11 Alaska Admin. Code § 90.124

Current through May 31, 2024

Section 11 AAC 90.124 - Processing a request for valid existing rights

(a) A person seeking a valid existing rights determination for federal lands described in AS 27.21.260(d)(1) or for national forests must submit the request directly to the United States Secretary of the Interior. Requests for determinations on non-federal lands may be submitted to the commissioner.

(b) When the commissioner makes a valid existing rights determination on non-federal lands the procedures under (c) - (h) of this section apply.

(c) The applicant or permittee must submit a request for a valid existing rights determination to the department if the applicant or permittee intends to conduct surface coal mining operations on the basis of a valid existing right under 11 AAC 90.121 or is seeking to confirm the right to do so. A person may submit a request for a valid existing rights determination before preparing and submitting an application for a permit or boundary revision for the land. A person submitting a request for a valid existing rights determination under 11 AAC 90.123(c) and this section must provide

(1) a property rights demonstration under 11 AAC 90.123(c)(1) if the person successfully obtained all permits and authorizations required to conduct surface coal mining on the land or under 11 AAC 90.123(c)(2) if the person successfully obtained all permits and authorizations to conduct surface coal mining on immediately adjacent land and the land is needed for the use of the permitted property; this demonstration must include the following items:

(A) a legal description of the land at issue;

(B) complete documentation of the character and extent of the current interests in the surface and mineral estates of the land at issue;

(C) a complete chain of title for the surface and mineral estates of the land to which the request pertains;

(D) a description of the nature and effect of each title instrument that forms the basis for 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 applicant or permittee claims the right to conduct under previous authorizations, including the method of mining, any mining-related surface activities and facilities, and an explanation of how those operations would be consistent with state property law;

(F) complete documentation of the nature and ownership, as of the date that the land came under the protection of AS 27.21.260 and 11 AAC 90.121, of all property rights for the surface and mineral estates of the land to which the request pertains;

(G) names and addresses of the current owners of the surface and mineral estates of the land to which the request pertains;

(H) if the coal interests have been severed from other property interests, documentation that the owners of other property interests in the land to which the request pertains have been notified and provided reasonable opportunity to comment on the validity of the applicant's or permittee's property rights claims; and

(I) any comments received in response to the notification provided under (H) of this paragraph;

(2) for a request under 11 AAC 90.123(c), when a person made a good-faith effort to obtain all necessary permits and authorizations, the information required under (1) of this subsection and

(A) the approval and issuance dates and identification number for a permit, license, or authorization that the applicant, permittee, or predecessor in interest obtained before the land came under the protection of statute;

(B) the application date and identification number for a permit, license, or authorization for which the applicant, permittee, or predecessor in interest submitted an application before the land came under the protection of statute; and

(C) an explanation of other good-faith effort that the applicant, permittee, or predecessor in interest made to obtain the necessary permit, license, or authorization as of the date that the land came under the protection of AS 27.21.260 and 11 AAC 90.121;

(3) for a request under 11 AAC 90.123(c)(2), when the land is needed for and immediately adjacent to a surface coal mining operation, the information required under (1) of this subsection and an explanation regarding 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 statute; or

(4) for a request under 11 AAC 90.123(e) relating to road use or construction, satisfactory documentation showing that

(A) a road existed when the land upon which it is located came under the protection of AS 27.21.260 and the applicant or permittee has a legal right to use the road for a surface coal mining operation;

(B) a properly recorded right-of-way or easement for a road in the location existed when the land came under the protection of statute, and, under the document creating the right-of-way or easement and under any subsequent conveyances, the applicant or permittee 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 11 AAC 90.121 or 11 AAC 90.122.

(d) For an initial review of a request for a valid existing rights determination, the commissioner will first determine whether the request includes all applicable components required under (c) of this section. An initial review pertains only to the completeness of the request, not to the legal or technical adequacy of the materials submitted. If the commissioner determines that the request does not include all applicable components required under (c) of this section, the commissioner will provide notice to the physical or electronic address provided of the deficiency to the applicant and establish a reasonable time for the applicant to submit the missing information. The commissioner may extend the time to submit missing information as is reasonably necessary Once a request includes all applicable components under (c) of this section, the commissioner will provide for public notice and comment under (e) of this section. If an applicant does not provide the information that the commissioner requests under this subsection within the time specified or as subsequently extended, the commissioner will issue a determination that the applicant or permittee has not demonstrated a valid existing right, as provided in (e)(4) of this section.

