SEPTEMBER 24, 2015 CROW TRIBAL LEGISLATURE SPECIAL SESSION

SEPTEMBER 24, 2015 CROW TRIBAL LEGISLATURE SPECIAL SESSION

LR No. 15-11

Introduced by the Natural Resources Committee

A Legislative Resolution Titled:

A RESOLUTION OF THE CROW TRIBAL LEGISLATURE APPROVING THE BIG

METAL SURFACE ACCESS AGREEMENT

Legislative Findings:

WHEREAS, pursuant to Joint Action Resolution No. JAR13-01, the Crow Tribal

Legislature and the Chairman of the Executive Branch approved the Exploration Agreement,

Option to Lease Agreement, and Coal Leases between the Crow Tribe of Indians and Big Metal

Coal Co. LLC in January 2013 (collectively, the “Big Metal Agreements”) covering

approximately 1.4 billion tons of Tribal coal in the southeastern portion of the Reservation; and

WHEREAS, the BIA Regional Director approved the Option to Lease Agreement and

the Exploration Agreement on June 14, 2013 pursuant to the Indian Mineral Development Act of

1982; and

WHEREAS, following BIA approval, Big Metal Coal Co. LLC (“Big Metal”) has

diligently pursued coal exploration, environmental studies, cultural resource surveys, surface

landowner access agreements, and other activities necessary for the development of the Tribal

coal in the Big Metal Project Area; and

WHEREAS, since BIA approval, and in compliance with the Big Metal Agreements,

Big Metal has made option payments to the Crow Tribe totaling $6.75 million, together with

$152,935 in Scholarship payments and in excess of $400,000 in other Tribal regulatory

payments, including for cultural resource surveys and TERO fees; and

WHEREAS, Big Metal has completed initial coal exploration drilling, and the

Exploration Agreement, as extended pursuant to its terms, will expire on September 28, 2015;

and

WHEREAS, Big Metal plans to continue pursuing permitting and development efforts

toward the possible exercise of the first Option pursuant to the Option Agreement, and in order

to continue such efforts, it is necessary for Big Metal to have continued access to Tribal surface

lands after the Exploration Agreement expires and until Options are exercised and Coal Leases

receive final approval by the BIA; and

A RESOLUTION OF THE CROW TRIBAL LEGISLATURE APPROVING THE BIG METAL

SURFACE ACCESS AGREEMENT

September 24, 2015 Special Session

Page | of 2

WHEREAS, to allow for these continued development activities, the Chairman of the

Executive Branch has negotiated a Surface Access Agreement, attached hereto and incorporated

by reference, that provides legal access to Tribal surface lands within the Big Metal Project Area

for the purposes, among other things, of collecting environmental samples and water quality

information, conducting archaeological and cultural resource surveys, and other mine and

environmental permitting activities, conducting land surveys and mapping, and ingress and

egress for access to neighboring lands for similar purposes; and

WHEREAS, allowing for Big Metal’s continued access to Tribal lands within the Project

Area, without additional compensation to the Tribe, is in the best interests of the Crow Tribe and

Tribal members with the objective of developing Tribal coal to provide revenue to the Tribal

Government, and employment and per capita payments to Tribal members;

NOW, THEREFORE, BE IT RESOLVED BY THE CROW TRIBAL LEGISLATURE IN

SPECIAL SESSION:

That in furtherance of the objectives of JAR13-01, the Chairman of the Executive Branch is

hereby authorized to execute, and take such further actions as are necessary to implement and

administer, the Surface Access Agreement attached hereto and incorporated by reference.

BE IT FINALLY RESOLVED:

That this Tribal Resolution shall take effect immediately upon becoming duly adopted by the

Legislature.

