1989-10-10_REVISION - M1988112 (26)

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~~ PARCEL, MAURO, HULTIN & SPAANSTRA, P.G. Mr. Fred Banta October 9, 1989 Page 2 by Battle Mountain until the judicial proceeding is finally resolved. We agreed to share our legal research with you and prepare the enclosed memorandum which sets forth a comprehensive analysis of the statutory and case law which has a bearing on the concerns expressed by Mr. Johnson. Our conclusion is that the CMLRB does retain continuing jurisdiction over the permit and may undertake review and render a decision with respect to the proposed amendment. We believe that such a result is entirely consistent with the holding in O'Bryant and its predecessor cases. The rule espoused in O'Brvart is a well founded principle which is aimed at eliminating agency action which changes the administrative order and record after the time the record and order have been appealed to a judicial forum. In considering application of the rule to the current circumstances we note that the issue pending before the court in this case is whether there was sufficient evidence on the record at the time of the decision to support the CMLRB's action approving tze original permit. The amendment application will not, and in fact could not, affect the record of decision of the CMLRB which is the subject of the appeal. Rather, the amendment application will be subject to review by the CMLRB which will include notice and a full opportunity for public participation. An entirely new record concerning the amendment will be developed and a new decision/order will be rendered by the CMLRB. Accordingly, the CMLRB's decision regarding the amendment application will not in any way conflict with the court's consideration of the record and decision on appeal and the action is therefore consistent with the rule in O'Bryant and its progeny. While we firmly believe that, from a legal perspective, the Board retains continuing jurisdiction over the matter, such a result is desirable if not essential from a practical perspective. The concept of the Board's continuing jurisdiction over the current permit, whether it be in the context of monitoring, enforcement or revision of the permit, is essential to the maintenance and continuity of the CMLRB's regulatory authority.