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IV. The Order Is Unlawful Because the Board Refused to Consider Cotter's Evidence <br />That Compliance with the August 2010 Order Was Impossible. <br />A. Introduction. <br />The Division took the position at the Hearing that the Board intended the August 2010 <br />Order to require Cotter to complete the dewatering process by August 31, 2010. See discussion <br />above, p. 22. At the Hearing, Cotter vigorously attempted to submit evidence showing it would <br />have been impossible to complete the dewatering process within the three -week time period <br />afforded by the August 2010 Order. The Board abused its discretion by refusing to hear this <br />evidence and rejecting Cotter's offer of proof. As a result, the December 2010 Order must be set <br />aside. <br />B. The Board Improperly Rejected Cotter's Attempt to Submit Evidence of <br />Impossibility. <br />Civil penalties for failure to comply with an order may be imposed only where the party <br />sought to be penalized had the ability to comply with the order. See, e.g., In re Estate of Elliott, <br />993 P.2d 474, 479 (Colo. 2000) (where sanctions are imposed for failure to comply with an <br />order, "the court must make findings of fact regarding the actions constituting the contempt and <br />the present duty and ability to perform the acts required ") (emphasis in original); People v. <br />Entrup, 143 P.3d 1120, 1124 (Colo. Ct. App. 2006) ( "To find a party in contempt of court for <br />violation of a lawful order of which the party is aware, the trial court must f i n d that ... the party <br />had the ability to comply with the order. "); FTC v. Affordable Media, 179 F.3d 1228, 1239 (9th <br />Cir. 1999) ( "A party's inability to comply with a judicial order constitutes a defense to a charge <br />of civil contempt. "). <br />25 <br />