Determination of Valid Existing Rights Within the Daniel Boone National Forest, Kentucky, 57699-57701 [E9-26954]
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Federal Register / Vol. 74, No. 215 / Monday, November 9, 2009 / Notices
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USGS Information Collection
Clearance Officer: Phadrea Ponds 970–
226–9445.
Dated: November 3, 2009.
John H. DeYoung, Jr.,
Chief Scientist, Minerals Information Team.
[FR Doc. E9–26895 Filed 11–6–09; 8:45 am]
BILLING CODE 4311–AM–P
DEPARTMENT OF THE INTERIOR
Office of Surface Mining Reclamation
and Enforcement
Determination of Valid Existing Rights
Within the Daniel Boone National
Forest, Kentucky
mstockstill on DSKH9S0YB1PROD with NOTICES
AGENCY: Office of Surface Mining
Reclamation and Enforcement (OSM),
Interior.
ACTION: Notice of decision.
SUMMARY: This notice announces our
decision on a request for a
determination of valid existing rights
(VER) under section 522(e) of the
Surface Mining Control and
Reclamation Act of 1977 (SMCRA or the
Act). We have determined that Jag
Energy LLC possesses VER for a coal
haul road within the boundaries of the
VerDate Nov<24>2008
16:52 Nov 06, 2009
Jkt 220001
Daniel Boone National Forest in Leslie
County, Kentucky. This decision will
allow Jag Energy LLC to obtain a
Kentucky surface coal mining and
reclamation permit for the road in
question and to use the road to access
and haul coal from a surface mine
located on adjacent private lands.
DATES:
Effective Date: November 9,
2009,
FOR FURTHER INFORMATION CONTACT:
Joseph L. Blackburn, Director, Lexington
Field Office, 2675 Regency Road,
Lexington, Kentucky 40503. Telephone:
(859) 260–8402. Fax: (859) 260–8410. Email: jblackburn@osmre.gov.
SUPPLEMENTARY INFORMATION:
I. What Is the Nature of the VER
Determination Request?
II. What Legal Requirements Apply to This
Request?
III. What Information is Available Relevant to
the Basis for the Request?
IV. How We Processed the Request.
V. How We Made Our Decision.
VI. What Public Comments Were Received?
VII. How Can I Appeal the Determination?
VIII. Where Are the Records of This
Determination Available?
I. What Is the Nature of the VER
Determination Request?
On October 21, 2008, Mr. John Begley
II submitted a request for a
determination of VER on behalf of Mr.
William T. Gilbert of Jag Energy LLC. Jag
Energy LLC applied for a permit
(Application #866–0264) to conduct
surface coal mining operations on
privately owned land in Bear Branch,
Leslie County, Kentucky. The property
to be mined is adjacent to the Daniel
Boone National Forest.
William T. Gilbert is seeking a
determination that Jag Energy LLC has
VER under paragraph (c)(1) of the
definition of VER in 30 CFR 761.5 to use
an existing road across Federal lands
within the Daniel Boone National Forest
as an access and haul road for the
proposed mine. No other surface coal
mining operations would be conducted
on Federal lands within the Daniel
Boone National Forest as part of this
mine.
On December 16, 2008, we published
a notice in the Federal Register (73 FR
76382) in which we provided an
opportunity for the public to comment
on the request for a determination of
VER to use an existing Forest Service
road as a coal mine access and haul road
across Federal lands within the
boundaries of the Daniel Boone National
Forest in Leslie County, Kentucky. The
comment period closed on January 15,
2009. We received no comments.
PO 00000
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Fmt 4703
Sfmt 4703
57699
II. What Legal Requirements Apply to
This Request?
Section 522(e)(2) of the Surface
Mining Control and Reclamation Act of
1977 (SMCRA or the Act), 30 U.S.C.
1272(e)(2), prohibits surface coal mining
operations on Federal lands within the
boundaries of any national forest, with
two exceptions. The first exception
pertains to surface operations and
impacts incidental to an underground
coal mine. The second relates to surface
operations on lands within national
forests west of the 100th meridian.
Neither of those exceptions applies to
the request now under consideration.
The introductory paragraph of section
522(e) also provides two general
exceptions to the prohibitions on
surface coal mining operations in that
section. Those exceptions apply to
operations in existence on the date of
enactment of the Act (August 3, 1977)
and to land for which a person has VER.
