# APRIL 2010 CROW TRIBAL LEGISLATURE

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/tribal%3Acrow_montana%3Af1102f2a464c6c63

## Record

- **Collection:** Tribal code
- **Document type:** Tribal code

## Text

APRIL 2010 CROW TRIBAL LEGISLATURE
BILL NO. CLB10-03

INTRODUCED BY CEDRIC BLACK EAGLE, CHAIRMAN
CROW TRIBE EXECUTIVE BRANCH

A BILL FOR AN ACT ENTITLED:
“THE CROW COAL MINING AND RECLAMATION CODE”

WHEREAS, regulation of surface coal mining and reclamation in the United States is
governed by Public Law 95-87, the Surface Mining Control and Reclamation Act of 1977
(SMCRA), which is administered by the Office of Surface Mining and Reclamation Enforcement
("OSM") within the U.S. Department of the Interior; and

WHEREAS, the Congress amended SMCRA in 2006 to allow for Tribes to assume the
primary role administering SMCRA on Reservation land under the jurisdiction of the Tribes,
subject to approval and continued oversight by OSM (referred to as "SMCRA primacy"); and

WHEREAS, the definition of "Indian lands" in SMCRA is "all lands, including mineral
interests, within the exterior boundaries of any Federal 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 an Indian tribe,” 30 U.S.C. §701; and

WHEREAS, the former Chairman of the Executive Branch the Crow Tribe informed
OSM of its intent to pursue primacy as authorized by SMCRA, and since that time, the Crow
Reclamation Office of the Abandoned Mine Lands Program has obtained funding and technical
assistance from OSM for the development of a Tribal SMCRA code, implementing regulations,
and the staffing and training necessary to administer the SMCRA; and

WHEREAS, the Crow Tribe intends to implement SMCRA primacy using a staged
approach, beginning with assumption of inspection and enforcement functions and ultimately
including processing and issuance of permits for new coal mines and modifications to existing
mining permits; and

WHEREAS, as the first step in assuming primacy, and with the assistance of qualified
technical consultants, the Crow Reclamation Office has developed the attached comprehensive
coal mining and reclamation code modeled after the provisions of the Federal SMCRA; and

April 2010 Legislative Session
Crow Coal Mining and Reclamation Code
Page 1 of 77
WHEREAS, under the 2001 Crow Constitution, the Enumerated Powers of the
Executive Branch of the Crow Government include the power to, in Article IV, Section 3(a),
“represent the Crow Tribe of Indians in negotiation with Federal, State and local governments
and other agencies, corporations, associations, or individuals in matters of welfare, education,
recreation, social services and economic development affecting the Crow Tribe of Indians” and,
in Article IV, Section 3(k), to “negotiate and approve limited waivers of sovereign immunity
when such a waiver is necessary for business purposes in accordance with Article V, Section 2(f)
of this Constitution”; and

WHEREAS, the powers and duties of the Legislative Branch of the Crow Government
under the 2001 Crow Constitution include in Article V, Section 2(a) the power “to promulgate
and adopt laws, resolutions, ordinances, codes, regulations, and guidelines in accordance with
this Constitution and federal laws for the governance of the Crow Tribe of Indians,” and, in
Article V, Section 2(f) the power “to grant final approval or disapproval of limited waivers of
sovereign immunity by the Executive Branch of Government when waivers are necessary for
business purposes”;

NOW, THEREFORE, BE [IT ENACTED BY THE CROW TRIBAL LEGISLATURE:

Section 1. ADOPTION. The Crow Coal Mining and Reclamation Code (the "Code"),
attached hereto and incorporated herein by reference, is hereby enacted as the law of the Crow
Tribe, and upon its effective date will be codified within the Crow Law and Order Code.

Section 2. LIMITED WAIVER OF SOVEREIGN IMMUNITY. The approval granted
in section 1 includes and extends to the limited waiver of sovereign immunity contained in the
Code, as required by 30 U.S.C. §1300@).

Section 3. EFFECTIVE DATE. The effective date of the Code shall be when all of the
following conditions have been met: (1) The Code and other requirements for the Crow Coal
Regulatory Office implementation of full or partial Program Primacy under SMCRA are
approved by the Office of Surface Mining/Secretary of the Interior, (2) implementing regulations
have been promulgated and adopted as provided in the Code, and (3) the Director of the Crow
Office of Reclamation has certified in writing to the Legislature and the Chairman of the
Executive Branch that staffing and all other arrangements necessary are made ready for the Crow
Coal Regulatory Office to effectively administer the Code in whole or in part in accordance with
approval by the Office of Surface Mining/Secretary of the Interior.

April 2010 Legislative Session
Crow Coal Mining and Reclamation Code
Page 2 of 77
CROW COAL MINING AND RECLAMATION CODE

The Crow Tribe of Indians, in the exercise of its inherent sovereignty, and in accordance
with its constitution and bylaws, and pursuant Section 710 (i) and Gj) of the Surface Mining
Control and Reclamation Act of 1977, Public Law 95-87 (SMCRA) with amendments through
December, 2008, does hereby enact and establish the Crow Coal Mining and Reclamation Code
(Code).

The Code is administered by the Crow Coal Regulatory Office (CCRO) and Director
whose responsibilities include promulgation and enforcement of the Code and regulations
pertaining to the Code, permitting and regulation of all coal development activities and the
effects on the Crow Tribe of Indians and society, land use, cultural resources, water, air, and
other environmental resources, and conservation and reclamation of the Tribe’s natural
resources. The CCRO enforces the Code and coordinates with other Tribal and federal
authorities on other relevant Tribal and federal environmental laws with regard to coal resource
development on Crow Tribal lands. The CCRO also provides permitting and regulatory
assistance to those who want to develop coal resources under Tribal jurisdiction.

The code has been modeled closely after SMCRA with appropriate adaptations for
administration by the Crow Coal Regulatory Office, to provide in some cases for more stringent
protections for Crow Lands and cultural values, and to conform to the requirements of Section
710(j) of SMCRA for assumption of Tribal regulatory primacy. An index to this Code with
cross-references to SMCRA is set forth in Appendix A.

TITLE I--STATEMENT OF FINDINGS AND POLICY
Sec. 101. Findings
The Crow Tribe finds and declares that:

(a) The health and welfare, economic security, political and cultural integrity, and
future of the Crow Tribe are based upon the Tribe's natural and human resources,
including coal resources. Coal mining provides a one-time monetary return and is
a temporary land use. To protect the long-term interests of the Crow Tribe, the
Crow People, and the general public, adequate safeguards must be established and
enforced to protect the environment and maintain the value and utility of Crow
Lands and resources from the adverse effects of coal mining.

