2020-10-12_ENFORCEMENT - C1980007 (3)

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been vacated. The Division also explained that it had discussed the Cessation Order with the OSM. During that discussion, OSM did not raise any issue of whether the Division had exceeded its authority in issuing the Cessation Order. 9. At the hearing, Operator argued that the Cessation Order exceeded Colorado's authority and that its past and future work were lawful under the Colorado Roadless Rule. Regarding the federal litigation that led to the vacatur of the North Fork Exception, Operator explained that its federal lease modifications had been affirmed. It constructed the roads that are subject to the Cessation Order before the Roadless Rule was vacated, and, according to Operator, it was allowed to build those roads at the time it did under both its lease and the then -in -effect North Fork Exception. 10. Operator also argued that even with the North Fork Exception's vacatur, it is allowed to construct well pads for mine ventilation boreholes. That work, according to Operator, involves cutting trees, which is an "approved management activity" under its leases. Drilling bore holes on the pads is also not prohibited. Accordingly, Operator argued that it is authorized to complete the drill pads and use the roads it constructed under its federal lease and applicable federal rules. 11. Intervenors argued at the hearing that the vacatur of the North Fork Exception eliminated Operator's right to build roads or cut trees for drill pads. Intervenor also argued that if Operator's federal lease provided a separate authority for roadbuilding in the Sunset Roadless Area, it would not have needed to rely on the North Fork Exception in the first place. Intervenors also argued that Operator's filings in the Tenth Circuit indicated that it knew the vacatur of the North Fork Exemption would eliminate its ability to build roads and, as a practical matter, continue mining in new panels. According to Intervenors, Operator assumed the risk that the North Fork Exception could be invalidated when it entered into the federal lease at issue here. CONCLUSIONS OF LAW 12. The Board has jurisdiction over this matter pursuant to section 34-33- 124(1) of the Colorado Surface Coal Mining Reclamation Act ("Act") and Rule 5.01.3(2)(6) of the Regulations of the Colorado Mined Land Reclamation Board for Coal Mining ("Rules")_ 13. The Division and Board have the full power and authority to carry out and administer the provisions of this article. C.R.S. § 34-33-104. Mountain Coal Company, LLC. West Elk Mine, CO-2020-001, Permit No. C-198-007