OFFICE OF SURFACE MINING RECLAMATION AND ENFORCEMENT

U.S. Department of the Interior

Search conducted by: Joyce Zweben Scall Page 1 of 2

COALEX STATE INQUIRY REPORT - 250

March 1993

Michael Sponsler, Director

Division of Reclamation

Department of Natural Resources

P.O. Box 147; 210 W. Main Street

Jasonville, Indiana 47438

TOPIC: VER: RIGHTS-OF-WAY OR EASEMENTS FOR RAILROADS (Updates 

COALEX Report No. 149) 

INQUIRY: An operator claims VER for an existing right-of-way, which, on August 3, 

1977, was for a railroad. After 1977, the tracks were removed and power poles erected 

on the raised bed. An access road, used to maintain the poles, was built on the raised 

bed. Does the access road qualify for VER? Please locate any materials that address 

this issue. 

SEARCH RESULTS: Research was conducted using the COALEX Library, other 

materials in LEXIS and prior COALEX State Inquiry Reports. No materials were 

identified that address the specific issue of this Report. Only one case with some 

relevance was retrieved; this West Virginia decision is attached. An existing COALEX 

Report on haul roads and VER which includes preambles to Federal Register notices is 

attached along with some updating material. The Report and the updating material are 

enclosed to provide general information on the issue of VER. 

CHURNETTE v CALLAGHAN, 425 SE 2d 170 (W Va 1992).

The issue of this case was whether a private road in existence prior to August 3, 1977 

qualified for the VER exception under West Virginia statutes and regulations. After 

analyzing what constitutes VER for haul roads, the court held that the road in question 

did qualify for the VER exception. 

COALEX STATE INQUIRY REPORT - 149, "Haul Roads and Valid Existing Rights" 

(1990).

This inquiry requested materials on the hauling of coal on roads in existence prior to 

August 3, 1977. The only relevant material identified was regulatory-related: preambles 

to federal regulations, an OSM Directive and a district court case that ruled on the 

federal regulations. 
OFFICE OF SURFACE MINING RECLAMATION AND ENFORCEMENT

U.S. Department of the Interior

Search conducted by: Joyce Zweben Scall Page 2 of 2

This Report is updated by a more current OSM Directive on VER and a 1991 preamble 

to the federal proposed rule published in the Federal Register. See the ATTACHMENTS 

list below.

ATTACHMENTS

1. CHURNETTE V CALLAGHAN, 425 SE 2d 170 (W Va 1992). 

2. COALEX STATE INQUIRY REPORT - 149, "Haul Roads and Valid Existing 

Rights" (1990). 

A. TEMPORARY DIRECTIVE: Subject No. 88-1, Transmittal No. 419, 

"Interim Procedures for Determination of Valid Existing Rights" (January 1, 

1988). 

B. 54 FR 30557 (JULY 21, 1989). Withdrawal of proposed rule. 

C. Excerpts from 53 FR 52374 (DECEMBER 27, 1988). Proposed rules. 

D. Excerpts from 48 FR 41312 (SEPTEMBER 14, 1983). Final rules. 

E. Excerpts from 47 FR 25278 (JUNE 10, 1982). Proposed rules. 

F. Excerpts from 44 FR 14902 (MARCH 13, 1979). Permanent Program 

Final Preamble. 

G. 55 FR 22961 (JUNE 5, 1990). Request for Determination of Valid Existing 

Rights Within the Daniel Boone National Forest, Ky. 

H. 46 FR 36758 (JULY 15, 1981). Determination of Valid Existing Rights; 

Daniel Boone National Forest. 

I. 45 FR 61798 (SEPTEMBER 17, 1980). Determination of Valid Existing 

Rights Within Monongahela National Forest. 

J. Excerpts from NATIONAL WILDLIFE FEDERATION v LUJAN, 1990 U.S. 

Dist. LEXIS 11541 (D D C August 30, 1990). 

3. OSM TEMPORARY DIRECTIVE, Subject No. 90-03, Transmittal No. 587, 

"Interim Procedures for Determination of Valid Existing Rights" (Issued 11/30/89). 

4. 56 FR 33152 (JULY 18, 1991). Proposed rule. Areas designated by Act of 

Congress.