(b) Extraction of coal and other minerals from the earth can be accomplished by
various methods of mining, including surface and underground mining. In the
April 2010 Legislative Session

Crow Coal Mining and Reclamation Code
Page 3 of 77
(c)

@)

(e)

(6)

Sec. 102.

absence of effective regulation, coal mining operations can result in disturbances
of surface areas that burden and adversely affect commerce and the public welfare
by destroying or diminishing the utility of land for agricultural, commercial,
industrial, residential, recreational, forestry, and cultural purposes by causing
erosion and landslides, by contributing to floods, by polluting the water, by
destroying fish and wildlife habitats, by impairing natural beauty, by damaging
the property of citizens, by creating hazards dangerous to life and property by
degrading the quality of life and traditional Indian culture in local communities,
and by counteracting governmental programs and efforts to conserve soil, water,
and other natural resources.

The expansion of coal mining to provide economic benefits to the Crow people
and to help meet the energy needs and national security of the United States
makes even more urgent the establishment of appropriate standards to minimize
damage to the environment and to productivity of the soil and to protect the health
and safety of the public.

Coal mining and reclamation technology are now developed so that effective and
reasonable regulation of coal mining operations in accordance with the provisions
of this Code is an appropriate and necessary means to minimize the adverse
social, economic, and environmental effects of coal mining.

The Crow Tribe of Indians, through its inherent sovereignty as expressed in the
2001 Crow Constitution, and the Surface Mining Control and Reclamation Act of
1977 (SMCRA), possesses the right and the responsibility to regulate coal mining
to protect the interests of the Crow Tribe, the Crow People, and the general
public.

Coal mining is consistent with the interests of the Crow Tribe only if the cultural
integrity, health and welfare of the Tribe are protected and if the Tribe's
permanent land base is protected and preserved.

Purposes

It is the purpose of this Code to:

(a)

Establish a program for all Crow Lands to protect the Tribe, its people, its land
and other resources, society and the environment from the adverse effects of coal
mining operations.

April 2010 Legislative Session
Crow Coal Mining and Reclamation Code

Page 4 of 77
(b)

(c)

@)

(e)

3)

(g)

(h)

(i)

0)

(k)

Assure that the rights of persons with legal interests in the land on or near coal
mining operations are protected from the adverse effects of such operations.

Assure that coal mining operations are not conducted where reclamation required
by this Code is not feasible or in areas of important cultural value to the Crow
Tribe.

Assure that coal mining operations are so conducted as to protect the
environment.

Assure that adequate procedures are undertaken to reclaim surface areas as
contemporaneously as possible with the coal mining operations.

Provide for the development of Tribal expertise and capabilities in dealing with
mineral and natural resource questions and operations.

Because of the diversity in terrain, climate, biologic, chemical, and other physical
conditions in areas subject to mining operations, provide for the primary
governmental responsibility for developing, authorizing, issuing, and enforcing
regulations for mining and reclamation operations subject to this Code to rest with
the Tribe.

Provide for the reclamation of any disturbed lands to former and potential
usefulness as range, forest, agricultural and recreational land, wildlife habitat, and
water storage and transfer, or other Crow Tribal uses, thereby enhancing or
retaining its inherent value.

Protect adjacent as well as affected lands from the adverse effects of coal mining
and maintain their productivity.

Assure that appropriate procedures are provided for public participation in the
development, revision, and enforcement of regulations, standards, reclamation
plans, or programs established by the Tribe under this Code.

Stimulate, sponsor, provide for and/or supplement present programs for the
conduct of research investigations, experiments, and demonstrations, in the
exploration, extraction, processing, development, and production of minerals and
in reclamation of lands and waters affected by such, and the training of mineral
engineers and scientists in the field of mining, minerals resources, reclamation,
and technology, and the establishment of an appropriate research and training
center.

April 2010 Legislative Session
Crow Coal Mining and Reclamation Code

Page 5 of 77
Sec. 201.

(a)

(b)

(c)

TITLE II--CROW COAL REGULATORY OFFICE
Office and Functions

There is established the "Crow Coal Regulatory Office", hereinafter referred to as
CCRO.

The CCRO shall have a Director who shall be appointed by the Tribal Chairman,
and confirmed by majority vote of the Crow Tribal Legislature, and such other
employees as may be required. Such other employees shall be hired by the
Director. The Director shall have the responsibilities provided under subsection
(c) of this section and those duties and responsibilities relating to the functions of
the CCRO as provided in this Code and the CCRO organizational structure. Such
functions must be consistent with the provisions and purposes of this Code.
Employees of the CCRO shall be recruited on the basis of their professional
competence and capacities to administer the provisions of this Code. The CCRO
may use contracted employees, employees of federal agencies and Tribal
employees from other Tribal agencies to administer the provisions of this Code,
providing that no such employee or entity shall, in any of his or her activities,
promote the development of coal or other mineral resources.

The Director shall:

(1) Promulgate and publish rules and regulations as may be necessary to carry
out the purposes and provisions of this Code. Unless superseded by a
general Tribal law governing promulgation of Tribal administrative
regulations, such regulations shall be promulgated according to the
procedures set forth in Appendix B.

(2) Develop and implement a grant-in-aid program for administering this
Code.

(3) Administer the programs for controlling coal mining operations which are
required by this Code; review and approve, disapprove, or conditionally
approve mine plans; issue, deny, or revoke permits; conduct investigations
and inspections necessary to ensure compliance with this Code; conduct
hearings, administer oaths, issue subpoenas and compel the attendance of
witnesses; produce written material or printed material as provided for in
this Code; issue cease and desist orders; review and vacate or modify or
approve orders and decisions; and order the suspension, revocation or

April 2010 Legislative Session
Crow Coal Mining and Reclamation Code

Page 6 of 77
withholding of any permit for failure to comply with any of the provisions
of this Code or any rules and regulations adopted pursuant thereto.

(4) Develop and maintain an information and data center regarding coal
mining, reclamation, and other data regarding Crow Lands and the use,
both present and future, thereof.

(5) Develop objective criteria and appropriate procedures for designating
lands unsuitable for coal mining as provided in this Code.

(6) Cooperate with federal agencies and other Tribal agencies to minimize
duplication of inspections, enforcement, and administration and provide
for the efficient administration of this Code.

(7) Ensure that the CCRO staff, the CCRO goals and objectives, and all other
non-proprietary information regarding the CCRO is available and
interpreted to Crow Tribal members in the Apsaalooke language when
requested at reasonable times.

(8) Collect data, experiment, and conduct research regarding coal mining,
reclamation, and other appropriate and related fields of endeavor.

(9) Perform such other duties as may be provided by law and relate to the
purposes of this Code.

(d) The CCRO shall be considered an independent regulatory agency of the Crow
Tribe and shall operate independently of the Tribal agencies involved in the
negotiating for and leasing or selling of coal or land resources.

(e) Reserved.

