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.., United States Forest Rocky P.O. Box 25127 <br />Department of Service Mountain Lakewood, CO 80225-0127 <br />Agriculture Region Delivery: 740 Simms St. <br />Golden, CO 80401 <br />Voice: 303-275-5350 <br />TDD: 303-275-5367 <br />File Code: 1570(2008-02-04-0015) <br />A215 <br />Date: June 2, 2008 <br />Edward B. Zukoski, Esq. <br />EARTHJUSTICE <br />1400 Glenarm Pl.,#300 <br />Denver, Co 80202 <br />Dear Appellants: <br />Pursuant to 36 CFR Part 215, I have reviewed the record with regard to your appeal of the March <br />14, 2008 decision of Forest Supervisor Charles Richmond, of the Grand Mesa, Uncompahgre <br />and Gunnison National Forests concerning the Deer Creek Shaft and E Seam Drainage Wells <br />Project FEIS. I have also considered the recommendation of the Appeal Reviewing Officer <br />respecting the disposition of your appeal. The Reviewing Officer's review focused on the <br />decision documentation developed by the Forest Supervisor and the issues raised in your appeal. <br />Decision <br />The Reviewing Officer, based on review of the record, found that the decision should be <br />affirmed with clarification. I concur with the Reviewing Officer and by this letter am affirming <br />the decision. The Forest Supervisor's decision, as described in the ROD, was that "the Forest <br />Service will provide concurrence to OSM recommending that the USDI Assistant Secretary for <br />Land and Minerals approve mining plan modifications for the E Seam methane drainage wells <br />(MDW's) brought forth in technical revisions to MCC's mine permit issued by the DRMS. This <br />Forest Service concurrence includes post-mining land use direction and protections for non- <br />mineral resources". <br />My decision is based upon my review of both the administrative record and applicable federal <br />law relative to coal leases on federal lands when the surface estate is under the jurisdiction of an <br />agency other than the Department of the Interior. In this instance the surface nonmineral estate <br />is National Forest System (NFS) land under the jurisdiction of the United States Department of <br />Agriculture, Forest Service ("Forest Service"). <br />Under the coal leasing statute, the Forest Service gives consent for the use and occupancy of <br />National Forest System (NFS) lands and in granting consent the Forest Service also identifies <br />terms and conditions necessary to protect the nonmineral interests in those lands. 30 U.S.C.A <br />201(a)(3)(A)(iii). If the Forest Service gives consent, then a mining plan, or modifications to an <br />115 ? <br />Caring for the Land and Serving People Printed on Recyded Paper W