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101 <br /> 1 MR. BECdOwlITH: This is a bootstraps 1 of procedure here. <br /> 2 argument. 2 MR. BOMITH: Mr. Chairman, we <br /> 3 MR. STARK: No. What Mr. Schultz was 3 submitted the Fontanari repair plan, and we made <br /> 4 saying is we used all of that information that was 4 various arguments and contentions in it, but this <br /> 5 provided before -- or previously. This is going to 5 Board -- and I'm not -- I'm not arguing with your <br /> 6 talk of the beneficial use of the land. 1 6 decision -- this Board and the prehearing order said <br /> 7 On or around this date, we received a 7 all of that is nonjurisdictional; it's immaterial; <br /> 8 call from the operator saying water was running in that 8 we're not going to discuss it. <br /> 9 ditch again and was not being used for any irrigation. 9 Where Mr. Stark is saying these <br /> 10 It was being run in the Fontanari trench and going into 10 contentions were made is in the Fontanari repair plan. <br /> 11 the Carey Pond. 11 I'm not allowed to argue that to you. So why am I <br /> 12 It was -- Ms. Hammond called up -- Tonya 12 having -- why am I facing rebuttal testimony on <br /> 13 Hammond from Snowcap, she called us up, and she said 13 argument that I'm not even allowed to make to you? <br /> 14 this is happening. So I ran out there, and we walked 14 That is not only improper, it is highly prejudicial. <br /> 15 up to the headgate. We kind of looked at the surface, 15 MR. SCHULTZ: I'll respond very briefly. <br /> 16 walked up to the headgate, and this note was there. 16 Mr. Beckwith didn't provide any presentation -- remind <br /> 17 And it just goes to the point that there's no 17 the Board of that -- but Mr. Carey and Mr. Stutz did. <br /> 18 irrigation happening out there. It was not used-- 18 This is in rebuttal in their claims about irrigating <br /> 19 MS. VAN NOORD: I want -- I want to ask 19 Tract 71 and the Carey Pond. However, we will move on. <br /> 20 a question. Thanks. 20 MR. SINGLEI'ARY: Thank you. <br /> 21 Can you help me understand why the 21 MR. BEC15M: I ask that -- <br /> 22 beneficial use is important to the two points we're 22 MR. STARK: I'm going to skip over this <br /> 23 looking at today, to the testing procedures and 23 stuff because this was premade. <br /> 24 proposed plan? I know it's came up a couple times. 24 MR. BECKWITH: Just bear with me. I ask <br /> 25 I'm having a hard time connecting the dots. 25 that the Board strike that portion of the testimony <br /> 274 276 <br /> 1 MR. STARK: I think the plan is very 1 that we've objected to because it is prejudicial and <br /> 2 specific. It's to stop hydrologic commmication. 2 improper, and you've already restricted me from even <br /> 3 MS. VAN NOORD: Okay. 3 arguing about it. <br /> 4 MR. STARK: I mean, we've talked about 4 MR. SCHULTZ: Again, this isn't <br /> 5 that, and I think you -- you understand that based on 5 rebutting Mr. Beckwith's presentation. He had no <br /> 6 your question. The assertion is that with hydrologic 6 presentation. However, Mr. Carey and Mr. Stutz did, <br /> 7 communication they cannot irrigate these lands because 7 and there wasn't — <br /> 8 the water will simply disappear into the mine or 8 MR. STUTZ: Well, it's not rebutting <br /> 9 wherever it disappears. 9 that testimony, Mr. Chairman. <br /> 10 I think that's the issue with the 10 MR. SCHULTZ: It's stating that there's <br /> 11 irrigation -- or with the objectors. I can't speak for 11 no beneficial use to that irrigation. <br /> 12 them, but that's my understanding of all of the 12 MR. BECFQfM: That's not part of MR-82. <br /> 13 documents I've read. 13 MR. SINGLETARY: I'm going to overrule <br /> 14 W. VAN NOORD: Okay. 14 that, and we're going to move on. <br /> 15 MR. STARK: So if they're using water 15 MR. STARK: Again, I just want to recap <br /> 16 and there's no beneficial use -- there has to be a 16 Snowcap's TR-69. It's for a hydrologic commmication <br /> 17 beneficial use at sane point, according to the water 17 repair plan, again, based on the ERT study conducted by <br /> 18 commissioner. 18 Fugro in April of 2016, reviewed by Huddleston-Berry. <br /> 19 MR. STUTZ: Mr. Chairman, I've got to 19 MET agreed that the study showed that <br /> 20 state my objection to this whole line of questioning. i20 there was an historic vent shaft that was causing a <br /> 21 What is it rebutting? I mean, this is new evidence 121 hydrologic communication at that location, at the end <br /> 22 being offered by and large. It's not rebuttal i22 of the Fontanari Ditch going into that vent shaft. <br /> 23 testimony. 23 The Division believes that the data <br /> 24 And I appreciate the need to get all the 24 reviewed is sufficient to conclude that the current <br /> 25 facts out, but we're trying to operate under some rules 25 extent of the hydrologic communication is excepted to <br /> 275 277 <br />