OFFICE OF SURFACE MINING RECLAMATION AND ENFORCEMENT

U.S. Department of the Interior

Search conducted by: Joyce Zweben Scall

Page 1 of 4

COALEX STATE INQUIRY REPORT – 154

January 1990

Lisa Keener, Esquire

Natural Resources and Environmental Protection Cabinet

Department of Law

Capital Plaza Tower, Fifth Floor

Frankfort, Kentucky 40601

TOPIC: STATE PERMITTING ON FEDERAL LANDS

INQUIRY: What caselaw, preambles, etc. are available which discuss a state's right to issue 

permits for coal mining operations which were conducted on federal lands prior to the approval 

of the state SMCRA regulatory program? 

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

materials available in LEXIS. No federal or state cases were identified which address the specific 

issue of this inquiry. However, a related, Supreme Court, case was identified which ruled on the 

federal pre-emption of a state's permitting authority with regard to mining limestone on federal 

lands. Also discussed below is a Court of Appeals case which rules on the applicability of 

SMCRA to underground mining operations located on federal lands and three relevant decisions 

from Interior's Office of Hearings and Appeals (OHA). The Federal Register preambles included 

discuss state and federal responsibilities for permitting on federal land. Copies of the items listed 

below are attached. 

FEDERAL CASE LAW

CALIFORNIA COASTAL COMM., et al. v GRANITE ROCK CO., 480 US 572 (1987).

"This case presents the question whether Forest Service regulations, federal land use statutes and 

regulations or the Coastal Zone Management Act of 1972...pre-empt the California Coastal 

Commission's imposition of a permit requirement on operation of an unpatented mining claim in 

a national forest."

In reversing the Court of Appeals, the Court ruled that "It is impossible to divine from [the 

regulations indicated above], which expressly contemplate coincident compliance with state law 

as well as with federal law, an intention to pre-empt all state regulation of unpatented mining 

claims in national forests."

RAMEX MINING CORP., GABRIEL ENERGY CORP., & THE STEARNS CO., 

INTERVENOR, v WATT, 753 F2d 521 (6th Cir 1985), cert. denied 106 S Ct 271 (1985).
OFFICE OF SURFACE MINING RECLAMATION AND ENFORCEMENT

U.S. Department of the Interior

Search conducted by: Joyce Zweben Scall

Page 2 of 4

In each of these two cases a coal mining company proposed to mine coal under the surface of 

land owned and maintained by the federal government as forest land. The mining companies 

claimed a valid royalty lease of the mineral estate. Each mining company sought a declaratory 

judgment that they were entitled to mine coal under the federal lands. The Court of Appeals 

affirmed the District Court's ruling that (1) the proposals "to mine beneath federal national forest 

lands, with the conceded attendant effects on the surface of those lands, fits" the definition of 

surface mining in the Act; and (2) the "takings claim was not ripe for adjudication" since OSM 

had not yet ruled on the questions of plaintiffs' "valid existing rights".

OHA DECISIONS

GABRIEL ENERGY CORP. v OSM, 105 IBLA 53, IBLA 86-1422 (1988). 

OSM believed that Gabriel Energy's permit, issued by the State of Kentucky, was "inadequate 

authority" for mining in the Daniel Boone National Forest. Gabriel Energy voluntarily 

discontinued its operations pending a meeting with OSM, which was "memorialized" in writing, 

and instituted proceedings in the U.S. District Court. When the court rejected their claim for 

relief, Gabriel Energy appealed (see the case above). While the Court of Appeals litigation was 

pending, a Notice of Violation (NOV) and, subsequently, a Cessation Order (CO) were issued. 

The Board reversed the ALJ's decision and vacated the CO stating that it did not want to penalize 

Gabriel Energy "for entering into the agreement with OSMRE to suspend operations pending 

litigation of the Federal permit dispute". OSM was "bound by the terms of the agreement made 

with the operator and may not issue [an NOV] for conditions created by the agreement itself." 

NATURAL RESOURCES DEFENSE COUNCIL, INC. v OSM, WEST ELK COAL CO., 

INTERVENOR, 94 IBLA 269, IBLA 83-757 (IBSMA 81-83) (1986, amends 1985 decision).

