2010-11-15_ENFORCEMENT - M1977300

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Inc. v. Charnes, 646 P.2d 341, 344 (Colo. 1982). In attempting to regulate in accordance with a statute, a regulation may not supersede the statute. Big Top, Inc. v. Schooley, 368 P.2d 201, 204 (Colo. 1962). The Division insists that Cotter should be subject to additional penalties, despite Cotter's appeal of the Board's August 11, 2010 Order. Any statutory provision that imposes penalties on claimants seeking in good faith judicial review of an agency award raises a serious question of whether the statutory provision would be upheld as constitutional. Industrial Commission v. Continental Investment Co., 277 P. 303, 304 (Colo. 1929). In the absence of a clear indication that the Legislature intends to impose a penalty during the pendancy of judicial proceedings to review an award, statutory sections should not be construed to impose a penalty during the pendancy of judicial proceedings, thereby bringing the sections into possible conflict with the Constitution. Id. The Mined Land Reclamation Act does not allow imposition of penalties during the period of judicial review, and construing the statute to allow the imposition of penalties during judicial review, which commenced September 24, 2010, would bring the statute into conflict with the Constitution. Moreover, an administrative scheme which, through substantial penalty provisions, chills an affected party's right to seek judicial review is unconstitutional. Louisiana Pacific Corp. v. Beazer Materials & Services, Inc., 842 F. Supp. 1243, 1252 (E.D. Cal. 1994). Conversely, an administrative scheme satisfies due process if it allows good faith challenges to be brought without the risk of incurring substantial. penalties. Id. (citing Wagner Seed Co. v. Daggett, 800 F.2d, 310, 315 (2d Cir. 1986)). Here, the Division's pursuit of additional sanctions when Cotter is appealing the underlying order upon which the sanctions are based is unconstitutional. 4