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Janet H. Binns <br />March 31, 2004 <br />Page 2 <br />As stated above, Empire believes that it had and has met all of its obligations <br />under the plain language of the relevant statute and regulations by providing a <br />description of the documents that form the basis of its right of entry, and by explaining <br />the legal basis of that right. The following provides a more detailed response to the <br />Division's January 30, 2004 letter and discussion of CRS §34-33-] 10(2)(j), and Section <br />2.03.6 of the Regulations, the sections cited by the Division. <br />I. C.R.S. Section 34-33-110(2)(j) <br />Section 34-33-1 ]0(2)(j) of the Act states that: <br />(2) The permit application shall include the following:.. . <br />(j) An accurate map or plan, of an appropriate scale, clearly showing the <br />land to be affected as of the date of the application and the area of land within <br />the permit area upon which the applicant has the legal right to enter and <br />commence surface coal mining operations and a statement of those documents <br />upon which the applicant bases such legal right to enter and commence surface <br />coal tnining operations on the area affected .. . <br />This section requires: (1) provision of a map or plan showing the area of land to <br />be affected and to which the applicant has the legal right to enter and commence surface <br />coal mining operations, and (2) a statement of those documents upon which it bases its <br />right of entry. <br />Assuming that "surface coal mining operations" includes reclamation under this <br />section,' Empire was required only to submit the map or plan showing the area it would <br />enter. The permit files and mine plans and reclamation plans contain many such maps or <br />plans which satisfy this obligation. Additionally, attached hereto is a specific map or <br />plan of the approximately 1.5 acres of land in question within the Barker 640 acre tract. <br />This section also requires that Empire submit a "statement" of the documents <br />upon which it "bases such legal right to enter." Nothing in this section requires Empire <br />to submit the actual documentation that creates its right of entry. It only requires a <br />reference to those documents. Therefore, Empire's statements explaining its legal rights <br />of entry, naming the lease, the ]ease provisions, and the case law as the basis for those <br />rights are sufficient to satisfy the requirements of §34-33-110(2)(j). <br />s Nate that this section uses [he future tense phrase "to be affected" and twice utilizes the terms <br />"commence" and "surface coal mining operations" (and similarly Rule 2.03.6 uses the phrase "begin <br />surface coal mining operations") and each expressly omits use of the term "surface coal mining and <br />reclamation operations" which is a separately defined term in the Act and Regulations. The specific <br />language chosen in light of other defined terms and phraseology underscores Empire's previous statement <br />that the Ac[ and the Regulations do not evidence any specific requirement that it continue to maintain <br />access rights [o all lands originally in the permit after mining activity on the specific land in question has <br />been completed. <br />