Weaknesses of the DOGM AMR Program

[Mike]

Anthony Gallegos, Senior Reclamation Engineer for the DOGM's AMR program recently published an article describing the hardships encountered when working the Star district. It describes why it took several years longer and millions more to finish the project than it should have. It points out all the weaknesses the DOGM has when they try to reclaim large and popular regions. Found it to be a very interesting and easy to read article and thought I'd share it with everybody.

It can be downloaded here:

http://www.mojaveunderground.com/AMR_Program.pdf

[UnderUtah]

Thanks for putting this up Mike. I took some time and read the entire assesment and it does demonstrate many of the issues the DOGM encounters when closing mines. I was very interested in the volume of public opposition of these closeures, citing land usage and cultural heritage issues. I particularly like this paragraph: "Locals and visitors enjoy riding or walking in the hills and looking at the old workings and other evidence of prospecting and mining bringing sorely needed tourist and visitor dollars into the area. "The kind of "reclamation" that the AMRP has done in other districts has often been comprehensive, to the point of obliterating evidence of much or all
prior mining activity. A further adverse effect is that mineral exploration companies will be reluctant to come into areas in which the evidence of prior
mining activities have been obliterated through "reclamation," because the easilyviewed evidence of underground mineralization will be covered up and because
of the cost of initial exploration studies."

Clearly there is impact both on public land use as well as private mineral exploration when these sites are reclaimed. Another paragraph describes a tour of the local sites with concerned persons and program officials that spawned these questions:

The tour ran short on stops, but long on questions and answers by all attendees. The questions included: Didn't the City's resolution mean anything?
Who asked you to come here and close these mines? How come you state people think you can come and trespass on my claims, patented and unpatented? Why
don't you put money into the local economy instead of shutting down our livelihood? How can you close these mine openings on my unpatented claim?
I've posted my claims with the County, so how can you come on my claims and close these mines? Why is money for reclamation of coal mines now being used
to close mines here?

So this tells me that there was great opposition to these closures, to the point that the city passed a resolution opposing them... So if a town or city recognizes the cultural, historical, and potential mineral wealth of these sites how is it that on a state level these sites are viewed as festering boils on the otherwise unblemished skin of our fair territory?

There was, as an interesting side note, a reference to the agency's "police power" to trespass on private property for their own purposes, but there was no explanation or foundation - I would be interested in learning more about this mythical endowment. So if I write a grant and obtain funding to research, oh, say the mating habits of chimpanzees does that automatically endow me with the right to enter Hogle Zoo after hours, or unannounced, or without notice, to observe their copulatory habits? You can get a grant for anything nowadays, so who knows!

This was an incredibly illuminating report. I thought that they had everything figured-out but it is obvious that is not the case. Perhaps I need to sell them my company's real-time site survey / data collection / photo and site information database with online access for the survey portion of their future work - seems like better choices could be made more efficiently with a more precise tool than what they are using now. Anyone want to make a sales call?

[rhartill]

More on police powers perceived or otherwise...

Miah:

DOGM does have police powers, to enter onto private property and even to reclaim shafts that pose a public safety risk. The catch it that UT legislators thought public safety meant exactly that, serious public safety issues.
Nowadays, DOGM feels that ANY shaft bigger than a prospect is by its very nature a public safety concern. Mark Mesch never liked using the AMRP police powers, but I don't doubt Luci Malin wouldn't resist using it if she felt she needed to.

Here is the State statute regarding police powers within the DOGM. NOTICE is refers to past coal mining activities primarily and to use it to close hardrock mines is probably a bit of a legal stretch. It really fries my biscuits to see DOGM continually practicing law without a license by opining on UT statutes!

