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$2. These defects in the Board's regulations are facial in nature, applying to any party <br />app;.aring before the Board, and the Board is without authority or- jurisdiction to hear such <br />challenges to the constitutionality or validity of its regulations. The requested declaratory relief <br />here is thus beyond the scope of review under Cotter's C.R.S. § 24-4-106 claim. <br />83. Cotter is thereby entitled to a declaration that Rule 3.3.2 of 2 Colo. Code Regs. <br />407-1 is void as contrary to the Board's authorizing statute and unconstitutional as to both the <br />United States Constitution and the Colorado State Constitution, and that the Board's December <br />2010 Order issued pursuant to Rule 3.3.2, is null and void and of no effect. <br />84. Cotter is further entitled, if the Board's August 2010 Order is invalidated or <br />otherwise set aside in the pending case Cotter Corp. v. Mined Land Reclamation Bd., et al., Case <br />No. 2010CV7609, to a declaration that the December 2010 Order is likewise invalid as it <br />depends entirely on the validity of the August 2010 Order. <br />85. The Division may claim to have an interest which would be affected by the <br />declaration sought herein and, therefore, has been made a defendant with respect to this claim. <br />FOURTH CLAIM FOR RELIEF <br />(Injunctive Relief Pursuant to C.R.S. § 24-4-106(8)) <br />(Against all Defendants) <br />86. Cotter incorporates by reference all preceding paragraphs of this Complaint. <br />87. C.R.S. § 24-4-106(8) provides "Upon a showing of irreparable injury, any court <br />of competent jurisdiction may enjoin at any time the conduct of any agency proceeding in which <br />the proceeding itself or the action proposed to be taken therein is clearly beyond the <br />constitutional or statutory jurisdiction or authority of the agency." <br />88. The Board and Division have taken the position that C.R.S. § 34-32-124 and Rule <br />3.3.2 of 2 Colo. Code Regs. 407-1 authorize the Board to issue a cease and desist order for a <br />failure to comply with a prior Board order. This position is clearly beyond the constitutional or <br />statutory jurisdiction or authority of each agency. <br />89. The Board and Division have taken the position that C.R.S. § 34-32-124 and Rule <br />3.3.2 of 2 Colo. Code Regs. 407-1 authorize the Board to impose civil penalties for a failure to <br />comply with a prior Board order. This position is clearly beyond the constitutional or statutory <br />jurisdiction or authority of each agency. <br />90. During the November 17-18, 2010 hearing, the Board and Division both <br />suggested on the record that they viewed Rule 3.3.2 of 2 Colo. Code Regs. 407-1 as authorizing <br />the Board to impose civil penalties for "continuing violations" of prior Board orders, <br />notwithstanding that a party had sought judicial review of those prior Board orders. This <br />position is clearly beyond the constitutional or statutory jurisdiction or authority of each agency. <br />14