82-4-340. Successor operator. (1) Subject to this part, when one operator succeeds to the interest of another in any uncompleted operation by transfer, including sale, assignment, lease, or otherwise, the department may release the first operator from the duties imposed on the operator by this part. Provided that both operators comply with the requirements of this part and the successor operator assumes the duty of the former operator to complete the reclamation of the land and the ability to operate pursuant to the permit or subsequent modifications approved by the department to the permit consistent with this part, the department shall transfer the permit to the successor operator on department approval of the successor operator's bond and the transfer of property interests, as required under this part.

(2) A transfer by the department to a successor operator pursuant to this section may not affect a lien, claim, encumbrance, or interest in the property subject to operations that the department determines are valid at the time of the transfer and rights and defenses associated with the lien, claim, encumbrance, or interest. This subsection does not apply to a lien, claim, encumbrance, or interest in a property of the original operator or an affiliate or person controlling the operator or affiliate.

(3) For an operation with a forfeited bond where the department holds a suspended permit pursuant to 82-4-341(8), the department may transfer the permit to a successor operator provided that the successor operator:

(a) complies with the requirements of this part;

(b) assumes the duty of the former operator to complete reclamation pursuant to this part;

(c) operates pursuant to the permit or a subsequent modification approved by the department to the permit; and

(d) submits to the department:

(i) any additional bond required under 82-4-338; and

(ii) a $2,000 fee.

(4) If the department believes there is a potential to transfer a suspended permit, then the department may initiate proceedings in district court for eminent domain of the surface, minerals, or other property interest not held by the United States within or appurtenant to the permit boundary, including ingress and egress to the permit boundary, if:

(a) the department makes written findings that it is in the public interest of Montana taxpayers, environmental protection, and reclamation. With the written findings, the right of eminent domain must be considered a public use as included with those listed in 70-30-102. Although not required, the department may consider the following when determining the public interest:

(i) the value of the property, fixtures, and potential for operations if the property is transferred, based on an inspection and evaluation by the department or at the department's request prior to initiating eminent domain proceedings pursuant to Title 70, chapter 30;

(ii) the existence of tax liens on the property;

(iii) the financial liability to the Montana taxpayers for the cost of reclamation or remediation by the department of the operation pursuant to 82-4-341;

(iv) whether the county or counties where the permitted operation is located agree that transferring the property interest is in the best interest of the county or counties; and

(v) whether there is an immediate environmental need;

(b) the property interest is within or appurtenant to the permit boundary of an operator that has been:

(i) prohibited from mining pursuant to 82-4-360 for at least 1 year from the date of notice to the operator of the prohibition and the operator does not have a timely, pending appeal pursuant to this part; and

(ii) issued a violation letter by the department pursuant to 82-4-361 on a transferred permit;

(c) the available bond is insufficient for the permitted operation and the amount of the bond forfeited pursuant to 82-4-341 is less than the bond amount calculated pursuant to 82-4-338; and

(d) there is a successor operator who can operate under a permit transferred pursuant to subsection (1). The department and the proposed successor operator may enter into an agreement for the transfer of the property when it is condemned and the department takes possession pursuant to subsection (5).

(5) If the department initiates eminent domain proceedings pursuant to Title 70, chapter 30, and requests immediate possession of the property pursuant to 70-30-311, then the court shall grant the department immediate possession of the property prior to determining compensation.

(6) An eligible successor operator may post the bond required by 70-30-311(3) in accordance with an agreement entered pursuant to 82-4-340(4)(d).

(7) After the department is in possession of the property, the court shall determine compensation pursuant to 70-30-302, except that when determining the value of the property interest the commissioners shall consider:

(a) the greater of the amount:

(i) equal to the difference between the bond amount forfeited pursuant to 82-4-341 and the bond amount calculated pursuant to 82-4-338; or

(ii) necessary to complete site reclamation;

(b) the amount of a tax lien against the property;

(c) the value of mineral interests, development potential, or future mining based solely on the value while in the possession of the original operator, who is prohibited from mining pursuant to 82-4-360; and

(d) other costs incurred by the state to suspend, terminate, or transfer the permit and recover the forfeited bond.

(8) Nothing in this section limits the department's ability to modify the transferred permit or reclamation plan pursuant to this part.