2008-08-18_REVISION - C1980007 (6)

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Appellants 2 existing mining plan may be issued by the Secretary of the Interior after the Secretary evaluates the environmental effects on the impacted community or area as well as other factors as set out at 30 U.S.C. 201 (a)(3)(C). Consequently, the Forest Service decision to consent to the proposed coal mining activity only determines whether the Secretary of the Department of the Interior can then consider the proposed activity and issue a mine plan or mine plan modification, subject to the terms and conditions included in the Forest Service's consent and conditions necessary to protect the nonmineral resources on NFS lands within the lease area. In his decision, the Forest Supervisor identified conditions for the use and occupancy of NFS lands and necesary for the protection of nonmineral interests in those lands, along with his "concurrence" to OSM. While the Forest Supervisor should have stated he was giving his "consent" to the use and occupancy of NFS lands, rather than his "concurrence" he fulfilled the statutory limit of his obligation by also identifying in his decision conditions required for the use and occupancy of NFS land and needed to protect the non-mineral interest in those lands in conjunction with installation of the proposed MDW's. The identification of such conditions was the extent of the federal action represented by his decision. The Assistant Secretary of the Interior for Lands and Minerals, through the OSM, will now have the authority and responsibility to evaluate and approve (or otherwise) the installation of the MDW's through modifications to the existing mine plan for the West Elk Mine. I am denying your request for relief. My decision constitutes the final administrative determination of the Department of Agriculture. 0 Sincerely, /s/ 904zth Craig Bobzien Acting Deputy Regional Forester, Resources Appeal Deciding Officer Enclosure cc: Charles Richmond, Niccole Mortenson