R643-877-100. Scope

The rules under R643-877 establish procedures for entry upon lands or property by the Division for reclamation purposes.

110. Written Consent for Entry. Written consent from the owner of record and lessee, or their authorized agents, is the preferred means for obtaining agreements to enter lands in order to carry out reclamation activities. Nonconsentual entry will be undertaken only after good faith efforts to obtain written consent have failed.

120. Entry for Studies or Exploration. The state or its agents, employees, or contractors, will have the right to enter upon any property for the purpose of conducting studies or exploratory work to determine the existence of adverse effects of past mining practices and the feasibility of restoration, reclamation, abatement, control, or prevention of such adverse effects.

130. Entry and Consent to Reclaim.

131. The Division will take all reasonable actions to obtain written consent from the owner of record of the land or property to be entered in advance of such entry. The consent will be in the form of a signed statement by the owner of record or his authorized agent which, as a minimum, includes a legal description of the land to be entered, the projected nature of work to be performed on the lands and any special conditions for entry. The statement will not include any commitment by the state to perform reclamation work nor to compensate the owner for entry.

132. The Division will give notice of its intent to enter for purposes of conducting reclamation at least 30 days before entry upon the property. The notice will be in writing and will be mailed, return receipt requested, to the owner, if known, with a copy of the findings required by R643-877. If the owner is not known, or if the current mailing address of the owner is not known, notice will be posted in one or more places on the property to be entered where it is readily visible to the public and advertised once in a newspaper of general circulation in the locality in which the land is located. The notice posted on the property and advertised in the newspaper will include a statement of where the findings required by R643-877 may be inspected or obtained.

133. If consent is not obtained, then, prior to entry under R643-877, the Board will find in writing with supporting reasons that:

133.100. Land or water resources have been or may be adversely affected by past mining practices;

133.200. The adverse effects are at a state where, in the interest of the public health, safety, or the general welfare, action to restore, reclaim, abate, control, or prevent should be taken; and

133.300. The owner of the land or water resources where entry must be made to restore, reclaim, abate, control, or prevent the adverse effects of past coal mining practices is not known or readily available, or the owner will not give permission for the Division, its agents, employees, or contractors to enter upon such property to restore, reclaim, abate, control, or prevent the effects of past mining practices.

140. Entry for Emergency Reclamation.

141. The Division, its agents, employees, or contractors will have the right to enter upon any land where an emergency exists and on any other land to have access to the land where the emergency exists to restore, reclaim, abate, control, or prevent the adverse effects of mining practices and to do all things necessary to protect the public health, safety, or general welfare.

142. Prior to entry under R643-877, the Board will, after notice and hearing, make a finding of fact in accordance with Section 40-10-27 of the Act.