SMCRA does not define VER. We
subsequently adopted regulations
defining VER and clarifying that, for
lands that come under the protection of
30 CFR 761.11 and section 522(e) after
the date of enactment of SMCRA, the
applicable date is the date that the lands
came under protection, not August 3,
1977.
On December 17, 1999 (64 FR 70766–
70838), we adopted a revised definition
of VER, established a process for
submission and review of requests for
VER determinations, and otherwise
modified the regulations implementing
section 522(e). At 30 CFR 761.16(a), we
published a table clarifying which
agency (OSM or the State regulatory
authority) is responsible for making VER
determinations and which definition
(State or Federal) will apply. That table
specifies that OSM is responsible for
VER determinations for Federal lands
within national forests and that the
Federal VER definition in 30 CFR 761.5
applies to those determinations.
Paragraph (c) of the Federal definition
of VER contains the standards
applicable to VER for roads that lie
within the definition of surface coal
mining operations. Jag Energy LLC is
seeking a VER determination under
paragraph (c)(1), which provides that a
person who claims VER to use or
construct a road across the surface of
lands protected by 30 CFR 761.11 or
section 522(e) of SMCRA must
demonstrate that the ‘‘road existed
when the land upon which it is located
came under the protection of § 761.11 or
30 U.S.C. 1272(e), and the person has a
legal right to use the road for surface
coal mining operations.’’
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57700
Federal Register / Vol. 74, No. 215 / Monday, November 9, 2009 / Notices
Based on other information available
to us, we also considered whether VER
might exist under the standard in
paragraph (c)(3), which requires a
demonstration that a ‘‘valid permit for
use or construction of a road in that
location for surface coal mining
operations existed when the land came
under the protection of § 761.11 or 30
U.S.C. 1272(e).’’
mstockstill on DSKH9S0YB1PROD with NOTICES
III. What Information Is Available
Relevant to the Basis for the Request?
The following information has been
submitted by Jag Energy LLC or
obtained from the United States Forest
Service (USFS) or the Kentucky
Department for Natural Resources
(DNR):
1. A 1.76 mile long x 12 foot wide
road designated USFS road FSR 1669
exists on the land to which the VER
determination request pertains;
2. The land upon which the road is
located was in Federal ownership as
part of the Daniel Boone National Forest
on August 3, 1977, the date of
enactment of SMCRA;
3. A letter from USFS District Ranger,
John Kinney, indicates that William
Gilbert has applied for a special use
permit for the use of Forest Service
Road 1669 to access his property in Bear
Branch, Ky.;
4. An affidavit from John Hollen, a
resident of Bear Branch in Leslie
County, Ky indicates that the proposed
haul road contained in Jag Energy LLC
application #866–0264 crossing the
USFS property was used prior to 1977
as a coal haul road;
5. A coal lease between William T.
Gilbert et al. Lessors, and Kenneth C.
Smith, Lessee, for the Number four coal
seam on lands described in Deed Book
34, page 464 and an Affidavit of Descent
of John and Sally B. Gilbert in the
records of the Leslie County, Ky. Court
Clerk’s office;
6. A copy of the deed and Affidavit
of Descent referenced in the coal lease;
and,
7. A copy of Special Use Permit RED
5064–01, issued by the USFS to Jag
Energy LLC, authorizing the use of
Forest Service Road 1669 to access the
proposed mine site.
IV. How We Processed the Request
We received the request on October
21, 2008, and determined that it was
administratively complete on October
30, 2008. That review did not include
an assessment of the technical or legal
adequacy of the materials submitted
with the request.
As required by 30 CFR 761.16(d)(1),
we published a notice in the Federal
Register seeking public comment on the
VerDate Nov<24>2008
16:52 Nov 06, 2009
Jkt 220001
merits of the request on December 16,
2008 (73 FR 76382). We also published
notices on December 11, 2008,
December 18, 2008, December 25, 2008,
and January 1, 2009, in Leslie County
News, Hyden, Kentucky, a newspaper of
general circulation in Leslie County,
Kentucky.
After the close of the comment period
on January 15, 2009, we reviewed the
materials submitted with the request,
and other relevant, reasonably available
information and determined that the
record was sufficiently complete and
adequate to support a decision on the
merits of the request upon issuance of
the Forest Service Special Use permit
for use of the road to which the VER
request pertained.
