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DEC-11-D3 11:55 FROtI-Colorado Division of Minerals & Gaoloay +13035663567 T-403 P.004/006 F-034 Dec~ll, 2D03 11,14AM Caloia HouPt HamiltOr, PC No•8984 P• 3 Before the Mimed Land lieclamation Board Line Camp Pit, File No. M-2001-001 Boynton°s Motion For Revisions io Proposed Pre-klearing order Page 2 of4 ' 4. As set Forth im lvls. Bcymton's Opening Brief and Reply Brief filed in Denver County District Court Case No. O1CV3425, Ms. Boynton was not given the opportunity to rebut the DMa's evidence at the May 2001 Tiearing on Four States' application. At the Pre-Hearing Conference, Ms. Boynton asserts that it was specifically discussed that Ms. Boynton would be the last party to azgue rebuttal. Thus, paragraphs 8 and 9 of Part VI of the Proposed Order should be reversed, 5. The Colorado Administrative Procedure Act requires that "the proponent of am order shall have the burden of proo~•and every party to the proceeding shall have the tight to present his case ar defense by oral and documentary evidence, to submit rebuttal evidence, and conduct such cross-exabain,ation" C.RS. § 24.4-105(7). The Construction Maienials Rule 2,8.1 provides the sazne. Ms. Boynton azgued this point in depth in her Opening Brief and Reply Brief im Case No. O1CV3425. Four States must present all of the evidence necessary to snpport a finding that it is endt3ed to a reclaatation permit. The DMG's role as "staff tc the Board" is to recommend approval or disapproval of Four States' application based upon the evidence provided by Four States, mot by presenting the necessary evidence itself Since it appears from the DMG's Witness and Exhibit List that it will be presenting evidence is favor of the Applicant, the MLRB is again abrogating Ms. Boynton's rights under the Colorado APA. The DMG should be precluded from presenting substantive evidence in favor of Four States' application, In essence,.Four States is receiving face expert testimony from the DMG employees. 6. In addition, the Construction Rules provide that a "patty status at a Forwal Board klearimg entitles a party to present evidence, tali witnesses, and cross-examine other parties' witnesses" Rule 2.7.3(1). In this case, it is specified that the DMG will only participate as staff to the Board and not as a party. Ms. Boynton takes the position that because the DMG is not a party to this proceeding it is therefore not entitled to a rebuttal or to present any evidence. However, in the evem the DMG is given the opportunity to present evidence and rebuttal at the Hearing, its evidence should be limited as set forth in Paragraph 5 above and Ms. Boynton should be given the oppommity to rebut the DMG's statements as was discussed at the Pre•PTeatittg Conference. 7. AS to the tnatter of cross-examination of witnesses, Ms. Boynton assett5 that at the Pie•Iiearing Conference she was mid she would be given the opportunity to cross- examine all witnesses. Fart Vl, Paragraph 3 of the Proposed Order states that the "Objector's cross-examination of the Applicant's witnesses shaft not exceed 30 minutes {n its entirety." Ms. Boynton desires clarification that if thew is azgtnnent or objections from Applicant, its representatives, its attorney, or' the. MLRB, during her cross- examination that such latxte will not count toward)aer 30 minutes. 8._ Ms. Boynton recalls that at the Pre-Hearing Conference, she was told that she would be given the opportunity iu cross~xamine all witnesses, Pan VI, Paragraph 5 of the Proposed Qrder, which sets forth the t]MG's presentation time, does b,et provide fox any cross-examiination by either the Applicant or Ms. Boynton. Furthermore, it appears BOYNTON•Modca for Rerieiaus to Pre-Headag Order