CERTIFICATION

I hereby certify that this Legislative Resolution titled; A RESOLUTION OF THE CROW

TRIBAL LEGISLATURE APPROVING THE BIG METAL SURFACE ACCESS

AGREEMENT was duly approved by the Crow Tribal Legislature with a vote of 13 in favor,

_0_ opposed, and _0_ abstained and that a quorum was present on this _24' day of September,

2015. _

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TOX Ch I ee

Senator Patrick Alden, Jr. F

Pro-Tem Speaker of the House

Crow Tribal Legislature yuu,

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A RESOLUTION OF THE CROW TRIBAL LEGISLATURE APPROVING THE BIG METAL |

SURFACE ACCESS AGREEMENT

September 24, 2015 Special Session

Page 2 of 2

A Legislative Resolution Titled: A RESOLUTION OF THE CROW TRIBAL

LEGISLATURE APPROVING THE BIG METAL SURFACE ACCESS AGREEMENT

Bill or Resolution: LR15-11 Introduced by: Natural Resources Committee Date of Vote:_9/24/2015

Number

Representative:

G. Three Irons

B. Rogers

C. Stewart

P. Hill

V. Nomee

R. Old Crow, Sr.

T. Gros Ventre

V. Crooked Arm

P. Spotted Horse, Sr.

L. DeCrane

C. Goes Ahead

B. Hugs

G. Real Bird, Jr.

B. Good Luck

G. Stewart

E. Birdinground

Secretary of the House

Pro-Tem

P. Alden, Jr.

Speaker of the House

Pro-Tem

Totals:

Result of Vote:

Yes

x

No

Abstained

»

~

13

Passed

Not Passed

Tabled Veto-Override

Crk aah | oer Sea pwle, Casares

Senator Pat Alden, Jr.

Pro-Tem Speaker of the House

] Date

Senator Eric Birdinground Date

Pro-Tem Secretary of the House

SURFACE ACCESS AGREEMENT

THIS AGREEMENT is made and entered into effective this___ day of September,

2015 (“Effective Date”), by and between the CROW TRIBE OF INDIANS (Apsaalooke

Nation) of the Crow Reservation, whose address is P.O. Box 159, Crow Agency, Montana

59022 (“Crow Tribe”), and BIG METAL COAL CO. LLC, with its principal place of

business at 505 South Gillette Avenue, Gillette, Wyoming 82716 (“Big Metal”).

To facilitate continued collection of environmental and archaeological data upon

expiration of the Exploration Agreement between the parties and until Big Metal exercises

its rights under the Option to Lease Agreement (“Option”), the Crow Tribe desires to grant

Big Metal access to surface land it owns which are described below. In consideration of

the payments made under the Exploration Agreement, the receipt and sufficiency of which

are hereby acknowledged, it is agreed:

1. The Crow Tribe is the owner of the Subject Lands held in trust for their benefit

by the United States.

2: The Crow Tribe grants to Big Metal, which under this Agreement, shall

include Big Metal's successors, assigns, employees, affiliates, agents and

representatives, subject to limitations hereinafter stated, a non-exclusive right of access

for the sole purpose of accessing for environmental studies, archaeological studies, and

ingress and egress, to those lands which the Crow Tribe holds an interest, or acquires an

interest during the term of this Agreement, within the following described area (“Subject

Lands’):

Township 8 South, Range 38 East, MPM

Those portions of Sections 13-36 lying west of the 107" Meridian

Township 8 South, Range 37 East, MPM

Sections 10-15, 22-27, and 34-36

Township 9 South, Range 38 East, MPM

Those portions of all Sections lying west of the 107" Meridian

Township 9 South, Range 37 East, MPM

Sections 1, 12, 13

Township 10 South, Range 38 East, MPM

Those portions of Sections 1, 2, 3, 4, 5, and 6 lying west of the 107" Meridian

A map depicting the Subject Lands is attached as Exhibit 1. As of the date of this

Agreement, tracts in which the surface is wholly-owned by the Crow Tribe consist of

approximately 1,960 acres.

3. The Option, subsequent coal leases and associated payments made by Big

Metal to the Crow Tribe shall be good and sufficient consideration for this Agreement.

4. Big Metal’s access under this Agreement shall continue:

A. So long as Big Metal continues to make all payments required by the Option

or under any Coal Lease with the Crow Tribe, or

B. For six (6) years from the Effective Date, which shall automatically renew,

unless either party provides notice of termination thirty (30) days prior to the

renewal,

Whichever shall first occur.

