2010-10-15_ENFORCEMENT - M1977300

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Cotter Appeal seeks an order enjoining the collection of monetary penalties and other enforcement actions by DRMS and the Board relating to the Order, pending resolution of the judicial proceeding and a determination of Cotter's rights under the Uniform Declaratory Judgments Law, C.R.S. §§ 13-51-101 to -115, and Colo. R. Civ. P. 57. See Complaint, Fourth Claim for Relief. DRMS and the Board are aware of Cotter's strong opposition to Action Number Two and Action Number Three on scientific grounds, and Cotter incorporates by reference all of its evidence and pleadings in the proceeding involving the May 21, 2010 Notice of a Reason to Believe a Violation Exists at the Schwartzwalder Mine. Cotter has not paid the penalty, because the maximum statutory penalty imposed in the Order was clearly and closely tied to the demand for Action Number Two. This tie was evidenced by suspension of all but $2,500 if Cotter implemented mine dewatering and treatment. Moreover, the May 18, 2010 Inspection Report ("Inspection Report") attached to the May 21, 2010 Notice of a Reason to Believe a Violation Exists at the Schwartz walder Mine stated that, "[t]he problems should be corrected by the dates given, or they will become possible violations. The possible violations should be corrected by the dates given to reduce their severity when considered by the Mined Land Reclamation Board." Except for mine dewatering and treatment and associated bonding, Cotter complied by the deadline or in advance of the deadline for all corrective actions in the Inspection Report. Therefore, the maximum penalty should not have been imposed as a result of Cotter's legitimate scientific challenges to mine dewatering and treatment. Because Cotter is exercising its lawful rights to appeal, it is improper and unlawful for DRMS to initiate the enforcement process and to seek additional penalties. For these reasons, 2