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Colorado Mined Land Reclamation Board <br />March 24, 1997 <br />Page 2 <br />regulation of mining activities which appeared to be inappropriately directed at the San Luis <br />project. Thus BMRI believes it was in a position adverse to the Conservancy in;hat proceeding <br />as well. Ms. Green advised our counsel, Mr. Massey, that she was no longek active in the <br />rulemaking proceedings but was "available" to her client to answer questions or for further <br />consultation if needed. We assume that any communications, whether they occurtred recently or <br />in the past, between Ms. Green and her client regarding the rulemaking or are'y other matter <br />pertienent to BMRI's interests are and will remain privileged. We do not, by this #etter, intend to <br />request any waiver of such privilege. <br />The matter before the Board is a formal public hearing to determine whether a violaation should be <br />issued to BMRI and, if a violation is issued, whether civil penalties should be imposed. Thus, it <br />could have significant consequences for BMRI. The Board's proceeding is iMn adjudicatory <br />hearing and, as such, is quasi judicial in nature. U such cases, Colorado Courts Nave applied the <br />standard set forth in the Code of Judicial Conduct Canon 2 which holds that a jud~e should avoid <br />impropriety and the appearance of impropriety in all of his activities. See We Is v. Del Norte <br />School District C-7, 753 P.2d 770 (Colo. App. 1987). BMRI believes the appearance of <br />impropriety standard is appropriate to adjudicatory proceedings such as these. ~Je believe that <br />where a board member has a current or recent attorney-client relationship with aI party who has <br />been consistently and openly adverse to the company before this Board and elsewhere, that Board <br />member should not participate in the proceeding. <br />Please understand that we appreciate Ms. Green's effort in bringing this issue be('ore the Board, <br />and we do not intend to question either her integrity or sincerity. However, where matters of <br />potential bias are involved and where it is not obvious or cannot be independentl}~ confirmed that <br />potential bias is not present, we believe the Board should err, if at all, on the si~e of caution to <br />ensure the integrity of its proceedings. A sworn affidavit of personal bias, as required by CRS <br />Section 24-4-105(3), is attached and we would request that you include both tht; letter and the <br />affidavit in the formal record of this proceeding. Thank you. <br />Sincerely, <br />eg V. Etter <br />General Counsel <br />GVE:wt <br />Attachment <br />C~970J24ADOC <br />