We evaluated the record in
accordance with the requirements at 30
CFR 761.16(e) as to whether the
requester has demonstrated VER for the
proposed access and haul road. For the
reasons discussed below, we have
determined that the requestor has
demonstrated VER.
V. How We Made Our Decision
As we stated above, Jag Energy LLC
sought a VER determination under
paragraph (c)(1) of the definition of VER
at 30 CFR 761.5, which provides as
follows:
(1) The road existed when the land upon
which it is located came under the protection
of section 761.11 or 30 U.S.C. 1272(e), and
the person has a legal right to use the road
for surface coal mining operations.
Based upon information contained in
the VER request submitted by Jag Energy
and information obtained from the
USFS and DNR, the following facts were
determined about this road:
A 1.76 mile long x 12 foot wide road
designated USFS road FSR 1669 exists on the
land to which the VER determination request
pertains. The land upon which the road is
located was in Federal ownership as part of
the Daniel Boone National Forest on August
3, 1977, the date of enactment of SMCRA.
Thus the road existed when the land upon
which it is located came under the protection
of section 761.11 or 30 U.S.C. 1272(e).
The VER standard in the definition of
VER at 30 CFR 761.5 also requires that
the person seeking VER must have ‘‘a
legal right to use the road for surface
coal mining operations.’’ That ‘‘legal
right’’ standard was added to the
definition of VER on December 17, 1999
(64 FR 70766, 70832). In the preamble
to that revision of the definition of VER,
OSM stated that a person must
demonstrate a legal right to use the road
for surface coal mining operations. (See
64 FR 70791) That is, despite the fact
that a road existed on August 3, 1977,
that fact alone doesn’t give the applicant
PO 00000
Frm 00076
Fmt 4703
Sfmt 4703
the right to use the road for surface coal
mining operations. To comply with this
requirement, Jag Energy applied for and
received a Road Use Permit for the road
in question from the Forest Service
dated June 26, 2009. That permit
authorizes Jag Energy LLC to rehabilitate
and maintain the road while using it to
access the mine site.
Therefore, we conclude that the June
26, 2009, Road Use Permit from the
Forest Service is sufficient to prove that
Jag Energy LLC has a legal right to use
the road for surface coal mining
operations.
As stated previously, we also
considered whether VER might exist
under the standard in paragraph (c)(3),
which requires a demonstration that a
‘‘valid permit for use or construction of
a road in that location for surface coal
mining operations existed when the
land came under the protection of
§ 761.11 or 30 U.S.C. 1272(e).’’ In our
review of the available information we
were able to determine that a special use
permit had been issued previously by
the USFS for the road in question to
William T. Gilbert. However we were
unable to determine that the special use
permit for the road was issued prior to
SMCRA, or that the special use permit
was for the purpose of conducting
surface coal mining operations.
Therefore we cannot conclude that
the applicant has demonstrated VER
under the standard contained in
paragraph (c)(3) of the VER definition.
Based on the information above, it is
the decision of OSM that the Jag Energy
LLC does have valid existing rights to
use this road. This decision is based
primarily on the finding that the road
was in existence at this location prior to
the enactment of SMCRA, and that the
applicant does have a legal right to use
this road for surface coal mining
operations under the special use permit
issued by the USFS on June 26, 2009.
This finding is in accordance with the
definition of VER pertaining to roads
found at 30 CFR 761.5 subdivision
(c)(1).
VI. What Public Comments Were
Received?
No public comments were received.
VII. How Can I Appeal the
Determination?
Our determination that VER exists is
subject to administrative and judicial
review under 30 CFR 775.11 and 775.13
of the Federal regulations.
VIII. Where Are the Records of this
Determination Available?
Our records on this determination are
available for your inspection at the
E:\FR\FM\09NON1.SGM
09NON1
Federal Register / Vol. 74, No. 215 / Monday, November 9, 2009 / Notices
Dated: August 24, 2009.
Thomas D. Shope,
Regional Director, Appalachian Region.
[FR Doc. E9–26954 Filed 11–6–09; 8:45 am]
BILLING CODE 4310–05–P
DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
[FWS–R1–R–2009–N178; 1265–0000–10137–
S3]
Rose Atoll National Wildlife Refuge,
American Samoa
Fish and Wildlife Service,
mstockstill on DSKH9S0YB1PROD with NOTICES
Interior.
ACTION: Notice of intent to prepare a
comprehensive conservation plan and
environmental assessment;
announcement of public open house
meetings; request for comments.
