EXHIBIT 74
Right-click here to download pictures. To help protect your privacy, Outlook prevented auto matic downlo ad o f this picture from the Internet. Ryan Z Taylor Mortenson, Niccole From: Sent: To: Cc: Subject: Attachments: Ryan Z Taylor <rztaylor@fs.fed.us> Thursday, March 03, 2011 3:12 PM Liane Mattson Niccole A Mortenson Re: question du jour pic23716.gif Ok, that makes sense. Thanks for the help and research! --------------------- Ryan Z. Taylor - Acting Leasable Minerals Program Manager Grand Mesa-Uncompahgre-Gunnison National Forests 2250 Highway 50 Delta, CO 81416 Office: 970-874-6697 -- Fax: 970-874-6698 Liane Mattson/WO/USDAFS Liane Mattson/WO/USDAFS 03/03/2011 03:00 PM ToRyan Z Taylor/R2/USDAFS@FSNOTES ccliane Mattson/WO/USDAFS@FSNOTES Subject Re: question du jour Hello, I have a taken a nice journey through SMCRA (30 USC 1201 et seq.), the 43 CFR part 3400, and the 30 CFR Part 700. The short answer for compliance with Section 522(e) of SMCRA (30 USC 1272), is that 'Secretary' means the Secretary of the Interior (not the Secretary of Agriculture) for the findings of ' no significant recreational, timber, economic, or other values which may be incompatible with such surface mining operations'. This shows up in 2 places, both on the leasing side and permitting sides of the house. First, with respect to leasing: in the 43 CFR part 3400 (which cross-references the similar, applicable section of SMCRA) which governs land management planning and leasing of federal coal lands...allows the Secretary of Interior to lease lands in the national forest system subject to FS consent, and provided that lands are assessed and acceptable for all or certain stipulated methods of surface coal mining operations under the provisions of Criterion No. 1 in Part 3461.1 (Unsuitability Criteria). Criterion 1 includes an Exception that "A lease may be issued within the boundaries of any National Forest if the Secretary {Interior} finds no significant recreational, timber, economic or other values which may be incompatible with the lease; and (A) surface operations and impacts are incident to an underground coal mine...' Second, this requirement of the Secretary of Interior shows up in the 30 USC, Chapter 25, Section 1
1272 (e)(2), and in 30 CFR 761.11:... 'no surface coal mine operations...may be permitted... (2) on any Federal lands within the boundaries of any national forest: Provided, however, That surface coal mining operations may be permitted on such lands if the Secretary finds that there are no significant recreational, timber, economic, or other values which may be incompatible with such surface mining operations and - (A) surface operations and impacts are incident to an underground coal mine... FYI, 30 CFR 761.5 defines Significant recreational, timber, economic, or other values incompatible with surface coal mining operations to mean those values to be evaluated for their significance which could be damaged by, and are not capable of existing together with, surface coal mining operations because of the undesirable effects mining would have on those values, either on the area included in the permit application or on other affected areas. Those values to be evaluated for their importance include: (a) Recreation, including hiking, boating, camping, skiing or other related outdoor activities; (b) Timber manager and silviculture; (c) Agriculture, aquaculture or production of other natural, processed or manufactured products which enter commerce; (d) Scenic, historic, archeologic, esthetic, fish, wildlife, plants or cultural interests. Further, on the permitting side of the house this 'finding' it is done as a result of an applicant making a request, as follows (You means the coal permit applicant in this section): 30 CFR 761.13 Procedures for compatibility findings for surface coal mining operations on Federal lands in national forests. (a) If you intend to rely upon the exception provided in 761.11(b) to conduct surface coal mining operations on Federal lands within a national forest, you must request that we obtain the Secretarial findings required by 761.11(b). (b) You may submit a request to us before preparing and submitting an application for a permit or boundary revision. If you do, you must explain how the proposed operation would not damage the values listed in the definition of significant recreational, timber, economic, or other values incompatible with surface coal mining operations in 761.5. You must include a map and sufficient information about the nature of the proposed operation for the Secretary to make adequately documented findings. We may request that you provide any additional information that we determine is needed to make the required findings. (c) When a proposed surface coal mining operation or proposed boundary revision for an existing surface coal mining operation includes Federal lands within a national forest, the regulatory authority may not issue the permit or approve the boundary revision before the Secretary makes the findings required by 761.11(b). So, with respect to the GMUG situation, the #2 findings you ask about are a Dept. of the Interior responsibility, and therefore not subject to our (FS) delegation of authority, etc. Since we (the FS) usually don't see the documentation BLM prepares when they issue or modify a lease, I don't know how they handle that piece. Similarly, on the permitting side, I have never seen how OSM handles that. I presume it is documented someplace. I will contact some BLM and OSM folks and ask that question, just so we know. A cooperative way to manage the unsuitability issue, might be to ensure that BLM and OSM both 2
