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SEP-29-2004 11:50 FROM: BILL & JRNE JRNKE 1-970-728-6315 T0: 19702475104 P.4 <br />SiP-02-'04 11:20A6t FkOtt-White and st' 3032963131 T•403 P 038/043 F-102 <br />On September 1, 2004, the Board issued a final permit to Pathfinder. Pathfinder has <br />repeatedly slated that it will immediately begin its intended construc[ion which will necessitate. <br />the use of heavy equipment and consirucrion traffrc over the penstock. [Yerified Coneplainr ~!~ <br />27 and 28.) FERC has not approved any construction plan not; could it in that Pathfinder has <br />refused to provide the same to PSCo. upon information and belief, now that it has [he permits, <br />Pathfinder has begun to move construction traffic across the penstock or will immediately begin <br />stteh process. <br />II. IMMEDIATE INJUNCTIVE RELIET IS NECESSARY <br />hnmediate injunctive relief is necessazy to halt Pathfinder's actions in moving heavy <br />equipment traffic over rite penstock pending approval by FERC. Immediate a„d irreparab]e <br />Karin will result if the construe[ion is not halted. <br />Further, coons have recognized that when evidence which shows that a defendant is <br />engaged in, or about to be engaged in, an act or practice prohibited by a statute, such as violation <br />of the Federal Power Act, 1 G U.S.C. §791(x) et seq, irreparable Kann to the plaintiff need not be <br />shown. Star Fuel'blazts. LLC. V. Sam's Last, Inc., 353 F.3d 639, 65l (] 0"' Cir. 2004). 'I'ltis rule <br />must certainly apply and mandate injunctive relief when a private company moves in direct <br />violation of the order of a governmental agency, such as FERC. <br />Even though proof of irreparable harm is not necessazy, PSCo will show that irrepazable <br />harm will be caused by construction activity in direct proximity to the penstock without <br />assurance that the penstock will nor be damaged. If Pathfinder is not stopped, FERC will require <br />that the penstock be de-watered and the hydroelectric plant shut down. See, Pxhibit 1, <br />3 <br />