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Order does not contain any discussion of how the Board arrived at this penalty,of any exacerbating <br /> or mitigating circumstances the Board considered in setting this penalty,or explanation of why the <br /> Board believed a maximum penalty was appropriate under the circumstances. The Order does not <br /> describe how the Board calculated how many days "the land has been affected." <br /> 101. When an agency exercises discretion, it is axiomatic that the agency must cogently <br /> explain why it has exercised its discretion in a given manner. <br /> 102. Because the agency has not provided a sufficient explanation for any of the factual <br /> findings, legal conclusions, or remedies contained in the Order, the Order is invalid as a matter of <br /> administrative law and must be vacated. <br /> PRAYER FOR RELIEF <br /> RFES requests respectfully that the Court grant the following relief: <br /> 1. Immediately set aside the Order, including all penalties and impositions required <br /> under the Order; <br /> 2. Declare that RFES' operations are not"mining operations"requiring a reclamation <br /> permit under Colo. Rev. Stat. § 34-32-109(2); <br /> 5. Award RFES all costs and attorneys' fees authorized under applicable law; and <br /> 6. Such other and further relief, in law and in equity,to which RFES may be entitled. <br /> Submitted respectfully this 7th day of October, 2022, <br /> /s/Mark S. Barron <br /> Mark S. Barron, Colorado. Bar No. 46924 <br /> BAKER& HOSTETLER LLP <br /> 1801 California Street, Suite 4400 <br /> Denver, Colorado 80202-2662 <br /> Telephone: 3 03.861.0600 <br /> Facsimile: 303.861.7805 <br /> mbarron@bakerlaw.com <br /> Counsel for RFES <br /> - 14- <br /> 4884-8560-1078.2 <br />