# Title 69 — Public Service Commission

## Article 69-05.2 — Surface Coal Mining and Reclamation Operations

## Chapter 69-05.2-04 — Areas Unsuitable for Mining

Prohibited or Limited
Mining is Prohibited
Waiving the Buffer Zone for a Public Road
the Buffer Zone Around an Occupied Dwelling
Determinations
Determinations
Review
Requirements for Designating Lands Unsuitable
Unsuitable
Unsuitable
Designating Lands Unsuitable
### § 69-05.2-04-01. Areas unsuitable for mining - Permit application review procedures.

Repealed effective March 1, 2004.
### § 69-05.2-04-01.1. Areas unsuitable for mining - Areas where surface coal mining operations

are prohibited or limited.
1. Unless the permit applicant has valid existing rights as determined under section
69-05.2-04-01.2, surface coal mining operations must not be located:
a. On any lands listed in subsections 1 through 5 of North Dakota Century Code section
38-14.1-07.
b. Within the boundaries of study rivers or study river corridors established in any guidelines
issued under the Wild and Scenic Rivers Act [16 U.S.C. 1276(a)].
2. The commission will not issue a permit or approve an incidental boundary revision for mining
on federal lands within a national forest before the secretary of the United States department
of the interior, under 30 CFR 761, finds that:
a. There are no significant recreational, timber, economic, or other values that may be
incompatible with surface coal mining operations; and

b. With respect to lands that do not have significant forest cover within national forests west
of the one hundredth meridian, the secretary of the United States department of
agriculture has determined that surface mining is in compliance with the Surface Mining
Reclamation and Control Act of 1977 [30 U.S.C. 1201 et seq.]; the Multiple-Use
Sustained Yield Act of 1960 [16 U.S.C. 528-531]; the Federal Coal Leasing Amendments
Act of 1975 [30 U.S.C. 181 et seq.]; and the National Forest Management Act of 1976
[16 U.S.C. 1600 et seq.].
3. The prohibition on surface coal mining activities being within one hundred feet [30.48 meters],
measured horizontally, of the outside right-of-way line of any public road does not apply:
a. Where a mine access or haul road joins a public road; or
b. When, as provided by section 69-05.2-04-01.3, the commission or the appropirate public
road authority with jurisdiction over the road allows the road to be relocated or closed, or
the area within the protected zone to be affected by the surface coal mining operation.
4. The prohibition on surface coal mining activities being within five hundred feet
[152.40 meters], measured horizontally, of any occupied dwelling does not apply if the owner
of the dwelling has provided a written waiver consenting to surface coal mining operations
within the protected zone as provided in section 69-05.2-04-01.4.
5. The prohibition on surface coal mining activities within one hundred feet [30.48 meters],
measured horizontally, of a cemetery does not apply if the cemetery is relocated in
accordance with all applicable laws and rules.
History: Effective March 1, 2004.
General Authority: NDCC 38-14.1-03
Law Implemented: NDCC 38-14.1-04, 38-14.1-07
### § 69-05.2-04-01.2. Areas unsuitable for mining - Exception for existing operations from areas

where mining is prohibited.
The prohibitions and limitations of North Dakota Century Code section 38-14.1-07 and section
came under these protections. This exception applies only to lands that were permitted for mining on
August 3, 1977.
History: Effective March 1, 2004.
General Authority: NDCC 38-14.1-03
Law Implemented: NDCC 38-14.1-04, 38-14.1-07
### § 69-05.2-04-01.3. Areas unsuitable for mining - Procedures for relocating or closing a public

road or waiving the buffer zone for a public road.
1. This section does not apply to:
a. Lands for which a person has valid existing rights, as determined under section
69-05.2-04-01.5.
b. Lands within the scope of the exception for existing operations in section
69-05.2-04-01.2.
c. Access or haul roads that join a public road.
2. The applicant must obtain any necessary approvals from the authority with jurisdiction over
the road before:

