2008-06-04_REVISION - C1980007 (4)

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Kaldenbach, Tom From: Hernandez, Daniel Sent: Monday, June 04, 2007 8:40 AM To: Kaldenbach, Tom Cc: Berry, David Subject: West Elk Deer Creek Shaft TR-109 Tom - This is a follow-up to our conversation last Friday. G/1 8 0 d o 7 Page 1 of 1 , Xe ?r3, Aot As I mentioned before, Henry Barbe and Mike Peacock of Mountain Coal met with me on Monday 5/21 regarding TR-109 (the Deer Creek Shaft). One of MCC's concerns was the timing of our potential proposed decision to approve the TR and our associated comment period in conjunction with the USFS's Record of Decision for the Deer Creek Shaft, the associated ROD appeal period, the USFS's annual elk winter range restriction that begins every December 1 st, and the company's ability to construct the shaft within the window between the end of the ROD appeal period (or our comment period, whichever was later) and 12/1/07. To keep the airshaft's construction window as large as possible, MCC asked if, all other issues being resolved, we could approve TR- 109 with a stipulation that MCC not begin any activities associated with TR-109 until the USFS ROD appeal period had passed. After the meeting, I spoke with Dave Berry about MCC's stip request. Dave said that he believed an ROD is a form of right-of-entry, and that it is our policy to not stipulate right-of-entry. He nevertheless asked me to check with USFS to see if an ROD is a form of right-of-entry. I called Ryan Taylor at the USFS. He said that an ROD is a form of right-of-entry. When I explained MCC's concerns, Ryan discussed two options. The first is one that USFS has already discussed with Mountain Coal, which would be for USFS to waive the 12/1 elk winter range restriction. This waiver would be proposed in the ROD. The second, which USFS had not discussed with the company, might be that the USFS could send us a letter stating that Mountain Coal has an implied right-of-entry to construct the Deer Creek Shaft. Ryan said, however, that he would need to speak to Liane Mattson and possibly Levi Broyles at USFS about this second option before he could state assuredly that this second option actually existed. I informed Ryan that I would discuss these two options with MCC, as well as our option of having MCC request extensions of the TR-109 decision date until the USFS ROD appeal period had passed, to see which of the three options MCC would prefer. I called Henry Barbe at Mountain Coal last week, and left him a message. He was on vacation, so he called me back this morning. Henry told me that MCC prefers that USFS not waive the elk winter range restriction, as doing so would add something to the ROD that might make the ROD more "appeal-able". As MCC would prefer not having to extend the TR-109 decision due date, Henry said that he would speak to USFS about sending us a letter stating that MCC has an implied right-of-entry to construct the Deer Creek Shaft. At this point, therefore, we are waiting to hear from MCC as to whether USFS could send us a letter regarding MCC's implied right-of-entry. 6/5/2007