review the unsuitability analysis done at the leasing stage (since both are cooperating agencies), and to have those agencies as representatives of Dept. of Interior write that portion of the unsuitability analysis. I don't think it would be appropriate for the FS to do that part, although BLM/OSM would likely want info from the Forest Plan to assist them. Hope that answers your question. Let me know if it raises more! LM **************************************************** Liane L. Mattson, Geologist Forest Service - Minerals and Geology Management Centralized National Operations -- Ofc. of Leasable Mins. Paonia, CO Phone: (970) 527-4131 Fax: (970) 527-4151 ***************************************************** Ryan Z Taylor/R2/USDAFS Ryan Z Taylor/R2/USDAFS 03/02/2011 08:24 AM ToLiane Mattson/WO/USDAFS@FSNOTES ccniccole A Mortenson/R2/USDAFS@FSNOTES Subjectquestion du jour OK CNO big wig! :-) This is an appeal point related to the RART I'm sitting on next week, but it has brought some things to light for the GMUG. I'll try to explain via email... So SMCRA, Section 522 (30 U.S.C. 1272) says this (underlined big text for emphasis area):... subject to valid existing rights no surface coal mining operations except those which exist on the date of enactment of this Act shall be permitted: (1) on any lands within the boundaries of units of the National Park System, the National Wildlife Refuge Systems, the National System of Trails, the National Wilderness Preservation System, the Wild and Scenic Rivers System, including study rivers designated under section 5(a) of the Wild and Scenic Rivers Act and National Recreation Areas designated by Act of Congress; (2) on any Federal lands within the boundaries of any National Forest: Provided, however, that surface coal mining operations may be permitted on such lands if the Secretary finds that there are no significant recreational, timber, economic, or other values which may be incompatible with such surface mining operations, and (a) surface operations and impacts are incident to an underground coal mine; or 3
So for our methane drainage, obviously that is coincident to underground mining, but how is the GMUG compliant with section (2) above...do we have some sort of go-ahead for that??? I checked the FSM and there's a WO amendment, and subsequent R2 supplement, which you're probably familiar with (2800-94-2, 2800-94-1 respectively), but in the delegation of Authority it's not clear if the task of determining, that there are no significant recreational, timber, economic, or other values which may be incompatible with such surface mining operations" is delegated down similar to the ability to consent to leasing. This is also one of the Unsuitability Criteria, but we've always referred back to our Forest Plan, which I'm not sure is correct. I've never seen anything that comes from the Secretary saying, "GMUG you're good to go." With this being a likely appeal point to any future coal leasing, I want to make sure our ducks are in a row... Thanks, Ryan --------------------- Ryan Z. Taylor - Acting Leasable Minerals Program Manager Grand Mesa-Uncompahgre-Gunnison National Forests 2250 Highway 50 Delta, CO 81416 Office: 970-874-6697 -- Fax: 970-874-6698 4
Mortenson, Niccole From: Sent: To: Cc: Subject: Ryan Z Taylor <rztaylor@fs.fed.us> Wednesday, March 02, 2011 8:23 AM Liane Mattson Niccole A Mortenson question du jour OK CNO big wig! :-) This is an appeal point related to the RART I'm sitting on next week, but it has brought some things to light for the GMUG. I'll try to explain via email... So SMCRA, Section 522 (30 U.S.C. 1272) says this (underlined big text for emphasis area):... subject to valid existing rights no surface coal mining operations except those which exist on the date of enactment of this Act shall be permitted: (1) on any lands within the boundaries of units of the National Park System, the National Wildlife Refuge Systems, the National System of Trails, the National Wilderness Preservation System, the Wild and Scenic Rivers System, including study rivers designated under section 5(a) of the Wild and Scenic Rivers Act and National Recreation Areas designated by Act of Congress; (2) on any Federal lands within the boundaries of any National Forest: Provided, however, that surface coal mining operations may be permitted on such lands if the Secretary finds that there are no significant recreational, timber, economic, or other values which may be incompatible with such surface mining operations, and (a) surface operations and impacts are incident to an underground coal mine; or So for our methane drainage, obviously that is coincident to underground mining, but how is the GMUG compliant with section (2) above...do we have some sort of go-ahead for that??? I checked the FSM and there's a WO amendment, and subsequent R2 supplement, which you're probably familiar with (2800-94-2, 2800-94-1 respectively), but in the delegation of Authority it's not clear if the task of determining, that there are no significant recreational, timber, economic, or other values which may be incompatible with such surface mining operations" is delegated down similar to the ability to consent to leasing. This is also one of the Unsuitability Criteria, but we've always referred back to our Forest Plan, which I'm not sure is correct. I've never seen anything that comes from the Secretary saying, "GMUG you're good to go." With this being a likely appeal point to any future coal leasing, I want to make sure our ducks are in a row... Thanks, 5
Ryan --------------------- Ryan Z. Taylor - Acting Leasable Minerals Program Manager Grand Mesa-Uncompahgre-Gunnison National Forests 2250 Highway 50 Delta, CO 81416 Office: 970-874-6697 -- Fax: 970-874-6698 6