FEDERAL REGISTER: 45 FR 61798 (September 17, 1980)

DEPARTMENT OF THE INTERIOR
AGENCY: Office of Surface Mining Reclamation and Enforcement (OSM)

Determination of Valid Existing Rights Within Monongahela National Forest  

ACTION: Decision on Mower Lumber Company's request for determination of valid existing rights to conduct
underground coal mining operations in the Upper Shavers Fork Sub-Unit of the Monongahela National Forest, in
Randolph County, West Virginia.  

SUMMARY: The Mower Lumber Company is seeking a determination that its proposed underground coal mining
operations on Federal lands in the Monongahela National Forest are not prohibited or limited by Section 522(e) of
the Surface Mining Control and Reclamation Act of 1977 (30 U.S.C. 1272(e)).  Specifically, Mower Lumber
Company has requested the Director of OSM to determine that the Company has "valid existing rights" under that
Section of the Act.  Having given notice of his preliminary finding and solicited public comments thereon, the
Director is issuing his final decision that Mower has established valid existing rights.  

SUPPLEMENTARY INFORMATION: On August 7, 1980, OSM published at 45 FR 52467 the preliminary finding
of the Director determining that Mower Lumber Company has "valid existing rights," as that term is used in Section
522(e) of the Surface Mining Control and Reclamation Act of 1977 (30 U.S.C. 1272(e)), at five mines located on
Federal lands in the Monogahela National Forest in Randolph County, West Virginia.  In the explanation of that
preliminary decision, OSM solicited public comments on the substance of the proposed finding and specifically
solicited information on methods of determining the exact geographical extent of the valid existing rights.  

     Comments on this proposal were received from the Mower Lumber Company and the Highlands
Conservancy.  None of the information submitted provided a basis for any substantive change in the Director's
original opinion. Therefore, the Director has reached the decision that Mower possesses valid existing rights at five
mines known as Linan Nos. 1, 2 and 3 and Mower Nos. 1 and 2, as reflected in the letter below.  However, because
review of evidence which will lead to a precise determination of the geographical extent of the VER is not yet
complete, the decision reserves the right to define these parameters in a supplemental finding.  The finding issued
today will allow Mower, upon compliance with all other permitting requirements of appropriate State, Federal and
local authorities, to commence production at the five mines involved without a compatibility determination as may
otherwise be required under Section 522(e)(2) of the Act of mining on Federal lands in national forests.  

     The Highlands Conservancy commented that the geographical extent of the VER should be precisely
defined.  OSM agrees with this comment.  OSM considers that Mower's valid existing rights must have the same
geographical  extent as the mining that was contemplated by the parties at the time Mower acquired its rights.  OSM
has worked closely with the Forest Service and Mower to secure complete documentation of the mines which Mower
and its lessees planned to open almost ten years ago.  One difficulty in determining geographical limits in this case
comes from the limited information on each mine required by Forest Service operating plans in the early 1970's.  The
areas of actual surface disturbance at each mine, such as face-up area, haul roads, sedimentation ponds, storage
areas, rail sidings, etc., have been easy to determine from maps attached to the operating plan applications. 
However, Mower was not required to show the complete extent of the underground workings at any of the mines. 
The Forest Service only requested that the company show the planned extent of mining during six-month intervals.  

     Because of these difficulties, OSM proposed two options in determining geographical extent of VER in its
notice on August 7, 1980 (45 FR 52468).  Under the first alternative, the VER for the actual surface disturbance,
face-up, haul roads, etc., would be precisely defined, but the company would be free to deep mine as much coal from
the permitted (seams) as could be reasonably reached by current mining methods using the precisely limited surface
disturbances.  Under the second alternative, precise geographical limits would be set for both the surface and
underground workings.  

     OSM has decided to reserve the right to use either or both of these alternatives in any particular case
because the geographical limits of VER will depend on the evidence available.  The Office is not unmindful of the
fact that as a result of limited State and Federal regulation prior to the passage of the Act, there is a limited amount
of information relevant to a precise definition of the extent of VER.  While the second alternative is preferable and
precise geographical limits will be determined wherever possible, there may be cases where such a determination is
impossible.  In those cases, the first alternative would have to be used.  