a. Relocating a public road;
b. Closing a public road; or
c. Conducting surface coal mining operations within one hundred feet [30.48 meters],
measured horizontally, of the outside right-of-way line of a public road.
3. Before approving an action proposed under subsection 2, the commission, or the public road
authority with jurisdiction over the road, must determine that the interests of the public and
affected landowners will be protected. Before making this determination, the commission will,
if not included in the road authority's approval process:
a. Provide a public comment period and opportunity to request a public hearing in the
locality of the proposed operation.
b. If a public hearing is requested, publish appropriate advance notice at least two weeks
before the hearing in a newspaper of general circulation in the affected locality.
c. Based upon information received from the public, make a written finding as to whether
the interests of the public and affected landowners will be protected. If the commission
holds a hearing, this finding will be made within thirty days after the hearing. However, if
no public hearing is held and the commission makes this written finding, it may be
delayed until the permit is issued.
4. Copies of the road authority's approval documents, including the written finding, must be
provided to the commission.
History: Effective March 1, 2004.
General Authority: NDCC 38-14.1-03
Law Implemented: NDCC 38-14.1-04, 38-14.1-07
### § 69-05.2-04-01.4. Areas unsuitable for mining - Procedures for waiving the prohibition on

mining within the buffer zone around an occupied dwelling.
1. This section does not apply to:
a. Lands for which a person has valid existing rights, as determined under section
69-05.2-04-01.5.
b. Lands within the scope of the exception for existing operations in section
69-05.2-04-01.2.
2. If the applicant proposes to conduct surface coal mining operations within five hundred feet
[152.40 meters], measured horizontally, of any occupied dwelling, the permit application must
include a written waiver by lease, deed, or other conveyance from the owner of the dwelling.
The waiver must clarify that the owner and signator had the legal right to deny mining and
knowingly waived that right. The waiver will act as consent to surface coal mining operations
within a closer distance of the dwelling as specified.
3. If the applicant obtained a valid waiver before August 3, 1977, from the owner of an occupied
dwelling to conduct operations within five hundred feet [152.40 meters] of the dwelling, a new
waiver is not needed.
4. If the applicant obtains a valid waiver from the owner of an occupied dwelling, that waiver will
remain effective against subsequent purchasers who had actual or constructive knowledge of
the existing waiver at the time of purchase. A subsequent purchaser will be deemed to have
constructive knowledge if the waiver has been properly filed with the recorder in the county

where the dwelling is located or if surface coal mining operations have occurred within the
five-hundred-foot [152.40-meter] zone before the date of purchase.
History: Effective March 1, 2004.
General Authority: NDCC 38-14.1-03
Law Implemented: NDCC 38-14.1-04, 38-14.1-07
### § 69-05.2-04-01.5. Areas unsuitable for mining - Submission of requests for valid existing

rights determinations.
1. Except for certain federal lands, the commission is responsible for making valid existing rights
determinations based on the definition of valid existing rights in section 69-05.2-01-02. The
office of surface mining reclamation and enforcement must make the determination on federal
lands within:
a. The national park system.
b. The national wildlife refuge systems.
c. The national system of trails.
d. The national wilderness preservation system.
e. The national wild and scenic rivers system, including study rivers and corridors.
f. National recreation areas.
g. A national forest.
2. A request for a valid existing rights determination may be submitted before preparing and
submitting an application for a permit or incidental boundary revision for the land. The request
must include the following:
a. A property rights demonstration under subdivision a of the definition of valid existing
rights in section 69-05.2-01-02 if the request relies upon the "all permits or good-faith
standard" or the "needed for and adjacent standard" in subdivision b of that definition.
The demonstration must 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 applicant'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 surface coal mining operations that the
applicant 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.
(6) Complete documentation of the nature and ownership, as of the date that the land
came under the protection of North Dakota Century Code section 38-14.1-07 and

