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Michael B. Long, Director <br />September 1, 1994 <br />Page 2 <br />I. Intervention Rules <br />Intervention in Surface Mining Act cases is governed by 43 C.F.R. § 4.1110. It <br />provides that "any person, including a State, ...may petition for leave to intervene ~ <br />anv staee of a proceeding in OHA ..." Intervention is requested by filing a petition to <br />intervene stating (1) the State's interest, and (2) why that interest is or may be adversely <br />affected by the case. Section 4.1110(c) provides that the ALJ or the IBLA "shall grant <br />intervention" if the State (1) "had a statutory right to initiate the proceeding," or (2) "has <br />an interest which is or may be adversely affected by the outcome of the proceeding." <br />Persons who have a right to initiate a proceeding aze called "statutory parties," and are <br />further defined for particulaz types of cases in 43 C.F.R. § 4.1105. Statutory parties aze <br />primarily defined, however, by 30 U.S.C. § 1275(a)(1) (§ 525(a)(1) of the Act), as the <br />permittee or "any person having an interest which is or may be adversely affected by .. . <br />a notice or order" issued under 30 U.S.C. § 1271(a)(2) or (3) (§ 521(a)(2) or (3) of the <br />Act). The NOV and Cessation Order were issued to Ketr under § 1271(a)(3). <br />All of this means the State has a right to intervene in the cases which Kerr akeady <br />has initiated and to file, individually or jointly with Kerr, new proceedings contesting <br />other enforcement actions by OSM. The ALJ or the IBLA must grant the petition if the <br />State shows it has an interest which is or may be adversely affected by the outcome of the <br />proceedings. <br />II. State Enforcement Authority Threatened <br />It appeazs the State has three interests which will be adversely affected by any <br />decisions upholding OSM's positions in these cases. First, OSM is seeking rulings <br />confirming its authority to drrectly issue NOVs on federal lands at Colorado mines <br />without Ten-Day Notices to the State in non-imminent danger situations. This issue has <br />not been decided by OHA or the courts before. I understand the State believes OSM's <br />position violates the Cooperative Agreement. Kerr agrees. If OSM prevails, the State <br />will be deprived of the right granted in OSM's regulations to challenge an OSM <br />inspector's enforcement position by responding to a TDN and the further right to <br />informal review of the TDN by OSM's Deputy Drrector. Thus, OSM's position in Ken's <br />cases represents a threat to the State's enforcement authority on federal lands under the <br />Cooperative Agreement, independent of the threat to the State's permitting authority. <br />35671, &3LPI <br />