Section 69-05.2-04-01.6 - Areas unsuitable for mining - Processing requests for valid existing rights determinations1. The commission will conduct an initial review to determine whether the request includes all applicable components of the submission requirements of section 69-05.2-04-01.5. This review pertains only to the completeness of the request, not the legal or technical adequacy of the materials submitted. 2. If the request does not include all applicable components of the submission requirements of section 69-05.2-04-01.5, the commission will notify the applicant and establish a reasonable time for submission of the missing information. 3. When the request includes all applicable components of the submission requirements of section 69-05.2-04-01.5, the commission will notify the applicant and implement the notice and comment requirements of subsection 5. Upon receipt of that notice, the applicant must file a copy of the request in the office of the county auditor of the county in which the land is located. 4. If the applicant does not provide information that the commission requests under subsection 2 within the time specified or as subsequently extended, the commission will issue a determination that valid existing rights have not been demonstrated, as provided by subdivision d of subsection 6. 5. Notice and comment requirements and procedures. a. When the request satisfies the completeness requirements of subsection 3, the commission will notify the applicant to publish a notice in a newspaper of general circulation in the county in which the land is located. This notice must invite comment on the merits of the request. A copy of the published notice must be provided to the commission. The 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 standards under the definition of valid existing rights in subsection 120 of section 69-05.2-01-02. (a) If the request relies upon the all permits or good-faith standard or the needed for and adjacent standard in the definition of valid existing rights, the notice also must include a description of the property rights that are claimed by the applicant and the basis of that claim. (b) If the request relies upon the standard in paragraph 1 of subdivision c of the definition of valid existing rights in section 69-05.2-01-02, the notice also must include a description of the basis for the claim that the road 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. In addition, the notice must include a description of the basis for the applicant's claim to a legal right to use that road for surface coal mining operations. (c) If the request relies upon the standard in paragraph 2 of subdivision c of the definition of valid existing rights in section 69-05.2-01-02, 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 North Dakota Century Code section 38-14.1-07 and section 69-05.2-04-01.1. 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 applicant 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 the request relies upon one or more of the standards in subdivision b and paragraphs 1 and 2 of subdivision c of the definition of valid existing rights in section 69-05.2-01-02, a statement that the commission will not make a decision on the merits of the request if, by the close of the comment period under this notice or the notice required by subdivision c, 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 the valid existing rights claim. (5) A description of the procedures that the commission will follow in processing the request as required by this section. (6) The closing date of the comment period, which must be a minimum of thirty days after the publication date of the notice. (7) A statement that interested persons may obtain a thirty-day extension of the comment period upon request. (8) The name and address of the commission and county auditor's office where copies of the request are available for public inspection and that comments and requests for extension of the comment period be sent to the commission. b. The commission will promptly provide a copy of the notice required under subdivision a to: (1) All reasonably locatable owners of surface and mineral estates in the land included in the request. (2) The owner of the feature causing the land to come under the protection of North Dakota Century Code section 38-14.1-07, and, when applicable, the agency with primary jurisdiction over that feature. 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. c. The letter transmitting the notice required under subdivision b must provide a thirty-day comment period, starting from the date of service of the letter, and specify that another thirty days is available upon request. At its discretion, the commission may grant additional time for good cause upon request; however, comments received after the closing date of the comment period do not necessarily have to be considered. 6. Commission decision process. a. The commission will review the materials submitted under subsection 2 of section 69-05.2-04-01.5, comments received under subsection 5, and any other relevant, reasonably available information to determine whether the record is sufficiently complete and adequate to support a decision on the merits of the request. If not, the commission will notify the applicant in writing, explaining the inadequacy of the record and requesting submittal, within a specified reasonable time, of any additional information that it deems necessary to remedy the inadequacy. b. Once the record is complete and adequate, the commission will determine if valid existing rights have been demonstrated. The decision document will explain whether or not all applicable elements of the definition of valid existing rights have been satisfied. It will contain findings of fact and conclusions and specify the reasons for the conclusions. c. The following apply only when the request relies upon one or more of the standards in subdivision b and paragraphs 1 and 2 of subdivision c of the definition of valid existing rights in section 69-05.2-01-02. (1) The commission will issue a determination that valid existing rights have not been demonstrated if the property rights claimed in the request are the subject of pending litigation in a court or administrative body with jurisdiction over the property rights in question. The commission will make this determination without prejudice, meaning that the applicant may refile the request once the property rights dispute is finally adjudicated. This paragraph applies only to situations in which legal action has been initiated as of the closing date of the comment period under subdivisions a and c of subsection 5. (2) If the record indicates disagreement as to the accuracy of the property rights claimed, but this disagreement is not the subject of pending litigation in a court or administrative agency of competent jurisdiction, the commission will evaluate the merits of the information in the record and determine whether the requisite property rights that have been demonstrated exist under subdivision a and paragraphs 1 and 2 of subdivision c of the definition of valid existing rights in section 69-05.2-01-02, as appropriate. The commission will then proceed with the decision process under subdivision b. d. The commission will issue a determination that valid existing rights have not been demonstrated if information requested under subsection 2 or subdivision a is not submitted within the time specified or as subsequently extended. The commission will make this determination without prejudice, meaning that the applicant may refile a revised request at any time. e. After making a determination, the commission will: (1) Provide a copy of the determination, together with an explanation of appeal rights and procedures, to the applicant, surface and mineral owners of the land to which the determination applies, owner of the feature causing the land to come under the protection, and, when applicable, the agency with primary jurisdiction over the feature with respect to the values that caused the land to come under the protection. (2) Publish notice of the determination in a newspaper of general circulation in the county in which the land is located. This notice will include an explanation of appeal rights under subsection 7. 7. A valid existing rights determination is subject to administrative and judicial review under North Dakota Century Code sections 38-14.1-30 and 38-14.1-35. 8. Except as provided by subsection 6 of section 69-05.2-10-01, the commission will make the valid existing rights request and all related records available to the public as required by subsection 3 of North Dakota Century Code section 38-14.1-13 and provide copies of records to the appropriate county auditor as required by subsection 5 of North Dakota Century Code section 38-14.1-27. N.D. Admin Code 69-05.2-04-01.6
General Authority: NDCC 38-14.1-03
Law Implemented: NDCC 38-14.1-02, 38-14.1-04, 38-14.1-07