N.M. Admin. Code § 19.8.35.11

Current through Register Vol. 36, No. 1, January 14, 2025

Section 19.8.35.11 - NOTICE AND COMMENT REQUIREMENTS AND PROCEDURES VER REQUEST

A. When the person making the VER request satisfies the completeness requirements of 19.8.35.10 NMAC, the person requesting the VER must publish a notice for two consecutive weeks in a newspaper of general circulation in the county in which the land is located. An affidavit of publication will be provided to the director after the notice has been published. Each notice must include:

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

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

(3) a reference to and brief description of the applicable standard(s) under the definition of valid existing rights in 19.8.2.102 NMAC;

(a) if the request relies upon the good faith/all permits standard or the needed for and adjacent standard in Paragraph (2) of Subsection A of 19.8.35.7 NMAC, the notice also must include a description of the property rights that the person making the VER claims and the basis for the claim;

(b) if a request relies upon the standard in Paragraph (1) of Subsection D of 19.8.35.7 NMAC, the notice also must include a description of the basis by which the person making the VER request claims that the road existed when the land came under the protection of 19.8.2.201 NMAC; in addition, the notice must include a description of the basis of the claim by which the person making the VER request has a legal right to use that road for surface coal mining operations;

(c) if a request relies upon the standard in Paragraph (2) of Subsection D of 19.8.35.7 NMAC, the notice also must include 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 19.8.2.201 NMAC; in addition, the notice must include 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 person making the VER request has a legal right to use or construct a road across the right of way or easement to conduct surface coal mining operations;

(4) if a request relies upon one or more of the standards in Paragraph (2) of Subsections A of 19.8.35.7 NMAC, and Paragraphs (1) and (2) of Subsection D of 19.8.35.7 NMAC, a statement that the director will not make a decision on the merits of a request if, by the close of the comment period under this notice or the notice required by Subsection C of 19.8.35.12 NMAC, 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 documents that form the basis of a claim;

(5) a description of the procedures that the director will follow in processing a request;

(6) the closing date of the comment period, which must be a minimum of 30 days after the publication date of the notice;

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

(8) the name and address of the director's office where a copy of the request is available for public inspection and to which comments and requests for extension of the comment period should be sent.

B. The director must promptly provide a copy of the notice required under Subsection A of 19.8.35.11 NMAC to:

(1) all reasonably locatable owners of surface and mineral estates in the land included in a request;

(2) the owner of the feature causing the land to come under the protection of 19.8.2.201 NMAC, 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 19.8.2.201 NMAC. For example, both the landowner and the state historic preservation officer must be notified if surface coal mining operations would adversely impact any site listed on the national register of historic places. As another example, both the surface owner and the national park service must be notified if the request includes non-federal lands within the authorized boundaries of a unit of the national park system.

C. The letter transmitting the notice required under Subsection B of 19.8.35.11 NMAC must provide a 30-day comment period, starting from the date of service of the letter, and specify that another 30 days are available upon request. The director may grant additional time for good cause upon request. The director need not consider comments received after the closing date of the comment period.

N.M. Admin. Code § 19.8.35.11

19.8.35.11 NMAC - N, 1-15-2002