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tribunal that has ample powers to fashion an appropriate remedy. There is simply no need, in <br />addition to no authority, for the Board to take up Appellants' NEPA arguments.4 <br />B. The Board Should Reiect Appellants' Demand for a Capture Reauirement <br />The authority to regulate and require the capture of a federal mineral resource, such as <br />CMM, is outside of the authority of the CDRMS and the Board. CMM at the West Elk Mine is a <br />federal mineral resource that is administered and regulated by the BLM under the federal <br />Mineral Leasing Act. See Ch. 85, 41 Stat. 437 (1920) (codified as amended in various sections of <br />30 U.S.C.). The capture of CMM for commercial sale is illegal without a valid oil and gas lease <br />from the BLM. Contrary to the statements made in Appellants' Request, significant ownership <br />obstacles still persist and prevent the capture of CMM at the West Elk Mine.5 While the BLM <br />has initially indicated that the oil and gas leases over and adjacent to the E Seam could be offered <br />under the August 14, 2008 Sale Notice, virtually every recent oil and gas lease sale has been <br />subject to protest and substantial delay. Ironically, Appellants are among those most <br />vociferously opposing the issuance of new oil and gas leases, demanding that full Environmental <br />Impact Statements be prepared before any leases can be issued. See Exhibit 6 (Press Release <br />from Western Environmental Law Center describing protest, in which Appellant Rocky <br />Mountain Clean Air Coalition joined, of BLM's May 8, 2008 oil and gas lease sale). In arguing <br />that that the Board should mandate capture, Appellants did not indicate that they were prepared <br />to waive their typical objections to issuance of gas leases. <br />Furthermore, even if MCC was able to acquire federal oil and gas leases at the West Elk <br />Mine, any capture system would require the consent and approval of the Forest Service for the <br />construction of surface facilities on federally owned Forest Service lands. In order to capture <br />CMM at the West Elk Mine a gas treatment facility and a gas compression facility would be <br />required to send the gas from the MDWs to a pipeline for ultimate sale. The nearest existing <br />4 Should the Board undertake to determine the adequacy of the EIS and NEPA process as would a court, it must <br />determine whether the Forest Service decision or process was "arbitrary, capricious, or contrary to law." Marsh v. <br />Oregon Natural Resources Council, 490 U.S. 360, 370-85 (1989). Under this standard, a reviewing court must <br />defer to the informed discretion of the responsible agency. Id at 375-78. <br />5 MCC is unaware of any coal mine within the United States located on federal lands that is currently capturing <br />CMM pursuant to authority under the Mineral Leasing Act. Although oil and gas leases have been issued over the <br />Aberdeen Mine in Utah, as noted by Appellants, Appellants fail to apprise the Board that the validity of the leases is <br />currently subject to litigation before the Interior Board of Land Appeals. <br />4842-4129-1266\7 7