exclusions.

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A. Subject to valid existing rights, no surface coal mining operations except those which existed on August 3, 1977, shall be permitted:

(1)     which will adversely affect any publicly owned park or place included in the national register of historic sites unless approved jointly by the director and the federal, state or local agency with jurisdiction over the part or the historic site;

(2)     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-wayline and except that the director may permit such roads to be relocated 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 public and the landowners affected thereby will be protected;

(3)     within three hundred feet from any occupied dwelling, unless waived by the owner thereof;

(4)     within three hundred feet of any public building, school, church, community or institutional building or public park; or

(5)     within one hundred feet of a cemetery as defined in Section 58-17-3 N.M. Stat. Ann..

B. By regulation, the commission shall establish a planning process for objectively determining which, if any, additional land areas are unsuitable for all or certain types of surface coal mining, based upon competent and scientifically sound data and information. The process shall include:

(1)     a data base and an inventory system which will permit proper evaluation of the capacity of different land areas of the state to support and permit reclamation of surface coal mining operations;

(2)     a method for implementing land use planning decisions concerning surface coal mining operations so that determinations of the unsuitability of land for surface coal mining will be integrated as closely as possible with present and future land use planning and regulation processes at the federal, state and local levels; and

(3)     proper notice and opportunities for public participation, including a public hearing prior to making any designation or redesignation.

C. Any person having an interest which is or may be adversely affected may petition the director to have an area designated as unsuitable for surface coal mining operations, or to have such a designation terminated. The 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 director shall hold a public hearing in the locality of the affected area, after appropriate notice and publication of the date, time and location of the hearing. After an interested person has filed a petition and before the hearing, any person may intervene by filing allegations of facts with supporting evidence which would tend to establish the allegations. Within sixty days after the hearing, the director shall issue and furnish to the petitioner and any other party to the hearing, a written decision regarding the petition, and the reasons therefor. In the event that all the petitioners stipulate agreement prior to the requested hearing and withdraw their request, the hearing need not be held.

D. Prior to designating any land areas as unsuitable for surface coal mining operations, the director shall prepare a detailed statement on:

(1)     the potential coal resources of the area; (2)     the demand for coal resources; and

(3)     the impact of such designation on the environment, the economy and the supply of coal.

E. Upon petition pursuant to Subsection C of this section, the director, pursuant to the commission’s regulations:

(1)     shall designate an area as unsuitable for all or certain types of surface coal mining operations if he determines that reclamation pursuant to the requirements of the Surface Mining Act is not technologically and economically feasible; and

(2)     may designate an area as unsuitable for certain types of surface coal mining operations if he determines that such operations will:

(a) be incompatible with existing state or local land use plans or programs; (b) affect fragile or historic lands in which such operations could result in significant damage to important historic, cultural, scientific and esthetic values and natural systems;

(c) affect renewable resource lands in which such operations could 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.

F. The requirements of this section do not apply:

(1)     to lands on which surface coal mining operations were being conducted on August 3, 1977;

(2)     to lands on which surface coal mining operations are being conducted under a permit issued pursuant to the Surface Mining Act; or

(3)     where substantial legal and financial commitments in surface coal mining operations were in existence prior to January 4, 1977.

G. The designation of lands as unsuitable for mining pursuant to this section shall not prevent the mineral exploration pursuant to the Surface Mining Act of any area so designated.