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~ ~ III IIIIIIIIIIIIIIII <br />ROBERT F. WELBORN <br />PNi LIP G. DUFFORD <br />THOMAS G. BROWN <br />DALE TOOLEY <br />DAVID W. FU RGASON <br />WILLIAM C. ROB B <br />JOHN F WELBORN <br />WILLIAM A. MCLAI N <br />BEVERLY J. OUAIL <br />RICHARD L.FANYO <br />NATNRYN L. POWERB <br />WELBORN. DUFFORD, BROWN fb TOOLEY <br />ATTORNEYS AT LAW PHILLIP O. BARBER <br />1]00 BROADWAY GREGORY A. RUEGSEGGER <br /> RANDALL J. FEU ERST EiN <br />DENVER, COLORADO 80290-1199 5. NIRN INGEBRETBEN <br /> DIANE L. BDRI(HARDT <br />X3031 861-8013 <br /> STEPHEN J SULLIVAN <br /> ELLEN TOLL <br />Mr. Paul C. Jones <br />President <br />Wyoming Fuel Company <br />12055 W. Second Place <br />P. 0. Box 15596 <br />Lakewood, Colorado 80215 <br />July 27, 1984 THEODORE B. ATLA55 <br />SPECIAL COVNSEL <br />RECEIVED <br />JUL 301984 <br />MINED UND RECUMAiION DIVISION <br />Colo. Dept of Natural Resources <br />Re: Wyoming Fuel Co. v. OSM, Docket No. PU 4-4-P; <br />Canadian Strip Mine, NOV No. 83-2-6-3 <br />Dear Paul: <br />Enclosed is a copy of Judge Mesch's Order dated July <br />11, 1984, dismissing the Petition for Review filed by WFC in <br />the referenced case. i received it on July 16, 1984, and so <br />any appeal to the Interior Board of Land Appeals must be filed <br />by August 15, 1984. The IBLA has discretion regarding whether <br />or not to hear the appeal. Our brief would be due 30 days <br />after receipt of notice that the appeal would be heard. If the <br />IBLA declined to hear the appeal, WFC would then have an <br />opportunity to appeal to the courts. <br />Judge Mesch interpreted the federal Surface Mining Act <br />to provide two mutually exclusive appeal mechanisms for <br />administrative appeals relating to NOV's. He found that any <br />challenge to the fact of a violation alone must be made under <br />5525(a)(1), which requires filing 30 days after receipt of the <br />NOV. He also found that §518(c) allows an appeal only relating <br />to the amount of a proposed penalty. The fact of the violation <br />may be raised as a subissue to this ultimate question in a <br />5518(c) proceeding, but not as the ultimate issue itself as is <br />the case in WFC's pending Petition. Consequently, an appeal <br />following an assessment conference under 5518(c) is not <br />available if the proposed penalty is reduced to zero, as in our <br />case. <br />Having interpreted the statute in this manner, he then <br />interpreted the Office of Hearings and Appeals' procedural <br />regulations and OSM's assessment regulations in a way to be <br />