

Copies of the plat will be made

available upon request and prepayment

of the reproduction fee of $2.75 per

copy.

Dated: December 5, 1997.

Stephen G. Kopach,

Chief Cadastral Surveyor.

[FR Doc. 97–32911 Filed 12–16–97; 8:45 am]

BILLING CODE 4310–GJ–M

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.

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: pmichael@osmre.gov.

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.lll’’). 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
Federal Register / Vol. 62, No. 242 / Wednesday, December 17, 1997 / Notices 66127

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).

3OSM 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.

owned by the United States of America

and managed by the United States

Forest Service. (A.R. 2.352).

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).

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

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
66128 Federal Register / Vol. 62, No. 242 / Wednesday, December 17, 1997 / Notices

4Because 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).)

1The record is defined in sec. 207.2(f) of the

Commission’s Rules of Practice and Procedure (19

CFR § 207.2(f)).

2Commissioner Crawford determines that an

industry in the United States is materially injured

by reason of the subject imports. Pursuant to section

735(b)(4)(A) of the Act (19 U.S.C. 1673d(b)(4)(A)),

Commissioner Crawford makes a negative

determination regarding critical circumstances.

3For purposes of these investigations, cut-tolength carbon steel plate is hot-rolled iron and

nonalloy steel universal mill plates (i.e., flat-rolled

products rolled on four faces or in a closed box

pass, of a width exceeding 150 mm but not

exceeding 1,250 mm and of a thickness of not less

than 4 mm, not in coils and without patterns in

relief), of rectangular shape, neither clad, plated,

nor coated with metal, whether or not painted,

varnished, or coated with plastics or other

nonmetallic substances; and certain iron and

nonalloy steel flat-rolled products not in coils, of

rectangular shape, hot-rolled, neither clad, plated,

nor coated with metal, whether or not painted,

varnished, or coated with plastics or other

nonmetallic substances, 4.75 mm or more in

thickness and of a width which exceeds 150 mm

and measures at least twice the thickness. Included

in this definition are flat-rolled products of

nonrectangular cross-section where such crosssection is achieved subsequent to the rolling

process (i.e., products which have been ‘‘worked

after rolling’’), such as products which have been

bevelled or rounded at the edges. Excluded from

this definition is grade X–70 plate.

4Cut-to-length carbon steel plate is currently

covered by the following statistical reporting

numbers of the HTS: 7208.40.3030; 7208.40.3060;

7208.51.0030; 7208.51.0045; 7208.51.0060;

7208.52.0000; 7208.53.0000; 7208.90.0000;

7210.70.3000; 7210.90.9000; 7211.13.0000;

7211.14.0030; 7211.14.0045; 7211.90.0000;

7212.40.1000; 7212.40.5000; and 7212.50.0000.

5The Commission further determines, pursuant to

19 U.S.C. 1673d(b)(4)(B), that it would not have

found material injury but for the suspension of

liquidation of entries of the merchandise under

investigation.

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

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

INTERNATIONAL TRADE

COMMISSION

[Investigations Nos. 731–TA–753–756

(Final)]

Certain Carbon Steel Plate From China,

Russia, South Africa, and Ukraine

Determination

On the basis of the record 1 developed

in the subject investigations, the United

States International Trade Commission

determines, pursuant to section 735(b)

of the Tariff Act of 1930 (19 U.S.C.

1673d(b)) (the Act), that an industry in

the United States is threatened with

material injury 2 by reason of imports

from China, Russia, South Africa, and

Ukraine of cut-to-length carbon steel

plate,3 provided for in provisions of

headings 7208 through 7212 of the

Harmonized Tariff Schedule (HTS) of

the United States, 4 that have been found

by the Department of Commerce to be

sold in the United States at less than fair

value (LTFV).5