Virginia Administrative Code
Title 4 - CONSERVATION AND NATURAL RESOURCES
Agency 25 - DEPARTMENT OF ENERGY
Chapter 130 - COAL SURFACE MINING RECLAMATION REGULATIONS
Part 761 - Areas Designated by Act of Congress
Section 4VAC25-130-761.16 - Submission and processing of requests for valid existing rights determinations
Universal Citation: 4 VA Admin Code 25-130-761-16
Current through Register Vol. 41, No. 3, September 23, 2024
A. Basic framework for valid existing rights determinations. 30 CFR 761.16(a) identifies the agency responsible for making a valid existing rights determination and the definition that it must use based upon which subsection of 30 CFR 761.11 or 4VA C25-130-761.11 applies and whether the request includes federal lands.
B. A request for a valid existing rights determination must be submitted to the division if a person intends to conduct surface coal mining operations on the basis of valid existing rights under 4VAC25-130-761.11 or wishes to confirm the right to do so. The request may be submitted before the person prepares and submits an application for a permit or boundary revision for the land.
1. The person
must provide a property rights demonstration under the definition of valid
existing rights if the request relies upon the good faith/all permits or the
needed for and adjacent standard set forth in 4VAC25-130.700.5. For the land
subject to the request, the demonstration must include:
a. A legal description of the land;
b. Complete documentation of the character
and extent of the person's current interests in the surface and mineral estates
of the land;
c. A complete chain of
title for the surface and mineral estates of the land;
d. A description of the nature and effect of
each titles instrument that forms the basis of the request, including any
provision pertaining to the type or method of mining or mining-related surface
disturbances and facilities;
e. A
description of the type and extent of surface coal mining operations that the
person claims the right to conduct, including the method of mining, any
mining-related surface activities and facilities, and an explanation of how
those operations would be consistent with Virginia property law;
f. Complete documentation of the nature and
ownership, as of the date that the land came under the protection of §
45.2-1028 of the Code of Virginia or 4VAC25-130-761.11, of all property rights
for the surface and mineral estates;
g. Names and addresses of the current owners
of the surface and mineral estates of the land;
h. If the coal interests have been severed
from other property interests, documentation that the person has notified and
provided reasonable opportunity for the owners of other property interests in
the land to comment on the validity of the person's property rights claims;
and
i. Any comments that the person
receives in response to the notification provider under subdivision 1 h of this
subsection.
2. If the
request relies upon the good faith/all permits standard in subdivision (b)(1)
of the valid existing rights definition in 4VAC25-130-700.5, the person must
also submit the following information about permits, licenses, and
authorizations for surface coal mining operations on the land subject to the
request that the person or predecessor in interest obtained, submitted, or
made:
a. Approval and issuance dates and
identification numbers for any permits, licenses, and authorizations obtained
before the land came under the protection of § 45.2-1028 of the Code of
Virginia or 4VAC25-130-761.11.
b.
Application dates and identification numbers for any permits, licenses, and
authorizations submitted before the land came under the protection of §
45.2-1028 of the Code of Virginia or 4VAC25-130-761.11.
c. An explanation of any other good faith
effort made to obtain the necessary permits, licenses, and authorizations as of
the date that the land came under the protection of § 45.2-1028 of the
Code of Virginia or 4VAC25-130-761.11
3. If the request relies upon the needed for
and adjacent standard in subdivision (b)(2) of the valid existing rights
definition in 4VAC25-130-700.5, the person must explain how and why the land is
needed for and immediately adjacent to the operation upon which the request is
based, including a demonstration that prohibiting expansion of the operation
onto that land would unfairly impact the viability of the operation as
originally planned before the land came under the protection of §
45.2-1028 of the Code of Virginia or 4VAC25-130-761.11
4. If the request relies upon one of the
standards for roads in subdivision (c) of the valid existing rights definition
in 4VAC25-130-700.5, the person must submit satisfactory documentation that:
a. The road existed when the land upon which
it is located came under the protection of § 45.2-1028 of the Code of
Virginia or 4VAC25-130-761.11 and the person has a legal right to use the road
for surface coal mining operations;
b. A properly recorded right of way or
easement for a road in that location existed when the land came under the
protection of § 45.2-1028 of the Code of Virginia or 4VAC25-130-761.11 and
under the document creating the right of way or easement and under any
subsequent conveyances, the person has a legal right to use or construct a road
across that right of way or easement to conduct surface coal mining operations;
or
c. 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 § 45.2-1028 of the Code
of Virginia or 4VAC25-130-761.11.
C. Initial review of request.
1. The division must conduct an initial
review to determine whether the request includes all applicable components of
the submission requirements of subsection B of this section. The review
pertains only to the completeness of the request, not the legal or technical
adequacy of the materials submitted.
2. If the request does not include all
applicable components of the submission requirements of subsection B of this
section, the division must notify the person and establish a reasonable time
for submission of the missing information. Should the person not provide the
information requested by the division under this subdivision within the time
specified or as subsequently extended, the division must issue a determination
under subdivision E 4 of this section that the person has not demonstrated
valid existing rights.
3. When the
request includes all applicable components of the submission requirements of
subsection B of this section, the division must implement the notice and
comment requirements of subsection D of this section.
D.
1. When
the division determines that the request satisfies the completeness
requirements of subsection C of this section, it shall publish a notice in a
newspaper of general circulation in the county in which the land is located
inviting public comment on the merits of the request. OSM will publish a
similar notice in the Federal Register if the request involves federal lands
within an area listed in 4VAC25-130-761.11 (a) or (b). The public notice must
include:
a. The location of the land to which
the request pertains.
b. A
description of the type of surface coal mining operations planned.
c. A reference to and brief description of
the applicable standard or standards under the definition of valid existing
rights in 4VAC25-130-700.5.
