areas upon which are sited structures, facilities, or other property or

Tribal code

Ask Donna

What actually matters in this document.

Text

(c)

Sec. 313.

(a)

areas upon which are sited structures, facilities, or other property or

materials on the surface, resulting from or incident to such activities,

operate in accordance with the standards established under Section 311 of

this Code for such effects which result from surface coal mining

operations: Provided, That the Director shall make such modifications in

the requirements imposed by this subparagraph as are necessary to

accommodate the distinct difference between surface and underground

coal mining;

(11) _ to the extent possible using the best technology currently available,

minimize disturbances and adverse impacts of the operation on fish,

wildlife, and related environmental values, and achieve enhancement of

such resources where practicable; and

(12) locate openings for all new drift mines working acid-producing or ironproducing coal seams in such a manner as to prevent a gravity discharge

of water from the mine.

In order to protect the stability of the land, the CCRO shall suspend underground

coal mining under urbanized areas, cities, towns, and communities and adjacent to

industrial or commercial buildings, major impoundments, or permanent streams if

imminent danger to inhabitants of the urbanized areas, cities, towns, and

communities are found.

The provisions of this Code relating to Crow Tribal and Federal programs,

permits, bonds, inspections and enforcement, public review, and administrative

and judicial review shall be applicable to surface operations and surface impacts

incident to an underground coal mine with such modifications to the permit

application requirements, permit approval or denial procedures, and bond

requirements as are necessary to accommodate the distinct difference between

surface and underground coal mining. The Director of the CCRO shall

promulgate such modifications in accordance with the rulemaking procedure

established in Section 311 of this Code.

Annual Mining and Reclamation Report

A permittee shall file with the CCRO a report on each mining operation

conducted during the calendar year. The report must be filed on or before March

thirty-first of each year in which the mining operation is conducted, unless

otherwise approved by the CCRO. The annual report must be on a form provided

by the CCRO which must, in addition to any other permit requirements or data

required by the CCRO, include:

April 2010 Legislative Session

Crow Coal Mining and Reclamation Code

Page 44 of 77

(b)

(c)

(1)

(2)

(6)

the permit number or numbers and the name and address of the permittee,

landowner, and of the person or entity conducting the mining operation,

and, if any of these are corporations, limited liability companies, or other

business entities, the names and addresses of their principal officers or

managers, and resident agent for service of process;

a report in such detail as the CCRO shall require, supplemented with

maps, cross sections, or other material indicating the extent to which

mining operations have been carried out, the progress of all reclamation

work, including the type of planting or seeding, mixture and amount of

seed, date of planting or seeding, and area of land planted, the extent to

which permit requirements have been met and the extent to which

expectations and predictions made in the original application have been

fulfilled and any deviation therefrom, and the number and location of

acres affected by year; maps must be of sufficient detail to show the

boundaries of the affected land, topographic detail, the location and names

of all streams, roads, railroads, and utility lines and pipes on or

immediately adjacent to the affected land, and the location of access roads;

a revised schedule or timetable of operations and reclamation and an

estimate of the number and location of acres to be affected during the next

1-year period;

the cubic yardage of mineral mined and overburden disturbed by the

mining operation for the calendar year covered by the report;

an estimate of the cubic yardage of mineral to be mined and overburden to

be disturbed by the coal mining operation during the calendar year next 1-

year period; and

the date of completion or abandonment of all or part of the mining

operation, if completed or abandoned.

Upon receipt of the annual report, the CCRO may make further inquiry and

request further information and, if it does so, shall allow a reasonable opportunity

for the operator to respond.

When problem situations are revealed by review of new information or as a result

of field inspections, the CCRO may order such changes in the mining and

reclamation plans as are necessary to insure compliance with this part.

April 2010 Legislative Session

Crow Coal Mining and Reclamation Code

Page 45 of 77

Sec. 314.

(a)

(b)

(c)

Inspections and Monitoring

The CCRO shall cause to be made such inspections of any coal mining and

reclamation operations as are necessary to evaluate the administration of approved

Tribal programs, or to develop of enforce any CCRO program, and for such

purposes authorized representatives of the Director of the CCRO shall have a

right of entry to, upon, or through any coal mining and reclamation operations.

The monitoring data collection and analysis required by this section shall be

conducted according to standards and procedures set forth by the CCRO in order

to assure their reliability and validity.

For the purpose of developing or assisting in the development, administration, and

enforcement of any approved Tribal or Federal program under this Code or in the

administration and enforcement of any permit under this Code, or of determining

whether any person is in violation of any requirement of any such Tribal or

Federal program or any other requirement in this Code:

(1) the CCRO shall require any permittee to:

(A) _ establish and maintain appropriate records;

(B) make monthly reports to the CCRO;

methods;

(D) evaluate results in accordance with such methods, at such

locations, intervals, and in such manner as the CCRO shall

prescribe; and

(E) provide such other information relative to coal mining and

reclamation operations as the CCRO deems reasonable and

necessary;

(2) for those coal mining and reclamation operations which remove or disturb

strata that serve as aquifers which significantly insure the hydrologic

balance of water use either on or off the mining site, the CCRO shall

specify those:

April 2010 Legislative Session

Crow Coal Mining and Reclamation Code

Page 46 of 77

(e)

(A) monitoring sites to record the quantity and quality of surface

drainage above and below the minesite as well as the potential

zone of influence;

(B) monitoring sites to record level, amount, and samples of ground

water and aquifers potentially affected by the mining and also

directly below the lowermost (deepest) coal seam to be mined;

(D) monitoring sites to record precipitation;

the authorized representatives of the CCRO, without advance notice and

upon presentation of appropriate credentials:

(A) | shall have the right of entry to, upon, or through any coal mining

and reclamation operations or any premises in which any records

required to be maintained under paragraph (1) of this subsection

are located; and

(B) may at reasonable times, and without delay, have access to any

copy any records, inspect any monitoring equipment or method of

operation under this Code.

The inspections by the CCRO shall:

()

occur on an irregular basis averaging not less than one partial inspection

per month and one complete inspection per calendar quarter for the coal

mining and reclamation operation covered by each permit;

occur without prior notice to the permittee or his agents or employees

except for necessary on-site meetings with the permittee or his agents; and

include the filing of inspection reports adequate to enforce the

requirements of this Code and to carry out the terms and purposes of this

Code.

Each permittee shall conspicuously maintain at the entrances to the coal mining

and reclamation operations a clearly visible sign which sets forth the name,

business address, and telephone number of the permittee and the permit number

of the coal mining and reclamation operations

April 2010 Legislative Session

Crow Coal Mining and Reclamation Code

Page 47 of 77

(6)

(h)

Seo. 315.

(a)

Each inspector, upon detection of each violation of any requirement of this Code,

shall forthwith inform the operator in writing, and shall promptly report in writing

any such violation to the CCRO.

Copies of any records, reports, inspection materials, or information obtained

under this Title by the CCRO shall be made immediately available to the public at

central and sufficient locations, within the Crow Indian Reservation, so that they

are conveniently available to residents in the areas of mining.

