Ohio Admin. Code 1501:13-3-02 - Submission and processing of requests for valid existing rights determinations
(A)
Except for
federal lands subject to 30 C.F.R. Part 761, any person who intends to conduct
coal mining operations on the basis of valid existing rights under division (D)
of section 1513.073 of the Revised Code and
rules adopted thereunder shall file with the chief a request for a valid
existing rights determination. This request shall be submitted before preparing
and submitting an application for a permit or boundary revision for the land
for which the determination is sought.
(B)
Requirements for
property rights demonstration. If the request relies upon one of the standards
of paragraph (A)(2) of rule
1501:13-3-01
of the Administrative Code, the person claiming valid existing rights shall
provide a property rights demonstration under paragraph (A)(1) of rule
1501:13-3-01
of the Administrative Code which shall include the following items:
(1)
A legal
description of the land to which the request pertains;
(2)
Complete
documentation of the character and extent of the requestor's current interests
in the surface and mineral estates of the land to which the request
pertains;
(3)
A complete chain of title for the surface and mineral
estates of the land to which the request pertains;
(4)
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;
(5)
A description of
the type and extent of coal mining operations that the requestor claims to have
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 Ohio property law;
(6)
Complete
documentation of the nature and ownership, as of the date the land came under
the protection of division (D) of section
1513.073 of the Revised Code or
rule
1501:13-3-03
of the Administrative Code, of all property rights for the surface and mineral
estates of the land to which the request pertains;
(7)
Names and
addresses of the current owners of the surface and mineral estates of the land
to which the request pertains;
(8)
If the coal
interests have been severed from other property interests, documentation that
the requestor has notified and provided reasonable opportunity for the owners
of other property interests in the land to which the request pertains to
comment on the validity of requestor's property rights claims; and
(9)
Any
comments the requestor receives in response to the notification required under
paragraph (B)(8) of this rule.
(C)
Additional
requirements for the good faith/all permits standard. If the request relies
upon the good faith/all permits standard under paragraph (A)(2)(a) of rule
1501:13-3-01
of the Administrative Code, the request shall also include the following
information about coal mining operations on the land to which the request
pertains:
(1)
Approval and issuance dates and identification numbers for any permits,
licenses, and authorizations that the person requesting the determination or a
predecessor in interest obtained before the land came under the protection of
division (D) of section
1513.073 of the Revised Code or
rule
1501:13-3-03
of the Administrative Code;
(2)
Application
dates and identification numbers for any permits, licenses, and authorizations
for which the person requesting the determination or a predecessor in interest
submitted an application before the land came under the protection of division
(D) of section 1513.073 of the Revised Code or
rule
1501:13-3-03
of the Administrative Code; and
(3)
An explanation
of any other good faith effort that the person requesting the determination 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
division (D) of section
1513.073 of the Revised Code or
rule
1501:13-3-03
of the Administrative Code.
(D)
Additional
requirements for the needed for and adjacent standard. If the request relies
upon the needed for and adjacent standard under paragraph (A)(2)(b) of rule
1501:13-3-01
of the Administrative Code, the request shall also include:
(1)
An explanation
of how and why the land is needed for and immediately adjacent to the operation
upon which the request is based; and
(2)
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 division (D) of section
1513.073 of the Revised Code or
rule
1501:13-3-03
of the Administrative Code.
(E)
Requirements for
roads. If the request relies upon one of the standards for roads under
paragraphs (B)(1) to (B)(3) of rule
1501:13-3-01
of the Administrative Code, the request shall include satisfactory
documentation that:
(1)
The road existed when the land upon which it is
located came under the protection of division (D) of section
1513.073 of the Revised Code or
rule
1501:13-3-03
of the Administrative Code, and the requestor has a legal right to use the road
for 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 division (D) of section
1513.073 of the Revised Code or
rule
1501:13-3-03
of the Administrative Code, and, under the document creating the right of way
or easement, and under any subsequent conveyances, the requestor has a legal
right to use or construct a road across that right of way or easement to
conduct coal mining operations; or
(3)
A valid permit
for use or construction of a road in that location for coal mining operations
existed when the land came under the protection of division (D) of section
1513.073 of the Revised Code or
rule
1501:13-3-03
of the Administrative Code.
(F)
Initial review
of request.
(1)
The chief shall conduct an initial review to determine
whether the request includes all applicable components of the submission
requirements of paragraphs (B) to (E) of this rule. 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 paragraphs (B) to (E) of this
rule, the chief shall notify the requestor and establish a reasonable time for
submission of the missing information.
(3)
When the request
includes all applicable components of the submission requirements of paragraphs
(B) to (E) of this rule, the chief shall notify the requestor that the public
notice required under paragraph (G) of this rule can be published.
(4)
If
the information requested under paragraph (F)(2) of this rule is not provided
within the time specified or as subsequently extended, the chief shall issue a
determination that valid existing rights have not been demonstrated on the land
upon which the request is based, as provided in paragraph (H)(4) of this
rule.
(G)
Public notice and opportunity to comment.
