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• <br />Regional Director, OSMRE, shall evaluate or have evaluated such discoveries and shall notify the lessee <br />what action shall be taken with respect to such discoveries. <br />(4) Lessee shall not lrnow-ingly disturb, alter, destroy, or take any 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 glare. <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 significant scientific interest shall remain under the jurisdiction of the United <br />States until ownership is determined under applicable law. <br />('n The cost of any required recovery of such fossils shall be borne by the United States. Copies of <br />ail paleontological resource data shall be provided to the Rea oval Director, OSMRE. <br />(c) Resource Recovery and Protection. (1) Notwithstanding the approvat of a resource recovery and <br />protection plan (R2P2) by the BLM, lessor reserves the right to seek damages against the operator/lessee in <br />the event (i} the aperatorRessee fails to achieve max;mum economic recovery (MER) {as defined at 43 CFR <br />34$O.Q-5(21) of the recoverable coal reserves or (ii) the operator/lessee is determined to have caused a <br />wasting of recoverable coal reserves. Damages shall be measured on the basin 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 operatorJlessee ofthat plan. in the event a combed or portion thereof is not to be mined or is rendered <br />„:,m;neable by the operation, the operatorllessee shall submit appropriate justutcation 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 ifs right to relinquish all or portion of the lease as authorized by statute and <br />regulation. <br />(3) In the event the AO deternvnes that the R2P2, as approved, will not atFa;n A'IF.R as the result of <br />changed conditions, the AO will give proper notice to the operator/lessee 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 ar judicial ruling upholding such an ordered modification, <br />any reserves left i~n*ri~+ed (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 became due and payable upon defemvnation by the AO that the <br />coal reserves have been rendered unmiueable or at such time that the operatorllessee has demonstrated an <br />unwillingness 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 ofnon-compliance. A decision or notice of non- <br />compliance issued by the Iessor that payment is due under this stipulation is appealable as allowed by law. <br />(d) Threatened and Endan6ered 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 />. azea, the lessee shall be required to conduct an intensive field inventory of the area to be disturbed and/or <br />impacted The inventory shall be conducted by a qualified specialist and a report of findings wiIl be <br />