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COALEX STATE INQUIRY REPORT - 288

June 1994

G. Milton McCarthy

Assistant Attorney General

Alabama Surface Mining Commission

P.O. Box 2390

Jasper, Alabama 35502-2390

TOPIC: RIGHT OF ENTRY ON NAVIGABLE WATERWAY

INQUIRY: An operator plans to mine through a stream. The operator has leases with 

all of the property owners on both sides of the stream. Does the state own the stream 

bottom? If it does, must the operator pay royalties to the state? Does the operator have 

the right to "enter" the stream bed? Is this a property dispute which cannot be 

adjudicated under SMCRA? Please locate any relevant material. 

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

materials available in LEXIS. Interior and Pennsylvania administrative decisions as well 

as state cases were identified that address the various aspects of this Inquiry. The items 

retrieved as a result of the research are listed below; copies are attached unless noted 

otherwise.

INTERIOR ADMINISTRATIVE DECISIONS 

PAUL F. KUHN, 120 IBLA, IBLA 89-539 (1991).

The Board held that resolution of the question whether a state permittee has the legal 

right to mine private land, either at the time of permit issuance or during the permit term, 

is not subject to resolution by a state mining regulatory authority where adjudication of a 

private dispute is required. Here, the private landowner claimed that he had not 

authorized the mining company to conduct surface coal mining operations on his land. 

MARION A. TAYLOR, 125 IBLA 271, IBLA 92-184 (1993).

Kentucky DSMRE was aware that the private dispute whether COAL-Mac had the legal 

right to mine the subject land by surface means, which was the subject of pending 

litigation. This ongoing dispute meant Coal-Mac was unable to demonstrate that it had 

the legal right to mine the subject land by surface means. Since the permit was issued 

despite the fact that the legal right to mine property dispute was in litigation, "DSMRE, in 
OFFICE OF SURFACE MINING RECLAMATION AND ENFORCEMENT

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response to the TDN, should have suspended mining of the disputed land under the 

permit pending the outcome of the dispute."

LYDIA DEMSKI v OSM, Docket No. NX 92-2-PR (1993).

The ALJ ruled the Gatliff's permit and subsequent revisions were properly issued. Gatliff 

deleted the tract of land where the right of entry was in dispute from the permit 

application. Subsequent revisions excluded any of Demski's property which may have 

been initially include in the permit. Demski failed to prove she had been damaged by the 

issuance of the permit or any of the revisions.

TURNER BROS., INC. v OSM, 92 IBLA 381, IBLA 85-529 (1986).

Turner Brothers failed to indicate anywhere in its permit application that it was 

negotiating for the right to mine part of the permit property nor did they delete this 

property from its permit after it became apparent that negotiations for the right to mine 

would be unsuccessful. While Turner Brothers alerted ODOM employees to the status 

of the lands orally, it made no attempt to modify its permit in writing.

PENNSYLVANIA ADMINISTRATIVE DECISIONS

GEORGE M. LUCCHINO v PADER, EHB Docket No. 91-117-MJ, 1994 Pa Envirn 

LEXIS 11 (1994).

SYNOPSIS. "[A]n applicant for a mining permit must obtain the written consent of a 

landowner for entry upon land to be affected by the permit.... Where a dispute exists 

between the applicant and landowner as to the rights granted o the applicant by the 

underlying agreement, the Department may not rely solely on the existence of a signed 

landowner consent form as proof of the applicant's right of entry to the property for the 

purposes set for the in the permit application. The Department's role in ensuring that the 

applicant has obtained landowner consent as required by the Surface Mining Act and 

the regulations is more that simply ministerial and requires that the Department exercise 

discretion in ensuring that the consent is valid and effective as of the date of the 

issuance of the permit."

CRONER, INC. AND POPOVICH V PADER, EHB Docket No. 91-460-E, 1993 Pa 

Envirn LEXIS 35 (1993).

The haulroad leading to Croner's coal preparation facility traverse property whose title is 

in dispute. The Board found that PADER did not abuse its discretion in issuing a 

renewal permit containing a special condition which required Croner "to obtain a court 

determination establishing the claim of title by adverse possession, to obtain the 

landowner's agreement to its entry on the disputed property, or to reclaim and abandon 

the affected portions of the disputed property."
OFFICE OF SURFACE MINING RECLAMATION AND ENFORCEMENT

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EMPIRE COAL MINING AND DEVELOPMENT, INC. v PADER, 615 A 2d 829 (Pa 

Commw Ct 1992). EMPIRE COAL MINING AND DEVELOPMENT, INC. v PADER, 

DOCKET No. 91-115-MR, 1992 Pa Envirn LEXIS 8 ( 1992).

