2017-02-15_REVISION - C1981041 - Laserfiche WebLink

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LETTER TO JAMES R. STARK, DRMS / COMMENTS TO PROPOSED DECISION ON SNOWCAP REPAIR PLAN / PG. 4 precept of the Colorado Administrative Procedures Act: an agency may not exercise any jurisdiction not statutorily conferred upon it by the General Assembly. DRMS staff's announcement cannot be misinterpreted: "....Provided there are no objections, the decision will become effective upon the termination of the ten (10) day public comment period....", and further stating: "Decision: Approve". Clearly, the Proposed Decision, and DRMS staff s cavalier inclusion of these legal documents into that decision, is intended to visit unlawful, extra jurisdictional, substantial and adverse prejudice upon Fontanari and Carey. That fact cannot be denied. It also constitutes grounds to remove Mr. Stark and his staff from further involvement in this matter. II. The Proposed Decision Fails to Include Conclusions of Fact and Law, and, its Presumptive Factual and Legal Conclusions Cannot Be Supported by the Full and Accurate Record of Proceedings: A. DRMS Makes Undisclosed and Unstated Factual Decisions: On February 7, 2017, Ms Binns advised the undersigned that DRMS does not make factual findings on a Technical Revision. That is not correct. Though the Proposed Decision is largely a compilation of materials Snowcap has filed with DRMS, there are at least three parts on which DRMS actually made decisions. The Proposed Decision increased the bond amount and increased the Project Liability. [Proposed Decision; Pg. 1] Notably, these are increases over those already imposed and existing; increases over those proposed by Snowcap Coal; and, less than the estimates and bonds requested by Fontanari. To make such increases, DRMS staff was necessarily engaged in fact- finding: lest these adjustments be considered arbitrary and capricious. Rice v. Auraria Higher Education Center 131 P.M. 1096, 1100 (Colo. App. 2005 (defining an arbitrary and capricious decision as one unsupported by the record, erroneous in its interpretation of the law or exceeding the agency's authority, and establishing three ways in which an agency can commit an arbitrary and capricious act: neglecting to procedure evidence supporting its authorized actions; failing to give candid and honest consideration of evidence presented to it; and, failing to clearly establish that its conclusions are based on evidence which reasonable persons would not reject) Yet, the Proposed Decision is absolutely silent about the factual bases for these increases or decreases. There are no documents identified by DRMS in its Proposed Decision which would justify DRMS' adjustments. Resort to DRMS' Laserfiche website is unavailing. There are no documents relating to these adjustments. In the parlance of the APA, then, these adjustments are arbitrary and capricious as the agency has not identified any factual bases for them. B. The Proposed Decision Contains a Presumptive Legal and Factual Conclusion That Is Prohibited By the Colorado A.P.A.