Current through Register Vol. 48, No. 12, March 22, 2024
a) Basic framework
for valid existing rights determinations. The following table identifies the
agency responsible for making a valid existing rights determination and the
definition that it must use, based upon which subsection of Section
1761.11
applies and whether the request includes Federal lands.
Subsection of 62 Ill. Adm. Code
1761.11
that provides protection
|
Protected feature
|
Type of land to which request pertains
|
Agency responsible for determination
|
Applicable definition of valid existing rights
|
(a)
|
National parks, wildlife refuges, etc.
|
Federal
|
OSM
|
Federal1
|
(a)
|
National parks, wildlife refuges, etc.
|
Non-Federal
|
Department
|
Federal1
|
(b)
|
Federal lands in national
forest3
|
Federal
|
OSM
|
Federal1
|
(c)
|
Public parks and historic places
|
Does not matter
|
Department
|
Regulatory program2
|
(d)
|
Public roads
|
Does not matter
|
Department
|
Regulatory program2
|
(e)
|
Occupied dwellings
|
Does not matter
|
Department
|
Regulatory program2
|
(f)
|
Schools, churches, parks, etc.
|
Does not matter
|
Department
|
Regulatory program2
|
(g)
|
Cemeteries
|
Does not matter
|
Department
|
Regulatory program2
|
1 Definition in
30
CFR 761.5.
|
2 Definition in Section
1761.5.
|
3 Neither
30 USC
1272(e) nor
30
CFR 761.11 provides special protection for
non-Federal lands within national forests. Therefore, this table does not
include a category for those lands.
|
When the Department is the agency responsible for valid
existing rights determinations, the procedures under subsections (b) through
(g) of this Section apply.
b) The applicant or permittee must submit a
request for a valid existing rights determination to the Department if it
intends to conduct surface coal mining operations on the basis of valid
existing rights under Section
1761.11
or wishes to confirm the right to do so. Such request may be submitted before
preparing and submitting an application for a permit or boundary revision for
the land.
1) Requirements for property rights
demonstration. The applicant or permittee must provide a property rights
demonstration under Section
1761.5(a)
if the request relies upon the good faith/all permits standard or the needed
for and adjacent standard in Section
1761.5(b).
This demonstration must include the following items:
A) A legal description of the land to which
the request pertains.
B) Complete
documentation of the character and extent of the current interests in the
surface and mineral estates of the land to which the request
pertains.
C) A complete chain of
title for the surface and mineral estates of the land to which the request
pertains.
D) 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.
E) A description of the type and extent of
surface coal mining operations that the applicant or permittee 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.
F) Complete documentation of the nature and
ownership, as of the date that the land came under the protection of Section
1761.11, of all property rights for the surface and mineral estates of the land
to which the request pertains.
G)
Names and addresses of the current owners of the surface and mineral estates of
the land to which the request pertains.
H) If the coal interests have been severed
from other property interests, documentation that the owners of other property
interests in the land to which the request pertains have been notified and
provided reasonable opportunity to comment on the validity of the applicant's
or permittee's property rights claims.
I) Any comments received in response to the
notification provided under subsection (b)(1)(H) of this Section.
2) Requirements for good faith/all
permits standard. If the request relies upon the good faith/all permits
standard in Section
1761.5(b)(1)
of the definition of valid existing rights, the information required under
subsection (b)(1) of this Section must be submitted. The following information
about permits, licenses and authorizations for surface coal mining operations
on the land to which the request pertains must also be submitted:
A) Approval and issuance dates and
identification numbers for any permits, licenses, and authorizations that the
applicant, permittee or predecessor in interest obtained before the land came
under the protection of Section 1761.11.
B) Application dates and identification
numbers for any permits, licenses, and authorizations for which the applicant,
permittee or a predecessor in interest submitted an application before the land
came under the protection of Section 1761.11.
C) An explanation of any other good faith
effort that the applicant, permittee 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 Section 1761.11.
3) Requirements for needed for and adjacent
standard. If the request relies upon the needed for and adjacent standard in
subsection (b)(2) of the definition of valid existing rights in Section 1761.5,
the applicant or permittee must submit the information required under
subsection (b)(1) of this Section. In addition, the applicant or permittee must
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 Section 1761.11.
4)
Requirements for standards for mine roads. If the request relies upon one of
the standards for roads in subsections (c)(1) through (c)(3) of the definition
of valid existing rights in Section 1761.5, satisfactory documentation must be
submitted that:
A) The road existed when the
land upon which it is located came under the protection of Section
1761.11
and the applicant or permittee has a legal right to use the road for surface
coal mining operations;
B) A
properly recorded right of way or easement for a road in the location existed
when the land came under the protection of Section 1761.11, and, under the
document creating the right of way or easement, and under any subsequent
conveyances, the applicant or permittee has a legal right to use or construct a
road across that right of way or easement to conduct surface coal mining
operations; or
C) 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 Section
1761.11.
c)
Initial review of request.
1) The Department
must conduct an initial review to determine whether the request includes all
applicable components of the submission requirements of subsection (b) 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 the request does not include all
applicable components of the submission requirements of subsection (b) of this
Section, the Department must give notice of such and establish a reasonable
time for submission of the missing information.
3) When the request includes all applicable
components of the submission requirements of subsection (b) of this Section,
the Department must implement the notice and comment requirements of subsection
(d) of this Section.
4) If
information that the Department requests under subsection (c)(2) of this
Section is not provided within the time specified or as subsequently extended,
the Department must issue a determination that the applicant or permittee has
not demonstrated valid existing rights, as provided in subsection (e)(4) of
this Section.
d) Notice
and comment requirements and procedures.