( No employee of the CCRO or any employee performing any function or duty
under this Code shall have a direct or indirect financial interest in underground or
surface coal mining operations: provided however that the fact that an individual
is a member of the Crow Tribe does not in itself constitute a violation of this
section 201(f) or Section 201 (f) of SMCRA, but no employee of the CCRO shall
be eligible for a Tribal per capita distribution of any proceeds from coal mining
operations conducted on Crow Reservation land under this Code. The CCRO
shall, within sixty days after enactment of this Code, establish methods by which
the provisions of this subsection will be monitored and enforced, including
appropriate provisions for the filing by such employees and the review of
statements and supplements thereto concerning their financial interests which may

April 2010 Legislative Session

Crow Coal Mining and Reclamation Code
Page 7 of 77
(g)

Sec. 301.

(a)

(b)

be affected by this subsection and report to the findings as part of the annual
report on the actions taken and not taken during the preceding calendar year under
this subsection.

Whoever knowingly violates the provisions of the first sentence of Subsection
201(f) of this Code:

(1) 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

(2) 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 $2,500
or by imprisonment for not more than one year, or both.

TITLE III--CONTROL OF THE ENVIRONMENTAL
IMPACTS OF COAL MINING

Permits

Effective on the date the regulations promulgated under this Title are adopted by
the Crow Nation Legislature and Executive Branch in accordance with approval
by the Office of Surface Mining/Secretary of the Interior, no person or persons
shall engage in or conduct coal mining or reclamation on any Crow Lands unless
such person or persons have first obtained a permit issued by the CCRO. Coal
mining permits issued by the U.S. Office of Surface Mining prior to the passage
of this Code or prior to the passage of regulations promulgated under this Code
shall be deemed valid by the CCRO, except that amendments may be required of
the permittees when mine plans are found to be inconsistent with CCRO
regulations. The CCRO shall notify existing permittees of the adequacy of their
respective mine plans within 12 months of finalization and approval of
regulations promulgated under this Code.

All permits issued pursuant to the requirements of this Code shall be issued for a
term not to exceed five years: Provided, that if the applicant demonstrates that a
specified longer term is reasonably needed to allow the applicant to obtain
necessary financing for equipment and the opening of the operation and if the

April 2010 Legislative Session
Crow Coal Mining and Reclamation Code

Page 8 of 77
(©)

(d)

application is full and complete for such specified longer term, the regulatory
authority may grant a permit for such longer term. A successor in interest to a
permittee, when said successor applies within thirty days of succeeding to such
interest and who is able to obtain the bond coverage of the original permittee, may
continue coal mining and reclamation operations according to the approved
mining and reclamation plan of the original permittee until such successor's
application is granted or denied.

A permit shall terminate if the permittee has not commenced the coal mining
operations covered by such permit within three years of the issuance of the
permit: Provided, that the CCRO may grant reasonable extensions of time upon a
showing that such extensions are necessary by reason of litigation precluding such
commencement or a threat of substantial economic loss to the permittee, or by
reason of conditions beyond the control and without the fault or negligence of the
permittee: Provided further, That in the case of a coal lease issued under the
Federal Mineral Leasing Act, as amended, extensions of time may not extend
beyond the period allowed for diligent development in accordance with section 7
of that Act: Provided further, That with respect to coal to be mined for use in a
synthetic fuel facility or specific major electric generating facility, the permittee
shall be deemed to have commenced mining operations at such time as the
construction of the synthetic fuel or generating facility is initiated.

(1) Any valid permit issued pursuant to this Code shall carry with it the right
of successive renewal upon expiration with respect to areas within the
boundaries of the existing permit. All applications for permit renewal
must comply with the public notice requirements of sections 309 and 310.
The CCRO shall make written findings upon the denial of a permit
renewal application. The holders of the permit may apply for renewal and
such renewal shall be issued (provided that on application for renewal the
burden shall be on the opponents of renewal), subsequent to fulfillment of
the public notice requirements in this section, unless it is established that
and written findings by the CCRO are made that:

(A) _ the terms and conditions of the existing permit are not being
satisfactorily met;

(B) _ the present coal mining and reclamation operation is not in
compliance with the environmental protection standards of this
Code or other applicable Tribal or federal laws;

April 2010 Legislative Session
Crow Coal Mining and Reclamation Code

Page 9 of 77
Sec. 303.

(a)

(b)

(C) the renewal requested substantially jeopardizes the operator's
continuing responsibility on existing permit areas,

(D) _ the operator has not provided evidence that the performance bond
in effect for said operation will continue in full force and effect for
any renewal requested in such application as well as any additional
bond the CCRO might require pursuant to Section 305 of this
Title;

(E) any additional revised or updated information required by the
CCRO has not been provided. Prior to the approval of any renewal
of permit the CCRO shall provide notice to the appropriate Tribal
and other authorities.

(2) An application for renewal of valid permit to extend the mining operation
beyond the boundaries authorized in the existing permit shall be subject to
the full standards applicable to new applications under this Code.

(3) Any permit renewal shall be for a term not to exceed the period of the
original permit established by this Code. Application for permit renewal
shall be made at least one hundred twenty (120) days prior to the
expiration date of the valid permit.

Application Requirements

Each application for a coal mining and reclamation permit pursuant to this Code
shall be accompanied by a fee as determined by the CCRO. Such fee may be less
than but shall not exceed the actual or anticipated costs of reviewing,
administering, and enforcing each permit issued. The CCRO may develop
procedures so as to enable the cost of the fee to be paid over the term of the
permit.

The permit application shall be submitted in a manner satisfactory to the CCRO
and shall contain, among other things:

(1) the names and addresses of:
(A) _ the permit applicant;

(B) _ every legal owner of record of the property (surface and mineral)
to be mined including, in the case of allotments held in trust by the
United States, every person holding an interest in such allotment,

April 2010 Legislative Session
Crow Coal Mining and Reclamation Code

Page 10 of 77
(2)

G)

(4)

(5)

(6)

(C) _ the holders of record of any leasehold interest in the property;
(D) any purchaser of record of the property under a real estate contract;
(E) _ the operator, if a person different from the applicant,

(F) _ if any of these are business entities other than a single proprietor,
the names and addresses of the principals, officers, and resident
agent;

the names and addresses of the owners of record of all surface and
subsurface areas adjacent to any part of the permit area including, in the
case of allotments held in trust by the United States, every person holding
an interest in such allotment;

a statement of any current or previous coal mining permits in the United
States held by the applicant and the permit identification and each pending
application;

if the applicant is a partnership, corporation, association, limited liability
company or other business entity, the following where applicable: the
names and addresses of every officer, partner, managing member, director,
or person performing a function similar to a director, of the applicant,
together with the name and address of any person owning of record 10
percentum or more of any class of voting stock or membership interest of
the applicant and a list of all names under which the applicant, partner,
member or principal shareholder previously operated a coal mining
operation within the United States within the 5 year period preceding the
date of submission of the application;

a statement of whether the applicant, any subsidiary, affiliate, or persons
controlled by or under common control with the applicant, has ever held a
federal, state, or Indian mining permit which in the 5-year period prior to
the date of submission of the application has been suspended or revoked or
has had a mining bond or similar security deposited in lieu of bond
forfeited and, if so, an explanation of the facts involved;

a copy of the applicant's advertisement to be published in a newspaper of
general circulation in the locality of the proposed site at least once a week
for four successive weeks, and which includes the ownership, a
description of the exact location and boundaries of the proposed site so