The Board held that DER was justified in denying Empire's permit application. The 

applicant based its right to enter and mine on a written agreement with the surface 

owner and a written agreement with the mineral owner. While the application was 

pending, the agreement with the surface owner expired. Empire submitted revisions to 

is application which included a Pennsylvania Supreme Court interpretation of virtually 

identical clauses regarding the same tract of land and asserting that it could enter the 

tract and strip mine without the consent of the surface owner. The state court reversed 

the Board's ruling and remanded the case stating that Empire was not given the 

opportunity to present evidence on its claim that it did comply with statutory 

requirements.

MACKEY, ET AL. v PADER, EHB Docket No. 86-078-G, 1988 Pa Envirn LEXIS 24 

(1988). 

"Before incremental phase approval is granted for any parcel on the permitted area, the 

landowner(s) of the parcel must give DER a so-called 'Supplemental C' granting written 

approval of mining on that parcel...."

STATE CASE LAW: CASES WITH CLOSEST FACT SITUATIONS

STATE v LONGYEAR HOLDING CO., 29 NW 2d 657 (Minn 1947). 

Headnotes: "The riparian owners here, holding title to lands bordering on Syracuse 

Lake under patents from the United States, did not, by virtue thereof, acquire any title to 

the bed of said lake below low-water mark. Under decisions of this court, it is equally 

well settled that such riparian owners did not acquire any property established here, 

other than the ordinary riparian rights of navigation, dockage, wharfage, and similar 

privileges, or those contingent rights or privileges dependent upon the doctrine of 

accretions and relictions."

MORLEY v BERG, 226 SW 2d 559 (Ark 1950).

Headnotes: "Since the Commissioner had the right to maintain an action to enjoin the 

illegal taking of sand and gravel from the beds of streams of the state and to collect 

royalties and penalties for that already taken, the court erred in dismissing his petition or 

complaint."

STATE OF TEXAS v BLACK BROS., 297 SW 213 (Texas 1927).

Headnotes: "Owners of land bounded by a stream made a navigable one by statute... 

own to the water's edge only and have no title to the bed of the stream nor to minerals 
OFFICE OF SURFACE MINING RECLAMATION AND ENFORCEMENT

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underlaying it. The State and those claiming mineral rights in the bed of the stream 

under its authority could recover same against riparian proprietors interfering with 

mineral development therein."

STATE CASE LAW: QUESTIONS OF OWNERSHIP OF RIVER BOTTOM

COASTAL STATES GAS PRODUCING CO. v STATE MINERAL BD., 199 So 2d 554 

(La Ct App 1967).

In reversing the trial court, the court held "that the State of Louisiana instead of the 

private claimants is the owner" of the beds and bottoms of Bayou Lacassine and that 

the State owns the royalties attributable to mineral production from the river bottom.

Also see: 

RYALS v PIGOTT, 580 So 2d 1140 (Miss 1990).

STATE OF SOUTH CAROLINA v SLOAN CONSTRUCTION CO., INC., 328 SE 2d 84 

(SC Ct App 1985).

MADDOX v THREATT, 171 SE 2d 284 (Ga 1969).

U.S. v APPALACHIAN ELECTRIC POWER CO., 311 U.S. 377 (1940).

SOO SAND & GRAVEL CO. v M. SULLIVAN DREDGING CO., 244 NW 138 (Mich 

1932).

STATE OF TEXAS v BRADFORD, 50 SW 2d 1065 (Tex 1932). [Excerpts]

ARCHER v GREENVILLE SAND & GRAVEL CO., 233 US 60 (1914).

STATE OF FLORIDA v BLACK RIVER PHOSPHATE CO., 9 So 205 (Fla 1891).

STATE CASE LAW: NAVIGABLE WATER

STATE OF MINNESOTA v ADAMS, 89 NW 2d 661 (Minn 1958).

Applying "the tests for navigability formulated by the Federal courts ", the court 

determined that the state was "the owner of certain lake beds...under which lie valuable 

deposits of iron ore." 

