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FOGNANI &FAUGHT,PLLC Mr. Allen C. Sorenson II101nt',s a/ ].aw April 15, 2009 Page 2 parties, and in this case, in particular, arguments raised by a project opponent (Western Mining Action Project), is outside DRMS's authority and inconsistent with existing law and regulation. The Colorado Mined Land Reclamation Board (MLRB) has recently acknowledged that there is no right for an outside party to appeal a DRMS decision on a Notice of Intent. See Board Order, In the Matter of High Country Citizens' Alliance Appeal of Final Office Determination of Prospecting Notice for the Lucky Jack Mine, Number T-2007-026, June 11, 2008. Mr. Parsons should be well acquainted with that case since he represented High Country Citizens Alliance in the matter. While outside parties are not entitled to challenge a Notice of Intent directly, the approach DRMS used in this case, allowing parties hostile to any given project to channel their arguments through DRMS, offers outside parties a "backdoor" avenue to challenge the Notice of Intent. That backdoor avenue confers an entitlement that virtually no one else enjoys and provides a measure of inappropriate credibility to the arguments presented. The Legislature has not provided for an adversarial, multi-party Notice of Intent process, and we do not believe that was the intention of the Legislature in enacting Senate Bill 228 last year. Nor is such a process a practically feasible or economically sound way for DRMS to oversee prospecting activities, especially in the current economic crisis, when agency budgets are constrained and mining operations, a life blood of the Colorado economy, are facing especially serious economic challenges. From this point forward, we hope and trust that DRMS will maintain the distinction between the process for DRMS's review of a Notice of Intent and the process for review of a Reclamation Permit application. Without waiving our objection to DRMS's requirement that Powertech respond to arguments raised by outside parties, in a spirit of cooperation and full disclosure we provide the following information regarding the Notice of Intent Modification for prospecting activities in connection with the Centennial Project. Additionally, as noted above, a separate technical letter to which this letter is attached is being provided. Framework for Analysis: Distinction Between Prospecting Stage and Mining Operations Stage The two significant questions that we will address from a legal standpoint are: (1) whether the activities included in the Notice of Intent Modification are "baseline site characterization" under Section 112.5(5)(a) of the Colorado Mined Land Reclamation Act (MLRA), C.R.S. § 34-32-101 et seq., and (2) whether the activities included in the Notice of Intent Modification are "mining" activities under Section 103(12) of the MLRA. The answer to both of these questions is an emphatic "no." The fact that these questions are being raised at all reveals some confusion between the streamlined documentation and review process applicable to the prospecting stage of a potential mining operation, and the substantially more detailed and demanding documentation and review process applicable to the