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<br />At the time he made the above recommendation, the assessment officer was not awaze of a <br />number ofjudicial and regulatory rulings regarding mining disturbance associated with movement <br />of draglines. Furthermore, in regard to the first two points above, the NOV does not allege that <br />the cited disturbance is a road. In regard to the third point above, the work done in the road <br />right-of--way cited in the NOV was done for the sole purpose of moving a dragline, and not to <br />facilitate traffic. Because of this, and the reasons discussed below, contrary to the fourth point <br />above [believe the disturbance adjacent to Routt County Road 27a should have been included in <br />the plans submitted as a technical revision to the Yoast permit. My decision not to accept the <br />assessment officer's recommendation is based on these points, previous rulings by several judicial <br />and administrative bodies, and corresponding requirements of the Colorado program. <br />Section 34-33-103(26) of the Colorado Surface Coal Mining Reclamation Act and Rule <br />1.04(132) of the Colorado regulations define surface coal mining operations as activities <br />conducted on the surface of lands in connection with a surface coal mine and the areas upon <br />which such activities occur or where such activities disturb the natural land surface. The same <br />rule indicates that these areas shall include, "any adjacent land the use of which is incidental to any <br />such activities" and, "all lands affected by ...the improvement or use of existing roads to gain <br />access to the site". Since the surface disturbance cited in NOV C-96-018 was done in order to <br />facilitate the movement of a dragline from one mine to another, that disturbance is incidental to <br />coal mining and falls under the regulatory definition of surface coal mining operations. This ruling <br />is consistent with several previous rulings about construction of routes for the purpose of moving <br />a dragline. <br />The First District Court of Appeals of Indiana (in Peabody Coal Company v. Ridenour, 1987) <br />ruled that moving a dragline between two mines was within the statutory definition of"surface <br />coal mining operations" in Indiana. The Interior Board of Land Appeals (IBLA) (in Willowbrook <br />Mining Co. v. OSMRE, 1989) ruled that construction of a road for the purpose of moving a <br />dragline from one mine to another was construction incidental to surface mining, and therefore <br />under the jurisdiction of the Surface Coal Mining and Reclamation Act (SMCRA). The IBLA <br />also accepted a settlement agreement between the OSM and Andalex Resources, Inc. ([n Andalex <br />Resources Inc. v OSMRE, 1995) wherein the company acknowledged that widening an existing <br />public road in order to move a dragline from one mine to another was surface coal mining <br />disturbance. <br />In addition to the rulings above, the OSM issued a letter to several state regulatory agencies in <br />1991, clarifying its position on the question of whether disturbance associated with dragline <br />moves fell under the purview of SMCRA. The OSM stated that, "Walking a dragline to a site of <br />a surface coal mine is an activity in connection with a surface coal mine; a walkway for a dragline <br />is an azea where such activities disturb the natural land surface, and is adjacent land used <br />incidentally to surface coal mining activities". <br />The sections of the federal and state regulations in all of the cases mentioned above are virtually <br />identical to the Colorado definitions of surface coal mining operations. Consequently, I find that <br />2 <br />