section 69-05.2-04-01.1, 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 applicant 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 claimed property rights.
(9) Any comments that the applicant receives in response to the notification provided
under paragraph 8.
b. If the request relies upon the all permits or good-faith standard in paragraph 1 of
subdivision b of the definition of valid existing rights in section 69-05.2-01-02, the
information required under subdivision a must be submitted. In addition, the following
must be provided:
(1) Approval and issuance dates and identification numbers for any permits, licenses,
and authorizations that the applicant or a predecessor in interest obtained before
the land came under the protection of North Dakota Century Code section
(2) Application dates and identification numbers for any permits, licenses, and
authorizations for which the applicant or a predecessor in interest submitted an
application before the land came under the protection of North Dakota Century
Code section 38-14.1-07 and section 69-05.2-04-01.1.
(3) An explanation of any other good-faith effort that the applicant 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 North Dakota Century Code section
c. If the request relies upon the "needed for and adjacent standard" in paragraph 2 of
subdivision b of the definition of valid existing rights in section 69-05.2-01-02, the
information required under subdivision a must be submitted. In addition, an explanation
must be provided to 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 North Dakota Century Code section 38-14.1-07 and section 69-05.2-04-01.1.
d. If the request relies upon one of the standards for roads in paragraphs 1, 2, and 3 of
subdivision c of the definition of valid existing rights in section 69-05.2-01-02, satisfactory
documentation must be submitted to show that:
(1) The road existed when the land upon which it is located came under the protection
of North Dakota Century Code section 38-14.1-07 and section 69-05.2-04-01.1 and
the applicant 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 North Dakota Century Code section
of way or easement and under any subsequent conveyances, the applicant has a
legal right to use or construct a road across that right of way or easement to conduct
surface coal mining operations; or

(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 North Dakota
Century Code section 38-14.1-07 and section 69-05.2-04-01.1.
History: Effective March 1, 2004.
General Authority: NDCC 38-14.1-03
Law Implemented: NDCC 38-14.1-02, 38-14.1-04, 38-14.1-07
### § 69-05.2-04-01.6. Areas unsuitable for mining - Processing requests for valid existing rights

determinations.
1. The commission will conduct an initial review to determine whether the request includes all
applicable components of the submission requirements of section 69-05.2-04-01.5. 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
section 69-05.2-04-01.5, the commission will notify the applicant and establish a reasonable
time for submission of the missing information.
3. When the request includes all applicable components of the submission requirements of
section 69-05.2-04-01.5, the commission will notify the applicant and implement the notice and
comment requirements of subsection 5. Upon receipt of that notice, the applicant must file a
copy of the request in the office of the county auditor of the county in which the land is located.
4. If the applicant does not provide information that the commission requests under subsection 2
within the time specified or as subsequently extended, the commission will issue a
determination that valid existing rights have not been demonstrated, as provided by
subdivision d of subsection 6.
5. Notice and comment requirements and procedures.
a. When the request satisfies the completeness requirements of subsection 3, the
commission will notify the applicant to publish a notice in a newspaper of general
circulation in the county in which the land is located. This notice must invite comment on
the merits of the request. A copy of the published notice must be provided to the
commission. The notice must include:
(1) The location of the land to which the request pertains.
(2) A description of the type of surface coal mining operations planned.
(3) A reference to and brief description of the applicable standards under the definition
of valid existing rights in subsection 120 of section 69-05.2-01-02.
(a) If the request relies upon the all permits or good-faith standard or the needed
for and adjacent standard in the definition of valid existing rights, the notice
also must include a description of the property rights that are claimed by the
applicant and the basis of that claim.
(b) If the request relies upon the standard in paragraph 1 of subdivision c of the
definition of valid existing rights in section 69-05.2-01-02, the notice also must
include a description of the basis for the claim that the road existed when the
land came under the protection of North Dakota Century Code section
description of the basis for the applicant's claim to a legal right to use that road
for surface coal mining operations.

(c) If the request relies upon the standard in paragraph 2 of subdivision c of the
definition of valid existing rights in section 69-05.2-01-02, 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 North Dakota Century Code section 38-14.1-07 and section
### § 69-05.2-04-01.1. 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.
(4) If the request relies upon one or more of the standards in subdivision b and
paragraphs 1 and 2 of subdivision c of the definition of valid existing rights in section
69-05.2-01-02, 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 subdivision c, 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 valid existing rights claim.
(5) A description of the procedures that the commission will follow in processing the
request as required by this section.
(6) The closing date of the comment period, which must be a minimum of thirty days
after the publication date of the notice.
(7) A statement that interested persons may obtain a thirty-day extension of the
comment period upon request.
(8) The name and address of the commission and county auditor's office where copies
of the request are available for public inspection and that comments and requests
for extension of the comment period be sent to the commission.
b. The commission will promptly provide a copy of the notice required under subdivision a
to:
(1) All reasonably locatable owners of surface and mineral estates in the land included
in the request.
(2) The owner of the feature causing the land to come under the protection of North
Dakota Century Code section 38-14.1-07, and, when applicable, the agency with
primary jurisdiction over that feature. 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.
c. The letter transmitting the notice required under subdivision b must 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. At its discretion, the commission may grant
additional time for good cause upon request; however, comments received after the
closing date of the comment period do not necessarily have to be considered.
6. Commission decision process.
a. The commission will review the materials submitted under subsection 2 of section
69-05.2-04-01.5, comments received under subsection 5, 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

