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Mr. Steve Renner May 6, 1991 Page 3 3. OSM Cannot Collaterally Attack the Agreement or its Provisions at This Time Through a TDN. OSM had numerous opportunities to challenge the Agreement and its provisions, yet it failed to do so. OSM cannot challenge the Agreement at this time because the pertinent CMr.un and CMLRB decisions are final, and because both CMLRD and Rockcastle have relied on the Agreement and its terms. OSM had notice of the nature of the abatement of NOVs C-90-007 and C-89-034 at the time such abatement was proposed. OSM had notice that the CMLRB was considering forfeiting Rockcastle's bond, and that CMLRB was considering entering into an Agreement to resolve issues regarding the forfeiture and the NOVs. OSM had notice of approval of the Agreement by the Board. Despite its knowledge of the these facts, OSM failed to inquire, object, or otherwise challenge any of these actions. The time period for challenging these actions has long since expired under both the Act and the Colorado Administrative Procedures Act ("APA"), and therefore these decisions cannot be challenged by OSM at this time. The deficiencies of OSM's current TDN are even more apparent with respect to CMLRD's November 1990 bond release decision. Here, OSM participated in the bond release inspection, was informed of the proposed decision, yet did not formally object to the proposed bond release as provided in CMLRD Rule 3.03.2. Subsequently, CMLRD's bond release decision became final, and cannot be challenged at this time. OSM should not as matter of policy attempt to circumvent final CMLRD decisions, the procedural requirements of the Act and the Colorado APA, and the procedural requirements of the federal regulations through improper use of a TDN. Furthermore, OSM's present use of the TDN, and failure to follow proper legal procedures, raises serious legal questions regarding the validity, finality and the means of review of anv CMLRD decision under the Act. 4. CMLRD's Response to the TDN is Sufficient. Contrary to OSM's position, CMLRD's decision to release Rockcastle's bond was neither arbitrary or capricious because it was based upon substantial evidence and because CMLRD followed its own rules. in releasing Rockcastle's bond, CMLRD followed the bond release provisions set forth in Rule 3.03.2. Further, the amount released was set forth in the CMLRB-approved Agreement, was consistent with CMRLD's bonding calculations and bonding practices, and was in accordance with CMLRD's bonding regulations. See CMLRD Rule 3.02.2. The decision to release the bond was based upon an