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RECORD OF PROCEEDINGS / HEARING TRANSCRIPT <br />18. Concurrently with the filing of this Petition, a formal Request for Production of <br />Offical Record has been served upon Defendant MLRB. The record requested is that specified <br />in C.R.S. §34-33-128(2) and §24-4-106(6) <br />19. On June 2, 2017, and again on June 14, 2017, the deposit for production of the <br />transcript of the May 24-25, 2017, hearings was forwarded to the MLRB Reporter: Ms. Petina <br />Falk. Ms. Falk estimates 20 business days for production. <br />GROUNDS FOR REVIEW <br />A. Actions in Excess of Agency Jurisdiction <br />20. Defendant MLRB lacks authority to interpret, apply and enforce contractual <br />agreements. In determining that Fontanari had consented to the repairs proposed in TR -69, <br />MLRB did so interpret and enforce the 2003 Purchase and Sale Agreement, and MR -82. <br />21. Defendant lacks authority to order the installation of concrete plugs in Tract #71 <br />over the objection of the surface land owner: to wit, Fontanari. By approving TR -69 and <br />authorizing the installation of such concrete plugs, Defendant MLRB denied due process to <br />Fontanari in breach of Article II, § 15, Colorado Constitution. <br />22. Article 34, Title 33, C.R.S. does not confer upon Fontanari any right or procedure <br />by which the surface land owner can protect itself from perceived improper reclamation repairs. <br />As an agency of limited power (denoted solely by statute), MLRB lacked statutory authority to <br />provide due process to Fontanari in the protection and security of private property. <br />B. Impropriety of Proceedings <br />23. Defendant MLRB's decision approving TR -69 was based upon speculation, <br />unresolved conflicts in sworn testimony of Snowcap witnesses, and consideration of <br />inadmissible and incompetent evidence produced by DRMS employees. Under governing <br />Colorado law, the factual findings are not supported by competent evidence and must be <br />overturned and remanded. <br />WHEREFORE, AND FOR THE FOREGOING REASONS, Plaintiffs Rudolph <br />Fontanari, Jr., and Rudolph Fontanari, Jr., and Ethel Carol Fontanari, Trustees of the Rudolph <br />and Ethel Carol Fontanari Revocable Living Trust pray for judgment against the Defendants <br />above-named reversing and remanding the decision in Application TR -69 and remand of the <br />proceeding to said Defendant with instructions to dismiss the entirety of said proceeding with <br />prejudice, together with costs of suit, expert witness fees, attorney fees under any governing <br />statute and such other and further relief as this Court determines just and proper in the <br />circumstances. <br />0 <br />