will notify the applicant in writing, explaining the inadequacy of the record and requesting
submittal, within a specified reasonable time, of any additional information that it deems
necessary to remedy the inadequacy.
b. Once the record is complete and adequate, the commission will determine if valid
existing rights have been demonstrated. The decision document will explain whether or
not all applicable elements of the definition of valid existing rights have been satisfied. It
will contain findings of fact and conclusions and specify the reasons for the conclusions.
c. The following apply only when the request relies upon one or more of the standards in
subdivision b and paragraphs 1 and 2 of subdivision c of the definition of valid existing
rights in section 69-05.2-01-02.
(1) The commission will issue a determination that valid existing rights have not been
demonstrated if the property rights claimed in the request 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 the applicant may refile 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 subdivisions a and c of
subsection 5.
(2) If the record indicates disagreement as to the accuracy of the property rights
claimed, but this disagreement is not the subject of pending litigation in a court or
administrative agency of competent jurisdiction, the commission will evaluate the
merits of the information in the record and determine whether the requisite property
rights that have been demonstrated exist under subdivision a and paragraphs 1
and 2 of subdivision c of the definition of valid existing rights in section
69-05.2-01-02, as appropriate. The commission will then proceed with the decision
process under subdivision b.
d. The commission will issue a determination that valid existing rights have not been
demonstrated if information requested under subsection 2 or subdivision a is not
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. After making a determination, the commission will:
(1) Provide a copy of the determination, together with an explanation of appeal rights
and procedures, to the applicant, surface and mineral owners of the land to which
the determination applies, owner of the feature causing the land to come under the
protection, and, when applicable, the agency with primary jurisdiction over the
feature with respect to the values that caused the land to come under the protection.
(2) Publish notice of the determination in a newspaper of general circulation in the
county in which the land is located. This notice will include an explanation of appeal
rights under subsection 7.
7. A valid existing rights determination is subject to administrative and judicial review under North
Dakota Century Code sections 38-14.1-30 and 38-14.1-35.
8. Except as provided by subsection 6 of section 69-05.2-10-01, the commission will make the
valid existing rights request and all related records available to the public as required by
subsection 3 of North Dakota Century Code section 38-14.1-13 and provide copies of records

to the appropriate county auditor as required by subsection 5 of North Dakota Century Code
section 38-14.1-27.
History: Effective March 1, 2004.
General Authority: NDCC 38-14.1-03
Law Implemented: NDCC 38-14.1-02, 38-14.1-04, 38-14.1-07
### § 69-05.2-04-01.7. Areas unsuitable for mining - Commission obligations at time of permit

application review.
1. Upon receipt of an administratively complete permit application or revision application that
proposes to add acreage to the permit, the commission will review the application to
determine whether the proposed surface coal mining operation would be located on any lands
protected under North Dakota Century Code section 38-14.1-07 and section 69-05.2-04-01.1.
2. The commission will reject any portion of the application that would locate surface coal mining
operations on land protected under North Dakota Century Code section 38-14.1-07 and
section 69-05.2-04-01.1 unless:
a. The site qualifies for the exception for existing operations under section 69-05.2-04-01.2;
b. A person has valid existing rights for the land, as determined under section
69-05.2-04-01.6;
c. The applicant obtains a waiver or exception from certain prohibitions in accordance with
sections 69-05.2-04-01.3 and 69-05.2-04-01.4; or
d. For lands protected by subsection 3 of North Dakota Century Code section 38-14.1-07,
both the commission and the agency with jurisdiction over the park or place jointly
approve the proposed operation in accordance with subsection 4.
3. If the commission has difficulty determining whether an application includes land within an
area specified in subsection 1 of North Dakota Century Code section 38-14.1-07,
subdivision b of subsection 1 of section 69-05.1-04-01.1, or within the specified distance from
a structure or feature listed in subsection 5 of North Dakota Century Code section 38-14.1-07,
the commission will request that any federal, state, or local governmental agency with
jurisdiction over the protected land, structure, or feature verify the location.
a. The request for location verification must:
(1) Include relevant portions of the permit application.
(2) Provide the agency with thirty days after receipt to respond, with a notice that
another thirty days is available upon request.
(3) Specify that the commission will not necessarily consider a response received after
the comment period in paragraph 2.
b. If the agency does not respond in a timely manner, the commission may make the
necessary determination based on available information.
4. The following are procedures for joint approval of surface coal mining operations that will
adversely affect publicly owned parks or historic places.
a. If the commission determines that the proposed surface coal mining operation will
adversely affect any publicly owned park or any place included in the national register of
historic places, the commission will request that the federal, state, or local agency with

