N.M. Admin. Code § 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.
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