Notice2025-13558
Determination of Valid Existing Rights Within the Monongahela National Forest, West Virginia
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
July 18, 2025
Effective
July 18, 2025
Issuing agencies
Interior DepartmentSurface Mining Reclamation and Enforcement Office
Abstract
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 South Fork Coal Company, LLC (SFCC) possesses VER for a haul road within the boundaries of the Monongahela National Forest (MNF), West Virginia. This decision will allow SFCC to maintain a West Virginia 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.
Full Text
<html>
<head>
<title>Federal Register, Volume 90 Issue 136 (Friday, July 18, 2025)</title>
</head>
<body><pre>
[Federal Register Volume 90, Number 136 (Friday, July 18, 2025)]
[Notices]
[Pages 34005-34009]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2025-13558]
-----------------------------------------------------------------------
DEPARTMENT OF THE INTERIOR
Office of Surface Mining Reclamation and Enforcement
[S1D1S SS08011000 SX064A000 256S180110; S2D2S SS08011000 SX064A000
25XS501520]
Determination of Valid Existing Rights Within the Monongahela
National Forest, West Virginia
AGENCY: Office of Surface Mining Reclamation and Enforcement, 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 South Fork Coal Company, LLC (SFCC)
possesses VER for a haul road within the boundaries of the Monongahela
National Forest (MNF), West Virginia. This decision will allow SFCC to
maintain a West Virginia 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: July 18, 2025.
FOR FURTHER INFORMATION CONTACT: Mr. Justin Adams, Director, Charleston
Field Office, Telephone: (304) 977-7177 Email: <a href="/cdn-cgi/l/email-protection#6e011d03430d0608012e011d031c0b40090118"><span class="__cf_email__" data-cfemail="d4bba7b9f9b7bcb2bb94bba7b9a6b1fab3bba2">[email protected]</span></a>.
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 September 18, 2024, Babst/Calland Attorneys at Law (Babst/
Calland) submitted a request for a determination of VER on behalf of
South Fork Coal Company, LLC (SFCC) from the Office of Surface Mining
Reclamation and Enforcement (OSMRE) that 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 Monongahela National Forest
(MNF), known as Forest Service Road 249. Babst/Calland is seeking a
determination that SFCC has VER under paragraph (c)(1) and/or (c)(2) of
the Federal definition of VER in the SMCRA implementing regulations in
30 CFR 761.5 to use the existing road as an access and haul road for
its Rocky Run Surface Coal Mine, which is on property adjacent to the
MNF.
On March 20, 2025, we published a notice in the Federal Register
(90 FR 13194) in which we provided an opportunity for the public to
comment on the request for a determination of 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 MNF. The comment
period closed on April 21, 2025. We received numerous comments that we
discuss in Part VI, below.
II. What legal requirements apply to this request?
Section 522(e)(2) of SMCRA, 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 SMCRA (August 3, 1977) and to
land for which a person has VER. Because SMCRA does not define VER, we
subsequently adopted regulations defining VER. On December 17, 1999 (64
FR 70766), 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 a VER
determination and which definition (State or Federal) will apply. That
table specifies that OSMRE is responsible for VER determinations for
Federal lands within national forests
[[Page 34006]]
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. 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 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 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. Id.
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 conveyances from 1959 through 2016 which show certain
property interests transferring from Cherry River Boom and Lumber
Company, through several corporate entities, to Weyerhaeuser Company.
4. SFCC has a mineral lease with Highland Mineral Resources, LLC,
an 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
enactment of SMCRA.
6. The Forest Service Road 249 is visible and shown on the United
States Geological Survey (USGS) map from 1972, in the lower left-hand
portion (beginning near the words, ``Sugartree Bench Mtn'').
7. The USFS issued SFCC a road use permit for the use of Forest
Service Road 249, through Permit No. FS-7700-41 as a coal access and
haul road on September 29, 2021.
8. A letter from the USFS dated April 29, 2025, reflecting the
USFS's evaluation of SFCC's application, along with accompanying
attachments that include, in relevant part, a deed from Preston S.
