Section 11 AAC 90.123 - Valid existing rights(a) Possession of a valid existing right only confers an exception from the prohibitions of AS 27.21.260, 11 AAC 90.121, and 30 U.S.C. 1272(e). A person seeking to exercise a valid existing right must comply with all other pertinent requirements of AS 27.21 and this chapter.(b) Except as provided in this section, a person claiming a valid existing right must demonstrate that a legally binding conveyance, lease, deed, contract or other document vests that person, or a predecessor in interest, with the right to conduct the type of surface coal mining operation intended. This right must exist at the time that the land came under the protection of AS 27.21.260 or 11 AAC 90.121. State law will govern the interpretation of a document relied upon to establish a property right, unless federal law provides otherwise. If no applicable state law exists, custom and generally accepted usage at the time and place that the document came into existence will govern the interpretation.(c) Except as provided in (f) of this section, a person claiming a valid existing right must demonstrate compliance with one of the following:(1) before the land came under the protection of AS 27.21.260 or 11 AAC 90.121, the person obtained all necessary permits and authorizations required to conduct surface coal mining operations or made a good-faith effort to obtain all necessary permits and authorizations; at a minimum, the person must have submitted an application for at least one permit required under 11 AAC 90.007; or(2) the land is needed for and immediately adjacent to a surface coal mining operation, before the land came under the protection of AS 27.21.260 or 11 AAC 90.121 the person obtained all necessary permits and authorizations required to conduct surface coal mining operations, or made a good-faith attempt to obtain all permits and authorizations, and the person successfully demonstrates need under (d) of this section.(d) A person claiming the land is needed for and immediately adjacent to a surface coal mining operation under (c)(2) of this section must demonstrate that prohibiting expansion of the operation onto the adjacent land would unfairly impact the viability of the operation as planned before the land came under the protection of AS 27.21.260 or 11 AAC 90.121. Except for operations in existence before August 3, 1977, or for which a good-faith effort to obtain all necessary permits had been made before August 3, 1977, this standard does not apply to lands already under the protection of AS 27.21.260 or 11 AAC 90.121 when the regulatory authority approved the permit for the original operation or when the good-faith effort to obtain all necessary permits for the original operation was made.(e) In evaluating whether a person meets this standard under (d) of this section, the commissioner in making this determination may consider(1) the extent to which a coal supply contract or other legal or business commitment that predates the time that the land came under the protection of AS 27.21.260 or 11 AAC 90.121 depend upon use of that land for a surface coal mining operation;(2) the extent to which a plan used to obtain financing for the operation before the land came under the protection of AS 27.21.260 or 11 AAC 90.121 relies upon use of that land for a surface coal mining operation;(3) the extent to which investments in the operation before the land came under the protection of AS 27.21.260 or 11 AAC 90.121 rely upon use of that land for surface coal mining operations; and(4) whether the land lies within the area identified on the life-of-mine map submitted under 11 AAC 90.021(f) or 11 AAC 90.063(3) before the land came under the protection of AS 27.21.260 or 11 AAC 90.121.(f) A person who claims a valid existing right to use or construct a road meeting the definition of "surface mining activities" in 11 AAC 90.911 across the surface of land protected by AS 27.21.260 or 11 AAC 90.121 and the road must demonstrate that one or more of the following circumstances exist: (1) the road existed when the land upon which it is located came under the protection of AS 27.21.260 or 11 AAC 90.121 and the person has a legal right to use the road for surface coal mining activities;(2) a properly recorded right-of-way or easement for a road in that location existed when the land came under the protection of AS 27.21.260 or 11 AAC 90.121 and the person has a legal right to use or construct a road across the right-of-way or easement for surface coal mining activities under the document creating subsequent conveyances;(3) a valid permit for use or construction of a road for surface coal mining operations in that location existed when the land came under the protection of AS 27.21.260 or 11 AAC 90.121; or(4) the land protected by AS 27.21.260 or 11 AAC 90.121 has a valid existing right that exists under (a) and (b) of this section.Eff. 5/2/83, Register 84; am 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 repeal and readoption.
Authority:AS 27.21.030
AS 27.21.260