5. Big Metal shall have the following rights during the term of this Agreement:

A. The right of ingress and egress to enter onto Subject Lands to collect

vegetation, soil or other environmental samples, conduct archeological and

soil surveys, collect water quality information, and otherwise conduct

whatever activities are necessary to complete environmental baseline

studies (collectively, "Work").

B. The right of ingress and egress on Subject Lands to transport over or onto

Subject Lands any and all equipment necessary to survey and collect any

and all environmental and other data required to obtain a Governmental

Permit and/or to support Big Metal's Work.

C. The right to survey and establish survey points or targets for mapping

purposes.

D. The right to cross Subject Lands to access neighboring property through use

of already existing roads or established tracks and gates. The right to

construct new access roads through and across Subject Lands is permitted

only as approved by the Crow Tribe and as further set forth herein.

6. Big Metal shall have the right to collect any and all environmental,

archeological and other data required for a Governmental Permit, subject to the provisions

in Paragraph 7. Big Metal shall have the right to drill and establish water-monitoring wells,

establish surface water monitoring sites, and establish air quality monitoring sites

("Monitoring Sites") for the purpose of collecting environmental data required to obtain a

Governmental Permit. If Big Metal determines to establish Monitoring Sites, it shall notify

and coordinate the location of the Monitoring Sites with the Crow Tribe and sites will

be established in compliance with applicable governmental regulation. Upon removal

of the Monitoring Sites, Big Metal shall retain the right of ingress and egress to reclaim

the Monitoring Sites as required by applicable governmental regulation to obtain bond

release.

7. Big Metal shall obtain necessary archeological and cultural resource

clearances in accordance with the Apsaalooke Cultural Resource Protection Act, the

National Historic Preservation Act, Native American Graves Protection and Repatriation

Act, the Archaeological Resources Protection Act of 1979, and other applicable Federal

and Tribal cultural resource protection laws as to which Big Metal has been notified,

before the start of any exploration activities. When directed by the Tribe or the Secretary,

Big Metal shall obtain, at its own expense, a qualified archaeologist to examine and, if

necessary, excavate or recover any ruins or other objects of historical or cultural

significance located on the Subject Lands. The Tribe shall provide to Big Metal or its

archaeologist information and locations of all known or expected cultural resource sites,

including sites of religious and traditional importance as such phrase is used in the

National Historic Preservation Act, Section 101(d), that are present on the Subject Lands

and further designate those sites it desires be designated for specific protection, which

protection may include restriction or prohibition of rights provided in this Agreement and

in the immediate vicinity of those sites. Such mitigation or recovery actions will be

conducted only after consultation with the Tribe, including its Tribal Historic Preservation

Officer, the Bureau of Indian Affairs, and the Advisory Council on Historic Preservation, if

appropriate, and in accordance with agreements reached through such consultation. Any

objects that are excavated or recovered shall be turned over to the Tribe or the

appropriate Federal agency for curative, storage, display or other use or disposal at the

expense of the Tribe or Federal agency unless otherwise agreed by parties to the

consultation, including Big Metal.

8. Big Metal, at its sole option, may terminate this Agreement at any time.

Regardless of the length of this Agreement, Big Metal's right to enter upon Subject Lands

for purposes of completing reclamation, as described herein, shall not terminate until

reclamation is complete.

9. This Agreement is granted upon the following express terms, covenants,

and conditions:

A. Damages. Big Metal shall conduct all operations authorized in this

Agreement with due regard to preventing damages to watersheds and

water resources, vegetation, timber, soil, roads, bridges, cattle guards,

fences, and other improvements, including construction, operation, or

maintenance of any of the facilities on or connected with this Agreement

which causes damage to the watershed or pollution of the water

resources. On termination of operations under this Agreement, Big Metal

shall make provisions’ for the conservation, repair, reclamation and

protection of the property on which Big Metal has worked and leave all such

areas in a condition that will not be hazardous to life and limb, and will be to

the reasonable satisfaction of the Tribe and the Superintendent.

B. Liability for Damage. Big Metal is liable for any and all damages resulting

from its operations under this Agreement, including injury to the Crow Tribe,

and each individual, tenants, licensees, and/or surface owners, and for any

3

and all damage to, or destruction of, all property caused by Big Metal's

operations hereunder. Big Metal agrees to save and hold the Crow Tribe,

and each individually, the United States, licensees, the surface owners and

their tenants harmless from all suits for injury or claims for damages to

persons and property resulting from Big Metal's operations under this

Agreement.