Clark and Josephine Clark to Cherry River Boom and Lumber Company dated
October 3, 1900, an opinion from the U.S. Department of Agriculture,
Office of General Counsel, dated March 31, 1994, and a warranty deed
from Walter D. Helmick and Rita Helmick to the United States of America
dated September 30, 1998.
IV. How We Processed the Request
We received the VER request on September 23, 2024, and determined
it was administratively complete on September 24, 2024. 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
March 20, 2025 (90 FR 13194). We also published notices on March 27,
2025, in the Pocahontas Times, a newspaper of general circulation in
Pocahontas County, West Virginia. By the close of the public comment
period on April 21, 2025, we received 2,391 public comments. By letter
dated April 29, 2025, we received comments from the USFS about SFCC's
application.
After we received the USFS's letter, we reviewed the materials
submitted with the request, all comments received in response to this
VER and other notices, 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. We
evaluated the record in accordance with the requirements at 30 CFR
761.16(e) as to whether the requestor 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, SFCC sought a VER determination under paragraph
(c)(1) or, in the alternative, paragraph (c)(2) of the definition of
VER at 30 CFR 761.5. Paragraph (1) provides that applicants have VER if
they can 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 they have a legal right to use the road for surface coal
mining operations. Accordingly, we first examined all information
submitted by SFCC, the USFS, and interested parties for evidence that
Forest Service Road 249 existed on August 3, 1977. The primary basis
for SFCC's assertion that Forest Service Road 249 existed before August
3, 1977, is a USGS map from 1973, showing Forest Service Road 249 in
the lower left-hand portion (beginning near the words, ``Sugartree
Bench Mtn''). The road starts in Greenbrier County, crosses the border
into Pocahontas County and thereafter connects to another road (which
current maps indicate is Pocahontas County Route 29/4, also known as
Briary Knob Road) northwest of Briery Knob.
We also reviewed a Road Right-of-Way Map from the USFS with the
markings ``Posted to 9/1/68'' and an accompanying record entitled,
``ROAD RIGHT OF WAY STATUS TABULAR RECORD,'' prepared in May of 1972
and last revised July 31, 2001. The USFS Map also appears to show
Forest Service Road 249 in the lower left-hand portion (beginning near
the words ``Sugartree Bench Mountain''), appearing with empty circles
and the number 3, also encircled. While the meander of the road on the
USFS Map differs slightly from that in the USGS Map, the meander of
Pocahontas County Route 29/4 and the border between Pocahontas and
Greenbrier Counties are identifiable, and the road's relation to these
points is consistent. According to the USFS Map legend, the empty
circles over the road indicate a Special Use Permit or easement from
the United States, and the number 3 indicates an entry on the Tabular
Record. Entry Number 3 on the Tabular Record indicates that in October
1973, the USFS granted a Special Use Permit or Easement for the 1.19-
mile portion of road to the Sewell Coal Company for the purpose of
access to private land. Although it is not certain when Forest Service
Road 249 was constructed, based upon the USGS and USFS maps, we have
determined that the approximately 1.2 mile long road segment exists on
the land to which the VER determination pertains, and the road existed
when the land on which it is located within the MNF came under the
protection of 30 CFR 761.11 and
[[Page 34007]]
section 522(e) of SMCRA on August 3, 1977, the date of enactment of
SMCRA.
Next, we examined all information submitted by SFCC, the USFS, and
interested parties for evidence that SFCC has a legal right to use the
road for surface coal mining operations. The ``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, we
stated that a person must demonstrate a legal right to use the road for
surface coal mining operations. See 64 FR 70791. That is, even though a
road existed on August 3, 1977, that fact alone does not give the
applicant the right to use the road for surface coal mining operations.
