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 - 329

January 1995

Interstate Mining Compact Commission

Herndon, VA

TOPIC: Update on 16 2/3 exemptions, Incidental Development, Definition of Mineral 

INQUIRY: Update of COALEX Reports 134 & 191 with more recent decisions on the 

exemption from SMCRA where the extraction of coal constitutes less than 16 2/3 

percent of the tonnage of minerals removed for the purposes of commercial sale. 

SEARCH RESULTS: COALEX and LEXIS were used to update existing reports: 

1. Report - 173: "Coal removal incident to private development"; 

2. Report - 262: "Non-commercial use of 'other materials'"; 

3. Report - 134: "16 2/3 exemption" 

ADDITIONAL INFORMATION

Horizon Coal Corp. v US, 1994 US App LEXIS 30608, 1994 FED App 400 (6th Cir 

1994).

This case, involving reclamation fees, required the determination of whether the shale 

extracted and used to improve the property's value as a sanitary landfill could be 

counted toward the tonnage of minerals removed for purposes of commercial use. If the 

shale was removed for commercial use then the government could not collect the 

reclamation fees as coal extraction would not have exceeded 16 2/3 percent threshold. 

The court ruled: 

"Here, Kohl stockpiled and used the shale to reclaim the land in the aftermath of surface 

mining operations -- a process that enabled him to prepare the land for its ultimate 

transformation into a sanitary landfill. We hold that this constitutes a 'commercial use' as 

that term is used by sec. 1291(28)(A)."

Cumberland Reclamation Co. v Secretary, US Dept. of the Interior, 925 F 2d 164 

(6th Cir 1991). Cumberland Reclamation Co., 102 IBLA 100, IBLA 85-583 (1988).

Cumberland failed to provide evidence concerning the percentage of coal it had 

extracted; therefore, it was not entitlement to the incidental mining exemption.
OFFICE OF SURFACE MINING RECLAMATION AND ENFORCEMENT

U.S. Department of the Interior

Search conducted by: Joyce Zweben Scall Page 2 of 2

Hoesli v Indiana Dept. of Natural Resources, Administrative Cause No. 93-469R 

(1993).

Hoesli's operation was found to be a surface mining operation for which a permit was 

required. The court found that the operation "was consistent both with the development 

of a commercial and retail site and with the operation of a surface coal mine. Standing 

alone, the surface coal mine may not have been economically viable, but it was a 

venture purposefully entered as part of a larger commercial enterprise.... The existence 

of a surface coal mine is not, however, in itself sufficient to invoke ISMCRA. The 

product of the coal mine must be placed directly or indirectly into interstate commerce. 

Reports - 113, 182 & 191: Def. of soil & mineral

Annotation, "Clay, sand, or gravel as 'minerals' within deed, lease or license", 95 

ALR 2d 843 (1994). 

Discusses several decisions included in Report - 182.

ATTACHMENTS

NOTE: Copies of the COALEX Reports are included without attachments.

A. COALEX Comparison Report - 173, "Coal removal incident to private 

development" (1991).