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Page 2 would be mined, prior to reclamation, on the State School Section if the 110 acre limit is approved. According to CDMG, up to a couple months ago, approximately 28 acres have been mined on the private land and approximately 3 acres have been mined in the School Section adjacent to the private land. Despite the limit of acreage that can be mined prior to reclamation, the overall CDMG permit area would still encompass 675 acres; 74 acres on private land and 601 acres on the School section. There's a 200 foot wide "no mining buffer zone ' on the east boundary of the School Section and a portion of the southern boundary; shaving the acreage to 601 versus 641 total acres in the section. The Service met with the mining operators, RMMA, on May 15'h, 2000, to discuss expansion of mining in the School Section. Dunng our May I5`" meeting we agreed that mining could take place in a "take avoidance area" drawn on a map in the southeast, northeast, and southwest qquarters of the School section. The "take avoidance azea" is not a legal definition under the Endanggered Species Act (ESA) but is an azea discussed with RMMA as an interim azea that could be mined without the likelihood of Mexican spotted owls being taken by the mining activity. Section 9 of the ESA prohibits the take of endangered and threatened species, respectively, without special exemption. If take is expected from mining, a special exemption from a specified level of take would come from a section 10(a){ 1)(B) permit issued by the Service through the Habitat Conservation Plan process. Take is defined as to hazass, harm, pursue, hunt, shoot, wound, kill, trap, capture or collect, or attemppt to engage in any such conduct. Harm is further defined by the Service to include signiticant habitat modification or degradation that results in death or injury to listed species by significantly impairing essential behavioral pattems, including breeding, feeding, or sheltering. I lazass is defined by the Service as intentional or negligent actions that create the likelihood of injury to listed species to such an extent as to sigmficantly disrupt normal behavior patterns which include, but are not limited to, breeding, feeding, or sheltering. The "take avoidance azea" was broken into two parts, 1 and 2. Part 1 is on [he east side of Red Creek and appears to include all 74 acres of private land, land in the southeastern quarter of the School Section (70-80 acres) and land in the southeast 1 /4 of the northeast 1/4 (about 6-8 acres). Part 2 of the "take avoidance azea" is primazily west of Red Creek and includes about 20 acres in the southeast 1/4 of the School section and 120-130 acres in the southwest 1/4 of the School section. The total acreage in the "take avoidance area" is about 312 acres. During the May 15th meeting we agreed that mining could take place in the southwest quarter within the "take avoidance azea" drawn on the map. A letter summazizinp commitments made duringg the meeting and a more formalized map were provided to the Service on May 18'h by RMMA. The map included the boundary line of the `take avoidance area" and included a hand drawn access road and showed possible mining within the entire azea. The Service concurred with RMMA's Mayy 18~' letter and the line drawn for the "take avoidance azea" in a June 28, 2000, letter to RMMA. However, in the June 28th letter we stated what we believed to be a correct statement that "Obviously, no more than 40 acres can be mined in the southwest quarter to keep in compliance with reclamation requirements under your CDMG permit. Accordingly we thougght that the permit amendment we aze now commenting on would request only a 40 acre section for mining m the southwest quarter somewhere within the "take avoidance area". It was apppazent that RMMA wished to mine on top of the ridge as faz north as possible on the west side of Red Creek and this is where we expected the 40 acre site to be. The Service concurred with mining on top of the ridge but recommended that RMMA mine above the 7,500 foot mazk on the east side of the ridge to keep away from Red Creek and potential impacts to the Mexican spotted owl. RMMA agreed to the elevational restriction in [heir May 18'h letter. If one considers that there will likely be 35 acres mined on the private land that leaves 75 acres on [he School Section. If split about evenly, 35 acres could be mined on the east side of Red Creek ("take avoidance area 1 ") and 40 acres on the west side ("take avoidance area 2"~. The 40 acres on the west side would be compatible with previous discussions and our June 28' letter but we don't know if this is, in fact, what is planned so we request clazification from CDMG and/or the applicant.