In prior determinations, we have also explained that the term ``legal
right'' is not defined, and, therefore, various circumstances, such as
holding a permit or obtaining a legal easement, would qualify as a
``legal right.'' See 71 FR 70531 (Dec. 5, 2006) (approving VER on the
basis of a valid USFS Road Use Permit); 74 FR 57699 (Nov. 9, 2009)
(same with USFS Special Use Permit). Here, SFCC applied for and
received USFS Road Use Permit No. FS-7700-41 on September 29, 2021
(RUP). Through Road Use Permit No. FS-7700-41, the USFS granted SFCC
use of Forest Service Road 249 ``from intersection with County Route
29/4 to terminus (total length 1.2 miles)'' for commercial hauling.
Therefore, we conclude that the September 29, 2021, Road Use Permit
from the USFS is sufficient to prove that SFCC has a legal right to use
the road for surface coal mining operations. Our findings and
conclusion were corroborated by the USFS's evaluation.
SFCC also claims it has VER under the standard in 30 CFR
761.5(c)(2), which allows the applicant to demonstrate that a properly
recorded right of way or easement existed when the land came under the
protection of 30 CFR 761.11 or 30 U.S.C. 1272(e) 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. To analyze
this claim, we first examined all information submitted by SFCC, the
USFS, and interested parties, as well as our own records.
SFCC claims that it has a properly recorded right of way or
easement by virtue of the reservation of mineral rights and related
right to use roads for the purpose of mining and timber operations by
the Cherry River Boom and Lumber Company in a deed dated October 9,
1934, conveying the surface property rights to the USFS. SFCC then
asserts that Cherry River Boom and Lumber Company conveyed its
remaining surface and mineral interests to W.M. Ritter Lumber Company
by deed dated June 22, 1959. From there, SFCC set forth in its
application a chain of conveyances through various corporate entities
that it asserts demonstrate that it currently holds these rights.
According to the USFS in its April 29, 2025, letter, the mineral
rights on the subject property were reserved prior to the conveyance to
Cherry River Boom and Lumber Company and could not have been (and was
not) conveyed from Cherry River Boom and Lumber Company to W.M. Ritter
Lumber Company in 1959. The USFS also explained that, through civil
litigation, USFS reunified the property under Federal ownership by deed
recorded in 1998. While the opinion of the USFS is not binding on our
determination, its conclusions are consistent with our own records and
our review of SFCC's submission materials. In our examination, we found
that the property on which the majority of Forest Service Road 249 lies
(excluding only a small portion near the intersection with County Route
29/4) was the subject of several VER determinations in the 1980s and
1990s, see, e.g., 55 FR 51355 (Dec. 13, 1990), 62 FR 53798 (Oct. 1997),
and 62 FR 66126, n.1 (Dec. 17, 1997). The property is known in various
documents as the Clark 179-acre tract, Tract 372, or the Killingsworth
Tract. According to the USFS's review, in those prior VER requests,
owners of the 179-acre tract Preston S. and Josephine Clark had
reserved for themselves the mineral rights when they conveyed the
surface estate to Cherry River Boom and Lumber Company by deed dated
October 3, 1900. Therefore, the mineral rights were outstanding at the
time of the 1934 conveyance by Cherry River Boom and Lumber Company to
the USFS, and Cherry River Boom and Lumber Company could neither have
reserved the mineral interest in the 179-acre tract for itself nor did
it have that interest to convey to W.M. Ritter Lumber Company in 1959.
This is also consistent with our reading of the legal description and
accompanying maps of the 1959 deed, which omits the Clark 179-acre
tract in its property line description and accompanying map.
Accordingly, we conclude that SFCC did not make a demonstration that it
has VER under the standard provided at 30 CFR 761.5(c)(2).
Because SFCC only needed to demonstrate VER under either paragraph
(c)(1) or (c)(2) of the definition of VER in 30 CFR 761.5 and based
upon the information above, we have determined that SFCC does have VER
under paragraph (c)(1) to use the 1.2-mile portion of road, known as
Forest Service Road 249, across a portion of the MNF, for surface coal
mining operations. This decision is based solely on the finding that
the road was in existence at this location and within the MNF before
the enactment of SMCRA, and that the applicant has a legal right to use
this road for surface coal mining operations under the road use permit
issued by the USFS on September 29, 2021.
