First Substitute S.B. 68

This document includes Senate 2nd Reading Floor Amendments incorporated into the bill on Mon, Mar 9, 2009 at 11:22 AM by rday. --> This document includes House Floor Amendments incorporated into the bill on Wed, Mar 11, 2009 at 3:45 PM by jeyring. -->

Senator Sheldon L. Killpack proposes the following substitute bill:

1 MINING PROTECTION AMENDMENTS
2 2009 GENERAL SESSION
3 STATE OF UTAH
4 Chief Sponsor: Sheldon L. Killpack
5 House Sponsor: Ron Bigelow
6
7 LONG TITLE
8 General Description:
9 This bill enacts and modifies provisions relating to the protection of mining uses.
10 Highlighted Provisions:
11 This bill:
12 . provides certain protection for specified mining uses of a mine operator that holds a
13 large mine permit issued by the Division or Board of Oil, Gas, and Mining that have
14 resulted, as of a specified date, in the production and selling of commercial
15 quantities of a mineral deposit and that existed before a political subdivision limits
16 the mining use;
17 . provides that vested mining uses, as defined, constitute a mining protection area;
18 . extends to mining protection areas some of the same protection or similar protection
19 afforded agriculture and industrial protection areas;
20 . establishes a conclusive presumption for a vested mining use;
21 . defines features of a vested mining use;
22 . provides for the rights of a mine operator with a vested mining use; and
23 . provides a process for a mine operator to abandon a vested mining use.
24 Monies Appropriated in this Bill:
25 None

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- 2 - 26 Other Special Clauses:
27 None
28 Utah Code Sections Affected:
29 AMENDS:
30 17-41-101, as last amended by Laws of Utah 2007, Chapter 329
31 17-41-306, as last amended by Laws of Utah 2008, Chapter 168
32 17-41-402, as last amended by Laws of Utah 2008, Chapter 51
33 17-41-403, as last amended by Laws of Utah 2006, Chapter 194
34 ENACTS:
35 17-41-402.5, Utah Code Annotated 1953
36 17-41-501, Utah Code Annotated 1953
37 17-41-502, Utah Code Annotated 1953
38 17-41-503, Utah Code Annotated 1953
39
40 Be it enacted by the Legislature of the state of Utah:
41 Section 1. Section 17-41-101 is amended to read:
42 17-41-101. Definitions.
43 As used in this chapter:
44 (1) "Advisory board" means:
45 (a) for an agriculture protection area, the agriculture protection area advisory board
46 created as provided in Section 17-41-201 ; and
47 (b) for an industrial protection area, the industrial protection area advisory board
48 created as provided in Section 17-41-201 .
49 (2) (a) "Agriculture production" means production for commercial purposes of crops,
50 livestock, and livestock products.
51 (b) "Agriculture production" includes the processing or retail marketing of any crops,
52 livestock, and livestock products when more than 50% of the processed or merchandised
53 products are produced by the farm operator.
54 (3) "Agriculture protection area" means a geographic area created under the authority
55 of this chapter that is granted the specific legal protections contained in this chapter.
56 (4) "Applicable legislative body" means:

