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<br />Mr. Michael Long <br />September 7, 1993 <br />Page 2 <br />The Inspection Report further alleges that Mountain Coal Company was required to <br />provide similar notice to the United States Forest Service. The United States Forest <br />Service, however, is one of the governmental agencies charged with the permitting <br />of the West Elk Mine, and fully participated in the permitting process. Indeed, the <br />Forest Service issued a Special Use Permit to Mountain Coal Company to allow <br />subsidence monitoring in this areas The Forest Service, as a regulatory agency with <br />some jurisdiction over the West Elk Mine, is not a member of the public subject to the <br />notice provisions of Regulation 4.20.2. <br />Because Mountain Coal Company gave all required notification, this NOV must be <br />vacated. <br />Also, this NOV is barred by the general Colorado statute of limitations found at Colo. <br />Rev. Stat. 413-80-102(1). That statute provides that all actions of every kind not <br />covered by a specific statute of limitations be brought within two years after the <br />cause of action accrues. This statute of limitations applies to administrative actions <br />brought by the Division. The Colorado Supreme Court, in Colorado Springs v. <br />Timberlane Associates, 824 P.2d 776 (Colo. 19921, significantly diminished the <br />application in Colorado of the doctrine of nullum temous occurrit regi ("time does not <br />run against the King"). While the issue in Timberlane concerned the application of a <br />statute of limitations to a local government, the Colorado Supreme Court was <br />unequivocal in its assertion that the government cannot delay in enforcing its rights: <br />We have held that statutes of limitations <br />promote justice by discouraging delay and <br />prohibiting the prosecution of stale claims. <br />... We agree with the observations of the <br />Illinois Supreme Court that "[l]ong delays by <br />the government in instituting suit, of course, <br />cause harm to the defendant and are in the <br />interest of no one." We perceive no <br />substantial benefit in tolerating official <br />tardiness and allowing the [government] to <br />prosecute its claim. <br />Timberlane, 824 P.2d at 782-83 (citations omittedl. As the Timberlane Court makes <br />clear, the Division may not bring an enforcement action for an alleged violation where <br />the Division knew of the facts of the violation for nine years, yet refused to take any <br />enforcement action. <br />6 The Special Use Permit and correspondence documenting Forest Service participation <br />in the permitting process are attached as Exhibit H. <br />