April 2010 Legislative Session
Crow Coal Mining and Reclamation Code

Page 11 of 77
(7)

(8)

(9)

(10)

(1)

that the proposed operation is readily locatable by local residents, and the
location of where the application is available for public inspection;

a description of the type and method of coal mining operation that exists
or is proposed, the engineering techniques proposed or used, and the
equipment used or proposed to be used;

the anticipated or actual starting and termination dates of each phase of the
mining and reclamation operations and number of acres of land to be
affected;

the applicant shall file with the CCRO on an accurate map or plan, to an
appropriate scale, clearly showing the land to be affected as of the date of
the application, the area of land within the permit area upon which the
applicant has the legal right to enter and commence coal mining
operations and shall provide to the CCRO a statement of those documents
upon which the applicant bases his legal right to enter and commence coal
mining operations on the area affected, and whether that right is the
subject of pending or current court litigation: Provided, that nothing in
this Code shall be construed as vesting in the CCRO the jurisdiction to
adjudicate property title disputes;

the name of the watersheds and locations of surface streams or tributaries
into which surface and pit drainage will be discharged;

a determination of the probable hydrologic consequences of the mining
and reclamation operations, both on and off the mine site, with respect to
the hydrologic regime, quantity and quality of water in surface and ground
water systems including the dissolved and suspended solids under
seasonal flow conditions and the collection of sufficient data for the mine
site and surrounding areas so that an assessment can be made by the
CCRO of the probable cumulative impacts of all anticipated mining in the
area upon the hydrology of the area and particularly upon water
availability: Provided, however, that this determination shall not be
required until such time as hydrologic information on the general area
prior to mining is made available from an appropriate federal or other
agency: Provided further, that the permit shall not be approved until such
information is available and is incorporated into the application;

April 2010 Legislative Session
Crow Coal Mining and Reclamation Code

Page 12 of 77
(12)

(14)

when requested by the CCRO, the climatological factors that are peculiar
to the locality of the land to be affected, including the average seasonal
precipitation, the average direction and velocity of prevailing winds, and
the seasonal temperature ranges;

accurate maps to an appropriate scale clearly showing:
(A) _ the land to be affected as of the date of application and

(B) all types of information set forth on topographical maps of the
United States Geological Survey of a scale of 1:24,000 or 1:25,000
or larger, including all manmade features and significant known
archeological sites (including Indian cultural, historical, burial, and
religious sites) existing on the date of application. Such a map or
plan shall among other things specified by the CCRO show all
boundaries of the land to be affected, the boundary lines and names
of present owners of record of all surface areas abutting the permit
area, and the location of all buildings within 1,000 feet of the
permit area;

cross-sections, maps or plans of the land to be affected including the
actual area to be mined, prepared by or under the direction of and certified
by a qualified registered professional engineer, or professional geologist
with assistance from experts in related fields such as land surveying and
landscape architecture, showing pertinent elevation and location of test
borings or core samplings and depicting the following information: the
nature and depth of the various strata of overburden; the location of
subsurface water, if encountered, and its quality; the nature and thickness
of any coal or rider seam above the coal seam to be mined; the nature of
the stratum immediately beneath the coal seam to be mined; all mineral
crop lines and the strike and dip of the coal to be mined, within the area of
land to be affected; existing or previous mining limits; the location and
extent of known workings of any underground mines, including mine
openings to the surface; the location of aquifers; the estimated elevation of
the water table; the location of spoil, waste, or refuse areas and top-soil
preservation areas; the location of all impoundments for waste or erosion
control; any settling or water treatment facility; constructed or natural
drain ways and the location of any discharges to any surface body of water
on the area of land to be affected or adjacent thereto; and profiles at

April 2010 Legislative Session
Crow Coal Mining and Reclamation Code

Page 13 of 77
(©)

(15)

(16)

a7)

@)

appropriate cross-sections of the anticipated final surface configuration
that will be achieved pursuant to the operator's proposed reclamation plan;

a statement of the result of test borings or core samplings from the permit
area, including logs of the drill holes; the thickness of the coal seam
found, an analysis of the chemical properties of such coal; the sulfur
content of any coal seam; chemical analysis of potentially acid or toxic
forming sections of the overburden; and chemical analysis of the stratum
immediately underneath the coal to be mined except that the provisions of
this paragraph (15) may be waived by the CCRO with respect to the
specific application by a written determination that such requirements are
unnecessary;

for those lands in the permit application which a reconnaissance inspection
suggests may be prime farmlands, a soil survey shall be made or obtained
according to standards established by the United States Secretary of
Agriculture in order to confirm the exact location of such prime farmlands,
if any; and

information pertaining to coal seams, test borings, core samplings, or soil
samples as required by this section shall made available to any person with
interests which are or may be adversely affected: Provided, that
information which pertains only to the analysis of the chemical and
physical properties of the coal (excepting information regarding such
mineral or elemental content which is potentially toxic in the environment)
shall be kept confidential and not made a matter of public record.

If the CCRO finds that the probable total annual production at all locations
of a coal surface mining operator will not exceed 300,000 tons, the cost of
the following activities, which shall be performed by a qualified public or
private laboratory or such other public or private qualified entity
designated by the CCRO, shall be assumed by the CCRO upon the written
request of the operator in connection with a permit application:

(A) _ the determination of probable hydrologic consequences required
by subsection (b)(11), including the engineering analyses and
designs necessary for the determination;

(B) _ the development of cross-section maps and plans required by
subsection (b)(14);

April 2010 Legislative Session
Crow Coal Mining and Reclamation Code

Page 14 of 77
@

(©)

cy)

(C) _ the geologic drilling and statement of results of test borings and
core samplings required by subsection (b)(15);

(D) _ the collection of archaeological information required by subsection
(b)(13) and any other archaeological and historical information
required by the CCRO, and the preparation of plans necessitated
thereby;

(E) _ pre-blast surveys required by section 311 (b)(15)(E); and

(F) _ the collection of site-specific resource information and production
of protection and enhancement plans for fish and wildlife habitats
and other environmental values required by the CCRO under this
Code.

(2) The Director of the CCRO may provide or assume the cost of training coal
operators that meet the qualifications stated in paragraph (1) concerning
the preparation of permit applications and compliance with the regulatory
program, and shall ensure that qualified coal operators are aware of the
assistance available under this subsection.