jurisdiction over the park or place either approve or object to the proposed operation. The
request will:
(1) Include a copy of applicable parts of the permit application.
(2) Provide the agency with thirty days after receipt to respond, with a notice that
another thirty days is available upon request.
(3) State that failure to interpose an objection within the time specified under
paragraph 2 will constitute approval of the proposed operation.
b. The commission may not issue a permit for a proposed operation subject to subdivision a
unless all affected agencies jointly approve.
c. Subdivisions a and b do not apply to:
(1) Lands for which a person has valid existing rights, as determined under section
69-05.2-04-01.6.
(2) Lands within the scope of the exception for existing operations in section
69-05.2-04-01.2.
History: Effective March 1, 2004.
General Authority: NDCC 38-14.1-03
Law Implemented: NDCC 38-14.1-04, 38-14.1-07
### § 69-05.2-04-02. Areas unsuitable for mining - Exploration.

Designation of any area as unsuitable for all or certain types of surface coal mining operations
under North Dakota Century Code section 38-14.1-05 and this chapter does not prohibit coal
exploration operations if conducted according to North Dakota Century Code chapter 38-12.1 and
chapter 43-02-01. Exploration operations on lands designated unsuitable for mining must be approved
by the appropriate state agency to ensure that exploration does not interfere with any value for which
the area was designated unsuitable.
History: Effective August 1, 1980; amended effective May 1, 1990.
General Authority: NDCC 38-14.1-03
Law Implemented: NDCC 38-14.1-08
### § 69-05.2-04-03. Areas unsuitable for mining - Petitions for designating lands unsuitable.

1. Right to petition. Any person having an interest which is or may be adversely affected may
petition the commission to designate an area unsuitable for surface coal mining operations, or
terminate an existing designation. Petitions must be in writing, and signed and acknowledged
by the petitioner.
2. Designation. A petition to designate must include:
a. A United States geological survey topographic map showing the perimeter, location, and
size of the area.
b. Allegations of facts, covering all lands in the petition area, which tend to establish that the
area is unsuitable for all or certain types of mining operations. This information must
meet the criteria in North Dakota Century Code section 38-14.1-05 and assume that
mining practices required under this article would be followed if the area were to be
mined. Each of the allegations should be specific as to the mining operation, if known,
and the portion of the petitioned area and the petitioner's interests, and be supported by