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- 3 - 57 (a) with respect to a proposed agriculture protection area or industrial protection area:
58 (i) the legislative body of the county in which the land proposed to be included in an
59 agriculture protection area or industrial protection area is located, if the land is within the
60 unincorporated part of the county; or
61 (ii) the legislative body of the city or town in which the land proposed to be included in
62 an agriculture protection area or industrial protection area is located; and
63 (b) with respect to an existing agriculture protection area or industrial protection area:
64 (i) the legislative body of the county in which the agriculture protection area or
65 industrial protection area is located, if the agriculture protection area or industrial protection
66 area is within the unincorporated part of the county; or
67 (ii) the legislative body of the city or town in which the agriculture protection area or
68 industrial protection area is located.
69 (5) "Board" means the Board of Oil, Gas, and Mining created in Section 40-6-4 .
70 [(5)] (6) "Crops, livestock, and livestock products" includes:
71 (a) land devoted to the raising of useful plants and animals with a reasonable
72 expectation of profit, including:
73 (i) forages and sod crops;
74 (ii) grains and feed crops;
75 (iii) livestock as defined in Subsection 59-2-102 (27)(d);
76 (iv) trees and fruits; or
77 (v) vegetables, nursery, floral, and ornamental stock; or
78 (b) land devoted to and meeting the requirements and qualifications for payments or
79 other compensation under a crop-land retirement program with an agency of the state or federal
80 government.
81 (7) "Division" means the Division of Oil, Gas, and Mining created in Section 40-6-15 .
82 [(6)] (8) "Industrial protection area" means a geographic area created under the
83 authority of this chapter that is granted the specific legal protections contained in this chapter.
84 (9) "Mine operator" means a natural person, corporation, association, partnership,
85 receiver, trustee, executor, administrator, guardian, fiduciary, agent, or other organization or
86 representative, either public or private, including a successor, assign, affiliate, subsidiary, and
87 related parent company, that, as of January 1, 2009:

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- 4 - 88 (a) owns, controls, or manages a mining use under a large mine permit issued by the
89 division or the board; and
90 (b) has produced commercial quantities of a mineral deposit from the mining use.
91 (10) "Mineral deposit" has the same meaning as defined in Section 40-8-4 , but
92 excludes:
93 (a) building stone, decorative rock, and landscaping rock; and
94 (b) consolidated rock that:
95 (i) is not associated with another deposit of minerals;
96 (ii) is or may be extracted from land; and
97 (iii) is put to uses similar to the uses of sand, gravel, and other aggregates.
98 (11) "Mining protection area" means land where a vested mining use occurs, including
99 each surface or subsurface land or mineral estate that a mine operator with a vested mining use
100 owns or controls.
101 (12) "Mining use":
102 (a) means:
103 (i) the full range of activities, from prospecting and exploration to reclamation and
104 closure, associated with the exploitation of a mineral deposit; and
105 (ii) the use of the surface and subsurface and groundwater and surface water of an area
106 in connection with the activities described in Subsection (12)(a)(i) that have been, are being, or
107 will be conducted; and
108 (b) includes, whether conducted on-site or off-site:
109 (i) any sampling, staking, surveying, exploration, or development activity;
110 (ii) any drilling, blasting, excavating, or tunneling;
111 (iii) the removal, transport, treatment, deposition, and reclamation of overburden,
112 development rock, tailings, and other waste material;
113 (iv) any removal, transportation, extraction, beneficiation, or processing of ore;
114 (v) any smelting, refining, autoclaving, or other primary or secondary processing
115 operation;
116 (vi) the recovery of any mineral left in residue from a previous extraction or processing
117 operation;
118 (vii) a mining activity that is identified in a work plan or permitting document;

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- 5 - 119 (viii) the use, operation, maintenance, repair, replacement, or alteration of a building,
120 structure, facility, equipment, machine, tool, or other material or property that results from or is
121 used in a surface or subsurface mining operation or activity;
122 (ix) any accessory, incidental, or ancillary activity or use, both active and passive,
123 including a utility, private way or road, pipeline, land excavation, working, embankment, pond,
124 gravel excavation, mining waste, conveyor, power line, trackage, storage, reserve, passive use
125 area, buffer zone, and power production facility;
126 (x) the construction of a storage, factory, processing, or maintenance facility; and
127 (xi) any activity described in Subsection 40-8-4 (14)(a).
128 [(7)] (13) (a) "Municipal" means of or relating to a city or town.
129 (b) "Municipality" means a city or town.
130 (14) "New land" means surface or subsurface land or mineral estate that a mine
131 operator gains ownership or control of, whether or not that land or mineral estate is included in
132 the mine operator's large mine permit.
133 (15) "Off-site" has the same meaning as provided in Section 40-8-4 .
134 (16) "On-site" has the same meaning as provided in Section 40-8-4 .
135 [(8)] (17) "Planning commission" means:
136 (a) a countywide planning commission if the land proposed to be included in the
137 agriculture protection area or industrial protection area is within the unincorporated part of the
138 county and not within a township;
139 (b) a township planning commission if the land proposed to be included in the
140 agriculture protection area or industrial protection area is within a township; or
141 (c) a planning commission of a city or town if the land proposed to be included in the
142 agriculture protection area or industrial protection area is within a city or town.
143 [(9)] (18) "Political subdivision" means a county, city, town, school district, local
144 district, or special service district.
145 [(10)] (19) "Proposal sponsors" means the owners of land in agricultural production or
146 industrial use who are sponsoring the proposal for creating an agriculture protection area or
147 industrial protection area, respectively.
148 [(11)] (20) "State agency" means each department, commission, board, council,
149 agency, institution, officer, corporation, fund, division, office, committee, authority, laboratory,