SUMMARY: We, the U.S. Fish and
Wildlife Service (Service), intend to
prepare a comprehensive conservation
plan (CCP) for the Rose Atoll National
Wildlife Refuge (Refuge). We will also
prepare an environmental assessment
(EA) to evaluate the potential effects of
various CCP alternatives. We provide
this notice in compliance with our CCP
policy to advise the public and other
Federal and State agencies and Tribes of
our intentions, and to obtain suggestions
and information on the scope of issues
to consider in the planning process. We
are also announcing public meetings
and requesting public comments.
DATES: To ensure consideration, please
send your written comments by
December 9, 2009.
ADDRESSES: Send your written
comments or requests for more
information by any of the following
methods.
E-mail:
FW1PlanningComments@fws.gov
(include ‘‘Rose Atoll’’ in the subject line
of the message).
U.S. Mail: Don Palawski, Project
Leader, Pacific Remote Islands National
Wildlife Refuge Complex, 300 Ala
Moana Blvd., Room 5–231, Honolulu,
HI 96850.
FOR FURTHER INFORMATION CONTACT: Don
Palawski, Project Leader, (808) 792–
9560 (phone).
SUPPLEMENTARY INFORMATION:
Refuge Overview
Rose Atoll Refuge was established in
1973 after a cooperative agreement
between the Government of American
VerDate Nov<24>2008
16:52 Nov 06, 2009
Jkt 220001
Samoa and the Service was signed. The
Refuge is part of American Samoa and
is located 78 miles east-southeast of Tau
Island in the Manua Group at latitude
14°32′52″ south and 168°08′34″ west.
The Refuge includes approximately 20
acres of land and 1,600 acres of lagoon
surrounded by a perimeter reef. The
lands, submerged lands, waters, and
marine environment of the Refuge
support a dynamic reef ecosystem that
is home to a very diverse assemblage of
terrestrial and marine species, some of
which are Federally listed as threatened
or endangered. One of the Refuge’s most
striking features is the pink hue of the
perimeter reef caused by the dominance
of coralline algae.
accordance with the National Marine
Sanctuaries Act (16 U.S.C. 1431 et seq.)
When completed, the Refuge’s CCP
and NOAA’s Fagatele Bay National
Marine Sanctuary management plan and
fishery regulations will be referenced in
and will form the foundation of the
Monument’s management plan.
Agencies with jurisdiction or special
expertise, including the U.S.
Department of Defense, U.S. Department
of State, and the Government of
American Samoa, are to be treated as
cooperating agencies during
development of any Rose Atoll MNM
management plans.
National Monument Establishment and
Management Responsibilities
Lexington Field Office at the location
listed under FOR FURTHER INFORMATION
CONTACT.
AGENCY:
57701
The National Wildlife Refuge System
Administration Act of 1966 (16 U.S.C.
668dd–668ee) (Administration Act), as
amended by the National Wildlife
Refuge System Improvement Act of
1997, requires us to develop a CCP for
each national wildlife refuge. The
purpose for developing a CCP is to
provide refuge managers with a 15-year
plan for achieving refuge purposes and
contributing toward the mission of the
National Wildlife Refuge System
(NWRS), consistent with sound
principles of fish and wildlife
management, conservation, legal
mandates, and our policies. In addition
to outlining broad management
direction for conserving wildlife and
habitats, CCPs identify wildlifedependent recreational opportunities
compatible with each refuge’s
establishing purposes and the NWRS
mission, including opportunities for
hunting, fishing, wildlife observation,
wildlife photography, and
environmental education and
interpretation. We will review and
update the CCP at least every 15 years
in accordance with the Administration
Act.
Each unit of the NWRS is established
for specific purposes. We use a refuge’s
purposes to develop and prioritize its
management goals and objectives within
the NWRS mission, and to determine a
refuge’s compatible public uses. The
CCP planning process provides
opportunities for the public to
participate in evaluating our
management goals and objectives for
conserving important wildlife habitat,
and providing wildlife-dependent
recreation opportunities.