(1) Any person who is or may be adversely affected by a mining and

reclamation operation may notify the Director of the CCRO or any

representative of the CCRO responsible for conducting the inspection, in

writing, of any violation of this Code which he has reason to believe exists

at the coal mining and reclamation site. The Director of the CCRO shall,

by regulation, establish procedures for informal review of any refusal by a

representative of the CCRO to issue a citation with respect to any such

alleged violation. The Director of the CCRO shall furnish such persons

requesting the review a written statement of the reasons for the CCRO's

final disposition of the case.

(2) The Director of the CCRO shall also, by regulation, establish procedures

to ensure that adequate and complete inspections are made. Any such

person may notify the Director of the CCRO of any failure to make such

inspections, after which the Director of the CCRO shall determine whether

adequate and complete inspections have been made. The CCRO shall

furnish such persons a written statement of the reasons for the CCRO's

determination that adequate and complete inspections have or have not

been made.

Penalties

In the enforcement of the Code any permittee who violates any permit conditions

or who violates any other provisions of this Code, may be assessed a civil penalty

by the Director of the CCRO, except that if such violation leads to the issuance of

a cessation order under Section 318 the civil penalty shall be assessed. Such

penalty shall not exceed $5,000 for each violation. Each day of continuing

violation may be deemed a separate violation for purposes of penalty assessment.

In determining the amount of the penalty, consideration shall be given to the

permittee's history of previous violations at the particular coal mining operation;

the seriousness of the violation, including any irreparable harm to the

April 2010 Legislative Session

Crow Coal Mining and Reclamation Code

Page 48 of 77

(b)

(c)

environment and any hazard to the health or safety of the public; whether the

permittee was negligent; and the demonstrated good faith of the permittee charged

in attempting to achieve rapid compliance after notification of the violation.

A civil penalty shall be assessed by the Director of the CCRO only after the

person charged with a violation described under subsection (a) of this section has

been given an opportunity for a public hearing. Where such a public hearing has

been held, the Director of the CCRO shall make findings of fact, and shall issue a

written decision as to the occurrence of the violation and the amount of the

penalty which is warranted, incorporating, when appropriate, an order therein

requiring that the penalty be paid. When appropriate, the Director shall

consolidate such hearings with other proceedings under section 318 of this Code.

Any hearings conducted under this section shal! be of record and shall be subject

to Section 319 of this Code. Where the person charged with such a violation fails

to avail himself of the opportunity for a public hearing, a civil penalty shall be

assessed by the Director after the Director has determined that a violation did

occur, and the amount of the penalty which is warranted, and has issued an order

requiring that the penalty be paid.

Upon the issuance of a notice or order charging that a violation of this Code has

occurred, the Director shall inform the operator within thirty days of the proposed

amount of said penalty. The person charged with the penalty shall then have

thirty days to pay the proposed penalty in full or, if the person wishes to contest

either the amount of the penalty or the fact of the violation, forward the proposed

amount to the CCRO for placement in an escrow account. If through

administrative or judicial review of the proposed penalty, it is determined that no

violation occurred, or that the amount of the penalty should be reduced, the

CCRO shall within thirty days remit the appropriate amount to the person, with

interest at the rate of 6 percent per year, or at the prevailing U.S. Department of

the Treasury rate, whichever is greater. Failure to forward the money to the

CCRO within thirty days shall result in a waiver of all legal rights to contest the

violation or the amount of the penalty.

Civil penalties owed under this Code may be recovered in a civil action brought in

the Crow Tribal Court by the Tribal prosecutor or a Tribal attorney at the request

of the Director of the CCRO. As a condition of their permits issued pursuant to

this Code, permittees shall be deemed to have consented to the Crow Tribal

Court's jurisdiction to enter judgment against them for the civil penalties owed

under this Code.

April 2010 Legislative Session

Crow Coal Mining and Reclamation Code

Page 49 of 77

(°)

(g)

(h)

Any person who willfully and knowingly violates a condition of a permit issued

pursuant to this Code or who fails or refuses to comply with any order issued

under section 318 or section 324, or any order incorporated in a final decision

issued by the CCRO under this Code, except an order incorporated in a decision

issued under subsection (b) of this section or section 407 of this Code shall, upon

conviction, be punished by a fine of not more than $10,000, or by imprisonment

for not more than one year of both.

Whenever a corporate permittee violates a condition of a permit issued pursuant

to this Code or fails or refuses to comply with any order issued under any section

of this Code or any order incorporated in a final decision issued by the CCRO

under this Code except an order incorporated in a decision issued under

subsection (b) of this section or section 406 of this Code, any director, officer, or

agent of such corporation who willfully and knowingly authorized, ordered, or

carried out such violation, failure, or refusal shall be subject to the same civil

penalties, fines, and imprisonment that may be imposed upon a person under

subsections (a) and (e) of this section.

Whoever knowingly makes any false statement, representation, or certification, or

knowingly fails to make any statement, representation, or certification in any

application, record, report, plan, or other document filed or required to be

maintained pursuant to this Code or any order or decision issued by the CCRO

under this Code, shall, upon conviction, be punished by a fine of not more than

$10,000, or by imprisonment for not more than one year or both.

Any operator who fails to correct a violation for which a citation has been issued

under section 318(a) within the period permitted for its correction which period

shall not end until the entry of a final order by the CCRO, in the case of any

review proceedings under section 323 initiated by the operator wherein the CCRO

orders, after an expedited hearing, the suspension of the abatement requirements

of the citation after determining that the operator will suffer irreparable loss or

damage from the application of those requirements, or until the entry of an order

of the court, in the case of any review proceedings under section 324 initiated by

the operator wherein the court orders the suspension of the abatement

requirements of the citation, shall be assessed a civil penalty of not less than

$1,000 for each day during which such failure or violation continues.

Nothing herein shall be construed to eliminate or reduce the effect or validity of

any additional enforcement right or procedure available under Tribal law to the

CCRO but which are not specifically enumerated in this Code.

April 2010 Legislative Session

Crow Coal Mining and Reclamation Code

Page 50 of 77

Sec. 316.

(a)

(b)

Citations for criminal penalties prescribed in this Section 315 may be issued by

the CCRO or the Tribal Prosecutor, shall be deemed issued under Section 518 of

SMCRA, and shall be referred to the Office of Surface Mining and the U.S.

Attorney for the District of Montana for prosecution. Citations for criminal

penalties prescribed in this Section 315 may also be issued by the Office of

Surface Mining pursuant to Section 518 of SMCRA. Pursuant to Section 710(j)

of SMCRA (30 U.S.C. § 1300), any criminal action brought under this Section

315 or Section 518 of SMCRA for violations of this Code with respect to coal

mining or reclamation operations shall be brought in:

(1) the United States District Court for the District of Columbia; or

(2) the United States District Court for the District of Montana.

Release of Performance Bonds or Deposits

The permittee may file a request with the CCRO for the release of all or part of a

performance bond or deposit. Within thirty days after any application for bond or

deposit release has been filed with the CCRO, the operator shall submit a copy of

an advertisement placed at least once a week for four successive weeks in a

newspaper of general circulation in the locality of the coal mining operation.

Such advertisement shall be considered part of any bond release application and

shall contain a notification of the precise location of the land affected, the number

of acres, the permit and the date approved, the amount of the bond filed and the

portion sought to be released, and the type and appropriate dates of reclamation

work performed, and a description of the results achieved as they relate to the

operator's approved reclamation plan. In addition, as part of any bond release

application, the applicant shall submit copies of letters which he has sent to

adjoining property owners, Tribal, federal, and local governmental bodies,

planning agencies, and sewage and water treatment authorities, or water

companies in the locality in which the coal mining and reclamation activities took

place, notifying them of his intention to seek release from the bond or deposit.

