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 – 149

September 14, 1990

George Piper, Esquire

Division of Energy

1615 Washington Street, East

Charleston, West Virginia 25311

TOPICS: HAUL ROADS AND VALID EXISTING RIGHTS

INQUIRY: Please locate any material which discusses valid existing rights (VER) with respect 

to haul roads. In particular, the hauling of coal on roads in existence prior to August 3, 1977.

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

materials available in LEXIS. No material was identified which discussed the specific issue 

stated in the inquiry. Little material was identified which addressed VER with respect to haul 

roads. The topic was discussed briefly in a 1988 OSM Directive and in the preambles to several 

Federal Register notices of proposed and final rules amending 30 CFR Part 761: Areas 

Unsuitable for Mining. A copy of the Directive and excerpts from the notices are attached. Also 

included are three Federal Register notices of the Secretary's determination of VER for mining 

operations in national forests which involve haul roads and an excerpt from a recent Judge 

Flannery decision which involves roads.

Under the 1979 rules (30 CFR 761.5), an operator possesses valid existing rights for a haul road 

if that person had: 

"(1) a recorded right-of-way, recorded easement, or a permit for a coal haul road recorded as of 

August 3, 1977, or (2) any other road in existence as of August 3, 1977."

In response to a court remand, the requirement for a good faith attempt to obtain all permits prior 

to August 3, 1977 ("modified all permits test") was substituted for the requirement to have 

obtained all permits by August 3, 1977.

No changes were proposed for the definition of haul road VER until December 27, 1988, when 

OSM proposed to add language "clarifying that the 'continually created VER' provision applies 

to haul roads" (53 FR 52374). The December 27, 1988 proposed rules were withdrawn by OSM 

on July 21, 1989 pending "further study" (54 FR 30557).

NOTE: References are made to VER for haul roads in two additional Federal Register notices: 

47 FR 25278 (JUNE 10, 1982) Proposed rules and 48 FR 41312 (SEPTEMBER 14, 1983) Final 

rules. Excerpts of both notices are included.
OFFICE OF SURFACE MINING RECLAMATION AND ENFORCEMENT

U.S. Department of the Interior

Search conducted by: Joyce Zweben Scall

Page 2 of 2

ATTACHMENTS

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).