STATE CASE LAW: ROYALTIES FOR MINERAL DEVELOPMENT

The following cases address the question of royalties for oil, gas or mineral 

rights/development on state-owned water bottoms:
OFFICE OF SURFACE MINING RECLAMATION AND ENFORCEMENT

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ST. MARY PARISH v PARKER, 610 So 2d 875 (La Ct App 1992).

EAST BATON ROUGE PARISH v TREASURER, 560 So 2d 478 (La Ct App 1990).

T.L. JAMES & CO., INC. v KENNER LANDING, Inc., 550 So 2d 1378 (La Ct App 

1989).

CHEVRON USA, INC. v LORIO, 496 So 2d 611 (La Ct App 1986).

AGERTON v CITY OF LAKE CHARLES, 273 So 2d 353 (La Ct Ap 1973).

STATE OF OREGON v PORT OF PORTLAND, 376 P 2d 661 (Ore 1962).

COASTAL STATES GAS PRODUCING CO. v PATE, 309 SW 2d 828 (Tex 1958).

SCURLOCK v CLARK, 272 SE 2d 58 (Ark 1954).

ALR EXCERPTS INCLUDED FOR BACKGROUND

ANNOTATION, "Deeds: Description of land conveyed by reference to river or stream as 

carrying to thread or center or only to bank thereof -- Modern status", 65 ALR 3d 604.

ANNOTATION, "Apportionment and division of area of river as between riparian tracts 

fronting on same bank, in absence of agreement or specification", 65 ALR 2d 143.

REGULATION HISTORY INCLUDED FOR BACKGROUND

48 FR 44344 (SEPTEMBER 28, 1983). Final rule. Permitting - Related information 

requirements of applications.

44 FR 14902 (MARCH 13, 1979). Permanent program final preamble - Final rule. Part 

778 Permitting - Related information requirements of applications.

COALEX STATE COMPARISON REPORT - 164, "Right of entry information in permit 

applications" (1990).

Includes previous Reports on right to subside.

STATE STATUTES AND CODES INCLUDED FOR BACKGROUND

Attached are sections of state statutes and codes that state the following:

1. State ownership of beds of navigable rivers

2. State responsibility for granting leases and permits to remove coal, oil, gas, and 

other minerals from beds of navigable rivers.
OFFICE OF SURFACE MINING RECLAMATION AND ENFORCEMENT

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3. Requirement to pay royalties on minerals removed from state-owned navigable 

river beds.

4. Materials are included for these states: 

a. Alabama 

b. Arkansas 

c. Florida 

d. Idaho 

e. Louisiana 

f. Maryland 

g. Montana 

h. Oregon 

i. Pennsylvania 

j. South Carolina 

k. Texas 

l. Wisconsin

RELEVANT FEDERAL CASE LAW NOT INCLUDED

These cases are referred to in a number of items listed here; however, copies of these 

cases are not included with this Report:

US v UTAH, 283 US 64. 

The test of navigability to fix ownership of lake beds must be determined as of the date 

of a state's admission to the union.

BARNEY v KEOKUK, 94 US 324 (1877).

Ruled that the states' title included the beds of all waters which, upon admission to the 

union, were actually navigable, whether or not they were affected by the tide.

US v HOLD STATE BANK, 270 US 49.

"[S]treams or lakes which are navigable in fact must be regarded as navigable in law".

SHIVELY v BOWLBY, 152 US 1.

The Supreme Court provides a review of the law governing titles to lands under 

navigable waters.

Also see:

DONNELLY v US, 228 US 243 (1913).

ATTACHMENTS
OFFICE OF SURFACE MINING RECLAMATION AND ENFORCEMENT

U.S. Department of the Interior

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A. PAUL F. KUHN, 120 IBLA, IBLA 89-539 (1991). 

B. MARION A. TAYLOR, 125 IBLA 271, IBLA 92-184 (1993). 

C. LYDIA DEMSKI v OSM, Docket No. NX 92-2-PR (1993). 

D. TURNER BROS., INC. v OSM, 92 IBLA 381, IBLA 85-529 (1986). 

E. GEORGE M. LUCCHINO v PADER, EHB Docket No. 91-117-MJ, 1994 Pa 

Envirn LEXIS 11 (1994). 

