2017-02-15_REVISION - C1981041 - Laserfiche WebLink

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JAMES A. BECKWITH LETTER TO JAMES R. STARK, DRMS / COMMENTS TO PROPOSED DECISION ON SNOWCAP REPAIR PLAN / PG. 3 On February 7, 2017, the undersigned counsel personally appeared before DRMS and requested, of Ms. Janet Binns, a copy of the Proposed Decision. Ms. Binns provided only 48 pages of materials. [Appendix U]' Comparison of those materials to the Index to Proposed Decision reveals numerous omissions in the documents produced to Mr. Beckwith by DRMS. These omissions include, but are not limited to: (a) the August, 2016, Snowcap Report of ERT testing (which included the updated reports by Fugro International and Huddleston -Berry Engineering) were not included: even though the report is indexed as "Exhibit 14-15"; (b) the Response to Repair Plan submitted by Fontanari; (c) the objections and concerns raised by Ute Water District; and, (d) the November 4 and December 20, 2016, and the January 4 and 18, 2017, correspondence regarding clarifications requested by DRMS. There is no explanation offered in the Proposed Decision, or in any of the materials provided by DRMS, for these omissions. It, therefore, is unknown whether, or to what extent, DRMS personnel relied upon undisclosed and unidentified data provided to it; and, it is unknown to what extent DRMS personnel discounted or disregarded data provided by Fontanari in challenging the Repair Plan. C. The Decision Includes (And Appears to Legally Interpret) Contract Documents Not Previously Requested or Identified by DRMS And On Which DRMS Lacks Statutory Power to Interpret or Enforce. The materials produced by Ms. Binns included three documents: none of which had previously been filed by Snowcap Coal with DRMS as part of TR -69 or any other known proceeding. These included the November 14, 2016, letter from Mr. John Justus, counsel to Snowcap, alleging waiver and forfeiture by Jason Carey of claims to repairs and money damages. It also included copies of the 2003 Special Warranty Deed and Contract of Purchase and Sale between Fontanari and Snowcap Coal for the land previously identified as Fontanari Tract #71. (Tract #71 is the tract on which Fugro conducted its ERT inspections, and on which Snowcap proposes significant excavation) The obvious purpose of these materials is to persuade DRMS that Snowcap is immune from claims for reclamation submitted by Carey and Fontanari. Why they were submitted to DRMS is unknown. Did DRMS request them? Did Snowcap have ex parte communications with Mr. Stark or Ms. Binns, resulting in their inclusion in the Proposed Decision? Not even DRMS' Llaserfiche website provides any answer. DRMS' Laserfiche does not contain any DRMS request for the documents. They only appear in the Proposed Decision. What is obvious, however, is that the determination of waiver is a legal decision on contract and/or titling documents which decision is beyond the statutory authority of DRMS to render. Thus, insofar as these materials have been included as the Proposed Decision by DRMS itself, then DRMS has exceeded its statutory authority. C.R.S. §34-32-107 does not confer civil judgment or contract interpretation and enforcement authority upon DRMS. Those powers are reserved exclusively to the District Courts of Colorado. Thus, inclusion of these violates a basic 1 All appendices are numbered in seriatim to all appendices previously filed.