1989-10-10_REVISION - M1988112 (35)

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The circumstances considered by the Alaska Supreme Court in upholding the Board's order that additional medical examinations be performed notwithstanding the pending judicial review proceeding are sufficiently similar to the circumstances presented by Battle Mountain's proposed amendment to allow the MLRB to amend Battle Mountain's permit while CES' judicial review proceeding are pending. The issues involved in CES' judicial review proceeding are (1) whether Battle Mountain's permit was complete at the time the MLRB issued the permit; (2) whether there is :substantial evidence in the record supporting the MLRB's conclusion that Battle Mountain's operations would not significantly affect the hydrogeologic balance in the area surrounding the proposed mining operations; and (3) whether the MLRB deprived CES of clue process at the hearings concerning the permit application. The issues subject to judicial review have no relationship whatsoEever to the technical adequacy of an alternative beneficiation scheme described in the contemplated amendment. Accordingly, the MLRB's consideration of an amendment to the permit which can only concern the technical adequacy of the plans proposed in that amendment could not possibly conflict with the jurisdiction of the trial court. This conclusion is unassailable because the relevant question for the trial court is whether the MLRB had sufficient evidence on the record to render its decision at the time of that decision, not thereafter. In addition, the amendment process itself provides for additional hearings at which time CES may appear and make objections to the amendment. The allowance for further hearings and opportunity for CES to object completely elim=.Hates the fairness issues which played a major role in the Colorz~do Supreme Court's decision in Continental Airlines and its progeny. D. Conclusion. The separation of powers doctrine governs the interaction of judicial and agency jurisdiction over administrative orders. The general rule in Colorado is that a court lacks jurie~diction to enjoin an agency from performing its statutory functions. A limited exception to the general rule has been recognize~3 in a line of Colorado cases which prohibits an agency from taking further action with respect to an order subject to judicial review if such action would conflict with the exercise of jurisdict_~on by the reviewing court. While Colorado courts have not yet had the opportunity to define precisely the limits of this exception, it has been narrowly construed by courts in other jurisdictions citing Colorado case law such that where there is no direct conflict with the courts' review of the issues presented on appeal, then there is no obstacle to the agency exercising continuing jurisdiction over the matter in accordance with its enabling statute. See Fishback & Moore of Alaska, Inc., supra; Westside Charter, supra; Castillo, supra. 14