1989-10-10_REVISION - M1988112 (35)

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ex parte actions. Since the CMLRA amendment process, expressly provides CES an opportunity for a hearing at the agent:y level on the amendment sought by Battle Mountain, the ex parte considerations controlling the Supreme Court's decision in O'Brvant would not be present. For this reason O'Brvant is not controlling to the issue of whether the MLRB may issue an amendment. The amendment sought by Battle Mountain differs significantly from the agency actions taken in either ()'Bryant or Continental Airlines. Issues raised by CES concerning the completeness of the permit application, the Board's consideration of impact to the hydrogeologic balance, and whether CES was afforded due process, are not and by definition cannot be affected by the amendment since all of these issues must relate to the evidence on the record as of the date the original permit application was considered by the MLRB and not thereafter. To the extent that the underlying permit is amended, CES will be afforded opportunity to oppose the amendment during an administrative hearing and to challenge any decision b~~ the Board by a subsequent action for judicial review. In this reespect, the amendment sought by Battle Mountain differs completely from the agency action in both Continental Airlines and O'Bryant~, since in both those cases the agency acted without notice to the parties to the judicial review proceeding, let alone affording them opportunity to comment upon the action. Due to the different circumstances involved with the amendment to Battle Mountain's permit, the holding in O'Brvant is applicable onl to the extent that it prohibits an agency from taking additional action which would directly conflict with the issues raised in the judicial review proceeding. This narrower reading of the Continental Airlines case has been expressly adopted in cases which cite the Colorado Supreme Court case as authority. In Fishback & Moore of Alaska Inc. v. Lvnn, 407 P.2d 174 (Alaska 1965), the Alaska Supreme Court cited Continental Airlines in support of its holding that, "[i]t is the general rule that when an order of an administrative agency is appealed to a court, the agency's power and authority i.n relation to the matter is suspended as to the Questions raised by the aooeal." Fishback, at 176 (citations omitted, emphasis <3dded); see also, Westside Charter Service Inc. v. Grav Line Tours, 99 Nev. 456, 664 P.2d 351 (1983); Castillo v. Industrial Commission, 21 Ariz.App. 465, 520 P.2d 1142 (Ariz.App. 1974). In its ruling the Alaska Supreme Court expressly limited the operation cf the rule to situations where exercise of the continuing jurisdic~r_ion of the agency would conflict with the questions raised on the appeal: Operation of the rule is limited to situations( where the exercise of administrative jurisdiction would conflict with the proper exercise of the court's jurisdiction. If there 11