| (i) The Commission must issue a determination that the applicant has not demonstrated valid existing rights if those property rights claims are the subject of pending litigation in a court or administrative body with jurisdiction over the property rights in question. The Commission will make this determination without prejudice, meaning that an applicant may refile the request once the property rights dispute is finally adjudicated. This clause applies only to situations in which legal action has been initiated as of the closing date of the comment period under paragraph (4)(A) or (C) of this subsection. (ii) If the record indicates disagreement as to the accuracy of property rights claims, but this disagreement is not the subject of pending litigation in a court or administrative agency of competent jurisdiction, the Commission must evaluate the merits of the information in the record and determine whether the applicant has demonstrated that the requisite property rights exist under the definition of "valid existing rights" in §12.3(187)(A), (C)(i) or (C)(ii) of this title, as appropriate. The Commission must then proceed with the decision process under subparagraph (B) of this paragraph. (D) Default determination. The Commission must issue a determination that an applicant has not demonstrated valid existing rights if the information that is requested under paragraph (3)(B) of this subsection or subparagraph (A) of this paragraph has not been submitted within the time specified or as subsequently extended. The Commission will make this determination without prejudice, meaning that the applicant may refile a revised request at any time. (E) Notice after decision. After making a determination, the Commission must: (i) provide a copy of the determination, together with an explanation of appeal rights and procedures, to the applicant, 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 §12.71(a) of this title, 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 §12.71(a) of this title; and (ii) publish notice of the determination in a newspaper of general circulation in the county in which the land is located. Alternatively, the Commission may require that the applicant publish this notice and provide a copy of the published notice to the Commission. (6) Administrative and judicial review. A determination that an applicant has or does not have valid existing rights is subject to administrative and judicial review under §12.222 and §12.223 of this title (relating to Administrative Review and Judicial Review). (7) Availability of records. The Commission must make a copy of that request available to the public in the same manner as it must make permit applications available to the public under §12.210 of this title (relating to Public Availability of Information in Permit Applications On File With the Commission). In addition, the Commission must make records associated with that request, and any subsequent determination under paragraph (5) of this subsection, available to the public in accordance with the requirements and procedures of §12.672 of this title (relating to Availability of Records). |
