| (III) if the request relies upon the standard in the definition of "valid existing rights" in §12.3(187)(C)(ii) of this title, the notice must also 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 §12.71(a) of this title or §134.022 of the Act. 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 has a legal right to use or construct a road across the right-of-way or easement to conduct surface coal mining operations; (iv) if the applicant's request relies upon one or more of the standards in the definition of "valid existing rights" in §12.3(187)(B), (C)(i), and (C)(ii) of this title, a statement that the Commission 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 subparagraph (C) of this paragraph, a person with a legal interest in the land initiates appropriate legal action to resolve any differences concerning the validity or interpretation of the deed, lease, easement, or other documents that form the basis of the applicant's claim; (v) a description of the procedures that the Commission will follow in processing the request; (vi) the closing date of the comment period, which must be a minimum of 30 days after the publication date of the notice; (vii) a statement that interested persons may obtain a 30-day extension of the comment period upon request; and (viii) the name and address of the Commission 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 Commission must promptly provide a copy of the notice required under subparagraph (A) of this paragraph to: (i) all reasonably locatable owners of surface and mineral estates in the land included in the request; and (ii) the owner of the feature causing the land to come under the protection of §12.71(a) of this title, 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 §12.71(a) of this title. 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 subparagraph (B) of this paragraph 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 Commission may grant additional time for good cause upon request. The Commission need not necessarily consider comments received after the closing date of the comment period. (5) How a decision will be made. (A) Procedure. The Commission must review the materials submitted under paragraph (2) of this subsection, comments received under paragraph (4) of this subsection, 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 Commission must notify the applicant in writing, explaining the inadequacy of the record and requesting submittal, within a specified reasonable time, of any additional information that the agency deems necessary to remedy the inadequacy. (B) Determination. Once the record is complete and adequate, the Commission must determine whether the applicant has demonstrated valid existing rights. The decision document must explain how the applicant has or has not satisfied all applicable elements of the definition of "valid existing rights" in §12.3(187) of this title. It must contain findings of fact and conclusions, and it must specify the reasons for the conclusions. (C) Impact of property rights disagreements. This subparagraph applies only when the request relies upon one or more of the standards in the definition of "valid existing rights" in §12.3(187)(B), (C)(i) and (C)(ii) of this title. (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). |