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- 6 - 150 library, unit, bureau, panel, or other administrative unit of the state.
151 [(12)] (21) "Unincorporated" means not within a city or town.
152 (22) "Vested mining use" means a mining use:
153 (a) by a mine operator; and
154 (b) that existed or was conducted or otherwise engaged in before a political subdivision
155 prohibits, restricts, or otherwise limits a mining use.
156 Section 2. Section 17-41-306 is amended to read:
157 17-41-306. Adding land to or removing land from an agriculture protection area
158 or industrial protection area -- Removing land from a mining protection area.
159 (1) (a) Any owner may add land to an existing agriculture protection area or industrial
160 protection area, as the case may be, by:
161 (i) filing a proposal with:
162 (A) the county legislative body, if the agriculture protection area or industrial
163 protection area and the land to be added are within the unincorporated part of the county; or
164 (B) the municipal legislative body, if the agriculture protection area or industrial
165 protection area and the land to be added are within a city or town; and
166 (ii) obtaining the approval of the applicable legislative body for the addition of the land
167 to the area.
168 (b) The applicable legislative body shall comply with the provisions for creating an
169 agriculture protection area or industrial protection area, as the case may be, in determining
170 whether or not to accept the proposal.
171 (2) (a) Any owner of land within an agriculture protection area or industrial protection
172 area may remove any or all of the land from the agriculture protection area or industrial
173 protection area, respectively, by filing a petition for removal with the applicable legislative
174 body.
175 (b) (i) The applicable legislative body:
176 (A) shall:
177 (I) grant the petition for removal of land from an agriculture protection area or
178 industrial protection area, as the case may be, even if removal of the land would result in an
179 agriculture protection area or industrial protection area of less than the number of acres
180 established by the applicable legislative body as the minimum under Section 17-41-301 ; and

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- 7 - 181 (II) in order to give constructive notice of the removal to all persons who have, may
182 acquire, or may seek to acquire an interest in land in or adjacent to the agriculture protection
183 area or industrial protection area and the land removed from the agriculture protection area or
184 industrial protection area, file a legal description of the revised boundaries of the agriculture
185 protection area or industrial protection area with the county recorder of deeds and the affected
186 planning commission; and
187 (B) may not charge a fee in connection with a petition to remove land from an
188 agriculture protection area or an industrial protection area.
189 (ii) The remaining land in the agriculture protection area or industrial protection area is
190 still an agriculture protection area or industrial protection area, respectively.
191 (3) (a) If a municipality annexes any land that is part of an agriculture protection area
192 or industrial protection area located in the unincorporated part of the county, the county
193 legislative body shall, within 30 days after the land is annexed, review the feasibility of that
194 land remaining in the agriculture protection area or industrial protection area according to the
195 procedures and requirements of Section 17-41-307 .
196 (b) The county legislative body shall remove the annexed land from the agriculture
197 protection area or industrial protection area, as the case may be, if:
198 (i) the county legislative body concludes, after the review under Section 17-41-307 ,
199 that removal is appropriate; and
200 (ii) the owners of all the annexed land that is within the agriculture protection area or
201 industrial protection area consent in writing to the removal.
202 (c) Removal of land from an agriculture protection area or industrial protection area
203 under this Subsection (3) does not affect whether that land may be:
204 (i) included in a proposal under Section 17-41-301 to create an agriculture protection
205 area or industrial protection area within the municipality; or
206 (ii) added to an existing agriculture protection area or industrial protection area within
207 the municipality under Subsection (1).
208 (4) A mine operator that owns or controls land within a mining protection area may
209 remove any or all of the land from the mining protection area by filing a notice of removal with
210 the legislative body of the county in which the land is located.
211 Section 3. Section 17-41-402 is amended to read:

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- 8 - 212 17-41-402. Limitations on local regulations.
213 (1) A political subdivision within which an agriculture protection area or industrial
214 protection area is created or with a mining protection area within its boundary shall encourage
215 the continuity, development, and viability of agriculture [or], industrial, or mining use,
216 respectively, within the area by not enacting a local law, ordinance, or regulation that would
217 unreasonably restrict a farm structure or farm practice or, in the case of an industrial protection
218 area, an industrial use of the land within the area or, in the case of a mining protection area, a
219 mining use within the protection area unless the law, ordinance, or regulation bears a direct
220 relationship to public health or safety.
221 (2) A political subdivision may not change the zoning designation of or a zoning
222 regulation affecting land within an agriculture protection area unless the political subdivision
223 receives written approval for the change from all the landowners within the agriculture
224 protection area affected by the change.
225 (3) Except as provided by Section 19-4-113 , a political subdivision may not change the
226 zoning designation of or a zoning regulation affecting land within an industrial protection area
227 unless the political subdivision receives written approval for the change from all the
228 landowners within the industrial protection area affected by the change.
229 (4) A political subdivision may not change the zoning designation of or a zoning
230 regulation affecting land within a mining protection area unless the political subdivision
231 receives written approval for the change from each mine operator within the area.
232 Section 4. Section 17-41-402.5 is enacted to read:
233 17-41-402.5. Limits on political subdivisions with respect to a vested mining use --
234 Exception.
235 (1) A political subdivision may not:
236 (a) terminate a vested mining use, whether by amortization, the exercise of police
237 power, or otherwise;
238 (b) prohibit, restrict, or otherwise limit a mine operator with a vested mining use from
239 exercising the rights permitted under this chapter;
240 (c) require, for a vested mining use:
241 (i) a variance;
242 (ii) a conditional use permit;

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House Floor Amendments 3-11-2009 je/rhr 243

(iii) a special exception;
244 (iv) the establishment or determination of a nonconforming use right; or
245 (v) any other type of zoning or land use permit; or
246 (d) prohibit, restrict, limit, or otherwise regulate a vested mining use under a variance,
247 conditional use permit, special exception, or other zoning or land use permit issued before May
248 12, 2009.
249 (2) Subsection (1) does not prohibit a political subdivision from requiring a vested
250 mining use to comply with the generally applicable, reasonable health and safety regulations
251 and building code adopted by the political subdivision H. including a drinking water protection
251a zone as defined and limited to Section 19-4-113(4)(a) and (b) .H .
252 Section 5. Section 17-41-403 is amended to read:
253 17-41-403. Nuisances.
254 (1) Each political subdivision shall ensure that any of its laws or ordinances that define
255 or prohibit a public nuisance exclude from the definition or prohibition:
256 (a) for an agriculture protection area, any agricultural activity or operation within an
257 agriculture protection area conducted using sound agricultural practices unless that activity or
258 operation bears a direct relationship to public health or safety; or
259 (b) for an industrial protection area, any industrial use of the land within the industrial
260 protection area that is consistent with sound practices applicable to the industrial use, unless
261 that use bears a direct relationship to public health or safety.
262 (2) In a civil action for nuisance or a criminal action for public nuisance under Section
263 76-10-803 , it is a complete defense if the action involves agricultural activities and those
264 agricultural activities were:
265 (a) conducted within an agriculture protection area; and
266 (b) not in violation of any federal, state, or local law or regulation relating to the
267 alleged nuisance or were conducted according to sound agricultural practices.
268 (3) (a) A vested mining use undertaken in conformity with applicable federal and state
269 law and regulations is presumed to be operating within sound mining practices.
270 (b) A vested mining use that is consistent with sound mining practices:
271 (i) is presumed to be reasonable; and
272 (ii) may not constitute a private or public nuisance under Section 76-10-803 .
273 (c) A vested mining use in operation for more than three years may not be considered

