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(7) The cost of any required recovery of such fossils shall be <br />borne by the United States. <br />(h) Resource Recovery and Protection. (1) Notwithstanding <br />the approval of a resource recovery and protection plan (R2P2) <br />by the BLM, lessor reserves the right to seek damages against <br />the operator/lessee in the event (i) the operator/lessee fails to <br />achieve maximum economic recovery (MER) (as defined at 43 <br />CFR 3480.0-5(21) of the recoverable coal reserves or (ii) the <br />operator/lessee is determined to have caused a wasting of <br />recoverable coal reserves. Damages shall be measured on the <br />basis of the royalty that would have been payable on the wasted <br />or unrecovered coal. <br />(2) The parties recognize that under an approved R2P2, <br />conditions may require a modification by the operator/lessee <br />of that plan. In the event a coalbed or portion thereof is not to <br />be mined or is rendered unmineable by the operation, the <br />operator/lessee shall submit appropriate justification to obtain <br />approval by the (AO) to leave such reserves unmined. LJpon <br />approval by the AO, such coalbeds or portions thereof shall not <br />be subject to damages as described above. Further, nothing in <br />this section shall prevent the operator/lessee from exercising <br />its right to relinquish all or portion of the lease as authorized <br />by statute and regulation. <br />THE UNITED STATES OF AMERICA <br />By: <br />Gregory P. Shoop <br />Acting State Director <br />Date: Jul 1 a 101Z <br />(3) In the event the AO determines that the R2P2, as approved, <br />will not attain MER as the result of changed conditions, the <br />AO will give proper notice to the operator/lessee as required <br />under applicable regulations. The AO will order a <br />modification if necessary, identifying additional reserves to be <br />mined in order to attain MER. LJpon a final administrative or <br />judicial ruling upholding such an ordered modification, any <br />reserves left. unmined (wasted) under that plan will be subject <br />to damages as described in the first paragraph under this <br />section. <br />(4) Subject to the right to appeal hereinafter set forth, payment <br />of the value of the royalty on such unmined recoverable coal <br />reserves shall become due and payable upon determination by <br />the AO that the coal reserves have been rendered unmineable <br />or at such time that the operator/lessee has demonstrated an <br />unwillingness to extract the coal. <br />(5) The BLM may enforce this provision either by issuing a <br />written decision requiring payment of the Office of Natural <br />Resource Revenue (ONRR) demand for such royalties, or by <br />issuing a notice of non-compliance. A decision or notice of <br />non-compliance issued by the lessor that payment is due under <br />this stipulation is appealable as allowed by law. <br />Title 18 U.S.C. Section 1001, makes it a crime for any person knowingly and willfully to make to any department or agency of <br />the United States any false, fictitious or fraudulent statements or representations as to any matter within its jurisdiction. <br />6 <br />