     OSM, with the aid of Mower and the Forest Service, has been able to determine precisely both the surface
and underground limits of the Mower Nos. 1 and 2 mines.  These are both relatively small mines (approximately 150
acres or less) and their entire extent was delineated on maps submitted to the Forest Service.  However, the Linan
mines have proved more difficult to define because their extent is not shown or described on any maps or narrative
yet found.  OSM will continue working with all parties in order to come to a prompt decision on the exact limits of
the VER for these mines.  However, in order that Mower's planned mining operations not be unduly delayed pending
a final resolution of the evidentiary problem, the Director's decision generally affirms that Mower does indeed
possess VER at the five mines in questions, but reserves decision on the exact geographical extent of the VER at all
of the mines.  The six-month projections of planned mining at each of the mines are obviously well within the total
area of VER for each mine.  Although this six-month figure cannot be taken as a limitation on Mower's right to mine
beyond that time, it should allay concerns that the mining will intrude on the potentially prohibited areas prior to
OSM's final decision on geographic limits of VER.  OSM will continue to accept from any person information
concerning the geographical extent of the Linan mines.  Such information should be forwarded to the Regional
Director, Office of Surface Mining, 950 Kanawha Blvd., East, Charleston, West Virginia 25301.  

     The Highlands Conservancy also expressed doubt that Mower had VER at any of the mines because
development of the mines was not "in full swing." OSM cannot agree with the comments.  The determination of
VER has been governed by OSM's regulations in 30 CER Part 761, as modified by subsequent court rulings. As
explained in the letter below, Mower has met all of the tests necessary under the regulations to establish its valid
existing rights.  OSM has been presented with no evidence that contradicts the findings leading to its preliminary
determination of VER.  

     Mower presented comments reiterating claims to VER for their entire 28,000 acre mineral estate.  As set out
in letter below, the Director's decision extends only to five mine sites within Mower mineral estate.  The status of
VER on the remainder of the mineral estate will depend upon future findings and determinations as discussed above.  
{61799} 
     Mower also stated that if OSM persisted in limiting its VER determination, then a general finding of VER at
least as to the five mines should be made immediately so as not to further delay Mower's planned mining. As
previously discussed, OSM has decided to follow this course of action.  

     Thus, the following letter reflects the Director's decision in this matter and has been forwarded to the
addressee.  

Dated: September 11, 1980.  
Paul L. Reeves,  Acting Director .  

Mr. Richard A. Flye, Sellers, Conner & Cuneo, 1625 K Street, N.W., Washington, D.C. 20006.  

Re: The Mower Lumber Company.  

Dear Mr. Flyer:  

     I have reached a final decision on your request of March 14, 1980, written on behalf of your client, Mower
Lumber Company, for certain determinations pursuant to Section 522(e) of the Surface Mining Control and
Reclamation Act of 1977, relating to Mower's planned underground mining activities on Federal lands in the Upper
Shavers Fork Sub-Unit of the Monongahela National Forest in Randolph County, West Virginia.  Our analyses and
determination of the existence of valid existing rights for Mower's mining operations are described below:  

Legal Requirements  

     Section 522(e) of the Act states:  

"After the enactment of this Act and subject to valid existing rights no surface coal mining operations except those
which exist on the date of enactment of this Act shall be permitted... (2) on any Federal lands within the boundaries
of any national forest (proviso omitted)...."  

     Further, 30 CFR 761.5(a) defines "valid existing rights" as  

"(a) Except for haul roads,  

     (1) Those property rights in existence on August 4, 1977, that were created by a legally binding
conveyance, lease, deed, contract or other document which authorizes the applicant to produce coal by a surface coal
mining operation; and  

     (2) The person proposing to conduct surface coal mining, operations on such lands either  

          (i) Had been validly issued, on or before August 3, 1977, all State and Federal permits necessary to
conduct such operations on those lands, or  

          (ii) Can demonstrate to the regulatory authority that the coal is both needed for, and immediately
adjacent to, an on-going surface coal mining operation for which all permits were obtained prior to August 3, 1977.  

(b) For haul roads, valid existing rights means:  

     (1) A recorded right-of-way, recorded easement or a permit for a coal haul road recorded as of August 8,
1977, or  

     (2) Any other road in existence as of August 3, 1977."  

     The "all permits" requirement of 30 CFR 761.5(a)(2)(i) was later modified by an opinion rendered by Judge
Flannery in In re Permanent Surface Mining Regulation Litigation , No. 79-1114, February 26, 1980, such that "... a
good faith attempt to obtain all permits before the August 3, 1977 cut-off date should suffice for meeting the all
permits test." Slip opinion at 17-18.  