(1) If the request
relies upon the good faith/all permits or the needed for and adjacent standard
set forth in the valid existing rights definition in 4VAC25-130-700.5, the
notice must include a description of the property rights that the person claims
and the basis for the claim.
(2) If
the request relies upon the road standard set forth in subdivision (c) (1) of
the valid existing rights definition in 4VAC25-130-700.5, the notice must
include a description of the basis for the claim that the road existed when the
land came under the protection of § 45.2-1028 of the Code of Virginia or
4VAC25-130-761.11. In addition, the notice must include a description of the
basis for the claim that the person has a legal right to use that road for
surface coal mining operations.
(3)
If the request relies upon the standard in subdivision (c) (2) of the valid
existing rights definition in 4VAC25-130-700.5, the notice must include a
description of the basis for the claim that a properly recorded right of way or
easement for a road in that location existed when the land came under the
protection of § 45.2-1028 of the Code of Virginia or 4VAC25-130-761.11. In
addition, the notice must include a description of the basis for the claim
that, under the document creating the right of way or easement, and under any
subsequent conveyances, the person has a legal right to use or construct a road
across the right of way or easement to conduct surface coal mining
operations.
d. If the
request relies upon one or more of the standards in subdivisions (b) and (c)
(1) and (c) (2) of the valid existing rights definition in 4VAC25-130-700.5, a
statement that the division will not make a decision on the merits of the
request if, by the close of the comment period under the notice or the notice
required by subdivision 3 of this subsection, a person with a legal interest in
the land 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 valid existing rights
claim.
e. A description of the
procedures the division will follow in processing the request.
f. The closing date of the public comment
period, which shall be a minimum of 30 days after the notice's publication
date.
g. A statement that
interested persons may request, in writing, from the division a 30-day
extension of the public comment period. The extension request shall set forth
with reasonable specificity the reasons the commenter needs the additional time
to submit comments.
h. Include the
division office's address where a copy of the valid existing rights request is
available for public inspection and where comments and requests for extension
of the comment period should be sent.
2. The division must promptly provide a copy
of the notice required under subdivision 1 of this subsection to:
a. All reasonably locatable owners of surface
and mineral estates in the land included in the valid existing rights
request.
b. The owner of the
feature causing the land to come under the protection of 4VAC25-130-761.11, and
when applicable, the agencies with primary jurisdiction over the feature with
respect to the values causing the land to come under the protection of
4VAC25-130-761.11.
3. The
notice required under subdivision 2 of this subsection must provide a 30-day
comment period and specify that an additional 30 days may be granted for good
cause shown at the discretion of the division or agency responsible for the
valid existing rights determination.
E.
1. The
division or agency responsible for making the valid existing rights
determination must review the materials submitted under subsection B of this
section, comments received under subsection D of this section, 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, the division must notify the person in writing explaining the
inadequacy of the record and requesting submittal within a specified reasonable
time of any additional information that the division deems necessary to remedy
the inadequacy.
2. Once the record
is complete and adequate, the division must make a determination as to whether
valid existing rights have been demonstrated. The division's decision must
explain how the person has or has not satisfied all applicable elements of the
valid existing rights definition under 4VAC25-130-700.5, contain findings of
fact and conclusions, and specify the reasons for the conclusions.
3. When the request relies upon one or more
of the standards in subdivisions (b) and (c) (1) and (2) of the valid existing
rights definition in 4VAC25-130-700.5, the division:
a. Must issue a determination that the person
has not demonstrated valid existing rights if the property rights claim is the
subject of pending litigation in a court or administrative body with the
jurisdiction over the property rights in question. The division will make the
determination without prejudice, meaning that the person may refile the request
once the property rights dispute is finally adjudicated. This applies only to
situations in which legal action has been initiated as of the closing date of
the comment period under subdivisions D 1 and 3 of this section.
b. If the record indicates disagreement of
the accuracy of the person's property rights claim, but the disagreement is not
the subject of pending litigation in a court or administrative agency of
competent jurisdiction, must evaluate the merits of the information in the
record and determine whether the person has demonstrated that the requisite
property rights exist under subdivision (a), (c) (1) or (c) (2) of the valid
existing rights definition in 4VAC25-130-700.5, as appropriate. The division
must then proceed with the decision process under subdivision 2 of this
subsection.
4. The
division must issue a determination that the person has not demonstrated valid
existing rights if the person does not submit information that the division
requests under subdivision C 2 of this section or subdivision 1 of this
subsection within the time specified or as subsequently extended. The division
will make the determination without prejudice, meaning the person may refile a
revised request at any time.
5.
After making a valid existing rights determination, the division shall:
a. Provide a copy of the determination with
an explanation of appeal rights and procedures to the person seeking the
determination, owner or owners of the land to which the determination applies,
owner of the feature causing the land to come under the protection of
4VAC25-130-761.11, and, when applicable, the agency with primary jurisdiction
over the feature with respect to the values that caused the land to come under
the protection of 4VAC25-130-761.11.
b. Publish notice of the determination in a
newspaper of general circulation in the county in which the land is located.
The federal Office of Surface Mining Reclamation and Enforcement (OSMRE) will
publish the determination, together with an explanation of appeal rights and
procedures in the Federal Register if the request includes federal lands within
an area listed in 4VAC25-130-761.11 (a) or (b).
F. The division's valid existing rights determination shall be subject to administrative and judicial review under 4VAC25-130-775.11 and 4VAC25-130-775.13.
G. The division must make a copy of the valid existing rights determination request available to the public as provided by 4VAC25-130-773.13 (d) and the records associated with that request, and any subsequent determination under subsection E of this section, available to the public in accordance with 4VAC25-130-840.14.
Statutory Authority: § 45.2-103 of the Code of Virginia.
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