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JAMES A. BECKWITH <br />LETTER TO JAMES R. STARK, DRMS / COMMENTS TO PROPOSED DECISION ON SNOWCAP REPAIR PLAN / PG. 5 <br />All DRMS rules, regulations and procedures are subject to the statutes comprising the <br />Colorado Administrative Procedures Act (APA) C.R.S. §34-32-108(2) Thus, in the event of a <br />conflict between a DRMS rule or action and a provision of the APA, then the APA statutory <br />provision must prevail. Section 24-4-102 of the APA has the following definitions: <br />"(2) 'Adjudication' means the procedure used by an agency for the formulation, <br />amendment, or repeal of an order... (5) `Decision' means the determinative action <br />in adjudication and includes order, opinion, sanction and relief ... (6) `Initial <br />decision' means a decision made by a hearing officer or an administrative law <br />judge which will become the action of the agency unless reviewed by the agency <br />... (9) `Opinion' means the statement of reasons, findings of fact and conclusions <br />of law in explanation or support of an order .... (10) `Order" means the whole or <br />any part of the final disposition (whether affirmative, negative, injunctive, or <br />declaratory in form) by any agency in any matter other than rule-making." <br />The Proposed Decision does not comply with these governing definitions.2 Notably, <br />Rule 2.08.4(6)(b)(iii), 2 CCR 407-2 requires that DRMS "...shall issue a proposed decision <br />approving or denying the application in whole or in part...." Given the above APA definitions, <br />which are controlling upon this proceeding, the Proposed Decision nowhere complies even with <br />DRMS' own regulations. <br />The Proposed Decision does not specify any conclusions of fact or law; does not resolve <br />factual disputes on procedures and test results presented by Snowcap and Fontanari; and <br />otherwise lacks any explanation of the basis for DRMS staff s opinion. Stated bluntly, the <br />Proposed Decision does not even determine whether the Snowcap Repair Plan will, in fact, <br />accomplish the repairs which must be made to Fontanari's Tract #71 and Mr. Carey's adjacent <br />property. <br />Instead, the Proposed Decision contains an unstated presumption: that Snowcap's Repair <br />Plan is accurate; that its data from Fugro and Huddleston -Berry are accurate; that the statements <br />of Mr. Stover regarding when, or if, there will be further subsidence and sub -surface fissures, <br />cracks and voids ("anomalies). Colorado law does not countenance or authorize such unstated <br />presumptions. As shown in the above definitions, DRMS staff has a host of affirmative duties in <br />rendering an Initial Decision, and DRMS staff has abdicated all such duties. <br />In all fairness to DRMS staff, it had initially been supposed that DRMS' practice is to <br />defer any conclusions of fact or law until after a hearing has been conducted (upon request of <br />any party). Perhaps, DRMS staff prefers to merely list all documents filed that relate to the <br />issue, so that the hearing officer can identify issues to be resolved at the hearing. That <br />supposition, however, is fully dispelled by the opening statement of the Proposed Decision: to <br />2 By comparison, CRS 34-32-103 does not contain definitions of these specific terms. DRMS <br />Regulations 2 CCR 407-2 do not contain any definition of "decision" or any other terms defined in the <br />APA. Thus, the operative words and phrases are those specified in the APA. <br />