Throughout our CCP planning
process, we provide participation
opportunities for the public and other
agencies and organizations, including
agencies of the American Samoa
government. At this time, we encourage
input in the form of issues, concerns,
On January 6, 2009, President George
W. Bush established the Rose Atoll
Marine National Monument (MNM, or
Monument) by signing Presidential
Proclamation 8337 (Proclamation) under
the authority of the Antiquities Act of
1906 (34 Stat. 225, 16 U.S.C. 431). The
Rose Atoll Refuge is part of the Rose
Atoll MNM. Rose Atoll MNM consists of
approximately 13,451 square miles of
emergent and submerged lands and
waters, with an outer boundary that is
approximately 50 nautical miles from
the mean low water line of Rose Atoll,
the Monument’s center.
Through the Proclamation,
management responsibility for the
Monument was assigned to the
Secretary of the Interior, in consultation
with the Secretary of Commerce. The
Secretary of the Interior delegated
management responsibility to the
Service’s Director (Secretary of the
Interior Order 3284, January 16, 2009).
The Director will continue to manage
Rose Atoll Refuge for the conservation
and protection of the Refuge’s unique
and valuable fish and wildlife resources,
consistent with protection of the
Monument’s resources identified in the
Proclamation.
Through the Proclamation, the
Secretary of Commerce’s National
Oceanic and Atmospheric
Administration (NOAA) was assigned
primary management responsibility for
fishery-related activities in the
Monument’s marine areas located
seaward of the mean low water line of
Rose Atoll, pursuant to the MagnusonStevens Fishery Conservation and
Management Act (16 U.S.C. 1801 et
seq.). The Secretary of Commerce was
also directed in the Proclamation to
initiate the process to add the marine
area of Rose Atoll MNM to the Fagatele
Bay National Marine Sanctuary in
PO 00000
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The CCP Planning Process
E:\FR\FM\09NON1.SGM
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]]>Agencies
[Federal Register Volume 74, Number 215 (Monday, November 9, 2009)]
[Notices]
[Pages 57699-57701]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E9-26954]
-----------------------------------------------------------------------
DEPARTMENT OF THE INTERIOR
Office of Surface Mining Reclamation and Enforcement
Determination of Valid Existing Rights Within the Daniel Boone
National Forest, Kentucky
AGENCY: Office of Surface Mining Reclamation and Enforcement (OSM),
Interior.
ACTION: Notice of decision.
-----------------------------------------------------------------------
SUMMARY: This notice announces our decision on a request for a
determination of valid existing rights (VER) under section 522(e) of
the Surface Mining Control and Reclamation Act of 1977 (SMCRA or the
Act). We have determined that Jag Energy LLC possesses VER for a coal
haul road within the boundaries of the Daniel Boone National Forest in
Leslie County, Kentucky. This decision will allow Jag Energy LLC to
obtain a Kentucky surface coal mining and reclamation permit for the
road in question and to use the road to access and haul coal from a
surface mine located on adjacent private lands.
DATES: Effective Date: November 9, 2009,
FOR FURTHER INFORMATION CONTACT: Joseph L. Blackburn, Director,
Lexington Field Office, 2675 Regency Road, Lexington, Kentucky 40503.
Telephone: (859) 260-8402. Fax: (859) 260-8410. E-mail:
jblackburn@osmre.gov.
SUPPLEMENTARY INFORMATION:
I. What Is the Nature of the VER Determination Request?
II. What Legal Requirements Apply to This Request?
III. What Information is Available Relevant to the Basis for the
Request?
IV. How We Processed the Request.
V. How We Made Our Decision.
VI. What Public Comments Were Received?
VII. How Can I Appeal the Determination?
VIII. Where Are the Records of This Determination Available?
I. What Is the Nature of the VER Determination Request?
On October 21, 2008, Mr. John Begley II submitted a request for a
determination of VER on behalf of Mr. William T. Gilbert of Jag Energy
LLC. Jag Energy LLC applied for a permit (Application 866-
0264) to conduct surface coal mining operations on privately owned land
in Bear Branch, Leslie County, Kentucky. The property to be mined is
adjacent to the Daniel Boone National Forest.
William T. Gilbert is seeking a determination that Jag Energy LLC
has VER under paragraph (c)(1) of the definition of VER in 30 CFR 761.5
to use an existing road across Federal lands within the Daniel Boone
National Forest as an access and haul road for the proposed mine. No
other surface coal mining operations would be conducted on Federal
lands within the Daniel Boone National Forest as part of this mine.
On December 16, 2008, we published a notice in the Federal Register
(73 FR 76382) in which we provided an opportunity for the public to
comment on the request for a determination of VER to use an existing
Forest Service road as a coal mine access and haul road across Federal
lands within the boundaries of the Daniel Boone National Forest in
Leslie County, Kentucky. The comment period closed on January 15, 2009.
