2024-08-05_REVISION - M1986123 (4)

Home Browse Search

WITWER, OLDENBURG, BARRY & GROOM, LLP Page 5 Brush Ditch Co.The standard method of perfecting a security interest in water stock of this sort is to obtain physical possession of the original water stock certificates and ensure that the ditch company is adequately informed of the security interest. Thus, the O'Briens object to approving the Plan unless DRMS either: 1)ensures adequate perfection in the Hill&Brush Ditch Co.shares to facilitate any potentially-necessary DRMS foreclosure in the future; or 2) achieves an increase in the bond amounts to adequately cover the costs of either obtaining a court-approved augmentation plan or otherwise complying with water rights requirements. Careful attention to this detail is warranted. As mentioned in the September 20, 2023 enforcement hearing before the DRMS Board,Coulson has previously suggested that it may simply walk away from its responsibilities to complete reclamation on the Kirtright Pit. Similarly, in its May 6, 2024, response to Incompleteness Notice No. 1, Coulson again refused to acknowledge its financial responsibility to properly complete reclamation. Finally, in determining an appropriate size for the bond, additional scrutiny of Coulson's claims regarding the pre-1981 nature of the ponds in the Southwest part of the permit area is warranted.It is far from certain that these ponds will qualify as pre-1981 ponds.Thus,the size ofthe bond should cover the real possibility a water court decree cannot be obtained without either devoting more water rights to the augmentation plan,lining the ponds,or filling in the ponds.Any of these options would involve significant additional expense. 6. Additional Objections. The O'Briens also object to Exibit F to the Plan to the extent it calls for a unnecessary oval- like drive or road North and West of their home.This appears to be an inadvertent mistake,left over from a prior map that called for processing on the O'Brien property. The Plan also cannot be approved at present because Coulson still has not obtained a legal right to enter and conduct the operations that it has planned on the O'Brien property. Thus,the Plan is not yet in full compliance with DRMS Rules.