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Hohne Roberts & Owen LLP® <br />Attorneys at Lam <br />Mr. David Berry <br />November 12, 2010 <br />Page 6 <br />the coal permit evidences that the industrial or commercial land use of the <br />permit area has commenced, and the entire remaining reclamation bond for the <br />Carbon Junction Mine should accordingly be released in connection with the <br />sand and gravel operation. <br />C. Division Has Exceeded the Statutory Grant of Authori <br />C.R.S. § 34 -33 -108 provides that the Division shall promulgate <br />regulations to implement the provisions of the Reclamation Act that are no <br />more stringent than required to be as effective as the federal Surface Mining <br />Control and Reclamation Act of 1977 (" SMCRA ).6 The applicable Code of <br />Federal Regulations ( "CFR" ) provisions implementing SMCRA provide that a <br />permittee's bond liability is limited to "only those actions which [the <br />permittee] is obligated to take under the permit, including completion of the <br />reclamation plan, so that the land will be capable of supporting the post mining <br />land use approved.... " The CFR also contains a provision stating that <br />implementation of an approved alternative post- mining land use which is <br />beyond the control of the permittee, need not be covered by the bond. <br />Neither SMCRA nor the CFR contains any language similar to the <br />Regulation's Sec. 3.02.3(c) requirement that "development of such land use has <br />substantially commenced," and these federal laws do not otherwise condition <br />bond release on the Secretary's determination as to the commencement of land <br />use development. The Division's requirement that Oakridge construct <br />infrastructure on the permit lands, and the rule it relies upon to impose that <br />requirement, is more stringent than the applicable SMCRA provisions, and <br />therefore, exceed the Division's authority under the Reclamation Act. <br />As stated, the Division's interpretation of Section 3.02.3(c), its <br />application to the Carbon Junction Mine and requirement that Oakridge build <br />6 30 U.S.C. 1201 et seq. Interestingly, this is the same language in Colorado Rule 3.02.1(7) <br />cited above. <br />7 30 CFR § 800.13. <br />8 1d. <br />#1502381 0 den <br />