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04(26/2007 15:35 7198460159 JIM TATLJM <br />While the decision/judgment resultant from Las Animas County DisU•ict <br />Court case No. O1CV26, and the subsequent affirmation of same by the <br />Colorado Court of Appeals and the Colorado Supreme Court, is relevant to <br />this proceeding it is not the controlling reason for the actions taken by <br />MLRB. Case No: O1CV26 established the fact that the Tatum home was <br />damaged by mine suhsidence. It also established a baseline figure for the <br />diminution of value, as of 2002, for the damage done to the Tatum home. <br />With these undeniable facts fixznly established by the Colorado Supreme <br />Court, MLRB correctly issued a Notice of Violation to Basin for Basin's <br />faih~re to comply with a performance stazidard found at Rule 4.203(Z)(b)(ii). <br />In addition, MLRB was required to propose a decision to increase Basin's <br />Bond, in the amount of the dluiu~uti~n, to cover the potential cost for <br />repair/compensation for the subsidence damage in accordance with a second <br />performance standard found at Rule 3.02. Therefore, contrary to assertions <br />by Basin the actions taken by MLRB are zequired and mandated by the <br />Colorado Coat Regulations and do not constitute an action by MLR$ to <br />enforce or collect the judgment resultant to Case No. O 1 CV2b. <br />I Basin/Westmoreland, and their attontleys, attempt to inappropriately <br />position c previously disposed of case (O1CV38) into the instant proceedings <br />can only be characterized as a knowing and willful misrepresentation of <br />facts to the Board. Given their intimate knowledge of the two separate <br />cases, and the weight they wish the Board to give to their tortured analysis, <br />BasinlWestmoreland and their respective counsel should quite possibly be <br />sanctioned for their flagrant attempt to confuse and mislead the Board. Such <br />tactics will be discussed in more detail. <br />In short, Basin/Westmoreland alleges that the Settlement Agreettlent in case <br />O1 CV 38 bars DBMS from proceeding with enforcement of the Notice of <br />Violation CV 2007-001. However, Exhibit $ provided by <br />Ravi.n/VJPStmoreland (~i) specifically excludes any issue related to Case No. <br />OlCV26 (the controlling case). The Agreement at 1.(d) states "The waivers <br />and releases made izl this agreement do not include matters related to (i) <br />James (Jim) Tatum et al v Basin Resources Inc, OlCV26 (ii) collateral <br />proceedings arising from or related to James (Jiml Tatum ct al v. Basin <br />Resollzces Inc. Case No. 01CV26 (iii) othex olaims or defenses related to <br />mining activities conducted by Basin that are unrelated to the T~itigation, and <br />(iv) any defenses or claims that .might be made ox brought by Basin in <br />relation to matters excluded from die waiver and releases rztade by the <br />Tatums, the Board and_the Division. Further, the waiver specifically states: <br />2 <br />