(1)
After the chief
determines that a request for a valid existing rights determination is
complete, the requestor shall publish a notice inviting comment on the merits
of the request in a newspaper of general circulation in the locality of the
land to which the request pertains, and shall provide the chief with a copy of
the published public notice. The notice shall include:
(a)
The location of
the land to which the request pertains;
(b)
A description of
the type of coal mining operations planned;
(c)
A reference to
and brief description of the applicable standard or standards for demonstrating
valid existing rights under rule
1501:13-3-01
of the Administrative Code, and the following:
(i)
If the request
relies upon one of the standards of paragraph (A)(2) of rule
1501:13-3-01
of the Administrative Code, a description of the property rights that the
requestor claims and the basis for this claim;
(ii)
If the request
is for a road and relies upon the standard in paragraph (B)(1) of rule
1501:13-3-01
of the Administrative Code, a description of the basis for the claim that the
road existed when the land came under the protection of division (D) of section
1513.073 of the Revised Code or
rule
1501:13-3-03
of the Administrative Code, and a description of the basis for the claim that
the requestor has a legal right to use that road for coal mining operations;
or
(iii)
If the request is for a road and relies upon the
standard in paragraph (B)(2) of rule
1501:13-3-01
of the Administrative Code, 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 division (D) of section
1513.073 of the Revised Code or
rule
1501:13-3-03
of the Administrative Code, and 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 requestor has a legal right to use or construct a
road across the right of way or easement to conduct coal mining
operations;
(d)
If the request relies upon one or more of the
standards in paragraph (A), (B)(1) or (B)(2) of rule
1501:13-3-01
of the Administrative Code, a statement that the chief 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 under paragraph (G)(3) of this rule, 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 claim;
(e)
A description of the procedures the chief will follow
in processing the request;
(f)
The closing date
of the comment period, which must be a minimum of thirty days after the
publication date of the notice;
(g)
A statement that
interested persons may obtain a thirty-day extension of the comment period upon
request to the chief; and
(h)
The name and
address of the district 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)
Upon receipt of
a complete request for a valid existing rights determination and a copy of the
published public notice, the chief shall provide a copy of the published public
notice 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 division (D) of section
1513.073 of the Revised Code or
rule
1501:13-3-03
of the Administrative Code, 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 division (D) of section
1513.073 of the Revised Code or
rule
1501:13-3-03
of the Administrative Code.
(3)
The letter
transmitting the notice required under paragraph (G)(2) of this rule shall
provide a thirty-day comment period, starting from the date of service of the
letter, and specify that another thirty days is available upon request. The
chief may grant additional time for good cause upon request. The chief need not
necessarily consider comments received after the closing date of the comment
period.
(H)
Determination of the chief.
(1)
The chief shall
review the materials submitted under paragraphs (B) to (E) of this rule,
comments received under paragraph (G) of this rule, 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 chief shall notify the requestor in writing, explaining
the inadequacy of the record and requesting submittal, within a specified
reasonable time, of any additional information the chief deems necessary to
remedy the inadequacy.
(2)
Once the record is complete and adequate, the chief
shall determine whether the requestor has demonstrated valid existing rights.
The chief's decision shall explain how the requestor has or has not satisfied
all applicable elements of the standards set forth in rule
1501:13-3-01
of the Administrative Code, contain findings of fact and conclusions, and
specify the reasons for the conclusions.
(3)
Impact of
property rights disagreements. This paragraph applies only when a request
relies upon one or more of the standards in paragraphs (A), (B)(1), and (B)(2)
of rule
1501:13-3-01
of the Administrative Code.
(a)
The chief shall issue a determination that the
requestor has not demonstrated valid existing rights if the requestor's
property rights claims are the subject of pending litigation in a court or
administrative body with jurisdiction over the property rights in question. The
chief shall make this determination without prejudice, meaning that the
requestor may re-file the request once the property rights dispute is finally
adjudicated. This paragraph applies only to situations in which legal action
has been initiated as of the closing date of the comment period under paragraph
(G) (1) or (G) (3) of this rule.
(b)
If the record
indicates disagreement as to the accuracy of the requestor's property rights
claims, but this disagreement is not the subject of pending litigation in a
court or administrative agency of competent jurisdiction, the chief shall
evaluate the merits of the information in the record and determine whether the
requestor has demonstrated that the requisite property rights exist under
paragraph (A)(1), (B)(1), or (B)(2) of rule
1501:13-3-01
of the Administrative Code, as appropriate. The chief shall then proceed with
the decision process under paragraph (H)(2) of this rule.
(4)
The
chief shall issue a determination that the requestor has not demonstrated valid
existing rights if the requestor does not submit information that the chief
requests under paragraph (F)(2) or (H)(1) of this rule within the time
specified or as subsequently extended. The chief shall make this determination
without prejudice, meaning that the requestor may re-file a revised request at
any time.
(5)
After making a determination, the chief shall:
(a)
Provide a copy
of the determination, together with an explanation of appeal rights and
procedures, to the requestor, 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 division (D) of section
1513.073 of the Revised Code or
rule
1501:13-3-03
of the Administrative Code, 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 division (D) of section
1513.073 of the Revised Code or
rule
1501:13-3-03
of the Administrative Code.
(b)
Publish notice
of the determination in a newspaper of general circulation in the locality in
which the land is located.
(I)
Administrative
and judicial review. A determination by the chief that the requestor has or
does not have valid existing rights is subject to administrative and judicial
review under sections
1513.13 and
1513.14 of the Revised
Code.
(J)
Availability of records. The chief shall make a copy
of a request for a determination of valid existing rights, as well as any
records associated with that request and any subsequent determination under
paragraph (H) of this rule, available to the public in accordance with rule
1501:13-1-10
of the Administrative Code.
(K)
For dates of
federal rules and federal laws referenced in this rule, see rule
1501:13-1-14
of the Administrative Code.
Notes
Promulgated Under: 119.03
Statutory Authority: 1513.02
Rule Amplifies: 1513.07, 1513.073
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