40-10-27. Entry upon land adversely affected by past coal mining practices --
Conducting of studies or exploratory work -- State acquisition of land -- Lien --
Waste disposal fund -- Water pollution control and treatment plants.
(1) (a) If the board, after notice and hearing, makes a finding of fact as
provided in Subsection (1)(b), the agents, employees, or contractors of the
division shall have the right to enter property adversely affected by past coal
mining practices and any other property to have access to property adversely
affected by past coal mining practices to do whatever is necessary or expedient
to restore, reclaim, abate, control, or prevent the adverse effects.
(b) The board shall find that:
(i) land or water resources have been adversely affected by past coal mining
practices;
(ii) the adverse effects are at a stage where, in the public interest, action to
restore, reclaim, abate, control, or prevent should be taken; and
(iii) the owners of the land or water resources where entry must be made to
restore, reclaim, abate, control, or prevent the adverse effects of past coal
mining practices:
(A) are not known;
(B) are not readily available; or
(C) will not give permission for the state or its political subdivisions, their
agents, employees, or contractors to enter upon the property to restore, reclaim,
abate, control, or prevent the adverse effects of past coal mining practices.
(c) Notice of the division's right to enter the property shall be:
(i) given by mail, if the owners are known; and
(ii) posted upon the premises and advertised once in a newspaper of general
circulation in the county in which the land lies, if the owners are not known.
(d) This entry shall be construed as an exercise of the police power for the
protection of public health, safety, and general welfare and may not be
construed as an act of condemnation of property nor of trespass on it.
(e) The monies expended for this work and the benefits accruing to the premises
entered upon shall be chargeable against the land and shall mitigate or offset
any claim in or any action brought by any owner of any interest in these
premises for any alleged damages by virtue of the entry.
(f) Subsection (1) is not intended to create new rights of action or eliminate
existing immunities.
(2) (a) The agents, employees, or contractors of the division may enter upon any
property for the purpose of conducting studies or exploratory work to determine
the existence of adverse effects of past coal mining practices and to determine
the feasibility of restoration, reclamation, abatement, control, or prevention
of these adverse effects.
(b) This entry shall be construed as an exercise of the police power for the
protection of public health, safety, and general welfare and may not be
construed as an act of condemnation of property or trespass on it.
(3) The state may acquire any land by purchase, donation, or condemnation which
is adversely affected by past coal mining practices if the board, after notice
and hearing, determines that acquisition of this land is necessary to successful
reclamation and that:
(a) the acquired land, after restoration, reclamation, abatement, control, or
prevention of the adverse effects of past coal mining practices, will serve
recreation and historic purposes, conservation and reclamation purposes, or
provide open space benefits; and

(b) (i) permanent facilities such as a treatment plant or a relocated stream
channel will be constructed on the land for the restoration, reclamation,
abatement, control, or prevention of the adverse effects of past coal mining
practices; or
(ii) acquisitions of coal refuse disposal sites and all coal refuse on the sites
will serve the purposes of this chapter or that public ownership is desirable to
meet emergency situations and prevent recurrences of the adverse effects of past
coal mining practices.
(4) (a) Title to all lands acquired under this section shall be in the name of
the state.
(b) The price paid for land acquired under this section shall reflect the market
value of the land as adversely affected by past coal mining practices.
(5) (a) If land acquired under this section is considered suitable for
industrial, commercial, residential, or recreational development, the division,
in conjunction with the Division of Forestry, Fire and State Lands, may sell
this land by public sale under a system of competitive bidding, at not less than
fair market value, and under any other rules promulgated to insure that the land
is put to proper use consistent with local and state land use plans.
(b) (i) The state, when requested after appropriate public notice, shall hold a
public hearing with the appropriate notice, in the counties or appropriate
political subdivisions of the state in which lands acquired under this section
are located.
(ii) The hearing shall be held at a time which shall afford local citizens and
governments the maximum opportunity to participate in the decision concerning
the use or disposition of the lands after restoration, reclamation, abatement,
control, or prevention of the adverse effects of past coal mining practices.
(6) (a) The state, through the division and the Division of Forestry, Fire and
State Lands, shall have the authority to accept lands acquired and reclaimed by
the Secretary of the Interior pursuant to Section 407(h) of Public Law 95-87.
(b) The division has the authority to accept grants from the Secretary to carry
out the purposes of Section 407(h) of Public Law 95-87.
(7) (a) Within six months after the completion of projects to restore, reclaim,
abate, control, or prevent adverse effects of past coal mining practices on
privately owned land, the division shall itemize the monies expended and may
file a statement of those expenses in the office of the county recorder of the
county in which the land lies, together with a notarized appraisal by an
independent appraiser of the value of the land before the restoration,
reclamation, abatement, control, or prevention of adverse effects of past coal
mining practices if the monies expended result in a significant increase in
property value.
(b) This statement shall constitute a lien upon the land described in it.
(c) The lien may not exceed the amount determined by the appraisal to be the
increase in the market value of the land as a result of the restoration,
reclamation, abatement, control, or prevention of the adverse effects of past
coal mining practices.
(d) A lien may not be filed against the property of any person, in accordance
with this subsection who owned the surface prior to May 2, 1977, and who neither
consented to nor participated in nor exercised control over the mining operation
which necessitated the reclamation performed.
( (a) The landowner may proceed to petition within 60 days after the filing of
the lien to determine the increase in the market value of the land as a result
of the restoration, reclamation, abatement, control, or prevention of the
adverse effects of past coal mining practices.
(b) The amount reported to be the increase in value of the premises shall
constitute the