Upon receipt of the notification and request, the CCRO shall within thirty days

conduct an inspection and evaluation of the reclamation work involved:

Provided, however, that weather and road conditions permit such inspection and

evaluation to be conducted. If weather and road conditions preclude such

inspection and evaluation from being conducted within thirty days of the

notification and request by the CCRO, the Director shall notify the operator in

writing of the conditions causing such preclusion, and shall conduct such

April 2010 Legislative Session

Crow Coal Mining and Reclamation Code

Page 51 of 77

(c)

inspection and evaluation at the earliest possible date. Such evaluation shall

consider, among other things, the degree of difficulty to complete any remaining

reclamation, whether pollution of surface and subsurface water is occurring, the

probability of continuance of future occurrence of such pollution, and the

estimated cost of abating such pollution. The CCRO shall notify the permittee in

writing of its decision to release or not to release all or part of the performance

bond or deposit within sixty days from the inspection and evaluation, if no public

hearing is held pursuant to section 316(f), and if there has been a public hearing

held pursuant to section 316(f), within thirty days thereafter.

The CCRO may release in whole or in part said bond or deposit if the CCRO is

satisfied the reclamation covered by the bond or deposit or portion thereof has

been accomplished as required by this Code according to the following schedule:

qd) When the operator completes the backfilling regrading, and drainage

control of a bonded area in accordance with his approved reclamation

plan, the release of 60 percent of the bond or collateral for the applicable

permit area.

(2) After revegetation has been established on the regraded mined lands in

accordance with the approved reclamation plan. When determining the

amount of bond to be released after successful revegetation has been

established, the CCRO shall retain that amount of bond for the revegetated

area which would be sufficient for a third party to cover the cost of

re-establishing revegetation and for the period specified for operator

responsibility in section 311 of re-establishing revegetation. No part of

the bond or deposit shall be released under this paragraph so long as the

lands to which the release would be applicable are contributing suspended

solids to stream flow or runoff outside the permit area in excess of the

requirements set by section 311(b)(10) or until soil productivity for prime

farmlands has returned to equivalent levels of yield as nonmined land of

the same soil type in the surrounding area under equivalent management

practices as determined from the soil survey performed pursuant to section

303(b)(16). Where a silt dam is to be retained as a permanent

impoundment pursuant to section 311(b)(8), the portion of bond may be

released under this paragraph so long as provisions for sound future

maintenance by the operator or the landowner have been made with the

CCRO.

April 2010 Legislative Session

Crow Coal Mining and Reclamation Code

Page 52 of 77

)

(©)

(

(3) When the operator has completed successfully all coal mining and

reclamation activities, the release of the remaining portion of the bond or

deposit may be authorized by the Director, but not before the expiration of

the period specified for operator responsibility in section 311: Provided,

however, that no bond or deposit shall be fully released until all

reclamation requirements of this Code are fully met.

If the CCRO disapproves the application for release of the bond or deposit, or

portion thereof, the CCRO shall notify the permittee, in writing, stating the

reasons for disapproval and recommending corrective actions necessary to secure

said release and allowing opportunity for a public hearing.

When any application for total or partial release is filed with the CCRO, the

CCRO shall notify all appropriate divisions of Tribal and federal government and

publish in a newspaper of general circulation in the locality in the area in which a

coal mining operation is located by certified mail at least thirty days prior to the

release of all or a portion of the bond.

Any person with a valid legal interest which might be adversely affected by

release of the bond or deposit or the responsible officer or head of any Tribal,

federal, or local governmental agency which has jurisdiction by law or special

expertise with respect to any environmental, social or economic impact involved

in the operation, or is authorized to develop and enforce environmental standards

with respect to such operations shall have the right to file written objections to the

proposed release from bond to the CCRO within thirty days after the last

publication of the above notice. If written objections are filed, and a hearing

requested, the CCRO shall inform all the interested parties of the time and place

of the hearing, and hold a public hearing in the locality of the coal mining

operation proposed for bond or deposit release within thirty days of the request

for such hearing. The date, time, and location of such public hearings shall be

advertised by the CCRO in a newspaper of general circulation in the locality for

two consecutive weeks, and the CCRO shall hold a public hearing in the locality

of the coal mining operation proposed for bond release or at Crow Agency,

Montana, as determined by the CCRO and stated in the advertisement, within

thirty days of the request for such hearing.

Without prejudice to the rights of the objectors, the applicant, or the

responsibilities of the CCRO pursuant to this section, the CCRO may establish an

informal conference as provided in section 309 to resolve such written objections.

April 2010 Legislative Session

Crow Coal Mining and Reclamation Code

Page 53 of 77

(h)

Sec. 317.

(a)

(b)

For the purpose of such hearing the CCRO shall have the authority and is hereby

empowered to administer oaths, subpoena witnesses, or written or printed

materials, compel the attendance of witnesses, or production of materials, and

take evidence including but not limited to inspections of the land affected and

other coal mining operations carried on by the applicant in the general vicinity. A

verbatim record of each public hearing required by this Code shall be made, and a

transcript made available on the motion of any party or by order of the CCRO.

Citizen Suits

Except as provided in subsection (b) of this section, any person having an interest

which is or may be adversely affected may commence a civil action in the Crow

Tribal Court on his own behalf to compel compliance with this Code:

(1) against the CCRO if alleged to be in violation of the provisions of this

Code or of any rule, regulation, order or permit issued pursuant thereto, or

against any other person who is alleged to be in violation of any rule,

regulation, order or permit issued pursuant to this title; or

(2) against the CCRO where there is alleged a failure of the CCRO to perform

any act or duty under this Code which is not discretionary with the CCRO.

No action may be commenced:

(1) under subsection (a)(1) of this section:

(A) _ prior to sixty days after the plaintiff has given notice in writing of

the violation (i) to the Director of CCRO, (ii) to the Crow Tribe,

and (iii) to any alleged violator; or

(B) _ if the Director of CCRO or the Tribe has commenced and is

diligently prosecuting a civil action in Tribal Court to require

compliance with the provisions of this Code, or any rule,

regulation, order, or permit issued pursuant to this Code, but in any

such action in Tribal Court any person may intervene as a matter of

right; or

(2) under subsection (a)(2) of this section prior to sixty days after the plaintiff

has given notice in writing of such action to the Director of CCRO, in

such manner as the Director shall by regulation prescribe, except that such

action may be brought immediately after such notification in the case

where the violation or order complained of constitutes an imminent threat

April 2010 Legislative Session

Crow Coal Mining and Reclamation Code

Page 54 of 77

to the health or safety of the plaintiff or would immediately affect a legal

interest of the plaintiff.

thereunder may be brought in the Crow Tribal Court.

(2) In such action under this section, the CCRO, if not a party, may intervene

as a matter or right.

(3) The judgment and/or final orders of the Crow Tribal Court in an action

commenced under subsection (a) of this section shall be subject to review

by the Crow Court of Appeals as provided in Title 3 of the Crow Law and

Order Code and the Crow Rules of Appellate Procedure. Actions against

the CCRO shall not be reviewable in any court of the United States

pursuant to Sections 520 and 710(j)(4)(A) of SMCRA (30 U.S.C. §§ 1270

and 1300(j)(4)(A)) unless and until all Tribal proceedings under this Code

and in the Crow Tribal Court system have been completed.