Forest Protection. Big Metal hereby agrees:

(1)

(4)

Not to cut, destroy, or damage timber that exceeds six (6) inches in

diameter without prior authority of the Crow Tribe and the BIA

Superintendent or his or her authorized representative, such

authorization to be made only where required by Big Metal, pursuant

to necessary mining operations.

To pay for all such timber that exceeds six (6) inches in diameter

and is cut, destroyed, or damaged at rates prescribed by the

Superintendent or his or her authorized representative, such rates to

be determined on the basis of sales of similar timber in the vicinity.

Not to interfere with the sale or removal of timber from Subject Lands

by contractors operating under an approved timber sales contract

now in effect or which may be entered into during the term of this

Agreement.

To do all in its power to prevent and suppress forest, brush, or grass

fires on Subject Lands and to require its employees, contractors,

subcontractors, and employees of contractors or subcontractors to

do likewise. To place its employees, its contractors, subcontractors,

and the employees of such contractors or subcontractors employed

on Subject Lands, who are qualified to suppress fires, at the disposal

of any authorized officer of the BIA for the purpose of suppressing

forest, brush, or grass fires with the understanding that the payment

for such services shall be made at rates to be determined by the

Superintendent or his or her authorized representative, which rates

shall not be less than the rates of pay prevailing in the vicinity for

services of similar character, provided that no payment shall be

made for services rendered for the suppression of fires for which Big

Metal, its employees, contractors, or subcontractors, or the

employee of such contractors or subcontractors, are responsible.

To pay for the loss of all timber ten (10) inches or more in diameter

occasioned by fires for which it, or any of its employees, it

contractors, subcontractors, or the employees of such contractors or

subcontractors, or the employees of such contractors or

subcontractors, are responsible for the start or spread, the

assessment of the value of such damages to be determined by the

4

Superintendent or his or her authorized representative on the basis

of the value of such timber on sales of similar timber in the vicinity.

Also, to pay liquidated damages for all young timber less than ten

(10) inches in diameter destroyed by such fires and to pay fall costs

for the suppression of fires for which it, or any of its employees,

contractors, or subcontractors, or employees of such contractors or

subcontractors, is responsible.

(6) Not to burn rubbish, trash, or other inflammable materials, except

with the consent of the authorized representatives of the Crow Tribe

and the BIA Superintendent, and not to use explosives in such a

manner as to scatter inflammable materials on the surface of Subject

Lands during the fire season, except as authorized to do so by such

representatives.

Inspection. Subject Lands and the operations and appurtenances of Big

Metal may be inspected by the authorized representatives of the Crow

Tribe, and their agents or any authorized representative of the Secretary

of the Interior upon reasonable notice to Big Metal.

Roads. Big Metal may use existing roads, if any, on Subject Lands and shall

have the privilege of constructing and maintaining, at its own expense, any

additional roads across Subject Lands that are necessary in carrying on the

actual prospecting and exploration work, providing that the location of such

roads be approved in writing by the Chairman of the Crow Tribe and the

Superintendent of the Crow Indian Agency. No part of any road or roads

shall inure to the benefit of the public and the public shall obtain no rights

thereon, but upon termination of this Agreement for any cause whatsoever,

or if at any time it shall become unnecessary for Big Metal to use any such

road for conducting the operations authorized under this Agreement or

subsequent lease, the right to use said road shall thereupon cease and the

Crow Tribe shall have the option to require Big Metal to reclaim the

additional roads it constructed to their original condition, to the extent

reasonably practicable, or preserve such roads with all the rights vesting in

the Crow Tribe in accordance with law. Big Metal shall hold the Crow Tribe,

and each individually, and the United States harmless and indemnify them

against any and all loss or damage that might result from the construction

or maintenance by Big Metal of said roads in a negligent manner; provided,

however, The Crow Tribe hereby acknowledges that said roads are being

built for limited use for exploration purposes as specifically described herein,

and Big Metal shall have no obligation hereunder to maintain such roads for

uses in addition to those uses specifically described herein. Upon

termination of this Agreement, Big Metal shall have no obligation to maintain

any roads constructed or maintained by Big Metal under this Agreement.

