KRS § 350.105 — KY Code / Title XXVIII / Chapter 350 / Section 350.105
350.105 Easement of necessity to conduct reclamation operations
Status: in_force

350.105 Easement of necessity to conduct reclamation operations.

(1) An easement of necessity for the completion of reclamation activities, created by

this subsection, requires satisfaction of these circumstances:

(a) An entity has, by court order or approved plan of reorganization, become

responsible for performance of reclamation under a surface coal mining and

reclamation permit issued by the cabinet pursuant to KRS Chapter 350 prior to

July 12, 2006;

(b) The entity obtained those permit rights and obligations in connection with a

bankruptcy proceeding;

(c) The permit holder's right to enter upon some portion or all of the property

covered by such permit is derived from a leasehold interest in the property;

and

(d) The lease authorizing the conducting of surface coal mining and reclamation

operations was held by an entity other than the entity responsible for

reclamation and has expired or was terminated prior to completion of

reclamation operations for that leased property.

(2) Upon satisfaction of paragraphs (a) to (d) of subsection (1) of this section and all

other obligations provided for in this section, the entity responsible for the

performance of reclamation shall be deemed by operation of law to have an

"easement of necessity to conduct reclamation operations" for such property as was

under the expired or terminated lease. The easement of necessity to conduct

reclamation operations shall exist for a period of time that is reasonably necessary

for the entity responsible for the reclamation to complete any reclamation

operations required by the permit and by KRS Chapter 350, but in no case shall the

easement of necessity to conduct reclamation operations exist longer than eight (8)

years from the date the easement is created pursuant to this section.

(3) In order to create the easement of necessity to conduct reclamation operations, the

entity responsible for the performance of reclamation shall:

(a) Provide to the permitting agency, with a certified copy to the current surface

owner, documentation to establish the satisfaction of the conditions imposed

by this section and receive from the permitting agency a written determination

that the permitted area for which the easement of necessity is requested falls

within the conditions of this section; and

(b) Compensate the current surface owner with the fair rental value of the

property for the reclamation period, including the extended liability period

prior to the final bond release on the formerly leased property, as follows:

1. The entity responsible for the reclamation shall provide a written

opinion by a qualified appraiser as to the fair rental value and the basis

for the determination;

2. The surface owner and the entity responsible for the reclamation shall

attempt to reach agreement as to the amount of the appropriate

compensation; and

3. If no agreement is reached as to the amount of appropriate compensation

within fifteen (15) days following receipt by the surface owner of the

written offer of compensation from the entity responsible for

reclamation and the appraisal report, the entity responsible for

reclamation shall pay into an escrow account for the benefit of the

current surface owner in a bank authorized to do business in the

Commonwealth an amount equal to the written offer by the entity

responsible for reclamation, which shall be not less than fifteen thousand

dollars ($15,000) for the first three (3) years of the reclamation and

liability period. The entity responsible for the reclamation shall provide

the current owner with the location of the escrow account.

(4) After subsection (3)(b)3. of this section is satisfied, the entity responsible for

reclamation shall have the immediate right of entry solely to perform reclamation as

required by the permit and state law.

(5) If the surface owner believes the amount placed in escrow is insufficient

compensation, the owner may bring an action in the Circuit Court in the county in

which the property in question is located for a determination of the fair rental value

of the property.

(6) Following the first payment, five thousand dollars ($5,000) or the appraised fair

rental value, whichever is greater, shall be paid to the current surface owner for each

year of reclamation and extended liability period until the final bond release and

shall be paid on the first day of each subsequent year beginning with the fourth year.

(7) After July 15, 2008, no new easement of necessity to conduct reclamation

operations created by this section shall be deemed to exist by operation of law,

except for continuation of such easements that were created prior to July 15, 2008.