evidence that tends to establish the validity of the allegation for the mining operation or
portion of the area.
c. A description of how mining the area has affected or may adversely affect people, land,
air, water, or other resources.
d. The petitioner's name, address, and telephone number.
e. The petitioner's interest which is or may be adversely affected.
f. Any other readily available information required by the commission.
3. Termination. A petition to terminate must include:
a. A United States geological survey topographic map showing the perimeter, location, and
size of the area.
b. Allegations of facts covering all lands for which termination is proposed. Each allegation
must be specific as to the mining operation, if any, and to the portions of the area and
petitioner's interests to which the allegation applies. The allegations must be supported
by evidence not contained in the record of the designation proceeding that tends to
establish their validity for the mining operation or portion of the area, assuming that
mining practices required under this article would be followed were the area to be mined.
For areas previously and unsuccessfully proposed for termination, significant new
allegations of facts and supporting evidence must be presented. Allegations and
supporting evidence should be specific to the basis for which the designation was made
and tend to establish that the designation should be terminated on the following bases:
(1) The nature or abundance of the protected resource or condition or other basis of the
designation if the designation was based on subsection 2 of North Dakota Century
Code section 38-14.1-05;
(2) Reclamation now being technologically and economically feasible, if the designation
was based on subsection 1 of North Dakota Century Code section 38-14.1-05; or
(3) The resources or condition not being affected by surface coal mining operations, or
in the case of land use plans, not being incompatible with those operations during
and after mining, if the designation was based on subsection 2 of North Dakota
Century Code section 38-14.1-05.
c. The petitioner's name, address, and telephone number.
d. The petitioner's interest which is or may be adversely affected by continuation of the
designation.
e. Any other readily available information required by the commission.
History: Effective August 1, 1980; amended effective May 1, 1990.
General Authority: NDCC 38-14.1-03
Law Implemented: NDCC 38-14.1-06
### § 69-05.2-04-04. Areas unsuitable for mining - Initial processing - Recordkeeping - Notification

requirements for designating lands unsuitable.
1. Within thirty days of receipt of a petition, the commission will notify the petitioner by certified
mail whether the petition is complete under section 69-05.2-04-03.

2. The commission will determine whether any identified coal resources exist in the area covered
by the petition, without requiring any showing from the petitioner. If the commission finds no
identified coal resources in that area, it will return the petition with a statement of findings.
3. The commission may reject frivolous petitions and those not stating a prima facie case. Once
the requirements of section 69-05.2-04-03 are met, no party shall bear any burden of proof,
but each accepted petition will be considered and acted upon under the procedures of this
chapter.
4. When considering a petition for an area which was previously and unsuccessfully proposed for
designation, the commission will determine if the new petition presents new allegations of
facts. If not, the commission will return it, with a statement of findings and a reference to the
record of the previous designation proceedings.
5. If the commission determines that the petition is incomplete or frivolous, the commission will
return it with a written statement of the reasons and, in the case of an incomplete petition, the
information needed to make the petition complete. A petitioner to whom an incomplete petition
has been returned shall have thirty days from the date the petitioner receives the
commission's written statement to resubmit the petition. The permit application review period
provided by subsection 3 of section 69-05.2-05-01 will be suspended until the petition is
resubmitted or the additional thirty-day period has expired, whichever occurs first.
6. The commission will notify the petitioner of any permit application received which proposes to
include any area covered by the petition.
7. Any petition received after the close of the public comment period specified in subsection 1 of
North Dakota Century Code section 38-14.1-18 on a permit application relating to the same
permit area will not prevent the commission from issuing a decision on that application. The
commission may return any petition received thereafter with a statement why the commission
cannot consider the petition.
8. The commission will promptly notify the public of receipt of a petition by an advertisement in
the local newspaper and the newspaper of broadest circulation in the region of the petitioned
area. The commission will circulate copies of the petition to, and request submissions of
relevant information from, other interested governmental agencies, the petitioner, intervenors,
persons with an ownership interest of record, and other persons known to the commission to
have an interest in the property.
9. Within three weeks after the determination that a petition is complete, the commission will
notify the general public of its receipt and request relevant information through a newspaper
advertisement placed once a week for two consecutive weeks in the official newspaper of
each county containing the petitioned area and in other daily newspapers of general
circulation in the locality covered by the petition.
10. Until three days before the commission holds a hearing under section 69-05.2-04-05, any
person may intervene by filing allegations of facts, supporting evidence, a short statement
identifying the petition to which the allegations pertain, and the intervenor's name, address,
and telephone number.
11. Beginning immediately after a complete petition is filed, the commission will compile and
maintain a record consisting of all documents relating to the petition filed with or prepared by
the commission. The commission will make the record available in its offices for public
inspection free of charge, and copying, at a reasonable cost, during normal business hours.
The commission will also file a copy of the complete petition and copies of all other documents
relating to the petition with the relevant county auditors.

