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2. OSIvI was not the regulatory authority for those federal lands, and therefore, <br />was not authorized by Congress to take direct federal enforcement action <br />under Section 52l(a)(3) of SMCRA; and <br />OSM was exercising its oversight authority under Sections 517(e) and <br />521(a)(1) of SMCRA and §843.12(a)(2) of the regulations, which establish <br />the prerequisites for OSM to issue the NOV. <br />OSM ignored those prerequisites of §843.12(a)(2), and as a result, lacked authority to <br />issue the NOV to Ketr.2 <br />III. OSM Issued the NOV Before an AOC Violation Could Occur Based on the <br />Erroneous Measure of Kerr's Belief About Compliance and on Speculation <br />About Adverse Consequences. <br />In Section D of its Proposed Decision, OSM azgues that the timing of the NOV <br />was appropriate because "Kerr believed it had completed, or substantially completed, its <br />backfilling and grading work at Pit No. 1, as required by...the Colorado program." This <br />2The Interior Board of Land Appeals ("IBLA") denied Ken's appeal of Judge Child's <br />denial of temporary relief in this case in Kerr Coal Co. v. OSM. 131 IBLA 27 (September 28, <br />1994). Regazding whether Kerr is likely to succeed on the merits of its argument that the <br />Federal Lands Program does not apply, the IBLA stated: <br />The NOV is issued, however, for lands under Federal control. As <br />such, under section 523 of SMCRA, surface coal mining and <br />reclamation operations are regulated under the Federal lands <br />program. 30 U.S.C. §1273 (1988). <br />I~, at 30. Due to the accelerated decision in that appeal and the absence of the complete record, <br />Kerr believes the IBLA did not fully understand that the issue of OSM's authority involves more <br />than simply whether the NOV was written on federal lands. It also appears that the IBLA <br />erroneously interpreted Kerns position to be that OSM has not even oversight enforcement <br />authority. I~, at 31. Kerr received the IBLA's decision just one day before submitting this <br />Response Brief, but intends to seek reconsideration orother appropriate review. <br />iaeai, imvw <br />