M.

Rights-of-Way. Applications for rights-of-way shall be made by Big Metal

pursuant to the requirements of 25 C.F.R. 169.

Water. Subject to consent of the Crow Tribe, and the approval of the BIA

Superintendent as applicable, Big Metal may use surface water on Subject

Lands for drilling use insofar as the Crow Tribe has the right to grant such

use. Big Metal shall obtain any Tribal, other Federal, or, if applicable, state

permits required for water use or appropriation or water well drilling and

appurtenant water use on the Crow Reservation, including but not limited to

compliance with Tribal water rights laws and regulations.

Assignment. Big Metal agrees not to assign the permit or any interest therein

to any third party except with the written approval of the Secretary of the

Interior or his authorized representative.

Surrender_and Termination. Big Metal may, in writing, surrender this

Agreement at any time upon the performance of all Big Metal's obligations

hereunder and upon a showing satisfactory to the Crow Tribe and the

Secretary of the Interior or his or her authorized representative, that full

provision has been made for the conservation and protection of the property

on which Big Metal worked. If this Agreement has been recorded, Big Metal

shall file a recorded release with its application for surrender.

Regulations. Big Metal agrees to comply with all the laws and regulations

applicable to Subject Lands and mineral leases on Indian lands, including,

but not limited to, regulations in 25 C.F.R. Parts 211 and 216.

Bond. If required by applicable laws, Big Metal shall furnish to the

Superintendent of the Crow Indian Agency, Crow Agency, Montana, an

acceptable surety reclamation bond in the amount required by the

Governmental Permit.

Cancellation and Forfeiture. When, in the opinion of the Secretary of the

Interior or his or her authorized representative, there has been a material

violation of any of the terms and conditions of this Agreement or the

applicable regulations, the Secretary or his authorized representative may

at any time after thirty (30) days’ written notice to Big Metal, specifying the

violations, declare this Agreement void; provided, however, that such a

declaration shall not be effective should Big Metal cure any such violation

before the end of the thirty (30) day period.

A copy of this Agreement shall at all times be in the possession of the crew

chief or some other member of Big Metal's crew while conducting the field

operations.

During the field operations, no employees or contractors of Big Metal may

hunt, fish, or carry firearms within Subject Lands.

6

O. Big Metal shall remove all paper, cans, wire, and other refuse it deposits on

Subject Lands.

P; Big Metal shall use all commercially reasonable technology to prevent the

propagation of noxious weeds on the Subject Lands, and control all noxious

weeds as may become established within areas used or disturbed by Big

Metal. Any ground disturbance created by Big Metal shall be reseeded and

noxious weeds controlled, to the extent commercially reasonable, until

areas disturbed by Big Metal are returned to as good condition as existed

prior to Big Metal’s use.

10. Authority. The Chairman of the Executive Branch of the Crow Tribe is

authorized to execute this Agreement on behalf of the Crow Tribe by the Act of the Crow

Joint Action Resolution No. JAR13-01 (January 2013) and Legislative Resolution No.

LR15-____ (September 15, 2015). Pending approval by the BIA Superintendent, this

Agreement is authorized by 25 U.S.C. § 81.

IN WITNESS WHEREOF, the undersigned has executed this Agreement as of

the date and year first above written.

CROW TRIBE OF INDIANS

By: Darrin Old Coyote

Its: | Chairperson

BIG METAL COAL CO. LLC

Bruce E. Jones

Its: | Vice President of Technical Services

Big Metal Coal Co. LLC

Attn. Land Department

505 S. Gillette Avenue (82716)

P.O. Box 3009

Gillette, WY 82717

(307) 685-6120

APPROVED this

day of

, 20

SUPERINTENDENT

Authority in accordance with 209 DM8, 230

DM1, 3 IAM 4 (release No. 00-03), 10 BIAM 11,

as amended, and further delegations as

needed to effectuate the Reorganization

embodied in DM Release dated April 21, 2003,

and in accordance with 25 USC 2218, inclusive

of subparts (a), (b), (c), (d), (e), and (f).

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