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-- IRELAN O, STA PLETO N, PRYOR b PASCO E, P. C. Mr. Robert A. Hykan February 22, 1984 Page 2 The permit is a fact that is now a part of the lawsuit. There is a substantial difference of opinion over whether Victor-American knew of the application to MLRD and whether it authorized the application to be made. There is, of course, a very significant dispute about whether Victor- American gave Trinidad Basin permission to mine the coal. Moreover, i note that C.R.S. 34-33-114(f)(II) provides that nothing in the Colorado Surface Coal Mining Reclamation Act, "shall be construed to authorize the Board to adjudicate property rights dis;?utes." 4. It is asserted by Mr. White that the failure to include the name of the mineral owner in a published notice creates an insurmountable defect. In fact, if the mineral owner knew about the application, gave permission for the application to be filed, and coal is being lawfully mined, there is no showing of harm. All those issues will be resolved in the litigation in the Federal District Court. In short, the proper place to litigate the dispute is in the lawsuit which Mr. White has already commenced on behalf of his client. I returned records on the permit to Trinidad Basin several weeks ago and would prefer to comment on interpreta- tions and procedural points raised in Mr. White's letter after having reviewed those records. I will obtain those files and respond as soon as possible. 5. Mr. White's client has accepted royalty payments on Section 15 coal throughout the period from December, 1982 or January, 1983 to the date of filing the lawsuit. Trinidad Basin has confirmed Victor-American had actual knowledge about all this at least a number of months before the lawsuit was filed. 6. Mr. White's apparent threat to sue MLRD under 42 U.S.C. 1983 is so unwarranted on the facts of this liti- gation that further comment is not necessary. It. is inappropriate to attempt to force Trinidad Basin off of the property by threatening to sue MLRD if it does not withdraw the permit. 7. Although I believe the Federal Court is the proper forum for this dispute, I would, of course, welcome and request the opportunity to be present at any meeting between Mr. White and the Mined Land Reclamation Division.