Where the surface rights for the lands described in the prospecting lease or mining contract are held by a third party, the holder of the prospecting lease or mining contract shall make arrangements with the holder of the surface rights to protect the surface interests and submit to the department evidence of such arrangements, prior to the commencement of prospecting or mining activities, in one of the following forms:

(1) Waiver of damages executed by the holder(s) of the surface rights;

(2) Agreement in the form of a letter, contract or memorandum of understanding executed by both the mineral lessee and the holder(s) of the surface rights which provides for the settlement of all disputes and damages;

(3) A court order resolving the issues of access, damage claims and any other disputes.