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,~ associated with coal exploration outside an approved mining permit area), or the AO of the surface managing agency, if the Regional Director, or District Mining Supervisor, as appropriate, is not available. Lessee shall not disturb such resources except as may be subsequently authorized by the Regional Director (or the District Mining Supervisor if activities are associated with coal exploration outside an approved mining permit area). Within two (2) working days of notification, the Regional Director (or the District Mining supervisor if activities are associated with coal exploration outside an approved mining permit area) will evaluate or have evaluated any cultural resources discovered and will determine if any action may be required to protect or preserve such discoveries. Cost of data recovery for cultural resources discovered during lease operations shall be borne by the surface managing agency unless otherwise specified by the AO of. the BLM or .of the surface managing agency, if different. (iv) All cultural resources shall remain under the jurisdiction of the United States until ownership is determined under applicable law. (g) PALEONTOLOGICAL RESOURCES. (1) Before undertaking any activities that may disturb the surface of the leased lands, lessee shall contact the BLM to determine whether the AO will require lessee to conduct a paleontological appraisal of the mine plan and adjacent areas, or exploration plan areas that may be adversely affected by lease-related activities. If the AO determines that one is necessary, the paleontological appraisal shall be conducted by a qualified paleontologist approved by the AO of the surface managing agency (BLM if the surface is privately owned), using the published literature and, where appropriate, field appraisals for determining the possible existence of larger and more conspicuous fossils of scientific significance. (2) A report of the appraisal and recommendations for protecting any larger and more conspicuous fossils of significant scientific interest on the leased lands so identified shall be submitted to the AO of the surface managing agency (BLM if the surface is privately owned). When necessary to protect and collect the larger and more conspicuous fossils of significant scientific interest on the leased lands, lessee shall undertake the measures provided in the approval of the mining and reclamation plan or exploration plan. (i) Lessee shall not knowingly disturb, alter, destroy or take any larger and more conspicuous fossils of significant scientific interest, and shall protect all such fossils in conformance with the measures included in the approval of the mining and reclamation plan or exploration plan. (ii) Lessee shall immediately bring any such fossils that might be altered or destroyed by his operation to the attention of the Regional Director or the District Mining Supervisor, as appropriate. Operations may continue as long as the fossil specimen(s) would 5 not be seriously damaged or destroyed by the activity. Within five (5) working days of notification, the Regional Director or the District Mining Supervisor, as appropriate, shall evaluate or have evaluated such discoveries brought to his attention and shall notify the lessee what action shall be taken with respect to such discoveries. (iii) These conditions apply to all such fossils of significant scientific interest discovered within the leased lands, whether discovered in the overburden, interburden, or coal seam or seams. (iv) All such fossils of significant scientific interest shall remain under the jurisdiction of the United States until ownership is determined under applicable law. Copies of all paleontological resource data generated as a result of the lease term requirements will be provided to the Regional Director or the District Mining Supervisor, as appropriate. (v) The cost of any required salvage of such fossils shall be borne by Che United states. (h) RESOURCE RECOVERY AND PROTECTION. (1) Notwithstanding the approval of a resource recovery and protection plan (R2P2) by the BLM, lessor reserves the right to seek damages against the operator/lessee in the event (i) the operator/lessee fails to achieve maximum economic recovery (MER) (as defined at 43 CFR 3460.0-5(21) of the recoverable coal reserves or (ii) the operator/lessee is determined to have caused a wasting of recoverable coal reserves. Damages shall be measured on the basis of the royalty that would have been payable on the wasted or unrecovered coal. (2) The parties recognize that under an approved R2P2, conditions may require a modification by the operator/lessee of that plan. In the event a coalbed or portion thereof is not to be mined or is rendered unmineable by the operation, the operator/lessee shall submit appropriate justification to obtain approval by the AO to leave such reserves unmined. Upon approval by the AO, such coalbeds or portions thereof shall not be subject to damages as described above. Further, nothing in this section shall prevent the operator/lessee from exercising its right to relinquish all or portion of the lease as authorized by statute and regulation. (3) In the event the AO determines that the R2P2, as approved, will not attain MER as the result of changed conditions, the AO will give proper notice to the operator/lessee as required under applicable regulations. The AO will order a modification if necessary, identifying additional reserves to be mined in order to attain MER. Upon a final administrative or judicial ruling upholding such an ordered modification, any reserves left unmined (wasted) under that plan will be subject to damages as described in the first paragraph under this section. (4) Subject to the right to appeal