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• .. . <br />(4) Lessee shall not knowingh~ disturb, alter, destroy, or take an;- larger and more conspicuous <br />fossils of significant scientific interest and shall protect all such fossils in conformance with the measures <br />included in the approved mining and reclamation plan or exploration plan. <br />(5) These conditions apply to all such fossils of significant scientific interest discovered within the <br />leased lands, whether discovered in the overburden, interburden, or coal seam or seams. <br />(6) All fossils of signifrcant scientific interest shall remain under Che jurisdiction of the United <br />States until ownership is determined under applicable law. <br />(7) The cost of any required recovery of such fossils shall be borne by the United States. Copies of <br />all paleontological resource data shall be provided to the Regional Director, OSMRE. <br />(c) Resource Recovery and Protection. (1) Notwithstanding the approval of a resource recovery and <br />protection plan (R2P2) by the BLM, lessor reserves the right to seek damages against the operatorllessee in <br />the event (i) the operatorllessee fails to achieve maximum economic recovery (MER) (as defined at 43 CFR <br />3480.0-5(21) of the recoverable coal reserves or (ii) the operatorllessee is determined to have caused a <br />wasting of recoverable coal reserves. Damages shall be measured on the basis of the royalty that would <br />have been payable on the wasted or unrecovered coal. <br />(2) The parties recognize that under an approved R2P2, conditions may require a modification by <br />the operatorllessee of that plan. In the event a coalbed or portion thereof is not to be mined or is rendered <br />unmineable by the operation, the operatorllessee shall submit appropriate justification to obtain approval by <br />the AO to leave such reserves unmined. Upon approval by the AO, such coalbeds or portions thereof shall <br />not be subject to damages as described above. Further, nothing in this section shall prevent the <br />operatorllessee from exercising its right to relinquish a]] or portion of the lease as authorized by statute and <br />regulation. <br />(3) In the event the AO determines that the R2P2, as approved, will not attain MER as the result of <br />changed conditions, the AO will give proper notice to the operatorllessee as required under applicable <br />regulations. The AO will order a modification, if necessary, identifying additional reserves to be mined in <br />order to attain MER. Upon a final administrative or judicial ruling upholding such an ordered modification, <br />any reserves left unmined (wasted) under that plan will be subject to damages as described in the first <br />paragraph under this section. <br />(4) Subject to the right to appeal hereinafter set forth, payment of the value of the royalty on such <br />unmined recoverable coal reserves shall become due and payable upon determination by the AO that the <br />coal reserves have been rendered unmineable or at such time that the operatorllessee has demonstrated an <br />unwi3lingness to extract the coal. <br />(5) The BLM may enforce this provision either by issuing a written decision requiring payment of <br />the MMS demand for such royalties, or by issuing a notice of non-compliance. A decision or notice of non- <br />compliance issued by the lessor that payment is due under this stipulation is appealable as allowed by law. <br />(d) Threatened and Endangered Species. If there is reason to believe that Threatened or Endangered, or <br />Sensitive (TES) species of plants or animals, or migratory bird species of high Federal interest occur in the <br />area, the lessee shall be requited to conduct an intensive field inventory of the area to be disturbed andfw <br />impacted. The inventory shall be conducted by a qualified specialist and a report of findings will be <br />prepared. A plan will be prepared malting recommendations for the protection of these species or action <br />