We received no comments.
II. What Legal Requirements Apply to This Request?
Section 522(e)(2) of the Surface Mining Control and Reclamation Act
of 1977 (SMCRA or the Act), 30 U.S.C. 1272(e)(2), prohibits surface
coal mining operations on Federal lands within the boundaries of any
national forest, with two exceptions. The first exception pertains to
surface operations and impacts incidental to an underground coal mine.
The second relates to surface operations on lands within national
forests west of the 100th meridian. Neither of those exceptions applies
to the request now under consideration.
The introductory paragraph of section 522(e) also provides two
general exceptions to the prohibitions on surface coal mining
operations in that section. Those exceptions apply to operations in
existence on the date of enactment of the Act (August 3, 1977) and to
land for which a person has VER. SMCRA does not define VER. We
subsequently adopted regulations defining VER and clarifying that, for
lands that come under the protection of 30 CFR 761.11 and section
522(e) after the date of enactment of SMCRA, the applicable date is the
date that the lands came under protection, not August 3, 1977.
On December 17, 1999 (64 FR 70766-70838), we adopted a revised
definition of VER, established a process for submission and review of
requests for VER determinations, and otherwise modified the regulations
implementing section 522(e). At 30 CFR 761.16(a), we published a table
clarifying which agency (OSM or the State regulatory authority) is
responsible for making VER determinations and which definition (State
or Federal) will apply. That table specifies that OSM is responsible
for VER determinations for Federal lands within national forests and
that the Federal VER definition in 30 CFR 761.5 applies to those
determinations.
Paragraph (c) of the Federal definition of VER contains the
standards applicable to VER for roads that lie within the definition of
surface coal mining operations. Jag Energy LLC is seeking a VER
determination under paragraph (c)(1), which provides that a person who
claims VER to use or construct a road across the surface of lands
protected by 30 CFR 761.11 or section 522(e) of SMCRA must demonstrate
that the ``road existed when the land upon which it is located came
under the protection of Sec. 761.11 or 30 U.S.C. 1272(e), and the
person has a legal right to use the road for surface coal mining
operations.''
[[Page 57700]]
Based on other information available to us, we also considered
whether VER might exist under the standard in paragraph (c)(3), which
requires a demonstration that a ``valid permit for use or construction
of a road in that location for surface coal mining operations existed
when the land came under the protection of Sec. 761.11 or 30 U.S.C.
1272(e).''
III. What Information Is Available Relevant to the Basis for the
Request?
The following information has been submitted by Jag Energy LLC or
obtained from the United States Forest Service (USFS) or the Kentucky
Department for Natural Resources (DNR):
1. A 1.76 mile long x 12 foot wide road designated USFS road FSR
1669 exists on the land to which the VER determination request
pertains;
2. The land upon which the road is located was in Federal ownership
as part of the Daniel Boone National Forest on August 3, 1977, the date
of enactment of SMCRA;
3. A letter from USFS District Ranger, John Kinney, indicates that
William Gilbert has applied for a special use permit for the use of
Forest Service Road 1669 to access his property in Bear Branch, Ky.;
4. An affidavit from John Hollen, a resident of Bear Branch in
Leslie County, Ky indicates that the proposed haul road contained in
Jag Energy LLC application 866-0264 crossing the USFS property
was used prior to 1977 as a coal haul road;
5. A coal lease between William T. Gilbert et al. Lessors, and
Kenneth C. Smith, Lessee, for the Number four coal seam on lands
described in Deed Book 34, page 464 and an Affidavit of Descent of John
and Sally B. Gilbert in the records of the Leslie County, Ky. Court
Clerk's office;
6. A copy of the deed and Affidavit of Descent referenced in the
coal lease; and,
7. A copy of Special Use Permit RED 5064-01, issued by the USFS to
Jag Energy LLC, authorizing the use of Forest Service Road 1669 to
access the proposed mine site.
IV. How We Processed the Request
We received the request on October 21, 2008, and determined that it
was administratively complete on October 30, 2008. That review did not
include an assessment of the technical or legal adequacy of the
materials submitted with the request.