(d) The court, in issuing any final order in any action brought pursuant to subsection

(a) of this section, may award costs of litigation (including attorney and expert

witness fees) to any party, whenever the court determines such award is

appropriate. The court may, if a temporary restraining order or preliminary

injunction is sought require the filing of a bond or equivalent security in

accordance with the Crow Rules of Civil Procedure.

(e) Nothing in this section shall restrict any right which any person (or class of

persons) may have under Tribal law to seek enforcement of any provisions of this

Code and the regulations thereunder, or to seek any other relief (including relief

against the CCRO).

(f) Any person who is injured in his person or property through the violation by any

operator of any rule, regulation, order, or permit issued pursuant to this Code may

bring an action for damages (including reasonable attorney and expert witness

fees) against the operator in the Crow Tribal Court. Nothing in this subsection

shall affect the rights established by or limits imposed under Tribal or other

applicable Workmen's Compensation laws.

Sec. 318. Enforcement

(a) qj) Whenever, on the basis of any information available to it, including

receipt of information from any person, the CCRO has reason to believe

April 2010 Legislative Session

Crow Coal Mining and Reclamation Code

Page 55 of 77

(2)

that any person is in violation of any requirement of this Code or any

permit condition required by this Code, the CCRO shall order inspection

of the coal mining operation at which the alleged violation is occurring

unless the information is available to the CCRO is a result of a previous

inspection of such coal mining operation. After the inspection results, the

CCRO shall notify such person who provided information to cause the

inspection of when the inspection is proposed to be carried out and such

person shall be allowed to accompany the inspector during the inspection.

When, on the basis of any inspection, the CCRO determines that any

condition or practices exist, or that any permittee is in violation of any

requirement of this Code, or any permit condition required by this Code,

which condition, practice, or violation also creates an imminent danger to

the health or safety of the public, or is causing, or can reasonably be

expected to cause significant, imminent environmental harm to land, air or

water resources, the CCRO shall immediately order a cessation of coal

mining and reclamation operations or the portion thereof relevant to the

condition, practice, or violation. Such cessation order shall remain in

effect until the CCRO determines that the condition, practice, or violation

has been abated, or until modified, vacated, or terminated by the CCRO

pursuant to subsection (a)(4) of this section. Where the CCRO finds that

the ordered cessation of coal mining and reclamation operations, or any

portion thereof, will not completely abate the imminent danger to health or

safety of the public of the significant imminent environmental harm to

land, air, or water resources, the CCRO shall, in addition to the cessation

order, impose affirmative obligations on the operator requiring him to take

whatever steps the CCRO deems necessary to abate the imminent danger

or the significant environmental harm.

When, on the basis of an inspection which is carried out during the

enforcement of this Code, the CCRO determines that any permittee is in

violation of any requirement of this Code or any permit condition required

by this Code; but such violation does not create an imminent danger to the

health or safety of the public, or cannot be reasonably expected to cause

significant imminent environmental harm to land, air, or water resources,

the CCRO shall issue a notice to the permittee or his agent fixing a

reasonable time but not more than ninety days for the abatement of the

violation and providing opportunity for public hearing.

April 2010 Legislative Session

Crow Coal Mining and Reclamation Code

Page 56 of 77

(4)

(A) — If, upon expiration of the period of time as originally fixed or

subsequently extended, for good cause shown and upon the written

finding of the CCRO, the CCRO finds that the violation has not

been abated, the CCRO shall immediately order a cessation of coal

mining and reclamation operations or the portion thereof relevant

to the violation. Such cessation order shall remain in effect until

the CCRO determines that the violation has been abated, or until

modified, vacated, or terminated by the CCRO pursuant to

subparagraph (a)(5) of this section. In the order of cessation issued

by the CCRO under this subsection, the CCRO shall determine the

steps necessary to abate the violation in the most expeditious

manner possible, and shall include the necessary measures in the

order.

When, on the basis of an inspection or inspections, the CCRO determines

that a pattern of violations or any requirements of this Code or any permit

conditions required by this Code exists or has existed, and if the CCRO

also finds that such violations are caused by the unwarranted failure of the

permittee to comply with any requirements of this Code or any permit

conditions, or that such violations are willfully caused by the permittee,

the CCRO shall forthwith issue an order to the permittee to show cause as

to why the permit should not be suspended or revoked and shall provide

opportunity for a public hearing. If a hearing is requested the CCRO shall

inform all interested parties of the time and place of the hearing. Upon the

permittee's failure to show cause as to why the permit should not be

suspended or revoked, the CCRO shall forthwith suspend or revoke the

permit.

Notices and orders issued pursuant to this section shall set forth with

reasonable specificity the nature of the violation and the remedial action

required, the period of time established for abatement, and a reasonable

description of the portion of the coal mining and reclamation operation to

which the notice or order applies. Each notice or order issued under this

section shall be given promptly to the permittee or his agent by the CCRO,

and all such notices and orders shall be in writing and shall be signed by

the Director or his authorized representative. Any notice or order issued

pursuant to this section may be modified, vacated, or terminated by the

CCRO. Any notice or order issued pursuant to this section which requires

cessation of mining by the operator shall expire within thirty days of

April 2010 Legislative Session

Crow Coal Mining and Reclamation Code

Page 57 of 77

(b)

()

Sec. 319.

actual notice to the operator unless a public hearing is held at the site or

within such reasonable proximity to the site than any viewing of the site

can be conducted during the course of the public hearing.

The Director of the CCRO may request the Crow Tribal Attorney or the Crow

Tribal Prosecutor to institute a civil action for relief in the Crow Tribal Court

including a permanent or temporary injunction, restraining order, or any other

appropriate order, whenever such permittee or his agent:

(1) violates or fails or refuses to comply with any order or decision issued by

the CCRO under this Code; or

(2) interferes with, hinders, or delays the CCRO or its authorized

representatives in carrying out the provisions of this Code; or

(3) refuses to admit authorized representatives of the CCRO to the mine and

permit area and/or adjacent areas under control or access agreement of

permittee; or

(4) refuses to permit inspection of the mine and permit area and/or adjacent

areas under control or access agreement of permittee by such authorized

representatives of the CCRO; or

(5) refuses to furnish any information or report requested by the CCRO in

furtherance of the provisions of this Code; or

(6) refuses to permit access to, and copying of, such records as the CCRO

determines necessary in carrying out the provisions of this Code.

The Crow Tribal Court shall have jurisdiction to provide such relief as may be

appropriate. Temporary restraining orders shall be issued in accordance with the

Crow Rules of Civil Procedure as amended. Any relief granted by the court to

enforce an order under clause (1) of this section shall continue in effect until the

completion or final termination of all proceedings for review of such order under

this Title, unless, prior thereto, the court sets it aside or modifies it.

Nothing herein shall be construed so as to eliminate any additional enforcement

rights or procedures which are available under Tribal law to the CCRO but which

are not specifically enumerated herein.

Administrative Adjudicatory Hearings

April 2010 Legislative Session

Crow Coal Mining and Reclamation Code

Page 58 of 77

Unless superseded by a general Tribal law governing Tribal administrative adjudicatory

hearings with similar procedural requirements, hearings to be conducted under this Code

pursuant to this Section 319 shall be conducted according to the procedures set forth in

Appendix B.

