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<br /> <br />WELBORN, DUFFORD,BROWN g TOOLEY <br />Mr. Paul C. Jones <br />Page 2 <br />July 27, 1984 <br />consistent with the Act as he read it. in doing so, he <br />implicitly held that the OHA's procedural regulations abrogate <br />the inconsistent provisions of OSM's assessment regulations, <br />even though the former were adopted before the latter, and even <br />though the procedural regulations were expressly intended to <br />apply to the interim program, not permanent program NOV's such <br />as the one issued to WFC. Without saying so, he has <br />effectively held that 5845.19(a), the authority I cited for <br />WFC's Petition, is invalid unless it is given a contorted <br />construction consistent with his reading of OHA's procedural <br />regulations and §518(c) of the Act. <br />Judge Mesch's conclusion is one arguable <br />interpretation of §518(c) of the Act. However, it is also <br />arguable to interpret that section to allow an appeal in cases <br />such as the present one, which is essentially what OSM did when <br />it adopted the language of §845.19(a) in 1979. Significantly, <br />Judge Mesch did not conclude that ~845.19(a) itself prohibits <br />an appeal in this case, but rather that his interpretation of <br />§518(c) of the Act requires an interpretation of 5845.19(a) <br />prohibiting such an appeal. Since that interpretation <br />essentially rewrites ~845.19(a), the issue of an administrative <br />law judge's authority to revise one of the Secretary's <br />regulations is raised as well. <br />Whether the IBLA would hear an appeal and the chances <br />for success are problematical. Since WFC has been pursuing <br />this matter in large measure to support the Mined Land <br />Reclamation Division in its relations with OSM, it would be <br />appropriate to discuss whether an appeal should be filed with <br />Dave Shelton. By copy of this letter, I am conveying to Dave <br />your suggestion that we meet for that purpose sometime next <br />week. I will be in touch with Dave and you to arrange a <br />mutually convenient day. <br />Please let me know if you have any questions regarding <br />this matter in the interim. <br />RLF/ppm <br />Enclosu[e <br />cc: David C. Shelton <br />David Stout <br />David R. Sturges, Esq. <br />Sincerely yours, <br />WELBORN, DUFFORD, BROWN & TOOLEY <br />i <br />/CC <br />Richard L. Fanyo <br />