     Mower Lumber Company has not requested a determination under 30 CFR 761.5(a)(2)(ii).  As a result, the
Company will qualify for valid existing rights if it possesses a valid conveyance, lease or other document (30 CFR
761.5(a)(1)) and all required permits for operation or can show a good faith attempt to secure all permits prior to
August 3, 1977 (30 CFR 761.5(a)(2)(i) and (b)(1)).  

Conveyance of Right to Mine  

     The area within the scope of Mower's request was previously owned by the West Virginia Pulp and Paper
Company.  On December 10, 1936, the West Virginia Pulp and Paper Company, by two separate deeds, conveyed
the relevant tracts of land to the United States, reserving for 40 years from the 15th day of August, 1935, the right to
extract minerals under the land.  The deed also stated that at the end of the 40-year period the parcel would revert to
fee simple ownership by the United States unless the minerals had been actively extracted for an average of 50 days
over the preceding five years.  If the minerals were being extracted, then the deed called for automatic five-year
extensions of the minerals reservation.  The 40-year period was originally scheduled to expire on August 15, 1975. 
On August 18, 1943, West Virginia Pulp and Paper Company conveyed its mineral rights to F. Edwin Mower.  On
September 17, 1943, F. Edwin Mower conveyed these rights to the Mower Lumber Company.  Underground mining
on these tracts began in the 1940's and continued until the 1960's.  

     It is my conclusion that the aforementioned documents validly conveyed to the Mower Lumber Company
the right to the coal under these Federal lands and that they contemplated that the coal would be mined by
underground methods, as is seen from the actual mining which took place for approximately 30 years.  Therefore, the
first element of 30 CFR 761.5(a)(1) is satisfied.  

All Permits Test  

     The next question is whether on August 3, 1977, Mower possessed all permits required to conduct mining
operations, or had made a good faith effort to obtain such permits prior to that date.  During the late 1960's and early
1970's Mower and its lessees mined, or made preparation to mine, five separate underground sites.  The three sites
on Shavers Fork were known as Linan Nos. 1, 2 and 3, while two sites on Glade Run were known as Mower Nos. 1
and 2.  

     At the present time, Mower is attempting to begin mining at two sites knows as Enviro No. 1 and Enviro
No. 2.  Enviro No. 1 is the same mine as Mower No. 2, and Enviro No. 2 is the same mine as Linan No. 2.  Mower
has already received permits and authorizations to operate these mines from West Virginia Department of Natural
Resources (DNR) Reclamation Division, DNR Water Resources Division and the U.S. Forest Service.  Applications
for other permits have been made and are presently pending before the Environmental Protection Agency (EPA) and
the West Virginia Department of Mines.  

     All of these permit applications outlined above were made after August 3, 1977, and could not in an of
themselves constitute valid existing rights.  It is the activities of Mower at the same sites prior to August 3, 1977,
which must vest Mower with valid existing rights.  On March 2, 1973, Mower entered into a moratorium agreement
with the Federal government whereby Mower agreed to suspend its mining operations in the entire upper Shavers
Fork Sub-Unit area until September 2, 1978, in order to allow the Forest Service to develop an environmental impact
statement concerning all contemplated development in the watershed, including coal mining.  The moratorium
agreement also acted to toll the running of Mower's 40-year period within which to develop the mineral resources of
the area under the terms of the 1936 deed to the United States.  At pages 2 and 3 of the moratorium agreement it is
stated:  

"It is in the interest of the United States that mining operations in the reserved minerals be suspended as hereinafter
provided pending completion of the environmental impact statements, the mineral survey and the Shavers Fork unit
plan..."  

"2.  The United States hereby extends the forty (40) year mineral reservation contained in each of said deeds to the
United States and in said condemnation judgment to Midnight, August 15, 1962, and waives performance by Mower
all acts necessary to preserve title to the Reserved Minerals in Mower during the period of suspension from
September 3, 1971 to September 2, 1978, inclusive, and agrees that title to the Reserved Minerals is now and will
remain vested in Mower until Midnight, August 15, 1982."  

     Since the August 3, 1977 cut-off date for valid existing rights occurred during the pendency of the
moratorium. Mower's valid existing rights, if any, must be determined by its actions to obtain permits prior to the
moratorium.  