F. CRONER, INC. AND POPOVICH v PADER, EHB Docket No. 91-460-E, 1993 Pa 

Envirn LEXIS 35 (1993). 

G. EMPIRE COAL MINING AND DEVELOPMENT, INC. v PADER, 615 A 2d 829 

(Pa Commw Ct 1992). 

H. EMPIRE COAL MINING AND DEVELOPMENT, INC. v PADER, DOCKET No. 

91-115-MR, 1992 Pa Envirn LEXIS 8 ( 1992). 

I. MACKEY, ET AL. v PADER, EHB Docket No. 86-078-G, 1988 Pa Envirn LEXIS 

24 (1988). 

J. STATE v LONGYEAR HOLDING CO., 29 NW 2d 657 (Minn 1947). 

K. MORLEY v BERG, 226 SW 2d 559 (Ark 1950). 

L. STATE OF TEXAS v BLACK BROS., 297 SW 213 (Texas 1927). 

M. COASTAL STATES GAS PRODUCING CO. v STATE MINERAL BD., 199 So 2d 

554 (La Ct App 1967). 

N. RYALS v PIGOTT, 580 So 2d 1140 (Miss 1990). 

O. STATE OF SOUTH CAROLINA v SLOAN CONSTRUCTION CO., INC., 328 SE 

2d 84 (SC Ct App 1985). 

P. MADDOX v THREATT, 171 SE 2d 284 (Ga 1969). 

Q. U.S. v APPALACHIAN ELECTRIC POWER CO., 311 U.S. 377 (1940). 

R. SOO SAND & GRAVEL CO. v M. SULLIVAN DREDGING CO., 244 NW 138 

(Mich 1932). 

S. STATE OF TEXAS v BRADFORD, 50 SW 2d 1065 (Tex 1932). [Excerpts] 

T. ARCHER v GREENVILLE SAND & GRAVEL CO., 233 US 60 (1914). 

U. STATE OF FLORIDA v BLACK RIVER PHOSPHATE CO., 9 So 205 (Fla 1891). 

V. STATE OF MINNESOTA v ADAMS, 89 NW 2d 661 (Minn 1958). 

W. ST. MARY PARISH v PARKER, 610 So 2d 875 (La Ct App 1992). 

X. EAST BATON ROUGE PARISH v TREASURER, 560 So 2d 478 (La Ct App 

1990). 

Y. T.L. JAMES & CO., INC. v KENNER LANDING, INC., 550 So 2d 1378 (La Ct 

App 1989). 

Z. CHEVRON USA, INC. v LORIO, 496 So 2d 611 (La Ct App 1986). 

AA. . AGERTON v CITY OF LAKE CHARLES, 273 So 2d 353 (La Ct Ap 

1973). 

BB. . STATE OF OREGON v PORT OF PORTLAND, 376 P 2d 661 (Ore 

1962). 

CC. COASTAL STATES GAS PRODUCING CO. v PATE, 309 SW 2d 828 

(Tex 1958). 

DD. SCURLOCK v CLARK, 272 SE 2d 58 (Ark 1954). 
OFFICE OF SURFACE MINING RECLAMATION AND ENFORCEMENT

U.S. Department of the Interior

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EE. ANNOTATION, "Deeds: Description of land conveyed by reference to river 

or stream as carrying to thread or center or only to bank thereof -- Modern 

status", 65 ALR 3d 604. 

FF.ANNOTATION, "Apportionment and division of area of river as between riparian 

tracts fronting on same bank, in absence of agreement or specification", 65 ALR 

2d 143. 

GG. 48 FR 44344 (SEPTEMBER 28, 1983). Final rule. Permitting - Related 

information requirements of applications. 

HH. 44 FR 14902 (MARCH 13, 1979). Permanent program final preamble -

Final rule. Part 778 Permitting - Related information requirements of applications. 

II. COALEX STATE COMPARISON REPORT - 164, "Right of entry information in 

permit applications" (1990). [Enclosed without attachments.] 

JJ. STATE STATUTES AND CODES FOR: 

1. Alabama 

2. Arkansas 

3. Florida 

4. Idaho 

5. Louisiana 

6. Maryland 

7. Montana 

8. Oregon 

9. Pennsylvania 

10.South Carolina 

11.Texas 

12.Wisconsin