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proposed Repair Plan. Citing C.R.S. §34-33-115, and other statutes in its Pre -Hearing <br />Statement, Snowcap has asserted that a private landowner has no right to request permit <br />revisions to adopt the landowner's proposed reclamation and repair plans. Snowcap argues that <br />only the permit holder and the Board have such powers) <br />However, Article H, §15, Colorado Constitution requires the Board (a public entity) to <br />provide due process and just compensation when either taking or damaging private property for <br />public use. The Board, of course, only acts in promotion of the public, not private, interest. <br />C.R.S. 34-32-102; 34-33-102 "Taking or damaging" private property refers to differing duties <br />and rights: each requiring due process and compensation. State Dep't of Health v. The Mill, 809 <br />P.2d 434, 440 (Colo. 1991) (holding that inverse condemnation is not the "exclusive remedy for <br />a taking"); SRB v. Board of Cty. Comm'rs, Larimer Cry., 601 P.2d 1081 (Colo. App. 1979) <br />(article II, section 15 "is not limited in application to condemnation proceedings"). Since these <br />are duties arising under the constitution, government immunity has been waived and the <br />Colorado Governmental Immunity Act (C.R.S. 24-10-101, Et. Seq.) does not apply. <br />When the private landowner objects to the proposed reclamation (e.g., because the <br />proposed action is futile in relation to the underlying problems caused by mining subsidence), <br />then this Board may not "cram down" the proposed reclamation without compliance with Article <br />II, § 15, cited above. Thus, the determination of consent becomes a critical process for the Board. <br />The issue of Fontanari's consent, or lack of consent, is based upon documents which <br />constitute contractual agreements. Inclusion of the Purchase and Sale Agreement (and its <br />companion Special Warranty Deed) declares an unmistakable intent by DRMS (or the "Office") <br />and Snowcap to have this Board interpret those documents to conclude that Fontanari gave pre- <br />existing consent. As a counter, Fontanari not only asserts that same agreement (establishing that <br />n <br />