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- 10 - 274 to have become a private or public nuisance because of a subsequent change in the condition of
275 land within the vicinity of the vested mining use.
276 [(3)] (4) (a) For any new subdivision development located in whole or in part within
277 300 feet of the boundary of an agriculture protection area, the owner of the development shall
278 provide notice on any plat filed with the county recorder the following notice:
279 "Agriculture Protection Area
280 This property is located in the vicinity of an established agriculture protection area in
281 which normal agricultural uses and activities have been afforded the highest priority use
282 status. It can be anticipated that such agricultural uses and activities may now or in the
283 future be conducted on property included in the agriculture protection area. The use
284 and enjoyment of this property is expressly conditioned on acceptance of any
285 annoyance or inconvenience which may result from such normal agricultural uses and
286 activities."
287 (b) For any new subdivision development located in whole or in part within 1,000 feet
288 of the boundary of an industrial protection area, the owner of the development shall provide
289 notice on any plat filed with the county recorder the following notice:
290 "Industrial Protection Area
291 This property is located in the vicinity of an established industrial protection area in
292 which normal industrial uses and activities have been afforded the highest priority use
293 status. It can be anticipated that such industrial uses and activities may now or in the
294 future be conducted on property included in the industrial protection area. The use and
295 enjoyment of this property is expressly conditioned on acceptance of any annoyance or
296 inconvenience which may result from such normal industrial uses and activities."
297 (c) For any new subdivision development located in whole or in part within 1,000 feet
298 of the boundary of a mining protection area, the owner of the development shall provide notice
299 on any plat filed with the county recorder the following notice:
300 "This property is located within the vicinity of an established mining protection area in
301 which normal mining uses and activities have been afforded the highest priority use status. It
302 can be anticipated that the mining uses and activities may now or in the future be conducted on
303 property included in the mining protection area. The use and enjoyment of this property is
304 expressly conditioned on acceptance of any annoyance or inconvenience that may result from

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the normal mining uses and activities."
306 Section 6. Section 17-41-501 is enacted to read:
307 Part 5. Vested Mining Use
308 17-41-501. Vested mining use -- Conclusive presumption.
309 (1) (a) A mining use is conclusively presumed to be a vested mining use if the mining
310 use existed or was conducted or otherwise engaged in before a political subdivision prohibits,
311 restricts, or otherwise limits the mining use.
312 (b) Anyone claiming that a vested mining use has not been established has the burden
313 of proof to show by clear and convincing evidence that the vested mining use has not been
314 established.
315 (2) A vested mining use:
316 (a) runs with the land; and
317 (b) may be changed to another S. mining .S use without losing its status as a vested
317a mining use.
318 (3) The present or future boundary described in the large mine permit of a mine
319 operator with a vested mining use does not limit:
320 (a) the scope of the mine operator's rights under this chapter; or
321 (b) the protection that this chapter provides for a mining protection area.
322 (4) (a) A mine operator with a vested mining use shall file a declaration for recording
323 in the office of the recorder of the county in which the vested mining use is located.
324 (b) A declaration under Subsection (4)(a) shall:
325 (i) contain a legal description of the land included within the vested mining use; and
326 (ii) provide notice of the vested mining use.
327 Section 7. Section 17-41-502 is enacted to read:
328 17-41-502. Rights of a mine operator with a vested mining use.
329 (1) Notwithstanding a political subdivision's prohibition, restriction, or other limitation
330 on a mining use adopted after the establishment of the mining use, the rights of a mine operator
331 with a vested mining use include the rights to:
332 (a) progress, extend, enlarge, grow, or expand the vested mining use to any surface or
333 subsurface land or mineral estate that the mine operator owns or controls;
334 (b) expand the vested mining use to any new land that:
335 (i) is contiguous S. [ or ] and .S related in mineralization to surface or subsurface land or
335a a mineral