Sec: 320,

(a)

(b)

(©)

Sec. 321.

(a)

Limited Waiver of Tribal Sovereign Immunity

As required by SMCRA Sec. 710(j)(3), the Crow Tribe hereby grants a limited

waiver of its sovereign immunity against suit for purposes of:

qd) Tribal Court review of civil actions pursuant to Sec. 315 and 324 of this

Code, and Federal Court of Appeals review after full exhaustion of Tribal

administrative and judicial remedies as set forth therein, and

(2) citizen suits in Tribal Court pursuant to Sec. 317 of this Code, and Federal

Court of Appeals review, if applicable, after full exhaustion of Tribal

administrative and judicial remedies as set forth therein.

The Tribe's consent to any federal court review under the limited waiver in

subsection (a) shall only apply after exhaustion of all Tribal administrative and

judicial remedies as set forth in this Code and under other applicable Tribal law.

The limited waiver in subsection (a) shall apply to declaratory and injunctive

relief against the CCRO and the Crow Tribe, their officers and agents, provided,

however, that any monetary liability of the Crow Tribe pursuant to this limited

waiver shall be limited to costs of litigation (including attorney and expert witness

fees) as may be awarded by the court pursuant to Section 317(d) or as elsewhere

expressly provided in this Code, and in no event shall any judgment or other relief

awarded pursuant to this limited waiver result in the encumbrance of any Tribal

trust property or assets.

Designation of Lands Unsuitable for Mining

() The CCRO, in consultation with any other Crow Tribal agency designated

by the Chairman including but not limited to the Crow Tribal Historic

Preservation Office, shall establish a planning process enabling objective

decisions based upon competent and scientifically sound data and

information as to which, if any, Crow coal lands are unsuitable for all or

certain types of coal mining operations pursuant to the standards set forth

in paragraphs (2) and (3) of this subsection. Such decisions shall not

April 2010 Legislative Session

Crow Coal Mining and Reclamation Code

Page 59 of 77

prevent mineral exploration pursuant to this Code of any area designated

as unsuitable for all or certain types of coal mining operations.

(2) Upon petition pursuant to subsection (c) of this section, the CCRO shall

designate an area as unsuitable for all or certain types of coal mining

operations if the CCRO determines that reclamation pursuant to the

requirements of this Code is not technologically and economically

feasible.

(3) Upon petition pursuant to subsection (c) of this section, a surface area may

be designated unsuitable for certain types of coal mining operations if

such operations will:

(A) _ be incompatible with existing Tribal land use plans, policies and

programs; or

(B) affect fragile or historic lands or important cultural sites in which

such operations could result in significant damage to important

historic, cultural, scientific, and esthetic values and natural

systems; or

result in a substantial loss or reduction of long-range productivity

of water supply or of food or fiber products, and such lands to

include aquifers and aquifer recharge areas; or

(D) affect natural hazard lands in which such operations could

substantially endanger life and property, such lands to include

areas subject to frequent flooding and areas of unstable geology.

(4) To comply with this section, the CCRO will be responsible for coal

mining lands review and will demonstrate the Crow Tribe has developed

or is developing a process which includes:

(A) | adata base and an inventory system which will permit proper

evaluation of the capacity of different land areas to support and

permit reclamation of coal mining operations, which may be

maintained by or shared with another Tribal agency with land use

planning responsibilities;

April 2010 Legislative Session

Crow Coal Mining and Reclamation Code

Page 60 of 77

(b)

(c)

(B) | amethod or methods for implementing land use planning decisions

concerning coal mining operations; and

public hearing prior to making any designation or redesignation

pursuant to this section.

(5) Determinations of the unsuitability of land for coal mining, as provided for

in this section, shall be integrated as closely as possible with present and

future Tribal land use planning and regulation processes as established by

Tribal law.

(6) The requirements of this section shall not apply to lands on which coal

mining operations are being conducted on the date of enactment of this

Code or SMCRA or under a permit issued pursuant to this Code, or where

substantial legal and financial commitments in such operation were in

existence prior to January 4, 1977.

The CCRO in cooperation with other Tribal agencies with land use planning

responsibilities, including but not limited to the Tribal Historic Preservation

Office, shall conduct a review of Crow Lands to determine, pursuant to the

standards set forth in paragraphs (2) and (3) of subsection (a) of this section,

whether there are areas on Crow Lands which are unsuitable for all or certain

types of coal mining operations. When the CCRO determines an area on Crow

Lands to be unsuitable for all or certain types of coal mining operations, the

Director shall withdraw such area or condition any mineral leasing or mineral

entries in a manner so as to limit coal mining operations on such area. Prior to

designating any Crow Lands unsuitable for such mining, the CCRO shall consult

with the appropriate Tribal and federal agencies.

Any person having an interest which is or may be adversely affected shall have

the right to petition the CCRO to have an area designated as unsuitable for coal

mining operations, or to have such a designation terminated. Such a petition shall

contain allegations of facts with supporting evidence which would tend to

establish the allegations. Within ten months after receipt of the petition the

CCRO shall hold a public hearing in the locality of the affected area, after

appropriate notice and publication of the date, time, and location of such hearing.

After a person having an interest which is or may be adversely affected has filed a

petition and before the hearing, as required by this subsection, any person may

intervene by filing allegations of facts with supporting evidence which would tend

April 2010 Legislative Session

Crow Coal Mining and Reclamation Code

Page 61 of 77

(¢)

to establish the allegations. Within sixty days after such hearing, the CCRO shall

issue and furnish to the petitioner and any other party to the hearing, a written

decision regarding the petition, and the reasons therefore. In the event that all the

petitioners stipulate agreement prior to the requested hearing, and withdraw their

request, such hearing need not be held.

Prior to designating any land areas as unsuitable for coal mining operations, the

CCRO shall prepare a detailed statement on:

(1) the potential coal resources in the area;

(2) the demand for coal resources; and

(3) the impact of such designation on the Reservation environment and

economy, and on potential Tribal revenues from the production of

Tribally-owned coal.

After the enactment of this Code and subject to valid existing rights no coal

mining operations except those which exist on the date of enactment of this Code

or SMCRA shall be permitted:

(1) on any Crow Lands designated by the Crow Tribe as sacred, or as having

special or exceptional cultural, historical or environmental characteristics;

(2) on any Crow Lands within the boundaries of the National Park system, the

National Wilderness Preservation system, the National Wildlife Refuge

System, the National System of Trails, the Wild and Scenic Rivers system,

including study rivers designated under section 5(a) of the Wild and

Scenic Rivers Act, and National Recreation Areas designated by Act of

Congress;

3) on any Tribal or Federal lands within the boundaries of any National

Forest: Provided, however, that coal mining operations may be permitted

on such lands if the applicable Federal authority finds that there are no

significant recreational, timber, economic, or other values which may be

incompatible with such mining operations and:

(A) surface operations and impacts are incident to an underground coal

mine; or

(B) where the U.S. Secretary of Agriculture determines, with respect to

lands which do not have significant forest cover within National

April 2010 Legislative Session

Crow Coal Mining and Reclamation Code

Page 62 of 77

Forest, that mining is in compliance with other relevant Federal

laws.

