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DMG, and then analyzed and approved by the DMG, before Kerr could perform the abatement <br />required by the NOV without risking violation of state law. [f Kerr prevails in this litigation. the <br />time and effort required for the Permit revision could not be recovered and it is unlikely that the <br />costs could be recovered. <br />Accordingly, the balance of hardships tilts completely in Kerr's favor in this case. <br />B. Kerr's Grounds for C ontestin g the NOV Ra ise Serious . Substantial. Difficult and <br />Doubtf ul Questions G oing to the Merits Wh ich Make Them Fair Gro und for <br />I lllSca31 413• <br />Kerr's Application for Review contests the validity of the NOV on three grounds. The <br />first is that OSM had no authority to conduct the inspection on May 25, 1994 and to issue the <br />NOV because doing so breached ¶19 of the Cooperative Agreement and OSM's mandatory <br />regulations at 30 CFR §§843.12(a)(2) and 842.11(b)(1)(iii). These violations by OSM had a <br />direct, adverse effect on Kerr because, in essence, OSM is challenging the DMG's prior AOC <br />determination in the Permit on which Kerr relied in performing the backfilling and grading in <br />accordance with the Permit. By preemptorily issuing the NOV, OSM circumvented the ten-day <br />notice and informal review provisions of the Cooperative Agreement and its own regulations, <br />thereby depriving Kerr of the opportunity for the AOC issue to be resolved by prescribed <br />procedures. <br />From Kerr's research to date, these circumstances present an issue of first impression. <br />Kerr has found no case which addresses the issue of whether, in a state with an approved State <br />program and a Cooperative Agreement, OSM has authority to issue a NOV regazding federal <br />lands within a state approved permit azea without following its ten-day notice and informal <br />review regulations, where no imminent danger to the public or significant threat to the <br />environment exists. Thus, this issue is fair ground for litigation. <br />The same is true of the second issue raised by the Application for Review. There is a <br />dispute about whether the fmal surface configuration approved in the Permit meets the AOC <br />requirement in Rule 4.14.1(2)(a). OSM contends that it does not while the DMG concluded to <br />the contrary in approving permit revisions in 1990 and 1993. Because Kerr's backfilling and <br />grading complied with the Permit, this case presents the issue of whether a state regulatory <br />authority under an approved State program with a Cooperative Agreement, such as the DMG, has <br />authority to make the final determination on AOC, which inherently involves conclusions based <br />on professional judgment about which experts can differ in good faith. <br />,,.,-~. d.A, <br />