A. Upon the basis of a complete mining application and reclamation plan or a revision or a renewal thereof, as required by the Surface Mining Act, including public notification and an opportunity for a public hearing as required by Section 17 [69-25A-17 NMSA 1978] of that act, the director shall grant, require modification of or deny the application for a permit in a reasonable time not to exceed the time limitations set forth in Section 18 [69-25A-18 NMSA 1978] of that act and notify the applicant in writing. The applicant for a permit, or revision of a permit, shall have the burden of establishing that his application is in compliance with all the requirements of that act. Within ten days after the granting of a permit, the director shall notify the local governmental officials in the municipality, if any, and county, in which the area of land to be affected is located that a permit has been issued and shall describe the location of the land.

B. No permit or revision application shall be approved unless the application affirmatively demonstrates and the director finds in writing on the basis of the information set forth in the application or from information otherwise available which will be documented in the approval, and made available to the applicant, that:

(1) the permit application is accurate and complete and that all the requirements of the Surface Mining Act have been complied with;

(2) the applicant has demonstrated that reclamation as required by the Surface Mining Act can be accomplished under the reclamation plan contained in the permit application;

(3) the assessment of the probable cumulative impact of all anticipated mining in the area on the hydrologic regime specified in Subsection B of Section 10 [69-25A-10 B NMSA 1978] of the Surface Mining Act has been made by the director and the proposed operation thereof has been designed to prevent material damage to the water supply outside the permit area;

(4) the area proposed to be mined is not included within an area designated unsuitable for surface coal mining pursuant to Section 26 [69-25A-26 NMSA 1978] of the Surface Mining Act or is not within an area under study for such designation in an administrative proceeding commenced pursuant to that section (unless in such an area as to which an administrative proceeding has commenced pursuant to Section 26 [69-25A-26 NMSA 1978] of that act, the operator making the permit application demonstrates that prior to January 1, 1977, he has made substantial legal and financial commitments in relation to the operation for which he is applying for a permit);

(5) the proposed surface coal mining operation would:

(a) not interrupt, discontinue or preclude farming on alluvial valley floors that are irrigated or naturally subirrigated, but, excluding undeveloped range lands which are not significant to farming on such alluvial valley floors and those lands as to which the director finds that if the farming that will be interrupted, discontinued or precluded is of such small acreage as to be of negligible impact on the farm's agricultural production; or

(b) not materially damage the quantity or quality of water in surface or underground water systems that supply these valley floors in Subparagraph (a) of this paragraph. Provided, that this paragraph shall not affect those surface coal mining operations which, in the twelve-month period immediately preceding August 3, 1977: (1) produced coal in commercial quantities, and were located within or adjacent to alluvial valley floors; or (2) had obtained specific permit approval to conduct surface coal mining operations within the alluvial valley floors; and

(6) in cases where the private mineral estate has been severed from the private surface estate, the applicant has submitted to the director:

(a) the written consent of the surface owner to the extraction of coal by surface mining methods; or

(b) a conveyance that expressly grants or reserves the right to extract the coal by surface mining methods; or if the conveyance does not expressly grant the right to extract coal by surface mining methods, the surface-subsurface legal relationship shall be determined in accordance with state law. Provided, that nothing in the Surface Mining Act shall be construed to authorize the director or the commission to adjudicate property rights disputes.

C. The applicant shall file with his permit application a schedule listing any and all notices of violations of the Surface Mining Act and any law, rule or regulation of the United States, or of any department or agency in the United States, pertaining to air or water environmental protection incurred by the applicant in connection with any surface coal mining operation during the three-year period prior to the date of application. The schedule shall also indicate the final resolution of any such notice of violation. Where the schedule or other information available to the director indicates that any surface coal mining operation owned or controlled by the applicant is currently in violation of that act or such other laws, rules or regulations referred to in this subsection, the permit shall not be issued until the applicant submits proof that such violation has been corrected or is in the process of being corrected to the satisfaction of the director, department or agency which has jurisdiction over such violation and no permit shall be issued to an applicant after finding by the director, after opportunity for hearing, that the applicant, or the operator specified in the application, controls or has controlled mining operations with a demonstrated pattern of willful violations of the Surface Mining Act of such nature and duration with such resulting irreparable damage to the environment as to indicate an intent not to comply with the provisions of that act.

D. In addition to finding the application in compliance with Subsection B of this section, if the area proposed to be mined contains prime farmland pursuant to Section 10 [69-25A-10 NMSA 1978] of the Surface Mining Act, the director shall, after consultation with the United States secretary of interior with the concurrence of the United States secretary of agriculture, grant a permit to mine on prime farmland if the director finds in writing that the operator has the technological capability to restore such mined area, within a reasonable time, to equivalent or higher levels of yield as nonmined prime farmland in the surrounding area under equivalent levels of management and can meet the soil reconstruction standards in Section 19 [69-25A-19 NMSA 1978] of that act. Except for compliance with Subsection B of this section, the requirements of this subsection shall apply to all permits issued after August 3, 1977. Nothing in this subsection shall apply to any permit issued prior to August 3, 1977, or to any revisions or renewals thereof, or to any existing surface coal mining operations for which a permit was issued prior to August 3, 1977.

History: Laws 1979, ch. 291, § 14.

Am. Jur. 2d, A.L.R. and C.J.S. references. — 53A Am. Jur. 2d Mines and Minerals § 257.

58 C.J.S. Mines and Minerals § 334 et seq.