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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 all <br />paleontological resource data shall be provided to the Regional Director, OSMRE. <br />(c) Resource Recovery and Protection. (L) Notvithstandingche approval of a resource recovery and <br />protection plan (R2P2) by the BLM, lessor reserves the right to seek damages against the operator/lessee in the event <br />(i) the operator/lessee fails to achieve maximum economic recovery (MER) (as defined at 43 CFR 3480.0-5(21) of <br />the recoverable coal reserves or (ii) [he operator/lessee is determined to have caused a wasting of recoverable coal <br />reserves. Damages shall be measured on the basis of the royalty that would have been payable on the wasted or <br />unrecovered coal. <br />(?) The parties recognize that under an approved R2P2, conditions may require a modification by the <br />operator/lessee of that plan. In the event a coalbed or portion thereof is not to be mined or is rendered unmineable <br />by the operation, [he operator/lessee shall submit appropriate justification to obtain approval by [he AO to leave such <br />reserves unmined. Upon approval by the AO, such coalbeds or portions thereof shall not be subject to damages as <br />described above. Further, nothing in this section shall prevent the operator/lessee from exercising its right to <br />relinquish all or portion of the lease as authorized by statute and regulation. <br />(3) In the event the AO determines that the R2P2, as approved, will not attain MER as the result of changed <br />conditions, the AO will give proper notice [o [he operator/lessee as required under applicable regulations. The AO <br />will order a modification, if necessary, identifying additional reserves to be mined in order to attain MER. Upon a <br />final administrative orjudicial ruling upholding such an ordered modification, any reserves left unmined (wasted) <br />under [hat plan will be subject to damages as described in the first paragraph under this section. <br />(4) Subject to the right to appeal hereinafter se[ forth, payment of [he value of the royalty on such unmined <br />recoverable coal reserves shall become due and payable upon determination by the AO that the coal reserves have <br />been rendered unmineable or at such time [hat [he operator/lessee has demonstrated an unwillingness to extract [he <br />coal. <br />(5) The BLM may enforce this provision either by issuing a written decision requiring payment of the MMS <br />demand for such royalties, or by issuing a notice of non-compliance. A decision or notice of non-compliance issued <br />by the lessor that payment is due under this stipulation is appealable as allowed by law. <br />(d) Alluvial Valley Floor. The alluvium of East Salt Creek, has been tentatively identified by the Office of <br />Surface Mining (OSM) as an alluvial valley floor (AVF) based on geomorphic criteria and water availability with the <br />potential for surface irrigation or subirrigation. In order to ensure [hat the essential hydrologic functions of [he AVF <br />will be preserved or reestablished, and in order to protect the water supply of the AVF, no subsidence is permitted <br />within the AVF. This stipulation may be rescinded if the Division of Minerals and Geology (DMG) determines [hat <br />the valley floor within the lease area is no[ an AVF. If [he DMG does confirm the existence of an AVF, the <br />stipulation may be modified or reduced in scope if the lessee can demonstrate that mining extraction methods under <br />portions of the AVF will: <br />a) ensure the preservation of the essential hydrologic functions of the AVF not within [he coal permit area <br />and ensure the reestablishment of the essential hydrologic functions of the AVF within the permit area; <br />and <br />b) ensure that the quality and quantity of waters [hat supply [he AVF will not be materially damaged. <br />(e) Road Rieht-of-Wav. No surface-disturbing activities except for essential roads and utility crossings <br />shall be allowed within the right-of-way for Highway 139. Subsidence shall not be permitted within 100 feet of the <br />outside line of the right-of-way for Highway 139 (150 feet from centerline along each side of hishway). The angle <br />of draw used to protect the highwa}' from subsidence will be dictated by the approved DMG Mine Permit. <br />1 <br />