11 Miss. Code. R. § 8-2.2-11-1106 - Submission and Processing of Requests for Valid Existing Rights Determinations

(a) The Permit Board shall have the authority to determine valid existing rights for non-federal lands listed in 30 CFR § 761.11, 30 U.S.C. 1272(e), Miss. Code Ann. § 53-9-71, or § 1105 of these regulations. Pursuant to federal law, OSM retains the authority to determine valid existing rights for federal lands described listed in 30 U.S.C. § 1272(e)(1) and (2) and 30 CFR § 761.11(a) and (b), and the Permit Board will use the valid existing rights determination of OSM in considering permit issuance for operations that would affect those federal lands.

(b) What you must submit as part of a request for a valid existing rights determination. You must submit a request for a valid existing rights determination to the appropriate agency under paragraph (a) of this section if you intend to conduct surface coal mining operations on the basis of valid existing rights or wish to confirm the right to do so.

(c) When the Permit Board is the appropriate agency under paragraph (a), you may submit this request before preparing and submitting an application for a permit or boundary revision for the land with a request that the Permit Board make a valid rights determination prior to receiving a complete application to conduct surface mining operations or to issue a permit revision or modification. Unless you request that the valid existing rights determination be made prior to the receipt of a complete application, the valid existing rights determination will be made by the permit board after the receipt of a complete application pursuant to § 1107(a) of these regulations.

(1) Requirements for property rights demonstration. You must provide a property rights demonstration under paragraph (a) of the definition of valid existing rights in § 105 if your request relies upon the good faith/all permits standard or the needed for and adjacent standard in paragraph (b) of the definition of valid existing rights in § 105. This demonstration must include the following items:

(i) A legal description of the land to which your request pertains.

(ii) Complete documentation of the character and extent of your current interests in the surface and mineral estates of the land to which your request pertains.

(iii) A complete chain of title for the surface and mineral estates of the land to which your request pertains.

(iv) A description of the nature and effect of each title instrument that forms the basis for your request, including any provision pertaining to the type or method of mining or mining-related surface disturbances and facilities.

(v) A description of the type and extent of surface coal mining operations that you claim 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 Mississippi property law.

(vi) Complete documentation of the nature and ownership, as of the date that the land came under the protection of 30 CFR § 761.11, 30 U.S.C. 1272(e), Miss. Code Ann. § 53-9-71, or § 1105 of these regulations, of all property rights for the surface and mineral estates of the land to which your request pertains.

(vii) Names and addresses of the current owners of the surface and mineral estates of the land to which your request pertains.

(viii) If the coal interests have been severed from other property interests, documentation that you have notified and provided reasonable opportunity for the owners of other property interests in the land to which your request pertains to comment on the validity of your property rights claims.

(ix) Any comments that you receive in response to the notification provided under paragraph (b)(1)(viii) of this section.

(2) Requirements for good faith/all permits standard. If your request relies upon the good faith/all permits standard in paragraph (b)(1) of the definition of valid existing rights in § 105, you must submit the information required under paragraph (c)(1) of this section. You also must submit the following information about permits, licenses, and authorizations for surface coal mining operations on the land to which your request pertains:

(i) Approval and issuance dates and identification numbers for any permits, licenses, and authorizations that you or a predecessor in interest obtained before the land came under the protection of 30 CFR § 761.11, 30 U.S.C. 1272(e), Miss. Code Ann. § 53-9-71, or § 1105 of these regulations.

(ii) Application dates and identification numbers for any permits, licenses, and authorizations for which you or a predecessor in interest submitted an application before the land came under the protection of 30 CFR § 761.11, 30 U.S.C. 1272(e), Miss. Code Ann. § 53-9-71, or § 1105 of these regulations.

(iii) An explanation of any other good faith effort that you 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 30 CFR § 761.11, 30 U.S.C. 1272(e), Miss. Code Ann. § 53-9-71, or § 1105 of these regulations.

(3) Requirements for needed for and adjacent standard. If your request relies upon the needed for and adjacent standard in paragraph (b)(2) of the definition of valid existing rights in § 105, you must submit the information required under paragraph (c)(1) of this section. In addition, you must explain how and why the land is needed for and immediately adjacent to the operation upon which your 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 30 CFR § 761.11, 30 U.S.C. 1272(e), Miss. Code Ann. § 53-9-71, or § 1105 of these regulations.