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estate that the mine operator already owns or controls;
337 (ii) contains minerals that are part of the same mineral trend as the minerals that the
338 mine operator already owns or controls; or
339 (iii) is a geologic offshoot to surface or subsurface land or a mineral estate that the
340 mine operator already owns or controls;
341 (c) use, operate, construct, reconstruct, restore, extend, expand, maintain, repair, alter,
342 substitute, modernize, upgrade, and replace equipment, processes, facilities, and buildings on
343 any surface or subsurface land or mineral estate that the mine operator owns or controls;
344 (d) increase production or volume, alter the method of mining or processing, and mine
345 or process a different or additional mineral than previously mined or owned on any surface or
346 subsurface land or mineral estate that the mine operator owns or controls; and
347 (e) discontinue, suspend, terminate, deactivate, or continue and reactivate, temporarily
348 or permanently, all or any part of the mining use.
349 (2) (a) As used in this Subsection (2), "applicable legislative body" means the
350 legislative body of each:
351 (i) county in whose unincorporated area the new land to be included in the vested
352 mining use is located; and
353 (ii) municipality in which the new land to be included in the vested mining use is
354 located.
355 (b) A mine operator with a vested mining use is presumed to have a right to expand the
356 vested mining use to new land.
357 (c) Before expanding a vested mining use to new land, a mine operator shall provide
358 written notice:
359 (i) of the mine operator's intent to expand the vested mining use; and
360 (ii) to each applicable legislative body.
361 (d) (i) An applicable legislative body shall H. :
361a (A) .H hold a public meeting or hearing at its next
362 S. [ regularly scheduled ] available .S meeting that is more than S. [ five ] ten .S days after
362a receiving the notice under
363 Subsection (2)(c) H. [ . ] ; and
363a (B) provide reasonable, advance, written notice:
363b (I) of:
363c (Aa) the intended expansion of the vested mining use; and
363d (Bb) the public meeting or hearing; and
363e (II) to each owner of the surface estate of the new land. .H
364 (ii) A public meeting or hearing under Subsection (2)(d)(i) serves to provide sufficient
365 public notice of the mine operator's intent to expand the vested mining use to the new land.
366 (e) After the public meeting or hearing under Subsection (2)(d)(ii), a mine operator

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- 13 - 367 may expand a vested mining use to new land without any action by an applicable legislative
368 body, unless there is clear and convincing evidence in the record that the expansion to new land
369 will imminently endanger the public health, safety, and welfare.
370 (3) If a mine operator expands a vested mining use to new land, as authorized under
371 this section:
372 (a) the mine operator's rights under the vested mining use with respect to land on which
373 the vested mining use occurs apply with equal force after the expansion to the new land; and
374 (b) the mining protection area that includes land on which the vested mining use occurs
375 is expanded to include the new land.
376 Section 8. Section 17-41-503 is enacted to read:
377 17-41-503. Abandonment of a vested mining use.
378 (1) A mine operator may abandon some or all of a vested mining use only as provided
379 in this section.
380 (2) To abandon some or all of a vested mining use, a mine operator shall record a
381 written declaration of abandonment with the recorder of the county in which the vested mining
382 use being abandoned is located.
383 (3) The written declaration of abandonment under Subsection (2) shall specify the
384 vested mining use or the portion of the vested mining use being abandoned.