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2011-06-14_ENFORCEMENT - M1977300
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2011-06-14_ENFORCEMENT - M1977300
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Entry Properties
Last modified
8/24/2016 4:34:28 PM
Creation date
8/10/2011 2:35:47 PM
Metadata
Fields
Template:
DRMS Permit Index
Permit No
M1977300
IBM Index Class Name
ENFORCEMENT
Doc Date
6/14/2011
Doc Name
Opening Brief of Plaintiff Cotter Corporation (N.S.L.)
From
Cotter Corporation
To
District Court
Email Name
DB2
Media Type
D
Archive
No
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Second, the Act does not give the Board authority to fine Cotter for violating a prior <br />Board order. While the Act says the Board may impose civil penalties for violating a mining <br />permit, the Division neither alleged nor proved any permit violation. Interpreting the Act <br />contrary to its plain language to give the Board contempt power in this context would also raise <br />serious constitutional issues relating to the separation of powers between the executive and <br />judicial branches of government. Moreover, consistent with constitutional principles, the Act <br />should not be read to allow the Board to punish Cotter by imposing significant daily fines during <br />the pendency of Cotter's appeal from the August 2010 Order. <br />Third, the Board similarly exceeded its statutory authority by entering a cease - and - desist <br />order based on its finding that Cotter had violated the August 2010 Order. The Act does not <br />include "violation of an order" as a basis for issuing a cease - and - desist order. To the extent the <br />Board and Division attempt to re- characterize the cease - and - desist order as being based on a <br />statutory violation, there were no alleged statutory violations that could provide the basis for the <br />cease - and - desist order. The December 2010 Order does not purport to find any new basis for the <br />cease - and - desist order that did not exist at the time of the August 2010 Order. The August 2010 <br />Order contained its own penalties and relief. A second order relying on identical facts and <br />alleged statutory violations but adding new relief (in the form of a cease -and desist order), in <br />effect, would be an amendment of the first order. The Board, however, lost any jurisdiction to <br />modify or amend the August 2010 Order upon Cotter's filing its appeal from the order. <br />Fourth, the December 2010 Order should be set aside because the Board imposed civil <br />penalties and a cease - and - desist order based on terms of the August 2010 Order that did not <br />clearly and precisely define the conduct required to comply. The December 2010 Order <br />7 <br />
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