2020-10-12_REVISION - C1980007 (3)

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9. At the hearing, Objectors stated that the Application should not have been approved because the federal vacatur of the North Fork Exception to the "roadless" rule meant Applicant had no legal right of entry and that this also meant the Division's completeness determination was premature. 10. Objectors also argued that Applicant had made no showing that the roads were necessary. According to Objectors, the fact that the previous application had different approved roads demonstrated that the new roads are not necessary. Objectors also argued that Applicant's federal coal lease required that roads avoid riparian areas unless there was no practical alternative and that a cooperative agreement between Colorado and the federal government gave the Division and Board authority to review the lease. 11. Applicant also presented testimony at the Board meeting. Applicant argued that the Division's cessation order did not preclude approval of the Application because it is a different procedure and did not invalidate any permit terms. Applicant also stated that all of the proposed road routes, locations, and crossings had been verified by the U.S. Forest Service. According to Applicant, alternative routes for the roads either caused more impact to the land or were not practical. Applicant reiterated that invalidating MR-446 would significantly increase disturbances because the Application resulted in a net reduction in road length of 17,157 feet, seven fewer vent pads, and roads that would have lower impact because they were much less steep than the previously approved roads. Regarding the issue of riparian crossings, the Applicant stated that there was no flow in the branch of South Prong Creek that would be crossed. Applicant also argued that the issue of whether a road was "new" was determined by whether they access the same locations as the previously approved roads. Here, the Application's roads went to the same place as the already approved roads and were therefore not new. CONCLUSIONS OF LAW 12. The Board has jurisdiction over this matter pursuant to the Act. 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. 14. Under section 34-33-114(1), C.R.S., the Applicant "for a permit or for a revision of a permit has the burden of establishing that such application is in compliance with all the requirements of [the Act]." 15. Section 34-33-11.5(1)(b), C.R.S. requires the Board to adopt regulations establishing guidelines for determining the scale or extent of a revision request that Mountain Coal Company, LLC. West Elk Mine, MR-446 / C-198-007 ;3