Section 11 AAC 90.121 - Areas where mining may be limited(a) Subject to valid existing rights and (b) - (d) of this section, the commissioner will prohibit operations in accordance with AS 27.21.260(d).(b) Subject to (e) of this section, if an applicant is seeking a permit within an area described in AS 27.21.260(d)(2), the commissioner(1) will transmit a copy of the complete application to the agency that has jurisdiction over the location at issue; and(2) will not approve the application unless it is approved by that agency.(c) For an operation on land within 300 feet, measured horizontally, from any occupied dwelling, the applicant must submit with the application a written, signed waiver from the owner of the dwelling, stating that the owner had the legal right to deny mining and knowingly waived that right. The waiver acts as consent to conduct the operation within a closer distance to the dwelling as specified in the waiver. A waiver obtained before August 3, 1977, is valid. A waiver obtained from a previous owner remains effective for a subsequent owner who had actual or constructive knowledge of the existing waiver at the time of purchase. A subsequent purchaser is considered to have constructive knowledge if the waiver has been recorded in the public property records under state law. The waiver must be separate from a lease or deed unless(1) the lease or deed contains an explicit waiver; and(2) a copy of the lease or deed is included with the permit application.(d) The commissioner may approve relocation of a public road or operations on land within 100 feet, measured horizontally, of the outside right-of-way of any public road, except where mine access roads or haulage roads join the right-of-way, if(1) the applicant obtains the necessary approval of the governmental authority with jurisdiction over the public road; and(2) the commissioner provides notice for the local community to comment on the proposed operations to determine whether the interests of the public and affected landowners will be protected; and (A) includes in the notice the date, time, and location for a public hearing and makes a written finding on this issue not later than 30 days after the hearing; or(B) after taking written public comments, makes a written finding not later than 30 days after hearing, or at the end of the public comment period.(e) If the commissioner is unable to determine whether the proposed operation is located within land identified in AS 27.21.260(d) for the purpose of complying with (b) of this section, the commissioner will transmit a copy of the relevant portions of the application to the appropriate federal, state, or municipal agency or Native corporation or village for a determination of the relevant boundaries or distances, with a request that it respond, in writing, not later than 30 days after receipt of the request. The commissioner will presume that the proposed operation is not located within the boundaries of this land if no response is returned within 30 days. If the commissioner is notified that AS 27.21.260(d) applies after the 30-day period, the presumption no longer applies,Eff. 5/2/83, Register 84; am 11/18/94, Register 132; am/readopt 7/7/2022, Register 243, October 2022As of Register 243, (October, 2022), this section is transferred from material adopted by reference in 11 AAC 90.001(a) to the Alaska Administrative Code (AAC) by readoption with additional amendments.
Authority:AS 27.21.030
AS 27.21.260
AS 27.21.960