amount of the lien and shall be recorded with the statement provided for in
Subsection (7).
(c) Any party aggrieved by the decision may appeal as provided by law.
(9) (a) The lien provided in this section shall be recorded in the office of the
county recorder of the county in which the land lies.
(b) The statement shall constitute a lien upon the land as of the date of the
expenditure of the monies and shall have priority as a lien second only to the
lien of real estate taxes imposed upon the land.
(10) (a) The division may fill any voids, seal any abandoned tunnels, shafts,
and entryways, and reclaim surface impacts of underground or surface mines which
the division determines could endanger life and property, constitute a hazard to
the public health and safety, or degrade the environment.
(b) The division may make expenditures and carry out the purposes of this
section without regard to the provisions of Subsections 40-10-25(2) and (3) only
after all reclamation with respect to abandoned coal lands or coal development
impacts have been met, except for those reclamation projects relating to the
protection of the public health or safety.
(c) In those instances where mine waste piles are being reworked for
conservation purposes, the incremental costs of disposing of the wastes from
these operations by filling voids and sealing tunnels may be eligible for
funding if the disposal of these wastes meets the purposes of this section.
(d) The division may acquire by purchase, donation, easement, or otherwise those
interests in land it determines necessary to carry out the provisions of this
section.
(11) (a) The division may request the attorney general, who is hereby authorized
to initiate, in addition to any other remedies provided for in this chapter, in
any court of competent jurisdiction, an action in equity for an injunction to
restrain any interference with the exercise of the right to enter or to conduct
any work provided in this section.
(b) (i) The division, in conjunction with appropriate state agencies as
determined in the rules, may construct and operate plants for the control and
treatment of water pollution resulting from mine drainage.
(ii) The extent of this control and treatment of water pollution may be
dependent upon the ultimate use of the water.
(iii) This subsection may not be construed to repeal or supersede any portion of
the federal Water Pollution Control Act, 33 U.S.C. Sec. 1151 et seq., and no
control or treatment under this subsection shall in any way be less than that
required under the federal Water Pollution Control Act.
(iv) The construction of a plant may include major interceptors and other
facilities appurtenant to the plant.
(c) The division may transfer funds to other appropriate state agencies, in
order to carry out the reclamation activities authorized by this chapter.

Amended by Chapter 135, 1997 General Session
Download Code Section Zipped WordPerfect 40_10_002700.ZIP 5,944 Bytes

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Last revised: Wednesday, October 08, 2008

More good stuff on police powers/ private property rights and AMR:

https://fs.ogm.utah.gov/pub/MINES/AMR_Related/NAAMLP/Politics/Girol.pdf

A famous Fed case on private property rights and AMR:

http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=us&vol=452&invol=264

-Russ

[UnderUtah]

Thanks Russ, again very interesting that the statute refers ONLY to "past coal mining," and I would interpret that both the spirit of the statute and the letter are, in fact, referring to past coal mining operations only...I don't recall reading about past hard-rock mining operations, or just plain "mining" operations at all. It repeatedly and without deviation refers to "Coal Mining" only. How would it be to interpret and take or cause action based on your own interpretation of any law on the books? With this broad definition will the program begin to close old potato cellars in private residences? They are all the same based on that liberal interpretation. An attractive nuisance is an attractive nuisance whether behind a door in someone's private residence or on a mountain top on someone's private property. All conflated as the same in their book. I had better not dig too deep a hole to plant my trees next spring less my property be lawfully entered by contractors with rebar and cement to place a collar around my planter box. ever interesting departmental philosophies...

Thanks

[Stuart]

I had better not dig too deep a hole to plant my trees next spring less my property be lawfully entered by contractors with rebar and cement to place a collar around my planter box. Laughing ever interesting departmental philosophies...

Soo funny!

[UnderUtah]

Funny, or frighteningly poignant? YOU decide... P.S. Stu, where's your harness and gear! I want to push our discovery further before the snow is 4' deep!

[Stuart]

Chillin

P.S. Stu, where's your harness and gear! I want to push our discovery further before the snow is 4' deep!

Its all just chilling in my front room. When I return from Alaska we will need to go down that mysterious wind tunnel ASAP, I can't wait to see where it goes!

Funny, or frighteningly poignant?

Frighteningly poignant to the point of sheer hilarity! I have been closely reading this topic for a while, very interesting indeed.