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<br />s <br />Mike Long, Director, Minerals and Geology CONFIDENTIAL <br />Page 6 <br />stablization which has occurred subsequent <br />to the 1990 reclamation of the site, I rec- <br />ommend we forego any additional regrading <br />of the site. I am of the opinion that the <br />reoisturoance. <br />(Pendleton memo at pp. 9, 10.) (emphasis <br />added) <br />The Pendleton memo further concludes that, even if the <br />highwall elimination at the Fruita Mine were technically feasible <br />from a stability standpoint, the highwall would qualify for an <br />exemption from elimination under the regulations promulgated by <br />the Board at its March 23, 1994 meeting. (See Rule 4.14.1.(2)(f) <br />and pp. 10- 11 of the Pendleton memo) <br />To summarize, DMG's own analysis concludes that - <br />1. Highwall elimination at the Fruita Mine is tech- _ <br />nically infeasible; <br />2. Partial highwall elimination at the Fruita mine <br />is unjustified; and <br />3. Even if feasible, highwall elimination at the <br />Fruita mine qualifies for exemption under the current <br />Rules. <br />Rather than having a technical analysis that supports a de- <br />cision to eliminate the Fruita mine highwall, DMG in fact has a <br />technical analysis by its own staff concluding that any attempt <br />to eliminate the highwall would be infeasible. Therefore, any <br />decision by DMG contrary to the conclusions of its own technical <br />analysis would be arbitrary and capricious and unsupported by <br />substantial evidence. Such a decision would be reversed upon <br />judicial review, should DMG or the Board attempt to enforce it. <br />See, e.9•, Board of County Commissioners v. Board of Assessment <br />Appeals, 628 P.2d 156 (Colo App. 1981.) <br />IV. Conclusion and Recommendation <br />Because DMG's own technical analysis would contradict any <br />decision by DMG or the Board require American Shield to eliminate <br />