Each applicant for a permit shall be required to submit to the CCRO as part of the
permit application a reclamation plan which shall meet the requirements of this
Code.

Each applicant for a coal mining and reclamation permit shall file a copy of his
application for public inspection at an appropriate public office designated by the
CCRO near where the mining is proposed to occur, except for that information
pertaining to the coal seam itself.

Each applicant for a permit shall be required to submit to the CCRO as part of the
permit application a certificate issued by an insurance company authorized to do
business in the State of Montana or on the Crow Indian Reservation certifying
that the applicant has a public liability insurance policy in force for the mining
and reclamation operations for which such permit is sought, or evidence that the
applicant has satisfied other federal or Tribal self-insurance requirements. Such
policy shall provide for personal injury and property damage protection in an
amount adequate to compensate any persons damaged as a result of mining and
reclamation operations including use of explosives and entitled to compensation

April 2010 Legislative Session
Crow Coal Mining and Reclamation Code

Page 15 of 77
@

Sec. 304.

(a)

under the applicable provisions of Tribal, federal, or state laws. Such policy shall
be maintained in full force and effect during the terms of the permit or any
renewal, including the length of all reclamation operations.

Each applicant for a coal mining and reclamation permit shall submit to the
CCRO as part of the permit application a blasting plan which shall outline the
procedures and standards by which the operator will meet the provisions of
section 311(b) (15) of this Code.

A coal operator that has received assistance pursuant to subsection (c) (1) or (2)
shall reimburse the CCRO for the cost of the services rendered if the Director
finds that the operator's actual and attributed annual production of coal for all
locations exceeds 300,000 tons during the 12 months immediately following the
date on which the operator is issued the coal mining and reclamation permit.

Applications for coal mining and reclamation permits pursuant to this Code shall
be submitted to the CCRO in a format approved by the CCRO.

Reclamation Plan Requirements

Each reclamation plan submitted as part of a permit application under the
provisions of this Code shall include, in the degree of detail necessary to
demonstrate that reclamation required by the CCRO can be accomplished, a
statement of:

(1) the identification of the lands subject to coal mining operations over the
estimated life of those operations and the size, sequence, and timing of the
subareas for which it is anticipated that individual permits for mining will
be sought;

(2) the condition of the land to be covered by the permit prior to any mining,
including:

(A) _ the uses existing at the time of the application, and if the land has a
history of previous mining, the uses which preceded any mining;

(B) _ the capability of the land prior to any mining to support a variety
of uses giving consideration to soil and foundation characteristics,
topography, and vegetative cover, and, if applicable, a soil survey
prepared pursuant to section 303(b)(16) of this Code; and

April 2010 Legislative Session
Crow Coal Mining and Reclamation Code

Page 16 of 77
G)

(4)

(6)

2)

(8)

(9)

(C) _ the productivity of the land prior to mining, including appropriate
classification as prime farmlands, as well as the average yield of
food, fiber, forage, or wood products from such lands obtained
under high levels of management;

the use which is proposed to be made of the land following reclamation,
including a discussion of the utility and capacity of the reclaimed land to
support a variety of alternative uses and the relationship of such use to
existing land use policies and plans, and the comments of any owner of the
surface, Tribal, federal or local governments or agencies thereof which
would have to initiate, implement, approve, authorize, or maintain the
proposed use of the land following reclamation;

a detailed description of how the proposed post mining land use is to be
achieved and the necessary support activities which may be needed to
achieve the proposed land use;

the engineering techniques proposed to be used in mining and reclamation
and a description of the major equipment; a plan for the control of surface
water drainage and of water accumulation; a plan, where appropriate, for
backfilling, soil stabilization, and compacting, grading and appropriate
revegetation; a plan for soil reconstruction, replacement, and stabilization,
pursuant to the performance standards in applicable sections of this Code
and regulations promulgated hereunder; an estimate of the cost per acre of
the reclamation including a statement as to how the permittee plans to
comply with each of the requirements set out in Section 311 of this Code;

the consideration which has been given to maximize the utilization and
conservation of the solid fuel resource being recovered so that reaffecting
the land in the future can be minimized;

a detailed estimated timetable for the accomplishment of each major step
in the reclamation plan;

the consideration which has been given to making the mining and
reclamation operations consistent with surface owner plans, and applicable
Tribal and local land use plans and programs;

the steps to be taken to comply with applicable air and water quality laws
and regulations and any applicable health and safety standards; such steps

April 2010 Legislative Session
Crow Coal Mining and Reclamation Code

Page 17 of 77
(b)

Sec. 305.

(10)

ql)

(12)

a

)

(14)

shall include a detailed description of how the applicant proposes to
conduct dust abatement during mining and reclamation operations;

the consideration which has been given to developing the reclamation plan
in a manner consistent with local physical, environmental, and
climatological conditions;

all lands, interests in lands, or options on such interests held by the
applicant or pending bids on interests in lands by the applicant, which
lands are contiguous to the area to be covered by the permit;

the results of test boring which the applicant has made at the area to be
covered by the permit, or other equivalent information and data in a form
satisfactory to the CCRO, including the location of subsurface water, and
an analysis of the chemical properties including acid forming properties of
the mineral and overburden: Provided, that information which pertains
only to the analysis of the chemical and physical properties of the coal
(excepting information regarding such mineral or elemental contents
which is potentially toxic in the environment) shall be kept confidential
and not made a matter of public record;

a detailed description of the measures to be taken during the mining and
reclamation process to assure the protection of:

(A) _ the quality of surface and ground water systems, both on- and
off-site, from adverse effects of the mining and reclamation
process;

(B) _ the rights of present users to such water; and

(C) _ the quantity of surface and ground water systems, both on- and
off-site, from adverse effects of the mining and reclamation
process or to provide alternative sources of water where such
protection of quantity cannot be assured;

such other requirements as the CCRO shall prescribe by regulations.

Any information required by this section which is not on public file pursuant to
Tribal law shall be held in confidence by the CCRO.

Performance Bonds

April 2010 Legislative Session
Crow Coal Mining and Reclamation Code

Page 18 of 77
(a)

(b)

(©)

After a coal mining and reclamation permit application has been approved but
before such a permit is issued, the applicant shall file with the CCRO, on a form
prescribed and furnished by the CCRO, a bond for performance payable, as
appropriate, to the Crow Tribe of Indians, and conditional upon faithful
performance of all the requirements of this Code and the permit. The bond shall
cover that area of land within the permit area upon which the operator will initiate
and conduct coal mining and reclamation operations within the initial term of the
permit. As succeeding increments of coal mining and reclamation operations are
to be initiated and conducted within the permit area, the permittee shall file with
the CCRO an additional bond or bonds to cover such increments in accordance
with this section. The amount of the bond required for each bonded area shall
depend upon the reclamation requirements of the approved permit; shall reflect
the probable difficulty of reclamation giving consideration to such factors as
topography, geology of the site, hydrology, and revegetation potential, and shall
be determined by the CCRO. The amount of the bond shall be sufficient to assure
the completion of the reclamation plan if the work had to be performed by the
CCRO in the event of forfeiture and in no case shall the bond for the entire area
under one permit be less than $25,000. All bonds for performance payable to the
Crow Tribe of Indians shall be deposited in a manner and at an institution
mutually acceptable to the CCRO and the applicant.

