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Hohne Roberts & Owen LLP <br />Attorneys at Law <br />Chair <br />March 31, 2011 <br />Page 4 <br />or recreational use. The Division's requirements for five residential <br />foundations not only is a seemingly arbitrary quantification of a residential land <br />use but it also ignores other permissible post mining land uses. <br />Absent statutory or regulatory guidance as to the meaning of <br />"substantially commenced," the Division's requirements appear to be <br />impermissibly arbitrary. The Division has offered no rational, guidelines or <br />process explaining why a requirement for five foundations has been imposed, <br />nor has the Division favorably responded to suggested alternatives raised by <br />OEI over the last two and one-half years of this bond release saga. Given this <br />apparently boundless discretion to interpret the meaning of "substantially <br />commenced," the Division, presumably, could have imposed construction <br />requirements of any scope, from, for example, providing electrical service to <br />one mobile home to building and closing sale transactions on any number of <br />residences. <br />2. Development of Land Use. Section 3.02.3(c) requires that <br />"development" of an alternative land use shall have substantially commenced <br />prior to bond release. The above discussion of "substantially commenced" <br />notwithstanding, the Division's requirement for five foundations mandates the <br />construction of infrastructure, not the development of a land use, as the <br />regulation requires. In its most general sense, land development includes any <br />action that improves a parcel of land to a higher use or higher value and in the <br />absence of a statutory or regulatory definition, "development" as used in <br />Section 3.02.3(c) should be understood this way. This should be especially true <br />where the main goal of the Reclamation Act, control of erosion, has been met. <br />In the context of land use development, "development" contemplates any <br />number of activities that would make land more suitable for a particular use, <br />including, for example, acquiring financing, marketing lands, engineering <br />master plans, and can include construction, but does not exclusively require <br />construction, as the Division suggests. We believe the language of the <br />regulation emphasizes land use development, which refers to the use to which <br />the land is to put. If actual construction had been intended, that word could <br />have been inserted in the regulation. It was not. Moreover, the practicalities of <br />#1524340 0 den