1)
When the request satisfies the completeness requirements of subsection (c) of
this Section, the applicant or permittee must publish a notice in a newspaper
of general circulation in the county in which the land is located and provide
the Department with a copy of the published notice. This notice must invite
comment on the merits of the request. The Federal Office of Surface Mining will
publish a similar notice in the Federal Register if the request involves
Federal lands within an area listed in Section
1761.11(a)
or (b). Each notice must include:
A) The location of the land to which the
request pertains.
B) A description
of the type of surface coal mining operations planned.
C) A reference to and brief description of
the applicable standards under the definition of valid existing rights in
Section 1761.5.
i) If the request relies upon
the good faith/all permits standard or the needed for and adjacent standard in
subsection (b) of the definition of valid existing rights in Section 1761.5,
the notice also must include a description of the property rights that are
claimed and the basis for such claim.
ii) If the request relies upon the standard
in subsection (c)(1) of the definition of valid existing rights in Section
1761.5, the notice also must include a description of the basis for the
applicant's or permittee's claim that the road existed when the land came under
the protection of Section 1761.11. In addition, the notice must include a
description of the basis for the applicant's or permittee's claim that it has a
legal right to use that road for surface coal mining operations.
iii) If the request relies upon the standard
in subsection (c)(2) of the definition of valid existing rights in Section
1761.5, 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 Section 1761.11. 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 or permittee has a legal right to use or
construct a road across the right of way or easement to conduct surface coal
mining operations.
D) If
the request relies upon one or more of the standards in subsections (b), (c)(1)
and (c)(2) of the definition of valid existing rights in Section 1761.5, a
statement that the Department 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 subsection (d)(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 the applicant or permittee's
claim.
E) A description of the
procedures that the Department will follow in processing the request.
F) The closing date of the comment period,
which must be a minimum of 30 days after the publication date of the
notice.
G) A statement that
interested persons may obtain a 30 day extension of the comment period upon
request.
H) The name and address of
the Department'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.
2) The Department must promptly provide a
copy of the notice required under subsection (d)(1) of this Section to:
A) All reasonably locatable owners of surface
and mineral estates in the land included in the request.
B) The owner of the feature causing the land
to come under the protection of Section 1761.11, 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 Section 1761.11. 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 subsection (d)(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 may grant additional time for good cause upon
request. The Department need not consider comments received after the closing
date of that comment period.
e) How a decision will be made.
1) The Department must review the materials
submitted under subsection (b) of this Section, comments received under
subsection (d) 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
Department must notify the applicant or permittee in writing, explaining the
inadequacy of the record and requesting submittal, within a specified
reasonable time, of any additional information that the Department deems
necessary to remedy the inadequacy.
2) Once the record is complete and adequate,
the Department must determine whether the applicant or permittee has
demonstrated valid existing rights. The decision document must explain how all
applicable elements of the definition of valid existing rights in Section
1761.5
have or have not been satisfied. It must contain findings of fact and
conclusions, and it must specify the reasons for the conclusions.
3) Impact of property rights disagreements.
This subsection (e)(3) applies only when the request relies upon one or more of
the standards in subsections (b), (c)(1) and (c)(2) of the definition of valid
existing rights in Section 1761.5.
A) The
Department must issue a determination that the applicant or permittee has not
demonstrated valid existing rights if the property rights claims are the
subject of pending litigation in a court or administrative body with
jurisdiction over the property rights in question. The Department will make
this determination without prejudice, meaning that the applicant or permittee
may refile the request once the property rights dispute is finally adjudicated.
This subsection (e)(3)(A) applies only to situations in which legal action has
been initiated as of the closing date of the comment period under subsection
(d)(1) or (d)(3) of this Section.
B) If the record indicates disagreement as to
the accuracy of the property rights claims, but such disagreement is not the
subject of pending litigation in a court or administrative agency of competent
jurisdiction, the Department must evaluate the merits of the information in the
record and determine whether the applicant or permittee has demonstrated that
the requisite property rights exist under subsection (a), (c)(1) or (c)(2) of
the definition of valid existing rights in Section 1761.5, as appropriate. The
Department must then proceed with the decision process under subsection (e)(2)
of this Section.
4) The
Department must issue a determination that valid existing rights has not been
demonstrated if information that the Department requests under subsection
(c)(2) or (e)(1) of this Section is not submitted within the time specified or
as subsequently extended. The Department will make this determination without
prejudice, meaning that a revised request may be refiled at any time.
5) After making a determination, the
Department must:
A) Provide a copy of the
determination, together with an explanation of appeal rights and procedures, to
the applicant or permittee, 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 Section 1761.11, 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 Section 1761.11.
B) Publish notice of the determination in a
newspaper of general circulation in the county in which the land is located.
The applicant or permittee must publish this notice and provide a copy of the
published notice to the Department. The Federal Office of Surface Mining will
publish the determination, together with an explanation of appeal rights and
procedures, in the Federal Register if the request includes Federal lands
within an area listed in Section
1761.11(a)
or (b).
f) Administrative and judicial review. A
determination that an applicant or permittee has or does not have valid
existing rights is subject to administrative and judicial review under 62 Ill.
Adm. Code
1847.3.
g) Availability of records. The Department
must make a copy of a request subject to notice and comment under subsection
(d) of this Section available to the public in the same manner as the
Department must make permit applications available to the public under 62 Ill.
Adm. Code
1773.13(d).
In addition, the Department must make records associated with that request, and
any subsequent determination under subsection (e) of this Section, available to
the public in accordance with the requirements and procedures of 62 Ill. Adm.
Code
1840.14.