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Ms. Terry Debin <br />Mr. Tom Japhet <br />November 24, 2010 <br />Page 7 of 9 <br />stockpiling of topsoil, which the Morgan family has insisted must be on their property, so that <br />reclamation will not be possible until all mining operations on the property have been completed. <br />To clarify the record, the easternmost 20 acres of the property (Zones 1 and 2) will also conform <br />to Prime Farmland reclamation standards. On these acres alone, mixed topsoil original to the <br />property will be placed over Bench 1 Substitute Subsoil to a combined depth of 54 inches. PR- <br />06 involved a detailed examination of the use of these materials, using a procedure set down by <br />NRCS, in order to establish consistency with Prime Farmlands reclamation requirements. Walsh <br />Engineering performed this analysis using suitability criteria formulated with considerable input <br />from Mr. Dearstyne. The conclusions are summarized in PR -06 on Table 2.05.4(2)(d) — IA <br />(attached as Exhibit 0). Where the subsoil was found not to conform to such standards, soil <br />amendments were performed. Attachment 2.05.4(2)(d) -1 in PR -06 contains the support for this <br />determination, which rests on exhaustive sampling of multiple locations throughout the area. <br />The determination of suitability in PR -06 following extensive review, sampling, and soil <br />amendment is inconsistent with the "conclusions" the NRCS purported to reach after a one -day <br />inspection of a single "recently reclaimed" location on the property. Most importantly, the <br />substitute materials to be used in this area were tested in direct comparison to the original Lift B <br />soil on the property. If NRCS inspectors attempted simply to "eyeball' soil compositions in one <br />location, this procedure is unreliable compared to the Walsh methodology described in PR -06. It <br />is also unclear on what basis the NRCS determined that the Lift B soils on the property met with <br />IIe Capability Classification. Again, Exhibit D contains a comparison of the actual Lift B soils <br />found on the Morgan property with the substitute subsoil materials. <br />4. Property Damage Lawsuit <br />You should be aware as legal counsel to the OSM and NRCS that the Morgans have filed a civil <br />suit against both WFC and the Division which is now pending in Montrose County District <br />Court, Civil Action Nos. 10 -CV -367 and 10 -CV -368. The lawsuit alleges property damage <br />resulting from the very reclamation practices commented upon in the November 16, 2010 <br />reports, therefore these reports are relevant to the litigation. The NRCS inspectors are subject to <br />subpoena and cross examination by WFC in that lawsuit, and we ask that NRCS and the USDA <br />General Counsel cooperate in making these witnesses available should the need for discovery <br />arise. <br />In the lawsuit, the Morgan family seeks $5.1 Million in damages from WFC and an equal <br />amount from the Division. The federal agencies might perhaps factor in the existence of this <br />lawsuit and the scale of these demands in evaluating any factual information supplied by these <br />objectors. <br />