Section 69-05.2-04-01.5 - Areas unsuitable for mining - Submission of requests for valid existing rights determinations1. Except for certain federal lands, the commission is responsible for making valid existing rights determinations based on the definition of valid existing rights in section 69-05.2-01-02. The office of surface mining reclamation and enforcement must make the determination on federal lands within: a. The national park system.b. The national wildlife refuge systems.c. The national system of trails.d. The national wilderness preservation system.e. The national wild and scenic rivers system, including study rivers and corridors.f. National recreation areas.2. A request for a valid existing rights determination may be submitted before preparing and submitting an application for a permit or incidental boundary revision for the land. The request must include the following: a. A property rights demonstration under subdivision a of the definition of valid existing rights in section 69-05.2-01-02 if the request relies upon the "all permits or good-faith standard" or the "needed for and adjacent standard" in subdivision b of that definition. The demonstration must include the following items: (1) A legal description of the land to which the request pertains. (2) Complete documentation of the character and extent of the applicant's current interests in the surface and mineral estates of the land to which the request pertains.(3) A complete chain of title for the surface and mineral estates of the land to which the request pertains.(4) 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.(5) A description of the type and extent of surface coal mining operations that the applicant claims the right to conduct, 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.(6) Complete documentation of the nature and ownership, as of the date that the land came under the protection of North Dakota Century Code section 38-14.1-07 and section 69-05.2-04-01.1, of all property rights for the surface and mineral estates of the land to which the request pertains.(7) Names and addresses of the current owners of the surface and mineral estates of the land to which the request pertains.(8) If the coal or commercial leonardite interests have been severed from other property interests, documentation that the applicant has notified and provided reasonable opportunity for the owners of other property interests in the land to which the request pertains to comment on the validity of claimed property rights.(9) Any comments that the applicant receives in response to the notification provided under paragraph 8.b. If the request relies upon the all permits or good-faith standard in paragraph 1 of subdivision b of the definition of valid existing rights in section 69-05.2-01-02, the information required under subdivision a must be submitted. In addition, the following must be provided: (1) Approval and issuance dates and identification numbers for any permits, licenses, and authorizations that the applicant or a predecessor in interest obtained before the land came under the protection of North Dakota Century Code section 38-14.1-07 and section 69-05.2-04-01.1.(2) Application dates and identification numbers for any permits, licenses, and authorizations for which the applicant or a predecessor in interest submitted an application before the land came under the protection of North Dakota Century Code section 38-14.1-07 and section 69-05.2-04-01.1.(3) An explanation of any other good-faith effort that the applicant or a predecessor in interest made to obtain the necessary permits, licenses, and authorizations as of the date that the land came under the protection of North Dakota Century Code section 38-14.1-07 and section 69-05.2-04-01.1.c. If the request relies upon the "needed for and adjacent standard" in paragraph 2 of subdivision b of the definition of valid existing rights in section 69-05.2-01-02, the information required under subdivision a must be submitted. In addition, an explanation must be provided to explain 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 North Dakota Century Code section 38-14.1-07 and section 69-05.2-04-01.1.d. If the request relies upon one of the standards for roads in paragraphs 1, 2, and 3 of subdivision c of the definition of valid existing rights in section 69-05.2-01-02, satisfactory documentation must be submitted to show that: (1) The road existed when the land upon which it is located came under the protection of North Dakota Century Code section 38-14.1-07 and section 69-05.2-04-01.1 and the applicant has a legal right to use the road for surface coal mining operations;(2) A properly recorded right of way or easement for a road in that location existed when the land came under the protection of North Dakota Century Code section 38-14.1-07 and section 69-05.2-04-01.1 and, under the document creating the right of way or easement and under any subsequent conveyances, the applicant has a legal right to use or construct a road across that right of way or easement to conduct surface coal mining operations; or(3) 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 North Dakota Century Code section 38-14.1-07 and section 69-05.2-04-01.1.N.D. Admin Code 69-05.2-04-01.5
Amended by Administrative Rules Supplement 2016-362, October 2016, effective 10/1/2016.General Authority: NDCC 38-14.1-03
Law Implemented: NDCC 38-14.1-02, 38-14.1-04, 38-14.1-07