(4) Requirements for standards for mine roads. If your request relies upon one of the standards for roads in paragraphs (c)(1) through (c)(3) of the definition of valid existing rights in § 105, you must submit satisfactory documentation that:

(i) The road existed when the land upon which it is located came under the protection of 30 CFR § 761.11, 30 U.S.C. 1272(e), Miss. Code Ann. § 53-9-71, or § 1105 of these regulations, and you have a legal right to use the road for surface coal mining operations;

(ii) A properly recorded right of way or easement for a road in that location existed when the land came under the protection of 30 CFR § 761.11, 30 U.S.C. 1272(e), Miss. Code Ann. § 53-9-71, or § 1105 of these regulations, and, under the document creating the right of way or easement, and under any subsequent conveyances, you have a legal right to use or construct a road across that right of way or easement to conduct surface coal mining operations; or

(iii) 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 30 CFR § 761.11, 30 U.S.C. 1272(e), Miss. Code Ann. § 53-9-71, or § 1105 of these regulations.

(d) Initial review of request.

(1) The Department, acting as staff of the Permit Board, must conduct an initial review to determine whether your request includes all applicable components of the submission requirements of paragraph (c) of this section. This review pertains only to the completeness of the request, not the legal or technical adequacy of the materials submitted.

(2) If your request does not include all applicable components of the submission requirements of paragraph (c) of this section, the Department must notify you and establish a reasonable time for submission of the missing information.

(3) When your request includes all applicable components of the submission requirements of paragraph (c) of this section, the Department must implement the notice and comment requirements of paragraph (e) of this section.

(4) If you do not provide information that the Department requests under paragraph (d)(2) of this section within the time specified or as subsequently extended, the Permit Board must issue a determination that you have not demonstrated valid existing rights, as provided in paragraph (f)(4) of this section.

(e) Notice and comment requirements and procedures.

(1) When your request satisfies the completeness requirements of paragraph (d) of this section, the Department must 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. Alternatively, the Department may require that you publish this notice and provide the agency with a copy of the published notice. Each notice must include:

(i) The location of the land to which the request pertains.

(ii) A description of the type of surface coal mining operations planned.

(iii) A reference to and brief description of the applicable standard(s) under the definition of valid existing rights in § 105.

(A) If your request relies upon the good faith/all permits standard or the needed for and adjacent standard in paragraph (b) of the definition of valid existing rights in § 105, the notice also must include a description of the property rights that you claim and the basis for your claim.

(B) If your request relies upon the standard in paragraph (c)(1) of the definition of valid existing rights in § 105, the notice also must include a description of the basis for your claim that the road existed when the land came under the protection of 30 CFR § 761.11, 30 U.S.C. 1272(e), Miss. Code Ann. § 53-9-71, or § 1105 of these regulations. In addition, the notice must include a description of the basis for your claim that you have a legal right to use that road for surface coal mining operations.

(C) If your request relies upon the standard in paragraph (c)(2) of the definition of valid existing rights in § 105, the notice also must include a description of the basis for your 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 30 CFR § 761.11, 30 U.S.C. 1272(e), Miss. Code Ann. § 53-9-71, or § 1105 of these regulations. In addition, the notice must include a description of the basis for your claim that, under the document creating the right of way or easement, and under any subsequent conveyances, you have a legal right to use or construct a road across the right of way or easement to conduct surface coal mining operations.

(iv) If your request relies upon one or more of the standards in paragraphs (b), (c)(1), and (c)(2) of the definition of valid existing rights in § 105, a statement that the Permit Board will not make a decision on the merits of your request if, by the close of the comment period under this notice or the notice required by paragraph (e)(3) of this section, 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 your claim.

(v) A description of the procedures that the Department will follow in processing your request.

(vi) The closing date of the comment period, which must be a minimum of 30 days after the publication date of the notice.

(vii) A statement that interested persons may obtain a 30-day extension of the comment period upon request.

(viii) The name and address of the Department 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.