West Elk contended that the Board no longer had jurisdiction over the mine in question and that 

the "Federal permit upon which this case [was] premised [was] moot due to the cooperative 

agreement" between DOI and State of Colorado: at the time of the original permit issuance both 

a federal and a state permit were necessary, with the cooperative agreement in force, only a state 

permit was necessary to mine. The Board ruled that a "cooperative agreement does not vest the 

state with complete control over mining on Federal lands." The state is responsible for 

"approving or disapproving the mining permit, but the Secretary retains authority to approve or 

disapprove the operation and reclamation plan component of the application."

MID-MOUNTAIN MINING, INC. v OSM, 92 IBLA 4, IBLA 86-52 (1986).

Mid-Mountain conducted surface mining operations on private lands under a Kentucky state 

program permit. The state permit included an adjacent area which was owned by the United 

States. OSM issued a CO for mining on federal lands without a valid permit (there was no 

cooperative agreement between DOI and Kentucky). The Board reversed an ALJ decision which 

had granted Mid-Mountain temporary relief from the CO, ruling that the applicant had 

acknowledged "that he conducted surface mining operations on Federal lands without a Federal 
OFFICE OF SURFACE MINING RECLAMATION AND ENFORCEMENT

U.S. Department of the Interior

Search conducted by: Joyce Zweben Scall

Page 3 of 4

permit", a condition which could cause "significant, imminent environmental harm to land, air, 

or water resources." 

FEDERAL REGISTER NOTICES

42 FR 62639 (DECEMBER 13, 1977). Final rules. Initial Regulatory Program. [Excerpts]

710.3 Authority. "(b) The Secretary is also authorized to regulate surface coal mining and 

reclamation operations on Federal Lands by the Mineral Leasing Act of February 25, 1920, as 

amended, (30 USC 181-287) and the Mineral Leasing Act for Acquired Lands (30 USC 351-

359) and on Indian lands by various Indian land acts. Additional regulations under these Acts are 

in 30 CFR Part 211, 43 CFR Part 3041 and 25 CFR Part 177."

45 FR 77003 (NOVEMBER 21, 1980). Final rule. Conditional approval of the Permanent 

Program Submission from Arkansas. [Excerpt]

"The [US Geological Survey] recommended that Arkansas include in its program procedures for 

processing proposed mine plans or permits that include Federal lands. Such processing 

procedures need not be included in the state plan because: (1) in States without a cooperative 

agreement with the Department of the Interior, the Secretary has sole responsibility for review 

and approval of permit applications on Federal lands. and (2) in States with a cooperative 

agreement, the Secretary has joint responsibility with the State."

47 FR 25092 (JUNE 9, 1982). Proposed rule. Federal Lands Program.

"The proposed rule would more clearly delineate the roles of the Federal government and the 

States in the regulation of surface coal mining and reclamation operations on Federal lands. 

Under the proposed rule, States would be able to assume greater responsibility for administering 

the requirements of [SMCRA] while new provisions would be added to set the requirements for 

review and approval of mining plans by the Secretary."

48 FR 6912 (FEBRUARY 16, 1983). Final rules. Federal Lands Program.

(See description above.)

ATTACHMENTS

A. CALIFORNIA COASTAL COMM., et al. v GRANITE ROCK CO., 480 US 572 (1987). 

B. RAMEX MINING CORP., GABRIEL ENERGY CORP., & THE STEARNS CO., 

INTERVENOR, v WATT, 753 F2d 521 (6th Cir 1985), cert. denied 106 S Ct 271 (1985). 

C. GABRIEL ENERGY CORP. v OSM, 105 IBLA 53, IBLA 86-1422 (1988). 

D. NATURAL RESOURCES DEFENSE COUNCIL, INC. v OSM, WEST ELK COAL 

CO., INTERVENOR, 94 IBLA 269, IBLA 83-757 (IBSMA 81-83) (1986, amends 1985 

decision). 

E. MID-MOUNTAIN MINING, INC. v OSM, 92 IBLA 4, IBLA 86-52 (1986). 
OFFICE OF SURFACE MINING RECLAMATION AND ENFORCEMENT

U.S. Department of the Interior

Search conducted by: Joyce Zweben Scall

Page 4 of 4

F. 42 FR 62639 (DECEMBER 13, 1977). Final rules. Initial Regulatory Program. 

[Excerpts] 

G. 45 FR 77003 (NOVEMBER 21, 1980). Final rule. Conditional approval of the Permanent 

Program Submission from Arkansas. [Excerpt] 

H. 47 FR 25092 (JUNE 9, 1982). Proposed rule. Federal Lands Program. 

I. 48 FR 6912 (FEBRUARY 16, 1983). Final rules. Federal Lands Program.