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Mike Long, Director, Minerals and Geology Page 4 CONFIDENTIAL On March 30, 1999, DMG transmitted to AFO DMG's analysis of the technical feasibility of elimination of the Fruita Mine highwall. That analysis concluded that it would be technically infeasible and environmentally undesirable to eliminate the Fruita Mine highwall. DMG's transmittal letter also noted that the technical analysis "demonstrates that the current configura- tion complies with the terms of the recently approved rules which allow for retention of pre-SMCRA highwalls in certain limited circumstances." AFO made a finding of an inappropriate response on April 26, 1999 asserting that the Fruita Mine did not qualify for the highwall elimination exemption because it had not been continu- ously mined since August 3, 1977.**2 DMG responded on May 5, 1994 asserting that the Fruita Mine in fact qualified for the "continuously mined" exemption in the Rules, because the term "operations" is defined in the Act to include reclamation activi- ties. DMG also stated in the May 5, 1994, letter that it would seek an opinion from this office to determine whether a suit to compel American Shield to eliminate the highwall at the Fruita Mine would be successful. III. Legal Analysis The foregoing factual recitation of the history of this issue indicates that DMG and OSM/AFO have had a number of differ- ences of interpretation regarding whether recently promulgated rules by the Board can be applied to a pre-existing NOV, what constitutes "continuous" mining, and what the term "mining oper- ations" includes. Though a legal analysis by this office of these differences of interpretation might be required at some point, it is not necessary to answer your question to this office -- whether a court action by DMG against American Shield would be successful. From the above factual recitation it is clear that American 2** This "finding" apparently contradicts AFO's earlier statement that the mine did not qualify for a "remining" exemption because it had been continuously mined since 1977.