As required by 30 CFR 761.16(d)(1), we published a notice in the
Federal Register seeking public comment on the merits of the request on
December 16, 2008 (73 FR 76382). We also published notices on December
11, 2008, December 18, 2008, December 25, 2008, and January 1, 2009, in
Leslie County News, Hyden, Kentucky, a newspaper of general circulation
in Leslie County, Kentucky.
After the close of the comment period on January 15, 2009, we
reviewed the materials submitted with the request, and other relevant,
reasonably available information and determined that the record was
sufficiently complete and adequate to support a decision on the merits
of the request upon issuance of the Forest Service Special Use permit
for use of the road to which the VER request pertained.
We evaluated the record in accordance with the requirements at 30
CFR 761.16(e) as to whether the requester has demonstrated VER for the
proposed access and haul road. For the reasons discussed below, we have
determined that the requestor has demonstrated VER.
V. How We Made Our Decision
As we stated above, Jag Energy LLC sought a VER determination under
paragraph (c)(1) of the definition of VER at 30 CFR 761.5, which
provides as follows:
(1) The road existed when the land upon which it is located came
under the protection of section 761.11 or 30 U.S.C. 1272(e), and the
person has a legal right to use the road for surface coal mining
operations.
Based upon information contained in the VER request submitted by
Jag Energy and information obtained from the USFS and DNR, the
following facts were determined about this road:
A 1.76 mile long x 12 foot wide road designated USFS road FSR
1669 exists on the land to which the VER determination request
pertains. The land upon which the road is located was in Federal
ownership as part of the Daniel Boone National Forest on August 3,
1977, the date of enactment of SMCRA. Thus the road existed when the
land upon which it is located came under the protection of section
761.11 or 30 U.S.C. 1272(e).
The VER standard in the definition of VER at 30 CFR 761.5 also
requires that the person seeking VER must have ``a legal right to use
the road for surface coal mining operations.'' That ``legal right''
standard was added to the definition of VER on December 17, 1999 (64 FR
70766, 70832). In the preamble to that revision of the definition of
VER, OSM stated that a person must demonstrate a legal right to use the
road for surface coal mining operations. (See 64 FR 70791) That is,
despite the fact that a road existed on August 3, 1977, that fact alone
doesn't give the applicant the right to use the road for surface coal
mining operations. To comply with this requirement, Jag Energy applied
for and received a Road Use Permit for the road in question from the
Forest Service dated June 26, 2009. That permit authorizes Jag Energy
LLC to rehabilitate and maintain the road while using it to access the
mine site.
Therefore, we conclude that the June 26, 2009, Road Use Permit from
the Forest Service is sufficient to prove that Jag Energy LLC has a
legal right to use the road for surface coal mining operations.
As stated previously, we also considered whether VER might exist
under the standard in paragraph (c)(3), which requires a demonstration
that a ``valid permit for use or construction of a road in that
location for surface coal mining operations existed when the land came
under the protection of Sec. 761.11 or 30 U.S.C. 1272(e).'' In our
review of the available information we were able to determine that a
special use permit had been issued previously by the USFS for the road
in question to William T. Gilbert. However we were unable to determine
that the special use permit for the road was issued prior to SMCRA, or
that the special use permit was for the purpose of conducting surface
coal mining operations.
Therefore we cannot conclude that the applicant has demonstrated
VER under the standard contained in paragraph (c)(3) of the VER
definition.
Based on the information above, it is the decision of OSM that the
Jag Energy LLC does have valid existing rights to use this road. This
decision is based primarily on the finding that the road was in
existence at this location prior to the enactment of SMCRA, and that
the applicant does have a legal right to use this road for surface coal
mining operations under the special use permit issued by the USFS on
June 26, 2009.
This finding is in accordance with the definition of VER pertaining
to roads found at 30 CFR 761.5 subdivision (c)(1).
VI. What Public Comments Were Received?
No public comments were received.
VII. How Can I Appeal the Determination?
Our determination that VER exists is subject to administrative and
judicial review under 30 CFR 775.11 and 775.13 of the Federal
regulations.
VIII. Where Are the Records of this Determination Available?
Our records on this determination are available for your inspection
at the
[[Page 57701]]
Lexington Field Office at the location listed under FOR FURTHER
INFORMATION CONTACT.
Dated: August 24, 2009.
Thomas D. Shope,
Regional Director, Appalachian Region.
[FR Doc. E9-26954 Filed 11-6-09; 8:45 am]
BILLING CODE 4310-05-P
