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Mr. Eric Scott, DRMS <br /> January 26, 2017 RYLEY CARLOCK <br /> Page 7of9 & A P P L E W H I T E <br /> Attorneys <br /> and approved). EPRC's position that the MLRB adopted and undertook to enforce the entire <br /> Settlement Agreement is baseless. <br /> It would be exceptionally surprising if the MLRB or the Division had undertaken to <br /> enforce the entire Settlement Agreement, as such enforcement is clearly beyond the statutory <br /> jurisdiction of the MLRB and the Division. See C.R.S. §§ 34-20-103 (powers and duties of <br /> Division); 34-33-106 (additional duties of Division); 34-32-106 (duties of MLRB); -107 <br /> (powers of MLRB); -108 (rules and regulations must be adopted pursuant to C.R.S. <br /> § 24-4-103); -115 (criteria for granting reclamation permits). EPRC has cited no statute, <br /> rule, regulation, or permit condition that would enable the Division or the MLRB to enforce <br /> private contractual obligations or to adopt such obligations as regulatory criteria over the <br /> objection of a permitee or applicant. <br /> At first glance, one might wonder why EPRC would even attempt to improperly <br /> infiltrate the Settlement Agreement into the Division's consideration of NPLs: the <br /> Settlement Agreement itself adds nothing to the Stipulations that were expressly adopted by <br /> the MLRB. Why would EPRC attempt to have the Division enforce the entire Settlement <br /> Agreement when only the Stipulations adopted by the Board are conceivably relevant to <br /> water quality in the Reservoir? <br /> It appears that EPRC's strategy is to obtain the Division's enforcement of the <br /> Settlement Agreement as a stepping stone to the Division's enforcement of the 1998 Purchase <br /> Agreement, which does have provisions bearing on water quality in the Reservoir. EPRC <br /> has constructed a rickety house-of-cards argument: (1) the AM-06 Order incorporates the <br /> entire Settlement Agreement; (2) the Settlement Agreement incorporates the entire Purchase <br /> Agreement; and (3) therefore, the Division should enforce the Purchase Agreement in setting <br /> NPLs for the Mine. We have already demonstrated that the first premise of EPRC's <br /> argument is false. We now turn to the second and third premises. <br /> C. The Purchase Agreement <br /> As noted, the Settlement Agreement contains a provision that the Purchase <br /> Agreement remains "in full force and effect." From this, EPRC argues that "compliance with <br /> the 1998 Agreement is explicitly recognized in the AM-06 Settlement Agreement, and are <br /> [sic] thus part of the AM-06 approval." We have already noted that AM-06 Order did not <br /> incorporate the Settlement Agreement. We will now further show that the Settlement <br /> Agreement did not incorporate the Purchase Agreement, breaking yet another link in the <br /> weak chain of EPRC's argument. <br /> As a matter of contract law, it is permissible for a contract to incorporate another <br /> instrument by reference, such that the other instrument becomes a part of the contract as if it <br /> was fully set forth in the contract. When lawyers want to achieve this, they will typically <br /> use certain time-tested and unambiguous language such as "incorporated in full by this <br /> reference" or "incorporated by this reference as if fully set forth herein." However, the <br /> Settlement Agreement in this case contains no language of"incorporation by reference." <br />