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enforcement action. See § 34-32.5-124, C.R.S.; cf. § 34-33-135 (Colorado Surface Coal <br />Mining Reclamation Act authorizes a citizen to bring a civil action based on an alleged <br />violation). Indeed, a citizen who sends a complaint to the Division is not a party to an <br />adjudicatory hearing on the possible notice of violation (as this Board found In the Matter of <br />Abbott Ready Mix; the Board's order is attached hereto). The only entities who are parties <br />to such a hearing are the Division and the permittee. Although a complainant maybe called <br />as a witness, his or her interests are not entitled to party status. There is good reason for this. <br />When the Division makes a determination on whether to bring an enforcement action, it acts <br />in its capacity as a prosecutor, not as staff to the Board. The Division has the burden to <br />present evidence to prove the alleged violation. See 2 CCR 407- 4, Rule 3.3.2. Under the <br />Construction Materials Act, a citizen has no standing or authority to be a prosecutor and <br />bring a notice of possible violation to the Board. Consequently, a citizen also has no <br />standing or authority to ask this Board to appellately review the Division's decision not to <br />bring an enforcement action. The discretion to bring an enforcement action lies solely with <br />the Division. <br />If this were not so and this Board were to hear Mr. Patterson's appeal, the Board would <br />either be allowing a citizen, without statutory authority to do so, to present and prosecute a <br />notice of violation on which the Board would make a decision, or the Board would be asked <br />to direct the Division to file an enforcement action, which the Board itself would then hear <br />(thereby assuming the conflicting roles of prosecutor and adjudicator). Either scenario is <br />unacceptable and contrary to legal authority. <br />Rule 1.4.11, which concerns appeal of decisions made by the Division, applies to permitting <br />decisions and certain non-permitting decisions. However, such rule does not apply to the <br />Division's prosecutorial decision on whether to bring an enforcement action. Mr. Patterson's <br />interests are not entitled to protection under the Construction Materials Act or the regulations <br />promulgated thereunder. See Rule 1.4.11 (a person who is adversely affected or aggrieved <br />and whose interests are entitled to protection may file an appeal). <br />Accordingly, for the foregoing reasons and authorities, the Division requests the Mined Land <br />Reclamation Board to dismiss Mr. Patterson's appeal. <br />