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177 fL!/o8- <br />v <br />BEFORE THE MINED LAND RECLAMATION BOARD ?? • /r` G' ` <br />STATE OF COLORADO 7/0 <br />FINDINGS OF FACT, CONCLUSIONS OF LAW AND BOARD ORDER <br />M- 4,?- 11? <br />IN THE MATTER OF DERR DARWIN, File No. 2008-017 M V _ Roo% - O <br />THIS MATTER came before the Mined Land Reclamation Board ("Board") on <br />October 15, 2008, in Denver, Colorado for a hearing to consider a possible violation, <br />corrective action and civil penalties for mining without a permit. Michael Cunningham <br />appeared on behalf of the Division of Reclamation, Mining and Safety ("Division"). Derr <br />Darwin and Douglas Darwin appeared on behalf of Broken Arrow Investments, LLC <br />("Operator"). <br />The Board, having considered the following: 1) a power point presentation and <br />testimony by Michael Cunningham; 2) a Reason. to Believe letter dated October 7, 2008 <br />from the Division sent to Darwin Derr [sic], Broken Arrow Investment, LLC; 3) <br />Unpermitted Construction Material Extraction or Exploration Operation Form ("presentation <br />form") with an inspection date of October 3, 2008; and 4) the testimony of Derr Darwin; and <br />having been otherwise fully informed of the facts in this matter, hereby enters the following <br />findings of fact, conclusions of law, and Board Order. <br />FINDINGS OF FACT <br />1. The Operator filed a construction material (112c sand and gravel) operation <br />reclamation permit application on March 25, 2008, for Sec. 4, T5N, R65W, 61h P.M., in Weld <br />County. The affected area is 39.19 acres. At the time of the complaint described below, the <br />application was still under review and a permit had not been issued by the Division. <br />2. The Division received a complaint letter on September 23, 2008 stating that <br />the Operator was excavating and removing material from the site. The Division contacted <br />the Operator on September 29, 2008 and informed him of the complaint. The Operator <br />stated that mining activities had occurred at the site. <br />. 3. The Division conducted an inspection of the site on October 3, 2008. The <br />disturbed area was surveyed using a GeoXT Global Positioning System unit. The extent of <br />the disturbed area was determined to be 0.61 acres within the proposed permit area. <br />4. The Division testified that approximately 6,768 cubic yards of material were <br />removed from the site. <br />5. Darwin Derr testified that he has been in the excavating business for thirty <br />years. Lately he's had a hard time with all the expenses and that it's been a bit of an ordeal. <br />He said that they hauled materials from the site for about two weeks with one truck, about <br />Derr Darwin <br />M-2008-017