Liability under the bond shall be for the duration of the coal mining and
reclamation operation and for a period coincident with the operator's
responsibility for revegetation requirements in section 311. The bond shall be
executed by the operator and a corporate surety licensed to do business on the
Crow Indian Reservation or, in the absence of a Tribal licensure system, in the
State of Montana, except that the operator may elect to deposit cash, negotiable
bonds of the United States Government or the Crow Tribe of Indians, or
negotiable certificates of deposit or any bank organized or transacting business in
the United States: Provided, that the manner of deposit and the institution through
which such deposit occurs shall be mutually acceptable to the CCRO and the
applicant.

The cash deposit or market value of securities, if such are used to fulfill the
requirements of this section 305(a), shall be equal to or greater than the amount of
the bond required for the bonded area.

The CCRO may accept the bond of the applicant itself without separate surety
when the applicant demonstrates to the satisfaction of the CCRO the existence of

April 2010 Legislative Session
Crow Coal Mining and Reclamation Code

Page 19 of 77
(@)

()

Sec. 306.

(a)

(v)

a suitable agent to receive service of process and a history of financial solvency
and continuous operation sufficient for authorization to self-insure or bond such
amount, or in lieu of the establishment of a bonding program, as set forth in this
section, the CCRO, with the approval of Secretary of Interior may approve as part
of a CCRO program an alternative system that will achieve the objectives and
purposes of the bonding program pursuant to this section. At no time shall the
bond fall below the cost that would result should the CCRO have to conduct the
remaining reclamation.

Cash or securities so deposited shall be deposited upon the same terms as the
terms upon which surety bonds may be deposited. Such securities shall be
security for the repayment of such negotiable certificate of deposit.

The amount of the bond or deposit required and the terms of each acceptance of
the applicant's bond shall be adjusted by the CCRO from time to time as affected
land acreages are increased or decreased or where the cost of future reclamation
changes.

Permit Approval or Denial

Upon the basis of a complete mining application and reclamation plan or a
revision or renewal thereof, as required by this Code, including public notification
and an opportunity for a public hearing as required by section 309 of this Code,
the CCRO shall grant, require modification of, or deny the application for a
permit in a reasonable time set by the CCRO and notify the applicant in writing.
The applicant for a permit, or revision of a permit, shall have the burden of
establishing that the application is in compliance with all the requirements of this
Code. Within ten days after the granting of a permit, the CCRO shall notify the
Tribal Chairman, the Speaker House of the Tribal Legislature, other appropriate
Tribal officials and the County Commissioners in the County in which the area of
land to be affected is located of the location of the land and that a permit has been
issued.

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

April 2010 Legislative Session
Crow Coal Mining and Reclamation Code

Page 20 of 77
(1)

(2)

(4)

()

the permit application is accurate and complete and that all the
requirements of this Code have been complied with;

the applicant has demonstrated that reclamation as required by this Code
can be accomplished under the reclamation plan contained in the permit
application;

the assessment of the probable cumulative impact of all anticipated mining
in the area on the hydrologic balance specified in section 303 (b) has been
made by the CCRO and the proposed operation thereof has been designed
to prevent material damage to hydrologic balance outside the permit area;

the area proposed to be mined is not included within an area designated
unsuitable for coal mining pursuant to Section 321 of this Code, or is not
within an area under study for such designation in an administrative
proceeding commenced pursuant to section 321 (unless in such an area as
to which an administrative proceeding has commenced pursuant to section
321(a)(4)(C) of this Code, the operator making the permit application
demonstrates that, prior to January 1, 1977, he has made substantial legal
and financial commitments in relation to the operation for which he is
applying for a permit);

the proposed coal mining operation, would:

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

(B) not materially damage the quantity or quality of water in surface or
underground water systems that supply these valley floors in (A) of
subsection (b)(5):

Provided, that this paragraph (5) shall not affect those coal mining
operations which in the year preceding the enactment of this Code,
produced coal in commercial quantities and were located within or
adjacent to alluvial valley floors and which were in existence in 1976.

April 2010 Legislative Session
Crow Coal Mining and Reclamation Code

Page 21 of 77
(¢)

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

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

(B) — aconveyance that expressly grants or reserves the right to extract
the coal by mining methods including federal conveyance that
grants or reserves minerals, or

(C) _ if the conveyance does not expressly grant the right to extract coal
by mining methods or consist of a federal conveyance that grants
or reserves minerals, the surface-subsurface legal relationship shall
be determined in accordance with the Tribal law, if expressly
provided for in the Crow Law and Order Code, or federal law
(including the application of Montana law if so provided in the
federal law): Provided, That nothing in this Code shall be
construed to authorize CCRO to adjudicate property rights
disputes.

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

April 2010 Legislative Session
Crow Coal Mining and Reclamation Code

Page 22 of 77
@)

Sec. 307.

(a)

(b)

(1)

2)

In addition to finding the application in compliance with subsection (b) of
this section, if the area proposed to be mined contains prime farmland
pursuant to section 303(b)(16), the CCRO shall, after consultation with the
U.S. Secretary of Agriculture and other appropriate representatives of the
Crow Tribe in matters concerning prime farmland, and pursuant to
regulations issued hereunder by the CCRO, grant a permit to mine on
prime farmland if the CCRO finds in writing that the operator has the
technological capability to restore such mined area, within a reasonable
time, to equivalent or higher levels of yield as non-mined prime farmland
in the surrounding area under equivalent levels of management and can
meet the soil reconstruction standards in section 311(b)(7). Except for
compliance with subsection (b), the requirements of this paragraph (1)
shall apply to all permits issued after the date of enactment of this Code.

Nothing in this subsection shall apply to any permit issued prior to the
date of enactment of SMCRA or to any revisions or renewals thereof, or to
any existing coal mining operations for which a permit was issued prior to
the date of enactment of SMCRA.

Revision of Permits

(1)

(2)

During the term of the permit the permittee may submit an application for

a revision of the permit, together with a revised reclamation plan, to the
CCRO.

An application for a revision of a permit shall not be approved unless the
CCRO finds that the reclamation as required by this Code can be
accomplished under the revised reclamation plan. The revision shall be
approved or disapproved within a period of time established by the CCRO.
The CCRO shall establish guidelines for a determination of the scale or
extent of a revision request for which all permit application information
requirements and procedures, including notice and hearings, shall apply:
Provided, that any revisions which propose significant alterations in the
reclamation plan shall, at a minimum, be subject to notice and hearing
requirements.

