Request for Determination of Valid Existing Rights Within the Monongahela National Forest, West Virginia, 13194-13196 [2025-04652]

Agencies

• DEPARTMENT OF THE INTERIOR
• Office of Surface Mining Reclamation and Enforcement

[Federal Register Volume 90, Number 53 (Thursday, March 20, 2025)]
[Notices]
[Pages 13194-13196]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2025-04652]


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DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

[S1D1S SS08011000 SX064A000 245S180110; S2D2S SS08011000 SX064A000 
24XS501520]


Request for Determination of Valid Existing Rights Within the 
Monongahela National Forest, West Virginia

AGENCY: Office of Surface Mining Reclamation and Enforcement, Interior.

ACTION: Notice and request for comment.

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SUMMARY: We, the Office of Surface Mining Reclamation and Enforcement 
(OSMRE), are providing an opportunity for the public to comment on a 
request for a determination of valid existing rights (VER) to use an 
existing United States Forest Service (USFS) road as a coal mine access 
and haul road across Federal lands within the boundaries of the 
Monongahela National Forest (MNF). The mine is located on privately 
owned land.

DATES: We will accept written comments on this amendment until 4 p.m., 
eastern time, April 21, 2025.

ADDRESSES: You may submit comments, by any of the following methods:
     Mail/Hand Delivery: Mr. Justin Adams, Director, Charleston 
Field Office, Office of Surface Mining Reclamation and Enforcement, 
1027 Virginia Street East, Charleston, West Virginia 25301.
     Fax: (304) 347-7170.
     Email: [email protected].
    Instructions: For detailed instructions on submitting comments and 
additional information, see section V, ``How Do I Submit Comments on 
the Request?'', in the SUPPLEMENTARY INFORMATION section of this 
document.

FOR FURTHER INFORMATION CONTACT: Mr. Justin Adams, Director, Charleston 
Field Office, Telephone: (304) 347-7158. Email: [email protected].

SUPPLEMENTARY INFORMATION: 

[[Page 13195]]

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 will we process the request?
V. How do I submit comments on the request?

I. What is the nature of the VER determination request?

    On September 18, 2024, Babst/Calland Attorneys at Law (Babst/
Calland) submitted a request, on behalf of South Fork Coal Company, LLC 
(SFCC), to OSMRE for a determination whether SFCC has valid existing 
rights to receive and hold a mining permit for the northern 1.2-mile 
portion of an existing road located within the MNF, known as Forest 
Service Road 249. Babst/Calland asserts that SFCC has VER under 
paragraph (c)(1) or (c)(2) of the ``[v]alid existing rights'' 
definition in 30 CFR 761.5 (the Federal definition) to use the existing 
road as an access and haul road for its Rocky Run Surface Coal Mine.

II. What legal requirements apply to this request?

    Section 522(e)(2) of the Surface Mining Control and Reclamation Act 
of 1977 (SMCRA) prohibits surface coal mining operations on Federal 
lands within the boundaries of any national forest, with two 
exceptions. 30 U.S.C. 1272. 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 SMCRA enactment, which occurred on August 3, 
1977, and to land for which a person has VER. Because SMCRA does not 
define VER, we subsequently adopted regulations defining VER. See 30 
CFR 761.5. We clarified that, for lands that come under the protection 
of section 522(e) and the implementing Federal regulations after the 
date of SMCRA enactment, 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 (OSMRE or the State regulatory authority) is 
responsible for making VER determinations and which definition (State 
or Federal) will apply. That table specifies that OSMRE is responsible 
for VER determinations for Federal lands within national forests and 
that the Federal VER definition 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. 30 CFR 761.5. SFCC is seeking a VER 
determination under paragraph (c)(1) or, in the alternative, paragraph 
(c)(2). Paragraph (c)(1) provides that a person who claims VER to use 
or construct a road across the surface of lands that are protected by 
section 522(e) of SMCRA or by the implementing Federal regulations must 
demonstrate that the ``road existed when the land upon which it is 
located came under the protection of 30 CFR 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.'' Id. Paragraph (c)(2) allows the applicant to 
demonstrate that a properly recorded right of way or easement existed 
when the land came under such protection and, under the document 
creating the right of way or easement and subsequent conveyances, the 
applicant has a legal right to use a road across the right of way or 
easement for surface coal mining operations.

