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Appellants 3 <br />File Code: 1570(2008-02-04-0015) Date: June 2, 2008 <br />Route To: <br />Subject: Recommendation Memorandum <br />To: Appeal Deciding Officer <br />Pursuant to 36 CFR Part 215, I have reviewed the record with regard to your appeal of the March <br />7, 2008 decision of Forest Supervisor Charles Richmond, of the Grand Mesa, Uncompahgre and <br />Gunnison National Forest (GMUG) concerning the Deer Creek Shaft and E Seam Drainage <br />Wells Project FEIS. My review of the appeal as submitted by eligible appellants focused on the <br />decision documentation developed by the Forest Supervisor in reaching his decision in relation <br />to issues raised in the appeal. Pursuant to 36 CFR §215.13(f) (2), this will constitute my written <br />recommendation concerning the disposition of the appeal, and I am forwarding the appeal record <br />to you. <br />BACKGROUND An EIS was prepared to evaluate proposed methane drainage wells <br />(MDWs) for the West Elk mine operated by Mountain Coal Company (MCC). The Record of <br />Decision (ROD) selected alternative 2 the proposed action. The decision included that the Forest <br />Service would provide concurrence to USDI-Office of Surface Mining Reclamation and <br />Enforcement recommending that the USDI Undersecretary for Land and Minerals approve <br />mining plan modifications for the E seam MDWs brought forth in technical revisions to MCCs <br />mine permit. <br />Under the coal leasing statute, the Forest Service gives consent for the use and occupancy of <br />National Forest System (NFS) lands subject to those terms and conditions determined necessary <br />by the Forest Service to protect the nonmineral interests in those lands. 30 U.S.C. <br />(a)201(a)(3)(A)(iii). If the Forest Service gives consent to the use and occupancy of NFS lands, <br />then a mining plan, or modifications to an existing mining plan may be issued by the Secretary of <br />the Interior after the Secretary evaluates the broader range of effects, including but not limited to <br />environmental effects, on the impacted community or area, as well as other factors as set out at <br />30 U.S.C. 201 (a)(3)(C). Consequently, the Forest Service decision to consent to the proposed <br />coal mining activity only examines whether NFS lands can be used consistent with federal <br />management direction and subject to terms and conditions necessary to protect the nonmineral <br />interests in those lands. This decision allows the Secretary of the Department of the Interior to <br />consider the proposed activity and issue a mine plan or mine plan modification, but does not <br />require the Secretary of the Department of the Interior to issue the mine plan or mine plan <br />modification or to impose any terms and conditions on such plan or plan modification, other than <br />those terms and conditions included in the Forest Service's consent and conditions necessary to <br />protect the nonmineral resources on NFS lands within the lease area. As such, the Forest <br />Service's decision space is limited. <br />In his decision, the Forest Supervisor identified conditions for the use and occupancy of NFS <br />lands and necessary for the protection of nonmineral interests in those lands, along with his <br />"concurrence" to OSM. While the Forest Supervisor should have stated he was giving his