This finding is in accordance with the definition of VER pertaining
to roads found at 30 CFR 761.5(c)(1).
VI. What public comments were received?
We accepted public comments for 30 days ending on April 21, 2025.
In that time, we received 2,391 written comments opposing the approval
of the VER determination; most of the submissions were identical or
contained only slight variations. Most of the remaining comments were
more individualized but raised similar concerns or were generally
opposed to the proposed mining operation without providing any
information relevant to determining the VER claim. One commenter raised
additional specific objections to the VER claim, which we will address
in detail below. Most of the comments expressed issues with previous
mining violations by SFCC and considered that to be evidence of future
violation. They also alleged that SFCC has not provided any credible or
specific evidence to meet the standard for VER required under SMCRA.
Specifically, commenters asserted that under Federal law, operators
must show a recorded haul-road easement or equivalent property interest
existing before SMCRA took effect in order to haul coal through the
national forest, and that SFCC cannot substantiate such a claim.
Commenters also assert that the USFS allowed SFCC to haul coal without
issuing the Road Use Permit in compliance the National Environmental
Policy Act (NEPA) or the Endangered Species Act (ESA).
We appreciate the comments received and reiterate that we must
follow the regulatory process for VER determination requests as
outlined in 30 CFR 761.16(e)(2), which requires us, OSMRE, as the
responsible agency, to determine whether the applicant has demonstrated
VER. The standards for determining whether an applicant has valid
existing rights for mine roads are articulated at 30 CFR 761.5(c),
discussed above, and reiterated at 30 CFR 761.16(b)(4). Regarding
comments
[[Page 34008]]
raising SFCC's compliance with SMCRA, an applicant's SMCRA compliance
history is not mentioned in the VER regulations as a factor for our
consideration and, thus, is outside the scope of our review; our
determination is strictly an analysis of whether an applicant has made
a demonstration that a particular legal right exists as set forth in
the Federal regulations. Next, as we discuss above, the term ``legal
right'' is not defined and may be satisfied by something like a Road
Use Permit or other permit or grant issued by an authorizing agent even
after SMCRA's enactment. Therefore, comments alleging SFCC's lack of
``easement or equivalent property interest'' fail to account for SFCC's
Road Use Permit from the USFS.
Regarding compliance with NEPA and the ESA in issuing the Road Use
Permit, such an independent evaluation of the USFS's compliance with
those statutes is outside the scope of our authority and the analysis
required in 30 CFR part 761. The record before us indicates that the
USFS issued the permit to SFCC on September 29, 2021. Nothing in the
record indicates that the permit has been revoked by the USFS or its
validity otherwise enjoined by a court of competent jurisdiction.
Absent evidence of those events, we must accept the permit as lawfully
issued. One commenter noted that the Road Use Permit is currently
subject to legal challenge in the United States District Court,
District of Columbia (Civil Action No. 1:24-cv-00087) based on alleged
noncompliance with Federal laws. While the current litigation could
impact the validity of the permit, our determination is based on the
present validity and only extends so long as the permit remains valid.
The same commenter also asserts that the permit is ``facially''
invalid, but provides no support for that assertion, and our review has
found nothing on the face of the permit that would undermine its
validity. The commenter further asserts that OSMRE and USFS have failed
to comply with a Memorandum of Understanding (MOU) executed between the
agencies in 1990. The basis for the commenter's claim appears to be
that USFS failed to consult with OSMRE to decide VER before issuing the
Road User Permit. However, the MOU does not require such a consultation
because, while a current Road Use Permit for a road that existed when
the land upon which it is located came under the protection of SMCRA
may be necessary to demonstrate VER under 30 CFR 761.5, and VER is
necessary for issuance of a mining permit from the appropriate
regulatory authority before coal mining activities may begin, neither a
VER determination nor the mining permit are required before the Road
Use Permit is issued. Consultation outlined under the MOU is intended
to help OSMRE to decide whether VER exists, which may be premised on
USFS's property rights or permits. See 71 FR 70531, 70534 (Dec. 5,
2006) (addressing similar comment).