(e) The commissioner will make a completed request available to the public in accordance with 11 AAC 90.907(b) and provide notice of the request as provided in 11 AAC 90.907(d), including at least one publication in a newspaper general circulation in the area in which the land is located. The public notice must include

(1) a physical or electronic mail address to submit comment on the request;

(2) the location of the land to which the request pertains;

(3) a description of the type of surface coal mining operations planned;

(4) a reference to and brief description of the applicable standards pertaining to a valid existing right in 11 AAC 90.123 and,

(A) if the request relies on 11 AAC 90.123(c)(1) or (2), a description of the property rights that are claimed and the basis for the claim;

(B) if the request relies on 11 AAC 90.123(f)(1), a description of the basis for the applicant's or permittee's claim that the road existed when the land came under the protection of statute and a description of the basis for the applicant's or permittee's claim that it has a legal right to use that road for surface coal mining operations; or

(C) if the request relies on 11 AAC 90.123(f)(2), 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 statute and 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 applicant or permittee has a legal right to use or construct a road across the right-of-way or easement to conduct surface coal mining operations;

(5) if the request relies upon 11 AAC 90.123(c) or (f)(1) or (2), a statement that the commissioner will not make a decision on the merits of the request if, by the close of the comment period under this notice, 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 document that forms the basis of the applicant or permittee's claim;

(6) a description of the procedures in this section that the commissioner will follow in processing the request;

(7) the closing date of the comment period;

(8) a statement that an interested persons may obtain a 30-day extension of the comment period upon request; and

(9) the name and address of the department's office where a copy of the request is available for public inspection.

(f) The commissioner will promptly provide a copy of the notice required under (e) of this section to

(1) all owners of surface and mineral estates in the land included in the request who the commissioner can reasonably locate; and

(2) the owner of the land or feature causing the land to come under the protection of AS 27.21.260, and, when applicable, the agency with primary jurisdiction over the feature with respect to the values causing the land to come under the protection of statute.

(g) The commissioner will provide a 30-day comment period, starting from the date of service of the notice. The commissioner may grant an additional 30-day comment period for good cause upon request.

(h) The commissioner will review the materials submitted under (c) of this section, comments received under (e) of this section, and any other relevant, reasonably available information to determine whether the record is sufficiently complete to support a decision on the merits of the request. If not, the commissioner will notify the applicant or permittee in writing and request that the applicant or permittee submit, within a specified reasonable time, any additional information that the commissioner determines necessary.

(i) Once the record is complete, the commissioner will make a determination, in writing, as to whether the applicant or permittee has demonstrated a valid existing right. The commissioner will include findings of fact and explain how the applicable elements of 11 AAC 90.123 are or are not satisfied. The commissioner will not determine that a valid existing right exists if the commissioner has not received information that the commissioner requested under (d) or (h) of this section within the time specified or as subsequently extended.

(j) When making a determination under (i) of this section that relies on one or more of the reason in 11 AAC 90.123(c) or (f)(1) or (2), the commissioner will consider impact of a property rights disagreement, as follows:

(1) if a property rights claim is the subject of pending litigation in a court or administrative body with jurisdiction over the property rights in question, on or before the close of the comment period, the commissioner will issue a determination that

(A) the applicant or permittee has not demonstrated a valid existing right because the property rights are the subject of pending litigation; and

(B) this determination is made without prejudice and the applicant or permittee may refile the request once the property rights dispute is finally adjudicated; and

(2) if a disagreement about a property right is not the subject of pending litigation in a court or administrative agency of competent jurisdiction, the commissioner will

(A) evaluate the merits of the information in the record;

(B) determine whether the applicant or permittee has demonstrated that the requisite property rights exist under 11 AAC 90.123; and

(C) issue a written decision in accordance with (i) of this section.

(k) After making a determination of a valid existing right, the commissioner will

(1) provide a copy of the determination, together with an explanation of appeal rights and procedures,

(A) to the applicant or permittee;

(B) to the owner or owners of the land to which the determination applies;

(C) to the owner of the feature causing the land to come under the protection of statute; and

(D) when applicable, to the agency with primary jurisdiction over the feature with respect to the values that caused the land to come under the protection of statute; and

(2) publish notice of the determination in a newspaper of general circulation in the area which the land is located.

(l) A determination by the commissioner that an applicant or permittee has or does not have valid existing rights is a final decision subject to administrative and judicial review under AS 27.21.150.

(m) The commissioner will make a copy of all records associated with a request for a valid existing right subject to notice and comment under (e) of this section, available to the public in the same manner as the department must make permit applications available to the public under AS 27.21.100.

11 AAC 90.124

Eff. 7/7/2022, Register 243, October 2022

Authority:AS 27.21.030

AS 27.21.260