(2) The Department must promptly provide a copy of the notice required under paragraph (e)(1) of this section to:

(i) All reasonably locatable owners of surface and mineral estates in the land included in your request.

(ii) The owner of the feature causing the land to come under the protection of 30 CFR § 761.11, 30 U.S.C. 1272(e), Miss. Code Ann. § 53-9-71, or § 1105 of these regulations, 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 30 CFR § 761.11, 30 U.S.C. 1272(e), Miss. Code Ann. § 53-9-71, or § 1105 of these regulations. 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.

(3) The letter transmitting the notice required under paragraph (e)(2) of this section must provide a 30-day comment period, starting from the date of service of the letter, and specify that another 30 days is available upon request. At its discretion, the Department or Permit Board may grant additional time for good cause upon request. The Permit Board need not necessarily consider comments received after the closing date of the comment period.

(f) How a decision will be made.

(1) The Permit Board must review the materials submitted under paragraph (c) of this section, comments received under paragraph (e) of this section, 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 Permit Board or Department must notify you in writing, explaining the inadequacy of the record and requesting submittal, within a specified reasonable time, of any additional information that the Permit Board deems necessary to remedy the inadequacy.

(2) Once the record is complete and adequate, the Permit Board must determine whether you have demonstrated valid existing rights. The decision document must explain how you have or have not satisfied all applicable elements of the definition of valid existing rights in § 105. The decision document must contain findings of fact and conclusions, and it must specify the reasons for the conclusions.

(3) Impact of property rights disagreements. This paragraph applies only when your request relies upon one or more of the standards in paragraphs (b), (c)(1), and (c)(2) of the definition of valid existing rights in § 105.

(i) The Permit Board must issue a determination that you have not demonstrated valid existing rights if your property rights claims are the subject of pending litigation in a court or administrative body with jurisdiction over the property rights in question. The Permit Board will make this determination without prejudice, meaning that you 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 paragraph (e)(1) or (e)(3) of this section.

(ii) If the record indicates disagreement as to the accuracy of your property rights claims, but this disagreement is not the subject of pending litigation in a court or administrative agency of competent jurisdiction, the Permit Board must evaluate the merits of the information in the record and determine whether you have demonstrated that the requisite property rights exist under paragraph (a), (c)(1), or (c)(2) of the definition of valid existing rights in § 105, as appropriate. The Permit Board must then proceed with the decision process under paragraph (f)(2) of this section.

(4) The Permit Board must issue a determination that you have not demonstrated valid existing rights if you do not submit information that the Department or Permit Board requests under paragraph (d)(2) or (f)(1) of this section within the time specified or as subsequently extended. The Permit Board will make this determination without prejudice, meaning that you may refile a revised request at any time.

(5) After making a determination, the Permit Board must:

(i) Provide a copy of the determination, together with an explanation of appeal rights and procedures, to you, to the owner or owners of the land to which the determination applies, to the owner of the feature causing the land to come under the protection of 30 CFR § 761.11, 30 U.S.C. 1272(e), Miss. Code Ann. § 53-9-71, or § 1105 of these regulations, and, 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 §30 CFR § 761.11, 30 U.S.C. 1272(e), Miss. Code Ann. § 53-9-71, or § 1105 of these regulations.

(ii) Publish notice of the determination in a newspaper of general circulation in the county in which the land is located. Alternatively, the Permit Board may require that you publish this notice and provide a copy of the published notice to the agency. OSM will publish the determination, together with an explanation of appeal rights and procedures, in the Federal Register if your request includes Federal lands within an area listed in 30 CFR § 761.11, 30 U.S.C. 1272(e), Miss. Code Ann. § 53-9-71, or § 1105 of these regulations.

(g) Administrative and judicial review. A determination that valid existing rights do or do not exist is subject to administrative and judicial review under Miss. Code Ann. § 53-9-77.

(h) Availability of records. The Department or Permit Board must make a copy of the existing valid rights request available to the public in the same manner as the Department or Permit Board must make permit applications available to the public under § 3111 of these regulations. In addition, the Department or Permit Board must make records associated with that request, and any subsequent determination under paragraph (f) of this section, available to the public in accordance with the requirements and procedures of § 6311 of these regulations.

Notes

11 Miss. Code. R. § 8-2.2-11-1106