53-9-107 - Right of entry upon property adversely affected by past coal mining; order and required findings; right of entry upon property to conduct studies or exploratory work.
§ 53-9-107. Right of entry upon property adversely affected by past coal mining; order and required findings; right of entry upon property to conduct studies or exploratory work.
(1) If the commission issues an order making a finding in writing with supporting facts that:
(a) Land or water resources have been adversely affected by past coal mining practices;
(b) The adverse effects are at a stage where, in the public interest, action to restore, reclaim, abate, control, or prevent should be taken;
(c) The owners of the land or water resources where entry must be made to restore, reclaim, abate, control, or prevent the adverse effects of past coal mining practices are not known or readily available;
(d) The owners will not give permission for the state or its agents, employees, or contractors to enter upon their property to restore, reclaim, abate, control, or prevent the adverse effects of past coal mining practices;
then, thirty (30) days after giving notice by mail to the owners if known or if not known, by posting notice on the premises and advertising once in a newspaper of general circulation in the municipality or county where the land lies, the executive director, his agents, employees, or contractors shall have the right to enter upon the property adversely affected by past coal mining practices and any other property to have access to such property to do all things necessary or expedient to restore, reclaim, abate, control, or prevent the adverse effects if the landowner does not file an objection with the commission. If, within the thirty-day notice period, the landowner files an objection with the commission, the commission will schedule a hearing on the matter to be conducted under Section 49-17-41. After a hearing on the matter, the commission will issue an order including findings of facts and conclusions of law, which, if adverse to the landowner, may be appealed under Section 49-17-41. Such entry, if ordered by the commission, shall be construed as an exercise of the police power for the protection of public health, safety, and general welfare and shall not be construed as an act of condemnation of property or of trespass. The funds expended for this work and the benefits accruing to the premises entered on shall be chargeable against the land and shall mitigate or offset any claim in or any action brought by any owner of any interest in the premises for any alleged damages by virtue of such entry. This provision is not intended to create new rights of action or eliminate existing immunities.
(2) The commission, its agents, employees, or contractors shall have the right to enter upon any property for the purpose of conducting studies or exploratory work to determine the existence of adverse effects of past coal and noncoal mining practices and to determine the feasibility of restoration, reclamation, abatement, control, or prevention of such adverse effects. Such entry shall be construed as an exercise of the police power for the protection of public health, safety, and general welfare and shall not be construed as an act of condemnation of property or trespass.
Sources: Laws, 2001, ch. 426, § 7, eff from and after July 1, 2001.