     Because of the proliferation of regulatory programs affecting coal mining prior to the passage of the Surface
Mining Control and Reclamation Act, the types of permits required for operation of a mine in West Virginia varied
according to the date the mining was contemplated to begin.  Because Mower originally applied for approval to mine
in the early 1970's, the actions of the following State and Federal agencies were relevant.  

(1) Since 1905, the West Virginia Department of Mines has required a license to operate a deep mine.  In 1958 the
statute, W. Va. Code , Section 22-2-63, was amended to require an identification number for deep mines.  In 1971
the subsection (a) of this statute was again amended to require "prior approval" by the Director of the Department
before a mine could be opened.  In 1976, subsection (e) and (g) of the statute were amended to require the posting of
a reclamation bond to cover surface disturbance at deep mines and vest the West Virginia Department of Natural
Resources (DNR), Reclamation Division, with jurisdiction over reclamation and restoration of deep mine sites.  

{61800} 
(2) Pursuant to W. Va. Code , Section 20-5A-5, in 1969 the West Virginia DNR, Water Resources Division,
received the power to require permits for point source discharges of industrial wastes, which included discharges
from coal mines.  

(3) In addition to State permits, all mining operations in national forests had to receive authorization to operate from
the Forest Service pursuant to the 1911 Rules of the Secretary of Agriculture and their successor, 36 CFR Part 251.  

     Prior to the moratorium agreement, Mower had obtained permits or authorizations to operate the Linan Nos.
1, 2 and 3 mines from the West Virginia Department of Mines, and the West Virginia DNR, Water Resources
Division.  Mower also applied for Forest Service authorization, and on September 2, 1971, the operating plan for
Linan No. 1 was approved.  However, on the same date the Forest Service informed Mower that a Federally-funded
mineral evaluation study and environmental study prescribed by the National Environmental Policy Act of 1969
should be completed before the operating plans for Linan Nos. 2 and 3 were approved.  Although Linan No. 1
possessed all necessary authorizations to operate, Mower decided not to put the mine into production until approval
was received from the U.S. Forest Service to operate Linan Nos. 2 and 3 mines.  

     Prior to the moratorium agreement, Mower had received permits and authorizations to operate Mower Nos.
1 and 2 mines from the West Virginia Department of Mines and the Forest Service.  As in the case of the Linan
mines, the Forest Service approved the operating plan for Mower Nos. 1 and 2 and then decided to prepare an
extensive environmental impact statement on the entire watershed area.  Mower also applied for permits from the
West Virginia DNR, Water Resources Division, on March 23, 1972.  After requesting and receiving additional
information from Mower, the division took no action on the permit application prior to the moratorium.  

     Haul road locations were included in the proposals for each mine, along with extensive plans concerning
construction and maintenance of these roads, Prior to the moratorium agreement, Mower and its lessees actually built
most of the planned roads to gain access to the mine sites and conduct face-up operations.  After the moratorium
agreement was signed, these road beds were re-seeded and temporarily closed.  

     Even though Mower did not actually possess each and every permit required to operate the mines, it is my
decision that Mower Lumber Company had made a good faith effort to obtain all such permits and to put its mines
into actual operation prior to August 3, 1977.  Based upon all available information, including public comments
received in response to my preliminary finding published at 45 Fed. Reg. 52467 (August 7, 1980), I conclude that
Mower has "valid existing rights" as to these five mines, and their associated haul roads. However, OSM reserves the
right to define the precise geographical parameters of the valid existing rights for these mines in a supplemental
decision.  It should be understood that we have not determined at this time whether valid existing rights would
extend to the entire 28,000 acre minerals estate.  When this determination is made, you will be notified.  

     This decision does not constitute agreement with, or a favorable decision on, all of the statements and
arguments in Mower's request. Nevertheless, this decision finding the existence of valid existing rights means that the
Company need not seek a determination of compatibility with values pursuant to Section 522(e)(2) of the Surface
Mining Act and 30 CFR 761.12(c) prior to commencing operations at these five mines.  The Company must still
comply with the permitting and performance standards requirements of the interim and permanent Federal lands
program, 30 CFR Part 211 and 30 CFR Parts 740-744, respectively.  

Sincerely,  

Dated: September 5, 1980.  
Paul Reeves,  Acting Director .  

[FR Doc. 80-28645 Filed 9-16-89; 8:45 am]  
BILLING CODE 4310-05-M