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3 r ~~. °;- Q~ ~. ,, WELBORN DUFFORD BROWN £~ TOOLEY. P. C. Mr. Jim Pendleton Colorado Mined Land February 9, 1988 Page 2 Reclamation Division As a preliminary matter, you should be aware that OSM could not have issued an NOV if the Division had concurred in Mr. Squire's initial judgment and declined to issue the NOV. Trapper placed straw bales in the ditch on December 7-8, 1987, as a result of discussions with Mr. Squire about Mr. Orell's concerns. That action was sufficient to eliminate the alleged violation because it was the basis for Mr. Squire terminating the NOV during his inspection on January 13, 1988. Thus, Mr. Squire's discussions with Trapper constituted "appropriate action" because they resulted in the alleged violation being corrected before the 10-day notice was received from OSM. Even if OSM had decided to reinspect after the 10-day period, it could not have issued an NOV because that would require the alleged violation to continue to exist during the reinspection. See 30 C.F.R. § 843.12(a)(2); Dora Minino Co.. Inc. v. OSM, 100 IBLA 300, 303 (1987) (copy attached). Thus, the Division's NOV was superfluous. There are several key facts which must be kept in mind in evaluating the merits of the alleged violation. 1. Mr. Orell characterized the ditch as an "erosional feature" in his inspection report, indicating that he thought it had been formed entirely by erosive action. In fact, the ditch was constructed by Trapper over the period 1983-86 as mining progressed to the east. 2. The ditch is a tributary to the Coyote Gulch permanent drainageway, both of which are in the process of being reestablished and stabilized. It is not a rill or gully. 3. As part of the stabilization plan, the approved perennial seed mix was applied to the surrounding area draining to the ditch over the period 1983-86. Both the OSM and Division inspectors stated that this area was well revegetated in their inspection reports. 4. As another part of the stabilization plan, Trapper proposed the innovative approach of constructing stockponds in the area draining to the ditch to divert and reduce runoff and other drainage, as well as to enhance the permanent wildlife habitat. The Division approved these proposals in Technical Revision No. 29 on September 23, 1986, and Minor Revision No. 52 on August 6, 1987.