Any extension to the area covered by the permit except incidental
boundary revisions must be made by application for another permit.

No transfer, assignment, or sale of the rights granted under any permit issued
pursuant to this Code shall be made without the written approval of the CCRO.

April 2010 Legislative Session
Crow Coal Mining and Reclamation Code

Page 23 of 77
(c)

Sec. 308.

(a)

(b)

(©)

(@)

Sec. 309.

(a)

The CCRO shall within a time limit prescribed in regulations promulgated by the
CCRO, review outstanding permits and may require reasonable revision or
modification of the permit provisions during the term of such permit: Provided,
that such revision or modification shall be based upon a written finding and
subject to notice and hearing requirements established by the CCRO.

Coal Exploration Permits

Coal exploration operations which substantially disturb the natural land surface
shall be conducted in accordance with exploration regulations issued by the
CCRO. Such regulations shall include, at a minimum:

qd) the requirement that prior to conducting any exploration under this
section, any person must file with the CCRO notice of intention to explore
and such notice shall include a description of the exploration area and the
period of supposed exploration; and

(2) provisions for reclamation in accordance with the performance standards
in section 311 of this Code of all lands disturbed in exploration, including
excavations, roads, drill holes, and the removal of necessary facilities and
equipment.

Information submitted to the CCRO pursuant to this subsection as confidential or
trade secrets or privileged commercial or financial information which relates to
the competitive rights of the person or entity intended to explore the described
area shall not be available for public examination.

Any person who conducts any coal exploration activities which substantially
disturb the natural land surface in violation of this section or regulations issued
pursuant thereto shall be subject to the provisions of section 315.

No operator shall remove more than two hundred and fifty tons of coal pursuant
to an exploration permit without the specific written approval of the CCRO.

Public Notice and Public Hearings

At the time of submission of an application for a coal mining and reclamation
permit, or revision of an existing permit, pursuant to the provisions of this Code,
the applicant shall submit to the CCRO a copy of his advertisement of the
ownership, precise location, and boundaries of the land to be affected. At the
time of submission such advertisement shall be placed by the applicant in a local
newspaper of general circulation in the locality of the proposed mine at least once

April 2010 Legislative Session
Crow Coal Mining and Reclamation Code

Page 24 of 77
(b)

Sec. 310.

a week for four consecutive weeks. The CCRO shall notify various Tribal and
other governmental bodies, planning agencies, and sewage and water treatment
authorities, or water companies in the locality in which the proposed mining will
take place, notifying them of the operator's intention to mine a particularly
described tract of land and indicating the application's permit number and where a
copy of the proposed mining and reclamation plan may be inspected. These
governmental bodies, agencies, authorities, or companies may submit written
comments within a reasonable period established by the CCRO on the mining
applications with respect to the effect of the proposed operation on the
environment which are within their area of responsibility. Such comments shall
immediately be transmitted to the applicant by the CCRO and shall be made
available to the public at the same locations as are the mining applications.

Any person having an interest which is or may be adversely affected or the officer
or head of any Tribal, federal, State or local governmental agency or authority
shall have the right to file written objections to the proposed initial or revised
application for a permit for coal mining and reclamation operation with the CCRO
within thirty days after the last publication of the above notice. Such objections
shall immediately be transmitted to the applicant by the CCRO and shall be made
available to the public. If written objections are filed and an informal conference
requested, the CCRO shall then hold an informal conference in Crow Agency or
such other place as specified by the CCRO in the locality of the proposed mining,
if requested within a reasonable time of the receipt of such objections or request.
The date, time and location of such informal conference shall be advertised by the
CCRO in a newspaper of general circulation in the locality of the proposed coal
mining and reclamation operation at least two weeks prior to the scheduled
conference date. The CCRO may arrange with the applicant upon request by any
party to the administrative proceeding access to the proposed mining area for the
purpose of gathering information relevant to the proceeding. An electronic or
stenographic record shall be made of the conference proceeding, unless waived by
all parties. Such record shall be maintained and shall be accessible to the parties
until final release of the applicant's performance bond. In the event all parties
requesting the informal conference stipulate agreement prior to the requested

informal conference and withdraw their request, such informal conference need
not be held.

Decisions of the CCRO and Appeals

April 2010 Legislative Session
Crow Coal Mining and Reclamation Code

Page 25 of 77
(a)

(b)

(©)

(d)

If an informal conference has been held pursuant to section 309(b), the CCRO
shall issue and furnish the applicant for a permit and persons who are parties to
the administrative proceedings with the written finding of the CCRO within 60
days of the conference, granting or denying the permit in whole or in part and
stating the reasons therefor.

If there has been no informal conference held pursuant to section 309(b), the
CCRO shall notify the applicant for a permit within a reasonable period of time as
determined by the CCRO and set forth in regulations, taking into account the time
needed for proper investigation of the site, the complexity of the permit
application, and whether or not written objection to the application has been filed,
whether the application has been approved or disapproved in whole or in part.

If the application is approved the permit shall be issued. If the application is
disapproved specific reasons therefor must be set forth in the notification. Within
thirty days after the applicant is notified of the final decision of the CCRO on the
permit application, the applicant or any person with an interest which is or may be
adversely affected may request a hearing on the reasons for the final
determination. The CCRO shall hold a hearing within thirty days of such request
and provide notification to all interested parties at the time that the applicant is so
notified. Such hearing shall be of record and governed by Section 319,
adjudicatory in nature and no person who presided at a conference under section
309(b) shall either preside at the hearing or participate in the decision thereon or
in any administrative appeal therefrom. Within thirty days after the hearing the
CCRO shall issue and furnish the applicant, and all persons who participated in
the hearing, with the written decisions of the CCRO granting or denying the
permit in whole or in part and stating the reasons therefor.

Where a hearing is requested pursuant to subsection (c), the CCRO may, under
such conditions as it may prescribe, grant such temporary relief as it deems
appropriate pending final determination of the proceedings if:

(1) all parties to the proceedings have been notified and given an opportunity
to be heard on a request for temporary relief;

(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

April 2010 Legislative Session
Crow Coal Mining and Reclamation Code

Page 26 of 77
(¢)

(f)

Sec. 311.

(a)

(b)

(3) such relief will not adversely affect the public health or safety or cause
significant imminent environmental harm to land, air, or water resources.

For the purpose of such hearing, the CCRO may administer oaths, subpoena
witnesses, or written or printed materials, compel attendance of the witnesses, or
production of the materials, and take evidence including but not limited to site
inspections of the land to be affected and other coal mining operations carried on
by the applicant in the general vicinity of the proposed operation. 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.