History: Effective August 1, 1980; amended effective May 1, 1990.
General Authority: NDCC 38-14.1-03
Law Implemented: NDCC 38-14.1-04, 38-14.1-06, 38-14.1-09, 38-14.1-18
### § 69-05.2-04-05. Areas unsuitable for mining - Hearing requirements for designating lands

unsuitable.
1. Within ten months after receipt of a complete petition, the commission will hold a public
hearing in the locality of the area covered by the petition. If all petitioners and intervenors
agree, the hearing need not be held prior to the commission's decision. If a hearing is held,
the commission will make a record.
2. Not less than thirty days before the hearing, the commission will give notice by certified mail of
the date, time, and location of the hearing to:
a. Local, state, and federal agencies which may have an interest in the decision.
b. The petitioner and intervenors.
c. Any person with an ownership or other interest known to the commission in the area
covered by the petition.
3. The last publication of the notice of hearing required by subsection 3 of North Dakota Century
Code section 38-14.1-06 must occur no more than seven days before the hearing.
History: Effective August 1, 1980; amended effective May 1, 1990.
General Authority: NDCC 38-14.1-03
Law Implemented: NDCC 38-14.1-04, 38-14.1-05, 38-14.1-06
### § 69-05.2-04-06. Areas unsuitable for mining - Commission decision for designating lands

unsuitable.
1. In reaching its decision, the commission will use:
a. The information contained in the data base and inventory system.
b. Information provided by other governmental agencies.
c. The detailed statement prepared under subsection 3 of North Dakota Century Code
section 38-14.1-05.
d. Any other relevant information submitted during the comment period.
2. The commission will issue a final written decision, including a statement of reasons, within
sixty days of completion of the public hearing, or, if no public hearing is held, within twelve
months after receipt of the complete petition. The commission will serve the decision by
certified mail on the petitioner, other parties to the proceeding, and the office of surface mining
reclamation and enforcement.
3. The decision of the commission on a petition, or the failure of the commission to act within the
time limits set forth in this section, is subject to review under North Dakota Century Code
section 38-14.1-35.
History: Effective August 1, 1980; amended effective May 1, 1990.
General Authority: NDCC 38-14.1-03
Law Implemented: NDCC 38-14.1-04, 38-14.1-35

### § 69-05.2-04-07. Areas unsuitable for mining - Data base and inventory system for designating

lands unsuitable.
1. The commission will develop a data base and inventory system to evaluate if reclamation is
feasible in areas covered by petitions.
2. The commission will include in the system information relevant to the criteria in North Dakota
Century Code section 38-14.1-05 from appropriate state and federal agencies.
3. The commission will add to the data base and inventory system information:
a. On potential coal resources of the state, demand for those resources, the environment,
the economy, and the supply of coal, sufficient to enable the commission to prepare the
statements required by subsection 3 of North Dakota Century Code section 38-14.1-05;
and
b. That becomes available from petitions, publications, experiments, permit applications,
mining and reclamation operations, and other sources.
History: Effective August 1, 1980; amended effective May 1, 1990; July 1, 1995.
General Authority: NDCC 38-14.1-03
Law Implemented: NDCC 38-14.1-04
### § 69-05.2-04-08. Areas unsuitable for mining - Public information for designating lands

unsuitable.
The commission will:
1. Make the information and data base system developed under section 69-05.2-04-07 available
to the public for inspection free of charge and for copying at reasonable cost.
2. Provide information to the public on the petition procedures necessary to have an area
designated unsuitable or to have designations terminated and describe how the inventory and
data base system can be used.
History: Effective August 1, 1980; amended effective May 1, 1990.
General Authority: NDCC 38-14.1-03
Law Implemented: NDCC 38-14.1-04
### § 69-05.2-04-09. Areas unsuitable for mining - Commission responsibility for implementation

for designating lands unsuitable.
The commission will:
1. Not issue permits which are inconsistent with designations made under North Dakota Century
Code chapter 38-14.1 and this article.
2. Maintain a map of areas designated as unsuitable for all or certain types of mining operations.
3. Make available to any person information within its control regarding designations, including
mineral or elemental content which is potentially toxic in the environment, but excepting
proprietary information on the chemical and physical properties of the coal according to
subsection 3 of North Dakota Century Code section 38-14.1-13.
History: Effective August 1, 1980; amended effective May 1, 1990.
General Authority: NDCC 38-14.1-03
Law Implemented: NDCC 38-14.1-04
