316 
with the operator’s right to develop the oil and 
gas estate; 
(C) the reclamation of the site to a condi-
tion capable of supporting the uses which such 
lands were capable of supporting prior to explo-
ration and drilling operations or other uses as 
agreed to by the operator and the surface 
owner; and 
(D) compensation for damages as a result 
of exploration and drilling operations, including 
but not limited to— 
(i) loss of income and increased costs 
incurred; 
(ii) damage to or destruction of per-
sonal property, including crops, forage, and 
livestock; and 
(iii) failure to reclaim the site in ac-
cordance with this subparagraph (C). 
(3) PROCEDURE.— 
(A) IN GENERAL.—An operator shall no-
tify the surface estate owner or owners of the 
operator’s desire to conclude an agreement 
under this section. If the surface estate owner 
and the operator do not reach an agreement 
within 90 days after the operator has provided 
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317 
such notice, the matter shall be referred to 
third party arbitration for resolution within a 
period of 90 days. The cost of such arbitration 
shall be the responsibility of the operator. 
(B) IDENTIFICATION OF ARBITERS.—The 
Secretary shall identify persons with experience 
in conducting arbitrations and shall make this 
information available to operators and surface 
owners. 
(C) REFERRAL
TO
IDENTIFIED
ARBI-
TER.—Referral of a matter for arbitration by a 
person identified by the Secretary pursuant to 
subparagraph (B) shall be sufficient to con-
stitute compliance with subparagraph (A). 
(4) ATTORNEYS FEES.—If action is taken to 
enforce or interpret any of the terms and conditions 
contained in a surface use agreement, the prevailing 
party shall be reimbursed by the other party for rea-
sonable attorneys fees and actual costs incurred, in 
addition to any other relief which a court or arbitra-
tion panel may grant. 
(c) AUTHORIZED EXPLORATION AND DRILLING OP-
ERATIONS.— 
(1) AUTHORIZATION
WITHOUT
SURFACE
USE 
AGREEMENT.—The Secretary may authorize an op-
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318 
erator to conduct exploration and drilling operations 
on lands covered by subsection (b) in the absence of 
an agreement with the surface estate owner or own-
ers, if— 
(A) the Secretary makes a determination 
in writing that the operator made a good faith 
attempt to conclude such an agreement, includ-
ing referral of the matter to arbitration pursu-
ant to subsection (b)(3), but that no agreement 
was concluded within 90 days after the referral 
to arbitration; 
(B) the operator submits a plan of oper-
ations that provides for the matters specified in 
subsection (b)(2) and for compliance with all 
other applicable requirements of Federal and 
State law; and 
(C) the operator posts a bond or other fi-
nancial assurance in an amount the Secretary 
determines to be adequate to ensure compensa-
tion to the surface estate owner for any dam-
ages to the site, in the form of a surety bond, 
trust fund, letter of credit, government security, 
certificate of deposit, cash, or equivalent. 
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