III. What information is available relevant to the basis for the 
request?

    The following information has been submitted by Babst/Calland or 
obtained from the USFS or the West Virginia Department of Environmental 
Protection (WVDEP):
    1. The 1.2-mile segment of road designated as Forest Service Road 
249 exists on land to which the VER determination pertains.
    2. Ownership of the surface property rights to the Forest Service 
Road 249 (and the surrounding area) was conveyed by Cherry River Boom 
and Lumber Company to the United States Government by deed dated 
October 9, 1934, which is recorded in the office of the Clerk of 
Pocahontas County, West Virginia, in deed book 70, page 332.8.
    3. A chain of conveyance from 1959 through 2016 purportedly exists 
between Cherry River Boom and Lumber Company, through several corporate 
entities, to Weyerhaeuser Company.
    4. SFCC has a mineral lease with Highland Mineral Resources, LLC, a 
purported affiliate of Weyerhaeuser Company, and a separate mineral 
lease with WPP, LLC.
    5. The land upon which Forest Service Road 249 is located was in 
Federal ownership as part of the MNF when the land came under the 
protection of 30 U.S.C. 1272(e) on August 3, 1977, the date of SMCRA 
enactment.
    6. The Forest Service Road 249 is visible and shown on the United 
States Geological Survey map from 1972, in the lower left-hand portion 
(beginning near the words, ``Sugar Tree Mt.'').
    7. USFS issued SFCC a special use permit for use of Forest Service 
Road 249, through Permit No. FS-7700-41, as a coal access and haul road 
on September 29, 2021.

IV. How will we process the request?

    We received the VER request on September 18, 2024, and determined 
it was administratively complete on September 24, 2024. That 
determination did not include an assessment of the technical or legal 
adequacy of the materials submitted with the request.
    We will further process this request in accordance with 30 CFR 
761.16(d) and (e). As required by 30 CFR 761.16(d)(1), we are 
publishing this notice to seek public comment on the merits of the 
request. A similar notice will also be published in a newspaper of 
general circulation in Pocahontas County, WV.
    After the close of the comment period, we will review the materials 
submitted with the request, all comments received in response to this 
and other notices, and any other relevant, reasonably available 
information to determine whether the record is sufficiently complete 
and adequate to support a decision on the merits of the request. If 
not, we will notify the requester, in writing, explaining the 
inadequacy of the record and will request submittal, within a specified 
time, of any material needed to remedy the deficiency.
    Once the record is complete and adequate, we will determine whether 
the requester has demonstrated VER for the proposed access and haul 
road. Our decision document will contain findings of fact and 
conclusions, along with an explanation of the reasons for our 
conclusions. We will publish a notice of the decision in the Federal 
Register and a newspaper of general circulation in Pocahontas County, 
WV.
    However, as provided in 30 CFR 761.16(d)(1)(iv), we will not make a 
decision on the merits of the request, if, by the close of the comment 
period under this notice or the notice required by 30 CFR 761.16(d)(3), 
a person with a legal interest in the land to which the

[[Page 13196]]

request pertains initiates appropriate legal action in the proper venue 
to resolve any differences concerning the validity or interpretation of 
the deed, lease, easement, or other documents that form the basis of 
the request. This provision applies only if our decision is based on 
the standard in paragraph (c)(1) and (c)(2) of the VER definition in 30 
CFR 761.5.

V. How do I submit comments on the request?

    We will make the VER determination request and associated materials 
available to you for review as prescribed in 30 CFR 842.16, except to 
the extent that the confidentiality provisions of 30 CFR 773.6(d) 
apply. Subject to those restrictions, you may review a copy of the VER 
determination request and all comments received in response to this 
request at the Charleston Field Office (see ADDRESSES). Documents 
contained in the administrative record are available for public review 
at the Field Office during normal business hours, Monday through 
Friday, excluding holidays.

Electronic or Written Comments

    If you wish to comment on the merits of the request for a VER 
determination, please send electronic or written comments to us at the 
addresses above (see ADDRESSES) by the close of the comment period (see 
DATES). Under 30 CFR 761.16(d)(1)(vii), you may request a 30-day 
extension of the comment period. Requests for an extension of the 
public comment period must be submitted to the same addresses by the 
date indicated.
    If you submit comments by Email, please include your name and 
return address in your message. You may contact the Charleston Field 
Office at 304-977-7450 if you wish to confirm receipt of your message.

Availability of Comments

    We will make all comments, including names and addresses of 
respondents, available for public review during normal business hours 
at the location listed in ADDRESSES. We will not consider anonymous 
comments. If you are commenting as an individual, you may request that 
we withhold your name or address from public review, except for the 
city or town. We will honor your request to the extent allowable by 
law. You must state this request prominently at the beginning of your 
comments. We will make all submissions from organizations or 
businesses, and from individuals identifying themselves as 
representatives or officials of organizations or businesses, available 
for public review in their entirety.

Thomas D. Shope,
Regional Director, North Atlantic--Appalachian Region.
[FR Doc. 2025-04652 Filed 3-19-25; 8:45 am]
BILLING CODE 4310-05-P