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C. SCC Has No Legal Obligation to Compensate Fontanari for the Alleged Loss of <br />"Basaltic" Materials Associated with Tract 71. <br />The Fontanari Objections contain an allegation by Fontanari that SCC's repair plan <br />proposal, as found in TR -69, results in injuries to Tract #71 for which it must compensate <br />Fontanari. Fontanari's objection is both groundless and frivolous. <br />When SCC sold Tract #71 to Rudolph and Ethel Fontanari in 2003, it reserved an <br />easement for the purpose of performing SCC's reclamation and monitoring requirements under <br />the Permit as they existed at the time or as they may be modified in the future. This easement <br />was reserved by SCC in the December 15, 2003 Special Warranty Deed to Rudolph and Ethel <br />Fontanari recorded December 22, 2003 at Reception No. 2168754. The evidence at the hearing <br />will demonstrate that the reserved easement allows SCC to access and use that property "in any <br />reasonable fashion" to meet its then -existing, and later -accruing, reclamation obligations, which <br />include TR -69. Apparently, after raising the issue of compensation, Fontanari now asserts that <br />DRMS's and the MLRB's consideration of the Special Warranty Deed is beyond its purview. <br />SCC agrees that the MLRB has no authority to determine and enforce the substantive property <br />rights of the parties under the Special Warranty Deed, however, the record should show that <br />Fontanari's objection to TR -69, based on an allegation that he is damaged and that SCC must <br />compensate Fontanari, is without basis. <br />D. The MLRB is Without Statutory Authority to Adopt the Fontanari Repair Plan. <br />The Fontanari Objections incorporate Fontanari's earlier request that the MLRB adopt <br />and require compliance with the "Fontanari Plan." It is described at pages 14-16 of Fontanari's <br />Comments to Repair Plan and Submission of the Fontanari Plan. The Fontanari Plan requests: <br />• That SCC should be held responsible for repair of all subsurface cracks and fissures on <br />all of Fontanari's lands, after Fontanari exposes those cracks and fissures through the <br />mining of basaltic material and removal of the overburdening soil; <br />• That SCC should be required to pay for improvements to Fontanari's irrigation system; <br />• That SCC should be required to repair various surface depressions and sinkholes <br />Fontanari has identified on its property, regardless of whether they case hydrologic <br />communication to the mine; <br />• That SCC should be required to repair, or pay for the repair, of any future subsurface <br />fissures identified by Fontanari; <br />• That the MLRB, in order to assure sufficient funds to pay for the Fontanari Repair Plan, <br />place both its current unreleased bond funds and an additional $1,799,546 in "good <br />funds" into a separate "Trust Fund" for the benefit of Fontanari; <br />n <br />