Any applicant or any person with an interest which is or may be adversely
affected who has participated in the administrative proceedings as an objector,
and who is aggrieved by the decision of the CCRO, or if the CCRO fails to act
within the time limits specified in this Code, shall have the right to appeal in
accordance with Section 324.

Environmental Protection Performance Standards

Any permit issued pursuant to this Code to conduct coal mining operations shall
require that such coal mining operations will meet all applicable performance
standards of this Code, and such other requirements as the CCRO shall
promulgate.

General performance standards shall be applicable to all coal mining and
reclamation operations and shall require the operation as a minimum to:

(1) conduct coal mining operations so as to maximize the utilization and
conservation of the solid fuel resource being recovered so that reaffecting
the land in the future through coal mining can be minimized;

(2) restore the land affected to a condition capable of supporting the uses
which it was capable of supporting prior to any mining, or higher or better
uses of which there is reasonable likelihood, so long as such use or uses do
not present any actual or probable hazard to public health or safety or pose
any actual or probable threat of water diminution or pollution, and the
permit applicant's declared proposed land use following reclamation is not
deemed to be impractical or unreasonable, inconsistent with applicable
land use policies and plans, involves unreasonable delay in
implementation, or is violative of Federal or Tribal law;

April 2010 Legislative Session
Crow Coal Mining and Reclamation Code

Page 27 of 77
(4)

except as provided in subsection (c) with respect to all coal mining
operations, backfill, compact (where advisable to ensure stability or to
prevent leaching of toxic materials), and grade in order to restore the
approximate original contour of the land with all high walls, spoil piles,
and depressions eliminated (unless small depressions are needed in order
to retain moisture to assist revegetation or as otherwise authorized
pursuant to this Code): Provided, however, that in coal mining which is
carried out at the same location over a substantial period of time where the
operation transects the coal deposit, and the thickness of the coal deposits
relative to the volume of the overburden is large and where the operator
demonstrates that the overburden and other spoil and waste materials at a
particular point in the permit area or otherwise available from the entire
permit area is insufficient, giving due consideration to volumetric
expansion, to restore the approximate original contour, the operator, at a
minimum, shall backfill, grade, and compact (where advisable) using all
available overburden and other spoil and waste materials to attain the
lowest practicable grade but not more than the angle of repose, to provide
adequate drainage and to cover all acid-forming and other toxic materials,
in order to achieve an ecologically sound land use compatible with the
surrounding region: And provided further, that in coal mining where the
volume of overburden is large relative to the thickness of the coal deposit
and where the operator demonstrates that due to volumetric expansion the
amount of overburden and other spoil and waste materials removed in the
course of the mining operation is more than sufficient to restore the
approximate original contour, the operator shall after restoring the
approximate contour, backfill, grade, and compact (where advisable) the
excess overburden and other spoil and waste materials to attain the lowest
grade but not more than the angle of repose, and to cover all acid-forming
and other toxic materials, in order to achieve an ecologically sound land
use compatible with the surrounding region and that such overburden or
spoil shall be shaped and graded in such a way as to prevent slides,
erosion, and water pollution and is revegetated in accordance with the
requirements of this Code;

stabilize and protect all surface areas including spoil piles affected by the
coal mining and reclamation operation to effectively control erosion and
attendant air and water pollution;

April 2010 Legislative Session
Crow Coal Mining and Reclamation Code

Page 28 of 77
(5)

(6)

2)

remove the topsoil from the land in a separate layer, replace it on the
backfill area, or if not utilized immediately, segregate it in a separate pile
from other spoil and when the topsoil is not replaced on a backfill area
within a time short enough to avoid deterioration of the topsoil, maintain a
successful cover by quick growing plant or other means thereafter so that
the topsoil is preserved from wind and water erosion, remains free of any
contamination by other acid or toxic material, and is in a usable condition
for sustaining vegetation when restored during reclamation, except if
topsoil is of insufficient quantity or of poor quality for sustaining
vegetation, or if other strata can be shown to be more suitable for
vegetation requirements, then the operator shall remove, segregate, and
preserve in a like manner such other strata which are best able to support
vegetation;

restore the topsoil or the best available subsoil which is best able to
support vegetation;

for all prime farmlands as identified in section 303(b)(16) to be mined and
reclaimed, specifications for soil removal, storage, replacement, and
reconstruction shall be established by the CCRO in accordance with
standards established by the U.S. Secretary of Agriculture, and the
operator shall, as a minimum, be required to:

(A) _ segregate the A horizon of the natural soil, except where it can be
shown that other available soil materials will create a final soil
having a greater productive capacity; and if not utilized
immediately, stockpile this material separately from other spoil,
and provide needed protection from wind and water erosion or
contamination by other acid or toxic material;

(B) _ segregate the B horizon of the natural soil, or underlying C
horizons or other strata, or a combination of such horizons or other
strata that are shown to be both texturally and chemically suitable
for plant growth and that can be shown to be equally or more
favorable for plant growth than the B horizon, in sufficient
quantities to create in the regraded final soil a root zone of
comparable depth and quality to that which existed in the natural
soil; and if not utilized immediately, stockpile this material
separately from other spoil, and provide needed protection from

April 2010 Legislative Session
Crow Coal Mining and Reclamation Code

Page 29 of 77
(8)

(9)

(C)

(D)

wind and water erosion or contamination by other acid or toxic
material;

replace and regrade the root zone material described in (B) above
with proper compaction and uniform depth over the regraded spoil
material; and

redistribute and grade in a uniform manner the surface soil horizon
described in subparagraph (A);

create, if authorized in the approved mining and reclamation plan and
permit, permanent impoundments of water on mining sites as part of
reclamation activities only when it is adequately demonstrated that:

(A)
(8)

(C)

(D)
(E)

()

the size of the impoundment is adequate for its intended purposes;

the impoundment dam construction will be so designed as to
achieve necessary stability with an adequate margin of safety
compatible with that of structures constructed under Public Law
83-566 (16 USC 1006);

the quality of impounded water will be suitable on a permanent
basis for its intended use and that discharges from the
impoundment will not degrade the water quality below water
quality standards established pursuant to applicable federal and
Tribal law in the receiving stream;

the level of water will be reasonably stable;

final grading will provide adequate safety and access for proposed
water users; and

such water impoundments will not result in the diminution of the
quality and quantity of water utilized by adjacent or surrounding
landowners for agricultural, industrial, recreational, municipal,
recreational, or domestic uses;

conduct any augering operation associated with other mining in a manner
to maximize recoverability of mineral reserves remaining after the
operation and reclamation are complete; and seal all auger holes with an
impervious and noncombustible material in order to prevent drainage
except where the CCRO determines that the resulting impoundment of

April 2010 Legislative Session
Crow Coal Mining and Reclamation Code

Page 30 of 77
[OCR skipped on page(s) 31-43]

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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/tribal%3Acrow_montana%3Af1102f2a464c6c63. Public record. Not legal advice.