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Page 2 • • <br />To determine if the Petition meets the threshold inquiry, this matter has been <br />placed on the agenda for discussion at the upcoming January meeting of the Mined Land <br />Reclamation Board ("Board"). The meeting will beheld in Denver on January 20. The Boazd <br />will not consider testimony from either party at that time and will base its decision solely on the <br />Petition and a written response from the Division of Minerals and Geology ("Division"). The <br />Division is acting not as a party but as staff to the Board in this matter. As you may know, the <br />Division has determined that the Petition meets the threshold inquiry and has recommended that <br />the Board hold a hearing on this matter. <br />If the Boazd determines that the Petition meets the threshold inquiry, it may <br />choose to consider the matter at the February Boazd meeting, set for February 25 and 26, 2004. <br />It may also permit oral argument at that time, in accordance with Construction Materials Rule <br />2.9.3. The Board is not obligated to allow oral argument, and it may grant or deny the Petition <br />based solely on the written material presented. The Board may likewise choose to take no action <br />at all. Construction Materials Rule 2.9.4 states that a petition "shall be deemed denied" unless it <br />is granted within 60 days of receipt. <br />If the Board determines that the Petition has met the threshold inquiry, I will <br />advise the Board to set a reasonable deadline for considering written opposition to the Petition. <br />While I cannot predict what the Board may do, I will recommend a deadline of February 16, <br />2004. <br />Constmction Materials Rule 2.9 does not specifically address how - or whether - <br />petition opponents are to participate in the consideration process. In advising the Board to accept <br />and consider written opposition to the Petition, I am relying on the Administrative Procedures <br />Act, § 24-4-101 et seq., C.R.S. (2003), which provides as follows: <br />Any agency conducting a hearing ... shall have authority to:. , . regulate <br />the course of the hearing ... issue appropriate orders which shall control <br />the subsequent course of the proceedings ... and take any other action <br />authorized by agency rule consistent with this article or in accordance, to <br />the extent practicable, with the procedure in district courts. <br />§ 24-4-105(4} C.R.S. (2003). <br />Tf the Board decides to allow oral argument to consider the Petition, I would <br />likewise recommend that Petition opponents be allowed to present oral argument. <br />Because of the technical nature of the subject matter presented in the Petition, I <br />will also recommend that the Boazd allow expert testimony provided such testimony is directly <br />relevant to the Petition. My authority for this position derives from the APA section cited above. <br />I hope this provides some clarity to you and your clients regarding the Petition. <br />Please call me at 303-866-5273 if you have additional questions. <br />