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04/14/00 .FRI 10:48 FeL[ 303 271 5363 SULICII'OR/DENVER <br />With respect to the grounds OSM originally asserted in its petition for reconsideration, Jim <br />and Ana Tatum' stand on the arguments set forth in their previously-filed manorandum in <br />opposition. The Tatums move to strike OSM's new arguments, set forth on pages 7-9 of the <br />agency's "response," on the grounds that, to the extent that they differ from the arguments OSM <br />earlier set forth, the agency foreclosed its ability to assert them by omitting those arguments from <br />its petition for rewnsideration. Nothing in the Tatum's opposition to OSM's petition for <br />reconsideration raised any of the "new" issues. OSM's assertion of them in its "response" is an <br />outright abuse of the adntirtistrative review process. <br />Ifthe Board is nonetheless inclinedto consider OSM's new arguments, the Tatums move the <br />e Boazd for Leave to file a surreply. Consideration of OSM's new arguments without allowing the <br />Tatums to present points and authorities in opposition would deny the Tatums due process of ]aw. <br />Moreover, OSM's "respotse" forces the Tatums to assert, fortbe first time, that clarification <br />of the Board's decision is is fact necessary to ituure justice in this case aad to prevent OSM from <br />further abusing the administrative process. This is so because OSM's `tiresponse" pleading makes <br />clear that, absent clarification oftbe remedial language contained in the Hoard's decision, OSM will <br />continueto misinterpret the Colorado state program by refusing to cite Basin Resources, Inc. ("BRI") <br />Coz violation ofthe Colorado program unless OSM determines that there is present, ongoing failure <br />by 13R1 to pay jast compensation to the Tatums. <br />Contrary to the position that OSM expresses in its "response;' the Board's decision <br />unequivocally holds that the finding that BR['s mining operation did, in fact, damage the Tatums' <br />residence "establishes a violation of the Colorado Stare program under 2 Colo. Code Regs. 4.20:' <br />Jim ~ Ann Tatum, i 51 IBI.A at 308. Nonetheless, OSM has brazenly asserted that, if required to <br />2 <br />®DOa <br />SO'd IO~bi 00. bi ~dy 8S5£998£0£~xe~ <br />