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<br />" ~~ <br />, <br />8042932911; Mer-ta-Oi Tt:00; Page 8/4 <br />smu Andersen, Esq. <br />~ ' ` March 14, 2001 <br />~1 Page 2 <br />establish those assertions as legal principles that con+~tnun DMCr in future situations? OSM and <br />-? ~: other state regulatory authorities have successfully argued for decades now that they have disetetinn <br />to withhold the isatuutce of eaforcetnent action and equal discretion to abandon the prosecution of <br />` enforcemenn action in response to adtniaistrative challenges. sy and large, the wal industry has <br />" &md quite we]] as a result. Frankly, it is astounding that Basin would attempt to cut o$fot all time <br />DMG's prosecutorial discretion simply because, on one occasion, DMG exercised that discretion <br />in a manner that the company did not Like. <br />Even if Basin remains completely resolved to press its shaft-sighted claim that DMG lacks <br />prosecutorial discretion, Basin cleazly lacks standing to challenge DMG's decision to vacate a notice <br />~ :: of violation previously issued against the tympany. Vacating the notice of violation relieves Basin <br />r:"~ of potential liability for a civil peealry and means tfiat the company does not have to pay its own <br /><+ lawyers and experts to appear hefnre the Board. Basin certainly su13'ers no injury on that score. <br />t:::~ <br />~. M Moreover, anY in gh Y <br />,,w, . , jury Basin tni t suffer as a result of DMG's decision to vacate would :wise onl <br />if DMG were W reissue a second notice of violation regarding Basin's responsibility for subsidentx <br />~': - damage to the Tatum residence since 1997. That event is so unlikely as to reader any assertion of <br />harm on Basin's part purely speculative. Basin simply has no legally cogttir~ble intec+est in <br />compelling DMG to reirLVtate and prosecute Notice of Violation No. GV-2000-009 apaitut the <br />company. <br />,R : . <br />7 <br />•; <br />IIasia's motion tutcltaritably cherdclerizes the Tattuns' actions to fonun shopping. Stripped <br />of rhetoric, the fact is simply that the Tatums have exercised at arelatively early point in proceedings <br />as option that the federal Surface Mining Control and Reclamation Act expressly provides <br />complaining citizens in any State with an approved regulatory prugr8n. W ith all respecy i refer you <br />to 30 [l.S.C. § 1276(e), which provides: <br />Action of the Slate regulatory authority pursuant to an approvcYi Scale pro~n shall <br />be subject to judicial review by a court of competent jurisdiction in accordance with <br />State law, but the availability of sash relief shall not be construed to limit the <br />operation of the rights atabliahed in section 520 (authorizing, among otherthinls, <br />citizen damage suits] except as provided therein. <br />~' d <br />This provision enables citizens to request that stun regulatory authorities take enforcement action <br />ax-ainst SMCRA permittees, to participate in administrative review of that enforcement action, to <br />suffer a loss before the adtn~~i_~+ve review atrdtority, but (without sacking judicial review of the <br />administrative decision) nonetheless to institute and prosecute to judgment citizrn suits bawd on the <br />same claims that motivated the regulatory authority's enforcement activity. The Tatums tutders[and <br />that Hesin and other coal operators thirilt this provision is unduly bturlensome and even unfair. The <br />choice the federal statute provides may indeed run counter to the genera! rules is Colorado common <br />law, Nonetheless, it is a Choice that SMCRA plainly gives citizetir, and the Tat"mC have exet+cised <br />it responsibly here before, not after, Basin has wasted its time and resources. <br />£0'd 6L:6 Z0. bT ~QW 855£998£0£:Xpd <br />