(4) which will adversely affect any publicly owned park or places included in

the National Register of Historic Sites or places unless approved jointly by

the CCRO, the Crow Tribal Legislature and the Chairman of Executive

Branch, and appropriate Federal or local agency with jurisdiction over the

park or the historic site;

(5) within one hundred feet of the outside right-of-way line of any public

road, except where mine access roads or haulage roads join such

right-of-way line and except that the CCRO may permit such roads to be

re-located or the area affected to lie within one hundred feet of such road,

if after public notice and opportunity for public hearing in the locality a

written finding is made that the interests of the Tribe, the general public

and the landowners affected will be protected; or

(6) within three hundred feet from any occupied dwelling, unless waived by

the owner thereof, nor within three hundred feet of any public building,

school, church, community, or institutional building, public park, or within

one hundred feet of a cemetery, defined as any place where human bodies

are interred.

(f) Notwithstanding any other provision of this Section, any lands overlying Triballyowned coal shall be designated as unsuitable for coal mining by the CCRO upon

receipt of a resolution of the Crow Tribal Legislature, approved by the Chairman

of the Executive Branch, designating such lands as unsuitable for any reason,

which designation shall not be subject to review.

Sec. 322. Tribal or Public Agencies, Utilities, and Corporations

Any agency, unit or instrumentality of the Crow Tribe, Federal State or local government

including any publicly owned utility or publicly owned corporation of Tribal, Federal

State or local government, which proposes to engage in coal mining operations which are

subject to the requirements of this Code, shall comply with this Code.

Sec. 323. Review by CCRO

(a) (1) A permittee issued a notice or order by the CCRO pursuant to the

provisions of subparagraphs (a)(2) and (3) of section 318 of this Code, or

pursuant to a Tribal or federal program or the federal lands program or any

April 2010 Legislative Session

Crow Coal Mining and Reclamation Code

Page 63 of 77

(b)

(c)

person having an interest which is or may be adversely affected by such

notice or order or by any modification, vacation, or termination of such

notice or order, may apply to the Director of CCRO for review of the

notice or order within thirty days of receipt thereof or within thirty days of

its modification, vacation, or termination. Upon receipt of such

application, the Director shall cause such investigation to be made as

deemed appropriate. Such investigation shall provide an opportunity for a

public hearing, at the request of the applicant or the person having an

interest which is or may be adversely affected, to enable the applicant or

such person to present information relating to the issuance and

continuance of such notice or order of the modification, vacation, or

termination thereof. The filing of an application for review under this

subsection shall not operate as a stay of any order or notice.

(2) The permittee and other interested persons shall be given written notice of

the time and place of the hearing at least five days prior thereto. Any such

hearing shall be of record and subject to section 319 of this Code.

Upon receiving the report of such investigation, the Director shall make finding of

fact, and shall issue a written decision, incorporating therein an order vacating,

affirming, modifying, or terminating the notice or order, or the modification,

vacation, or termination of such notice or order complained of and incorporate his

findings therein. Where the application for review concerns an order for cessation

of coal mining and reclamation operations issued pursuant to the provisions of

subparagraph (a)(2) or (a)(3) of section 318 of this Code, the Director shall issue

the written decision within thirty days of the receipt of the application for review,

unless temporary relief has been granted by the Director pursuant to subparagraph

324 of this Code.

Pending completion of the investigation and hearing required by this section, the

applicant may file with the Director a written request that the Director grant

temporary relief from any notice or order issued under section 318 of this code, a

Tribal or federal program or the federal lands program together with a detailed

statement giving reasons for granting such relief. The Director shall issue an

order or decision granting or denying such relief expeditiously: Provided, That

where the applicant requests relief from an order or cessation of coal mining and

reclamation operations issued pursuant to subparagraph (a)(2) or (a)(3) of section

318 of this title, the order or decision on such a request shall be issued within five

April 2010 Legislative Session

Crow Coal Mining and Reclamation Code

Page 64 of 77

Cc)

(e)

Sec, 324.

(a)

days of its receipt. The Director may grant such relief, under such conditions as

he may prescribe, if

qd) a hearing has been held in the locality of the permit area on the request for

temporary relief in which all parties were given an opportunity to be

heard;

(2) the applicant shows that there is substantial likelihood that the findings of

the Director will be favorable to him; and

(3) such relief will not adversely affect the health or safety of the public or

cause significant, imminent environmental harm to land, air, or water

resources.

Following the issuance of an order to show cause as to why a permit should not be

suspended or revoked pursuant to section 318, the Director shall hold a public

hearing after giving written notice of the time, place and date thereof. Any such

hearing shall be of record pursuant to Section 319 of this Code. Within sixty days

following the public hearing, the Director shall issue and furnish to the permittee

and all other parties to the hearing a written decision, and reasons therefore,

concerning suspension or revocation of the permit. If the Director revokes the

permit, the permittee shall immediately cease coal mining operations on the

permit area and shall complete reclamation within a period specified by the

Director, or the Director shall declare as forfeited the performance bonds for the

operation.

Whenever an order is issued under this section, or as a result of any administrative

proceeding under this Code, at the request of any person, a sum equal to the

aggregate amount of all costs and expenses (including attorney fees) as

determined by the Director to have been reasonable incurred by such person for or

in connection with his participation in such proceedings, including any judicial

review of agency actions, may be assessed against either party as the court,

resulting from judicial review or the Director, resulting from administrative

proceedings, deems proper.

Judicial Review

(1) Any action of the CCRO to prepare or promulgate a Tribal program

pursuant to this Code shall be subject to judicial review by the Crow

Tribal Court. Any action by the CCRO promulgating rules or regulations

including standards pursuant to sections 301, 311 and 312 shall be subject

April 2010 Legislative Session

Crow Coal Mining and Reclamation Code

Page 65 of 77

(b)

(¢)

to judicial review by the Crow Tribal Court. Any action subject to judicial

review under this subsection shall be affirmed unless the findings

conclude that such action is arbitrary, capricious, or otherwise inconsistent

with law. A petition for review of any action subject to judicial review

under this subsection shall be filed in the Crow Tribal Court within sixty

days from the date of such action, or after such date if the petition is based

solely on grounds arising after the sixtieth day. Any such petition may be

made by any person who participated in the administrative proceedings

and who is aggrieved by the action of the CCRO.

(2) Any order or decision issued by the CCRO in a civil penalty proceeding or

any other proceeding required to be conducted pursuant to Section 319 of

this Code shall be subject to judicial review on or before thirty days from

the date of such order or decision in accordance with subsection (b) of this

section in Crow Tribal Court. In the case of a proceeding to review an

order or decision issued by the CCRO under the penalty sections of this

Code, the court shall have jurisdiction to enter an order requiring payment

of any civil penalty assessment enforced by its judgment. This availability

of review established in this subsection shall not be construed to limit the

rights established in Section 317 of this Code.

The court shall hear such petition or complaint solely on the record made before

the Director of the CCRO. Except as provided in subsection (a), the findings of

the Director of the CCRO, if supported by substantial evidence on the record

considered as a whole, shall be conclusive. The court may affirm, vacate, or

modify any order or decision or may remand the proceedings to the Director of

the CCRO for such further action as it may direct.

