Rights of Entry

PURPOSE: This rule sets forth requirements for the entry onto land by the state under the state reclamation plan for purposes of reclamation and of conducting studies or exploratory work to determine the existence of adverse effects of past coal mining practices and performing reclamation work pursuant to sections 444.810, 444.925 and 444.940, RSMo. (1) Consent to Entry. The commission, its agents, employees or contractors shall take all reasonable actions to obtain written consent from the owner of record of the land or property to be entered in advance of such entry. The consent shall be in the form of a signed statement by the owner of record or his/her authorized agent which, as a minimum, includes a legal description of the land to be entered, the projected nature of work to be performed on the land and any special conditions for entry. The statement shall not include any commitment by the state to perform reclamation work nor to compensate the owner for entry. (2) Entry for Studies or Exploration. (A) The commission, its agents, employees, or contractors shall have the right to enter upon any property for the purpose of conducting studies or exploratory work to determine the existence of adverse effects of past coal mining practices and the feasibility of restoration, reclamation, abatement, control, or prevention of such adverse effects. (B) If the owner of the land to be entered under this section will not provide consent to entry, the commission will give notice in writing to the owner of its intent to enter for purposes of study and exploration to determine the existence of adverse effects of past coal mining practices which may be harmful to the public health, safety, or environment. The notice shall be by mail, return receipt requested, to the owner, if known, and shall include a statement of the reasons why entry is believed necessary. If the owner is not known, or the current mailing address of the owner is not known, or the owner is not readily available, the notice shall be posted in one (1) or more places on the property to be entered where it is readily visible to the public and advertised once in a newspaper of general circulation in the locality in which the land is located. Notice shall be given at least thirty (30) days before entry. (C) Entry necessary to investigate and explore reported emergency conditions will be governed by 10 CSR 40-9.030(4). (3) Entry for Reclamation. (A) The commission, its agents, employees, or contractors may enter upon land to perform reclamation activities if the consent of the owner cannot be obtained. (B) Prior to entry under this section, the commission shall find in writing with supporting reasons that— 1. Land or water resources have been adversely affected by past coal mining practices; 2. The adverse effects are at a stage where, in the interest of the public health, safety, or environment, action to restore, reclaim, abate, control, or prevent should be taken; 3. The owner of the land or water resources where entry is necessary to restore, reclaim, abate, control, or prevent the adverse effects of past coal mining practices is not known or readily available; or 4. The owner will not give permission for the commission, its agents, employees, or contractors to enter upon such property to restore, reclaim, abate, control, or prevent the adverse effects of past coal mining practices. (C) The commission will give notice of its intent to enter for purposes of conducting reclamation at least thirty (30) days before entry upon the property. The notice shall be in writing and mailed, return receipt requested, to the owner, if known, with a copy of the findings required by this section. If the owner is not known, or if the current mailing address of the owner is not known, notice shall be posted in one (1) or more places on the property to be entered where it is readily visible to the public and advertised once in a newspaper of general circulation in the locality in which the land is located. The notice posted on the property and advertised in the newspaper shall include a statement of where the findings required by this section may be inspected or obtained. (4) Entry for Emergency Reclamation. (A) The commission, its agents, employees, or contractors shall have the right to enter upon any land where an emergency exists and on any other land to have access to the land where the emergency exists to restore, reclaim, abate, control, or prevent the adverse effects of coal mining practices and to do all things necessary or expedient to protect the public health, safety, or environment. (B) Prior to entry under this section, the director shall make a written finding with supporting reasons that— 1. An emergency exists constituting a danger to the public health, safety, or environment; 2. Emergency restoration, reclamation, abatement, control, or prevention of adverse effects of past coal mining is necessary; and 3. No other person or agency will act expeditiously to restore, reclaim, abate, control, or prevent the adverse effects of past coal mining practices. (C) Notice to the owner shall not be required prior to entry for emergency reclamation. The director shall make reasonable efforts to notify such owner and obtain consent prior to entry consistent with the emergency conditions that exist. Written notice shall be given to the owner as soon after entry as practical. The notice shall be mailed, return receipt requested, to the owner, if known, and shall include a copy of the findings required by this section. If the owner is not known, or if the current mailing address of the owner is not known, notice shall be posted on the property entered in one (1) or more places where it is readily visible to the public and advertised once in a newspaper of general circulation in the locality in which the land is located. The notice posted on the property and advertised in the newspaper shall include a statement that an emergency existed and where the findings required by this section may be inspected or obtained. (D) The moneys expended for such work, and the benefits accruing to any such premises so entered, shall be chargeable against such land and shall mitigate or offset any claim in, or action brought by any owner of any interest in such premises for any alleged damages as a result of the entry. AUTHORITY: section 444.810, RSMo 2016.* Original rule filed June 11, 1981, effective Oct. 13, 1981. Amended: Filed March 26, 2018, effective Nov. 30, 2018. *Original authority; 444.810, RSMo 1979, amended 1983, 1993, 1995.