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Resources, Inc., did not sign the civil penalty assessment Settlemen[ Agreement offered by the <br />Division within ten days of the Assessment Conference, and as a result the Division issued to <br />Basin Resources a Notice and Order to Pay Fixed Penalty on February 1, 2000. <br />On February 12, the Plaintiffs petitioned the Board for perntission to intervene in the <br />NOV hearine. The Plaintiffs asserted in their motion to intervene before the Boazd that <br />`'(a]ffirmance of (the NOV] would affect the [Plaintiffs] by satisfying their burden of proof in <br />any subsequent civil action for damages based on their claim that subsidence ...has caused the <br />new damage to Solitario Ranch.... Conversely, vacation of [the NOV] would aggrieve the <br />[Plaintiffs] by depriving them of the simplest means of satisfying their burden of proof in <br />subsequent litigation." In other words, the Plaintiffs intervened in the administrative agency <br />action (only a few weeks prior to the original hearing date) for the sole purpose of using the <br />agency process to protect and better their position in their own private iitigation against Basin. <br />On Mazch 8, 2001, appazently deciding that their interests were not being served by the <br />NOV proceedings before the Boazd, the Plaintiffs fumed anabout-face from their February 15, <br />2001, petition for intervention and requested, through a letter from their attorney to the Division, <br />"that the Division of Minerals and Geology vacate [the NOV] without prejudice." (Emphasis <br />in nrioinal). T.he letter ~x-ent nn to Mate: <br />Please let me emphasize that the (Plaintiffs] request vacation of (the NOV] only if <br />the Division does so without prejudice to its authority to issue a replacement <br />notice of violation in response to a renewed administrative enforcement request in <br />the furure. Such a request is highly unlikely, but unforeseen developments may <br />require the [Plaintiffs] to renew their pursuit of administrative relief, and they do <br />not advocate any measure that would foreclose their opportunity to do so. <br />