In the case of a proceeding to review any order or decision issued by the Director

of the CCRO under this Code, including an order or decision issued pursuant to

subparagraph (c) or (d) of section 323, of this title pertaining to any order issued

under subparagraph (a)(2), (a)(3), or (a)(4) of section 318 of this title for cessation

of coal mining and reclamation operations, the court may, under such conditions

as it may prescribe, grant such temporary relief as it deems appropriate pending

final determination of the proceedings if:

(i) all parties to the proceedings have been notified and given an opportunity

to be heard on a request for temporary relief;

April 2010 Legislative Session

Crow Coal Mining and Reclamation Code

Page 66 of 77

(d)

(8)

(f)

Sec. 325.

(2) the person requesting such relief shows that there is a substantial

likelihood that he will prevail on the merits of the final determination of

the proceeding; and

(3) such relief will not adversely affect the public health or safety or cause

significant imminent environmental harm to land, air, or water resources.

The commencement of a proceeding under this section shall not, unless

specifically ordered by the court, operate as a stay of the action, order, or decision

of the Director of the CCRO.

Action of the CCRO pursuant to this Code shall be subject to judicial review only

in accordance with this Section, but the availability of such review shall not be

construed to limit the operation of the rights established in Section 317 except as

provided therein.

Judgments and/or final orders of the Crow Tribal Court in actions brought under

this Section 324 and Section 315 shall be subject to review by the Crow Court of

Appeals as provided in Title 3 of the Crow Law and Order Code and the Crow

Rules of Appellate Procedure. Actions of the CCRO shall not be reviewable in

any court of the United States pursuant to Section 710(j)(4)(A) of SMCRA (30

U.S.C. §1300(j)(4)(A)) unless and until all Tribal proceedings under this Code

and in the Crow Tribal Court system have been completed.

Coal Mining Operations Not Subject To This Code

The provisions of this Code shall not apply to any of the following activities:

Sec. 401.

(1) the extraction of coal by a landowner for his own noncommercial use from

land owned or leased by him; and

(2) the extraction of coal as an incidental part of Tribal, Federal, State or local

government-financed highway or other construction under regulations

established by the CCRO.

TITLE IV--Administrative and Miscellaneous Provisions

Definitions

For the purposes of this Code:

April 2010 Legislative Session

Crow Coal Mining and Reclamation Code

Page 67 of 77

(1) "alluvial valley floors" means the unconsolidated stream laid deposits holding

streams where water availability is sufficient for subirrigation or flood irrigation

agricultural activities but does not include upland areas which are generally

overlain by a thin veneer of colluvial deposits chiefly of debris from sheet

erosion, deposits by unconcentrated runoff of slope wash, together with talus,

other mass movement accumulation and wind-blown deposits;

(2) "approximate original contour" means that surface configuration achieved by

backfilling and grading of the mined area so that the reclaimed area, including any

terracing or access roads, closely resembles the general surface configuration of

the land prior to mining and blends into and complements the drainage pattern of

the surrounding terrain, with all high walls and spoil piles eliminated; water

impoundments may be permitted where the CCRO determines that they are in

compliance with applicable sections of this Code;

(3) “Chairman” means the elected Chairman of the Crow Nation Executive Branch;

(4) "coal mining and reclamation operations" means coal mining operations and all

activities necessary and incidental to the reclamation of such operations after the

date of enactment of this Code and SMCRA;

(5) "coal mining operations" means:

(A) activities conducted on in connection with a coal mine subject to the

requirements of this Code, the products of which enter commerce or the

operations of which directly or indirectly affect interstate commerce.

Such activities include excavation for the purpose of obtaining coal

including such common methods as contour, strip, underground, auger,

mountaintop removal, box cut, open pit, and area mining, the uses of

explosives and blasting, and in situ distillation or retorting, leaching or

other chemical or physical processing, and the cleaning, concentrating, or

other processing or preparation, loading of coal for interstate commerce at

or near the mine site: Provided, however, that such activities do not

include the extraction of coal incidental to the extraction of other minerals

where coal does not exceed 16 2/3 percentum of the tonnage of minerals

removed for purposes of commercial use or sale or coal explorations

subject to applicable sections of this Code; and

(B) _ the areas upon which such activities occur or where such activities disturb

the natural land surface or surface or underground water. Such areas shall

April 2010 Legislative Session

Crow Coal Mining and Reclamation Code

Page 68 of 77

(6)

(7)

(8)

(9)

(10)

(11)

(12)

also include any adjacent land the use of which is incidental to any such

activities, all lands affected by the construction of new roads or the

improvement or use of existing roads to gain access to the site of such

activities and for haulage, and excavations, workings, impoundments,

dams, ventilation shafts, entryways, refuse banks, dumps, stockpiles,

overburden piles, spoil banks, culm banks, tailings, holes or depressions,

repair areas, storage areas, processing areas, shipping areas and other areas

upon which are sited structures, facilities, or other property or materials on

the surface, resulting from or incident to such activities;

"Code" means this Crow Coal Mining and Reclamation Code;

"Crow Coal Regulatory Office" or "CCRO" means the Crow Tribal regulatory

authority established pursuant to Title II of this Code; the matrix of activities

conducted by the CCRO and other designated agencies, including the interim

regulatory program and the permanent regulatory program, in fulfillment of the

provisions of this Code and the regulations promulgated hereunder;

"Crow Lands” or “Crow Indian Lands” means all lands, including mineral

interests, within the exterior boundaries of the Crow Indian Reservation,

notwithstanding the issuance of any patent, and including rights-of-way, and all

lands including mineral interests, held in trust for or supervised by the Crow Tribe

of Indians;

"Crow Tribal Council" means the governing body of the Crow Tribe of Indians

prior to the 2001 Crow Constitution and the general Tribal membership

represented by the three branches of government since the approval of the 2001

Crow Constitution and By-Laws;

"Crow Tribe of Indians" or "Crow Tribe" or "Tribe" means the Crow Tribe of

Indians of Montana, also known as the Apsaalooke Nation, a sovereign Indian

Tribe recognized by the Secretary of the Interior;

“Director” means the Director of the Crow Coal Regulatory Office (CCRO);

"Federal lands" means any land, including mineral interests, owned by the United

States without regard to how the United States acquired ownership of the land and

without regard to the agency having responsibility for management thereof,

except Indian lands;

April 2010 Legislative Session

Crow Coal Mining and Reclamation Code

Page 69 of 77

(14)

(15)

(16)

(17)

(18)

(9)

(20)

(21)

(22)

"imminent danger to the health and safety of the public" means the existence of

any condition or practice, or any violation of a permit or other requirement of this

Code in a coal mining and reclamation operation, which condition, practice, or

violation could reasonably be expected to cause substantial physical harm to

persons outside the permit area before such condition, practice, or violation can be

abated. A reasonable expectation of death or serious injury before abatement

exists if a rational person, subjected to the same conditions or practices giving rise

to the peril, would not expose himself or herself to the danger during the time

necessary for abatement;

"lignite coal" means consolidated lignitic coal having less than 8,300 British

thermal units per pound, moist and mineral matter free;

"operator" means any person, partnership, corporation, limited liability company,

or other business organization engaged in coal mining who removes or intends to

remove more than two hundred fifty tons of coal from the earth by coal mining

within twelve consecutive calendar months in any one location;

"other minerals" means clay, stone, sand, gravel, metalliferous and

nonmetalliferous ores, any other solid material or substance of commercial value

excavated in solid form from natural deposits on or in the earth, exclusive of coal

and those minerals which occur naturally in liquid or gaseous form;

"permit" means a permit to conduct coal mining and reclamation operations

issued by the CCRO pursuant to the provisions of this Code;

"permit applicant" or "applicant" means a person applying for a permit;

"permit area" means the area of land indicated on the approved map submitted by

the operator with his application, which area of land shall be covered by the

operator's bond as required by section 305 of this Code and shall be readily

identifiable by markers on the site;

"permittee" means a person holding a permit;

"person" means an individual, partnership, association, society, joint stock

company, firm, company, corporation, holding company, limited liability

company, or other business organization;

“prime farmland" shall have the same meaning as that previously prescribed by

the United States Secretary of Agriculture on the basis of such factors as moisture

availability, temperature regime, chemical balance, permeability, surface layer

April 2010 Legislative Session

Crow Coal Mining and Reclamation Code

Page 70 of 77

(24)

(25)

(26)

27)

(28)

(30)

Sec. 402.

