DENNIS R. PATRICK v OSM; Docket No. NX 8-4-R (November 28, 1978)

 TYPE:  ALJ Hearing: Order  

NAME: DENNIS R. PATRICK, Applicant v OFFICE OF SURFACE MINING RECLAMATION AND
ENFORCEMENT (OSM), Respondent  

DATE: November 28, 1978  

CASE-NO: Docket No. NX 8-4-R  

PROCEEDING: Application for Review; NMI; NOV. 78-II-1-002; OC. 78-II-1-003 AND 78-II-2-001  

OPINIONBY: Administrative Law Judge Torbett

OPINION: MEMORANDUM OPINION AND ORDER  

  On October 30, 1978 in a memorandum opinion and order the undersigned overruled the Applicant's motion for
summary decision in that Applicant's first argument was invalid as a matter of law and the Applicant's other arguments
all involved factual issues which must be decided at an evidentiary hearing.   

  After a pre-trial conference on November 6, 1978, the Applicant agreed to submit an affidavit which would provide
sufficient facts upon which to decide arguments No. 2 and 3 of the Applicant's motion for summary decision without an
evidentiary hearing.  The Applicant has filed an affidavit wherein it set out that (1) Applicant intended for Veach to
move an unknown quantity of coal, which he believed would exceed 250 tons of coal, from his property within 12
consecutive calendar months and (2) Applicant intended for said coal to be sold by Veach and he has received payment
from Veach for the sale of approximately 186 tons of said coal.   

  Based on the statements set out above, the undersigned is of the opinion that the Applicant in conducting surface coal
mining operations as defined in 30 U.S.C.   1291(28), and that the excavation of this coal, even if incidental to a
privately funded construction project is not exempt from the Surface Mining Control and Reclamation Act of 1977
under 30 U.S.C.   1278(3).   

  The final issue to be determined in the case is whether the Office of Surface Mining, Respondent should have cited
James Veach rather than Dennis Patrick for the violation found at the mine site.  This is a factual matter which has been
set for an evidentiary hearing on December 12, 1978.   

{2}  The Applicant has moved pursuant to 43 CFR 4.1124 that the undersigned certified to the Board the ruling on
arguments 1, 2, and 3 of the Applicant's motion for summary decision in that the ruling presents a controlling question
of law the determination of which by the Board on an immediate appeal would materially advance the ultimate
disposition of the case by the undersigned.  At the pre-trial hearing referred to above the undersigned indicated that he
would be receptive to such a motion. 

  It is now the opinion of the undersigned that because of the unavoidable passage of time the procedure tenatively
agreed upon at the pre-trial hearing would no longer be practical.  In other words, a certification to the Board of the
ruling set out above would not materially advance the ultimate disposition of this case.  However, in order to expedite
the case it is directed that the parties hereto be prepared to file with the undersigned at the close of the hearing on
December 12 any proposed findings of fact and conclusions of law that they deem appropriate.  The parties hereto at the
close of the hearing on December 12 will be allowed to supplement orally any proposed findings of fact and conclusions
of law in their final arguments.At the close of final arguments the undersigned will immediately render an opinion from
the bench as to the  final issue to be determined in this case.  

   ORDER  

  The motion for summary decision by the Applicant in this case is overruled in all respects.  The parties hereto are
directed to be prepared to file any proposed findings of fact and conclusions of law at the close of the evidentiary
hearing to be held on December 12, 1978.  The parties will be allowed to supplement these proposed findings of fact
and conclusions of law in their final arguments at the close of the evidentiary hearing.  This matter has been set for
hearing by a separate order.  

David Torbett, 
Administrative Law Judge  

00501