1989-10-10_REVISION - M1988112 (35)

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~ i has been deprived of procedural due process during the permit approval process. In response Battle Mountain filed a Motion to Dismiss, alleging that CES lacked standing to bring the action ors behalf of its purported members. The Motion was denied on July 27, 1989. Answers to CES' Complaint have been filed by both Battle Mountain and the MLRB and the administrative record was filed b}' the Board on September 11, 1989. We expect that briefing on the matter should be completed by December 6, 1989. Battle Mountain intends to file an amendment to its permit pursuant to Rule 1.8 of the MLRB Mineral Rules and Reegulations. The contemplated amendment would propose elimination of the cyanide heap leach facility. In its place, gold would be extracted in a conventional, carbon in leach mill facility with tailings disposal using thin layer deposition techniques. In the context of pre- application discussions with the MLRD, Frank Johnson, Deputy Assistant Attorney General (the "AG") has raised a f~reliminary issue regarding whether the MLRB has jurisdiction to consider the amendment in light of the pending appeal of the original Order of the MLRB. We understand that the basis for his raising the issue is his initial review of the recent holding of the Colorado Supreme Court in the case of O'Brvant v. The Public Utilities Commission, XIII Brief Times Reptr. 853 (Colo. 7-17-89). This memorandum was prepared on behalf of Battle Mountain in an effort to address in detail the issue raised by the AG and provide a thorouq_h analysis of the basis for the MLRB's jurisdiction to consider the permit amendment to be filed by Battle Mountain. II. I88IIE. Does the Mined Land Reclamation Board ("MLRB" or "Beard") have jurisdiction to consider and render a decision on an amendment to Battle Mountain's MLRB Permit No. M-112-88, when an action for judicial review of the MLRB's order approving the permit is pending pursuant to §24-6-106, C.R.S. (1988 Repl. Vol.) of Colorado's Administrative Procedure Act ("APA")? Iii. With certain limited exceptions, the MLRB retains continuing jurisdiction over the reclamation permit throughout the life of the permit and may therefore issue an amendment to such permits as long as the amendment does not directly conflict with the court's jurisdiction to determine issues under review by the Court. 2