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~ L a <br />843.12(a)(1). If not, OSM exceeded its authority by issuing the NOV in violation of 30 <br />C.F.R. § 843.12(a)(2).' <br />OSM concedes, as it must, that it was enforcing the Colorado State Program when <br />it issued the NOV because it alleged a violation of Colorado Rule 4.14.1(2)(a). Exh. <br />G-20. It argues, however, that the Federal Lands Program applied to the federal lands in <br />Pit L by incorporation of the approved Colorado State Program pursuant to <br />Section 523(a) of SMCRA. egg 30 U.S.C. § 1273(a). That is OSM's complete <br />explanation for continued application of the Federal Lands Program after the Cooperative <br />Agreement was signed in 1982. $gg 30 C.F.R. § 906.30. OSM does not even attempt to <br />analyze the effect of the Cooperative Agreement on its position. It merely asserts that the <br />DMG and OSM continued to "enforce the Federal lands program within Colorado" <br />thereafter. OSM's Proposed Decision at 9. On that incomplete analysis, OSM concludes <br />that 30 C.F.R. § 843.12(a)(1) sets forth the applicable enforcement procedure when OSM <br />and the DMG disagreed about Ken's AOC compliance in Pit 1. <br />OSM's azgument ignores other provisions of Section 523 and the Cooperative <br />Agreement which demonstrate that its position is in error. OSM is correct that the <br />Colorado State Program was incorporated into the Federal Lands Program by Section <br />523(a) upon approval pursuant to Section 503(b), 30 U.S.C. § 1253(b), on December 15, <br />1980. egg 30 C.F.R. § 906.10. At that point, Colorado became the regulatory authority <br />on non-federal lands, egg SMCRA § 503(x), and the Federal Lands Program (including <br />the State Program requirements) remained in effect on federal lands with OSM as the <br />'At page 2 of its Proposed Decision, OSM asserts that Judge Child denied Ken's oral <br />motion to dismiss the NOV for lack of authority at the conclusion of OSM's direct case. That is <br />incorcect. Judge Child construed Kerc's Motion as having two elements. The first was OSM's <br />"failure to make a prima facie case," which was denied. Tr.-I 232. The second was OSM's lack <br />of authority due to failure to issue a prior TDN. Judge Child took that part of Ken's motion <br />under advisement, with the decision on it to be issued after briefing. i~,. 232-33. <br />sear. rnvw 2 <br />