N.M. Admin. Code § 19.8.35.7

Current through Register Vol. 36, No. 1, January 14, 2025

Section 19.8.35.7 - DEFINITIONS

A. VALID EXISTING RIGHTS (VER) means a set of circumstances under which a person may, subject to regulatory authority approval, conduct surface coal mining operations on lands where 19.8.2.201 NMAC would otherwise prohibit such operations. Possession of valid existing rights only confers an exception from the prohibitions of 19.8.2.201 NMAC. A person seeking to exercise valid existing rights must comply with all other pertinent requirements of the act, 19.8 NMAC and SMCRA.

(1) Property rights demonstration. Except as provided in Subsection D of 19.8.35.7 NMAC, a person claiming valid existing rights must demonstrate that a legally binding conveyance, lease, deed, contract, or other document vests that person, or a predecessor in interest, with the right to conduct the type of surface coal mining operations intended. This right must exist at the time that the land came under the protection of 19.8.2.201 NMAC. Other applicable state statutory or case law will govern interpretation of documents relied upon to establish property rights, unless federal law provides otherwise.

(2) Except as provided in Subsection D of 19.8.35.7 NMAC, a person claiming valid existing rights also must demonstrate compliance with one of the following standards:

B. GOOD FAITH/ALL PERMITS STANDARD. All permits and other authorizations required to conduct surface coal mining operations had been obtained, or a good faith effort to obtain all necessary permits and authorizations had been made, before the land came under the protection of 19.8.2.201 NMAC. At a minimum, an application must have been submitted for any permit required under 19.8 NMAC.

C. NEED FOR AND ADJACENT STANDARD. The land is needed for and immediately adjacent to a surface coal mining operation for which all permits and other authorizations required to conduct surface coal mining operations had been obtained, or a good faith attempt to obtain all permits and authorizations had been made, before the land came under the protection of 19.8.2.201 NMAC. To meet this standard, a person must demonstrate 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 19.8.2.201 NMAC. Except for operations in existence before August 3, 1977, or for which a good faith effort to obtain all necessary permits had been made before August 3, 1977, this standard does not apply to lands already under the protection of 19.8.2.201 NMAC when the permit for the original operation was issued by the director or when the good faith effort to obtain all necessary permits for the original operation was made. The director may consider the following factors when evaluating whether a person meets this standard:

(1) The extent to which coal supply contracts or other legal and business commitments that predate the time that the land came under the protection of 19.8.2.201 NMAC depend upon use of that land for surface coal mining operations.

(2) The extent to which plans used to obtain financing for the operation before the land came under the protection of 19.8.2.201 NMAC rely upon use of that land for surface coal mining operations.

(3) The extent to which investments in the operation before the land came under the protection of 19.8.2.201 NMAC rely upon use of that land for surface coal mining operations.

(4) Whether the land lies within the area identified on the life-of-mine map submitted under Subsection C of 19.8.8.812 NMAC before the land came under the protection of 19.8.2.201 NMAC.

D. ROADS. A person who claims valid existing rights to use or construct a road across the surface of lands protected by 19.8.2.201 NMAC must demonstrate that one or more of the following circumstances exist if the road is included within the definition of "surface coal mining operations" in Paragraph (20) of Subsection S of 19.8.1.7 NMAC:

(1) the road existed when the land upon which it is located came under the protection of 19.8.2.201 NMAC, and the person has a legal right to use the road for surface coal mining operations;

(2) 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, and, under the document creating the right of way or easement, and under subsequent conveyances, the person has a legal right to use or construct a road across the right of way or easement for surface coal mining operations;

(3) 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 19.8.2.201 NMAC;

(4) a valid existing right exists under Paragraphs (1) and (2) of Subsection A of 19.8.35.7 NMAC.

N.M. Admin. Code § 19.8.35.7

19.8.35.7 NMAC - N, 1-15-2002