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KCV t3Y`U.G_YcS._ ,. _.. .._ 4 -26— 7 • 3 :01PM 71984-;0159+ <br />• While the decisio-n-/judgment ment resultant from Las Animas Count District <br />g y <br />Court case No, 01 CV26, and the subsequent affirmation of same by the <br />Colorado Court of Appeals and the Colorado Supreme Court, is relevant to <br />this proceeding it is not the controlling reason for the actions taken by <br />MLRB, Case No. 01CV26 established the fact that the Tatum home was <br />damaged by mine subsidence. It also established a baseline figure for the <br />diminution of value, as of 2002, for the damage done to the Tatum home. <br />With these undeniable facts fuxrzly established by the Colorado Supremc <br />Coi:rt, MLRB correctly issued a Notice of Violation to Basin for Basin's <br />failure to comply with a perfoz'1mance standard found at Rule 4.203(2)(b)(ii). <br />In addition, MLRB was required to propose a decision to increase Basin's <br />Bond, n the amount of the diminution, to cover the potential cost for <br />repair /compensation for the subsidence damage in accordance with a second <br />performance standard found at Rule 3.02. Tlierefore, contrary to assertions <br />by Basin the actions taken by MLRB are required and mandated by the <br />Colorado Coal Regulations and do not constitute an action by MLRB to <br />enforce or collect the judgment resultant to Case No. O1CV26. <br />1 Basin/Westmoreland, and their attorneys, attempt to inappropriately <br />• position a previously disposed of case (01CV38) into the instant proceedings <br />can only be characterized as a knowing and willful misrepresentation of <br />facts to the Board. Given their intimate knowledge of the two separate <br />cases, and the weight they wish the Board to give to their tortured analysis, <br />BasinlWestmoreland and their respective counsel should quite possibly be <br />sanctioned for them' flagrant attempt to confuse and mislead the Board. Such <br />tactics will be discussed in more detail. <br />• <br />In short, BasWWestmoreland alleges that the Settlement Agreement in case <br />O 1 CV 38 bars DRIVIS from proceeding with enforcement of the Notice of <br />Violation CV 2007 -001, However, Exhibit B provided by <br />Basin/Westmoreland (H) specifically excludes any issue related to Case No. <br />O 1 CV26 (the controlling case). The Agreement at 1.(d) states "The waivers <br />and releases made in this agreement do not include matters related to (i.) <br />James Jima Tatum et al v. Basin Resources, Inc, O1CV26 (iii collateral <br />Proceedings arising from or related to James (Jinn) Tatum et al v. Basin <br />Resources, Inc. Case No. OICV26 (iii) other claims or defenses related to <br />mining activities conducted by Basin that are unrelated to the Litigation, and <br />(iv) any defenses or claims that might be made or brought by Basin in <br />relation to in tters excluded from tho waivers and releases made by the <br />Tatuins, the Board and-the Division. Further; the waiver specifically states: <br />2 <br />Y <br />