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Ms. Terry Debin <br />Mr. Tom Japhet <br />November 24, 2010 <br />Page 3 of 9 <br />(consisting of the Division, WFC, and the objectors) to exchange lists of witnesses and exhibits <br />by November 8, 2010, which was subsequently extended to November 10, 2010 at the request of <br />the objectors. OSM was fully aware of these deadlines and the date of the Board hearing due to <br />its participation in the Pre- Hearing Conference. <br />B. The OSM and NRCS Inspection and Report <br />Late on November 14, 2010, a Sunday night, WFC received notice in the form of a voicemail <br />from Mike Morgan that OSM and NRCS would be inspecting the Morgan property beginning the <br />next day, on November 15, 2010. WFC's management planned to travel that day in order to <br />prepare for the appeal of their coal mining permit which was scheduled to take place in Denver <br />on November 17. Undersigned counsel contacted Elizabeth Schaeffer within OSM, who was not <br />able to supply any information concerning the inspection. Calls were then made to the Denver <br />Field Office Director Jim Fulton and Regional Director Allen Klein. However, these calls were <br />not returned on that day, and indeed have not been returned to this day. <br />OSM and NRCS then conducted the inspection on November 16, 2010 — the day before the <br />Board hearing — in the presence of JoEllen Turner and Mike Morgan and without any <br />representative of WFC or the Division being present. Mr. Dearstyne and Mr. Boyd then each <br />wrote separate reports, which were provided to the Division after the close of business on the <br />night of November 16, the night immediately before the Board hearing. These reports are <br />attached as Exhibit B hereto. NRCS did not provide WFC a copy of the reports at that time, and <br />still has not to this day, though WFC was able to obtain a copy from the Division during the <br />hearing before the Board <br />In contrast to Mr. Boyd's prior approval of PR -06, and specifically Mr. Boyd's "support" for the <br />"soil reclamation" practices set forth in PR -06 "in their detail" (see Exhibit A) the November 16, <br />2010 report purports to call into question those very practices. It questions in particular the use <br />of "suitable subsoil" for use in the reclamation. PR -06 had set forth in detail exactly where and <br />how replacement subsoil, identified as "Bench 1 Substitute Subsoil," was to be used in the <br />reclamation of the Morgan property. However, the November 16, 2010 letter from Jim Boyd <br />sets forth a different and conflicting recommendation. As seen below, the November 16, 2010 <br />letter also appeared to rest on several false and inaccurate assumptions concerning the use of this <br />material in the reclamation of the Morgan land, assumptions whose inaccuracy should have been <br />perfectly evident to NRCS in light of their familiarity with the contents of the permit or, <br />alternatively, could have been immediately clarified had either WFC or the Division been given <br />an opportunity to be present. <br />