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The Defendants' argument that historical dewatering somehow supports the "minor <br />effect" requirement of the "Technical Revision" definition should similarly be rejected. As <br />explained in Cotter's Opening Brief at 17 n.7, the mine is now flooded with engineered <br />bulkheads preventing access through the adits historically used for entry. <br />The Defendants' argument that the matter is not ripe should similarly be rejected. See <br />Answer Brief at 45 n.14. As set forth earlier, the Division demanded a Technical Revision. <br />Further, the Order demanded that Mine Dewatering and Treatment be implemented within <br />20 days (despite the substantial technical challenges associated with this corrective action), <br />which assumed that an expedited Technical Review process would be undertaken rather the <br />lengthier permit modification process involving public input. Had Cotter not appealed this issue, <br />Cotter has no doubt that the Defendants would argue that Cotter had waived the opportunity to <br />raise the issue. The Defendants' argument, in fact, assumes that Cotter can raise the issue in a <br />future proceeding, but the Defendants fail to identify the proceeding in which it can be raised. <br />V. THE BOARD'S DECISION - MAKING PROCESS WAS UNLAWFUL AND <br />VIOLATED COTTER'S RIGHTS TO DUE PROCESS AND COTTER'S RIGHTS <br />UNDER THE COLORADO APA. <br />The Defendants argue that Cotter "failed to preserve its argument" when Cotter did not <br />object to the Board's request for the Division to participate in the Board deliberations and to <br />Division Director David Berry's participation. See Answer Brief at 65. The case cited in the <br />Defendants' Answer Brief does not deal with prosecutorial participation in deliberations after the <br />Board stopped receiving testimony. See Beauprez v. Avalos, 42 P.3d 642, 649 (Colo. 2002) <br />(issues not raised at trial generally not considered on appeal). The Defendants argue that Cotter <br />could have offered its own comments in rebuttal, but the testimony was closed and the Board did <br />12 See Answer Brief at 35 (August 31, 2010 was "the day Cotter was required to comply <br />with mine dewatering"). <br />31 <br />