Sec. 403.

(a)

composition, susceptibility to flooding, and erosion characteristics, and which

historically have been used for intensive agricultural purposes, and as published in

the Federal Register;

"reclamation plan" means a plan submitted by an applicant for a permit from the

CCRO which sets forth a plan for reclamation of the proposed coal mining

operations pursuant to section 304 of this Code;

"regulatory authority" means the Crow Tribal regulatory authority where the

Crow Tribe, through the Crow Coal Regulatory Office, is administering this Code

under an approved Tribal Program;

"Secretary" means the Secretary of the Interior, except where otherwise described;

“Surface Mining Control and Reclamation Act” or “SMCRA” means the Surface

Mining Control and Reclamation Act of 1977, Public Law 95-87, and subsequent

amendments thereto (30 U.S.C. 1201 & following);

"Tribal authority” or “Tribal regulatory authority” means the Tribal department or

agency which has primary Tribal responsibility for administering this Code;

"Tribal program" means a program established by the Crow Tribe of Indians

pursuant to SMCRA section 503 to regulate coal mining and reclamation

operations, on lands within the Crow reservation in accord with the requirements

of this Code and regulations issued by the CCRO pursuant to this Code;

"unwarranted failure to comply" means the failure of a permittee to prevent the

occurrence of any violation of his permit or any requirement of this Code due to

indifference, lack of diligence, or lack of reasonable care, or the failure to abate

any violation of such permit or the Code due to indifference, lack of diligence, or

lack of reasonable care; and

"USDOI" means the United States Department of the Interior.

Reserved

Other Crow Tribal and Federal Laws

Nothing in this Code shall be construed to limit, amend, or repeal other existing

Crow Tribal laws or resolutions or to diminish any rights, privileges or

immunities of the Crow Tribe guaranteed under Treaties or federal law except as

specifically provided in this Code: Provided, that in the event that provisions of

this Code are found to be in conflict or contradiction with any prior laws or

April 2010 Legislative Session

Crow Coal Mining and Reclamation Code

Page 71 of 77

(d)

(e)

Sec. 404.

Sec. 405.

Sec. 406.

(b)

resolutions of the Crow Tribal Council or the Crow Legislature, the provisions of

this Code shall supersede such prior laws and resolutions except to the extent that

such prior laws or resolutions provide for more stringent protections of the

environment or due process than the conflicting provisions of this Code.

Nothing in this Code shall be construed as superseding, amending, modifying, or

repealing any federal law or rule or regulation promulgated thereunder except as

provided herein and authorized by SMCRA.

Nothing in this Code shall affect in any way the authority of the Crow Tribe, or

the heads of Federal agencies under other provisions of law to include in any

lease, license, permit, contract, or other instrument such conditions as may be

appropriate to regulate coal mining and reclamation operations on Crow Lands.

To the greatest extent practicable each Federal agency shall cooperate with the

Director in carrying out the provisions of this Code.

Approval of the Tribal program, pursuant to SMCRA section 503(b), and

adoption and approval of Tribal regulations under Section 201(c) of this Code

shall not constitute a major action within the meaning of section 102(2)(C) of the

National Environmental Policy Act of 1969 (42 U.S.C, 4332).

Reserved

Protection of CCRO Employees

No person shall discharge, or in any other way discriminate against, or cause to be

fired or discriminated against, any employee or any authorized representative of

employees by reason of the fact that such employee or representative has filed,

instituted, or caused to be filed or instituted any proceeding under this Code, or

has testified or is about to testify in any proceeding resulting from the

administration or enforcement of the provisions of this Code.

Any employee or a representative of employees who believes that he has been

fired or otherwise discriminated against by any person in violation of subsection

(a) of this section may, within thirty days after such alleged violation occurs,

apply to the Director for a review of such firing or alleged discrimination. A copy

of the application shall be sent to the person or operator who will be the

respondent. Upon receipt of such application, the Director shall cause such

investigation to be made as he deems appropriate. Such investigation shall

provide an opportunity for a public hearing at the request of any party to such

review to enable the parties to present information relating to the alleged

violation. The parties shall be given written notice of the time and place of the

April 2010 Legislative Session

Crow Coal Mining and Reclamation Code

Page 72 of 77

hearing at least five days prior to the hearing. Any such hearing shall be of record

and shall be subject to Section 319 of this Code. Upon receiving the report of

such investigation the Director shall make findings of fact. If the Director finds

that a violation did occur, he shall issue a decision incorporating therein his

findings and an order requiring the party committing the violation to take such

affirmative action to abate the violation as the Director deems appropriate,

including, but not limited to, the rehiring or reinstatement of the employee or

representative of employees to his former position with compensation. If he finds

that there was no violation, he will issue a finding. Orders issued by the Director

under this subsection shall be subject to judicial review in the same manner as

orders and decisions of the Director are subject to judicial review under this Code.

request of the applicant a sum equal to the aggregate amount of all costs and

expenses (including attorneys’ fees) to have been reasonably incurred by the

applicant for, or in connection with, the institution and prosecution of such

proceedings, shall be assessed against the persons committing the violation.

Sec. 407. Penalty For Interference

Any person who shall, except as permitted by law, resist, prevent, impede, or interfere

with the CCRO or any of its agents or employees in the performance of duties pursuant to

this Code;

(a) if an Indian within the criminal jurisdiction of the Crow Tribal Court, shall be

punished upon conviction by a fine of not more than $1,000 or by imprisonment

for not more than one year, or both; or

(b) if a person who is not within the jurisdiction of the Crow Tribal Court, shall be

referred for federal prosecution as provided in Section 315(j) of this Code and

punished upon conviction by a fine of not more than $5,000 or by imprisonment

for not more than one year, or both.

Sec. 408. Severability

If any provision of this Code or the applicability thereof to any person or circumstances is

held invalid, the remainder of this Code and the application of such provision to other

persons or circumstances shall not be affected thereby.

Sec. 409. Experimental Practices

(a) In order to encourage advances in mining and reclamation practices or to allow

post-mining land use for industrial, commercial, residential, agricultural, or public

April 2010 Legislative Session

Crow Coal Mining and Reclamation Code

Page 73 of 77

[OCR skipped on page(s) 31-42]

[Read from a scan; the first 30 pages.]

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.