Relatedly, the commenter seems to assert that the Road Use Permit
must have been issued prior to time that the land upon which the road
is issued came under the protection of SMCRA. However, commenter
appears to conflate the four independent bases for a VER determination
under 30 CFR 761.5(c)(1)-(4). Even though subsections (c)(2), (c)(3),
and (c)(4) may require some form of pre-SMCRA permit or property right,
subsection (c)(1), at issue here, requires only that the road pre-exist
the protection afforded under SMCRA, and allows for the right to be
granted later in time. The commenter repeatedly cites our 2006 and 2009
determinations in the Daniel Boone National Forest to support their
opposition to VER in this case but these two determinations in fact
support OSMRE's determination here. In our 2006 determination, the USFS
Road Use Permit was issued on May 18, 2006, and we found that there was
a valid existing right under 761.5(c)(1) because the road pre-existed
SMCRA and the applicant demonstrated a legal right to use that road at
the time of the VER request. Id. at 70533-34 (explaining that the
regulations require that the applicant ``has'' (not ``had'') a legal
right to use the road). Similarly, in our 2009 determination, the road
pre-existed SMCRA and the USFS Special Use Permit was issued on June
26, 2009, and was valid at the time of the VER request. See 74 FR
57699, 57700 (Nov. 9, 2009).
The commenter also made several claims related to the lack of
specificity in the property records and conveyances submitted by SFCC.
Since the available records were sufficient to determine that severance
of mineral interests predates the 1934 Deed and that mineral rights on
the subject property could not have been (and was not) conveyed from
Cherry River Boom and Lumber Company to W.M. Ritter Lumber Company in
1959, we agree with commenters that the records submitted by SFCC do
not support a demonstration under 30 CFR 761.5(c)(2). The commenter's
remaining points are that USFS's current processing of a new special
use permit application to replace the 2021 road use permit from SFCC is
an admission that the 2021 road use permit is invalid, that the
appropriate order of authorizations was not followed in this instance,
and that our resulting cessation order was appropriately issued and
that therefore VER cannot be obtained. As stated above, SFCC currently
has a valid road use permit and concerns raised about the special use
permit application is outside the scope of our authority to
independently determine or are not bases upon which we can deny whether
VER exists. Finally, our cessation order related to the company's
failure to obtain a VER determination from OSMRE prior to the issuance
of a surface coal mining permit does not address the merits of their
VER application.
The commenter also argues that SFCC did not demonstrate VER under
the remaining subsections of the definition of VER (30 CFR 761.5(a),
(b), (c)(3) or (c)(4)), and that SFCC has failed to apply for VER for
Forest Service Road 223 (Bear Run Road). SFCC applied for a
determination of VER for Forest Service Road 249 under 30 CFR
761.5(c)(1) and (c)(2), and therefore comments related to other roads
and other bases of VER are not germane to our determination here.
Additionally, OSMRE treated the commenter's assertion about Bear Run
Road as a citizen complaint under 30 CFR part 842 and responded
accordingly.
Finally, most of the commenters also requested a 30-day extension
to the public comment period so that interested parties could more
closely review SFCC's application materials and understand the issues
at stake. We decided not to extend or reopen the public comment period
given the nature of the comments we received, particularly in light of
our findings regarding the relevant property ownership history, those
corroborating findings made by the USFS, and the standards controlling
our review.
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. See 30 CFR 761.16(f).
VIII. Where are the Records of this determination available?
Our records on this determination are available for your inspection
at the Charleston Field Office. You may arrange an inspection by
contacting the
[[Page 34009]]
Field Office Director listed under FOR FURTHER INFORMATION CONTACT.
Ben Owens,
Acting Regional Director, Interior Regions 1 & 2.
[FR Doc. 2025-13558 Filed 7-17-25; 8:45 am]
BILLING CODE 4310-05-P
</pre><script data-cfasync="false" src="/cdn-cgi/scripts/5c5dd728/cloudflare-static/email-decode.min.js"></script></body>
</html>Indexed from Federal Register on July 18, 2025.
This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.