Laserfiche WebLink
Board "for a hearing to consider" a cease - and - desist order does not mean that the Board issued <br />such order. See Order at 1, AR:00845. Similarly, the Order's "Conclusions of Law" that the <br />Board has jurisdiction pursuant to Colo. Rev. Stat. § 34 -32 -124 does not establish that the Board <br />complied with the requirements of that section for ordering corrective action. See Order 1134, <br />AR:00851. Moreover, the Order's "remedy" is not in the "nature of a cease and desist order." <br />See Answer Brief at 57. The corrective actions specified in the Order require that Cotter conduct <br />Mine Dewatering and Treatment, but fail to order that Cotter cease, desist, or terminate any <br />discharge or other "act" or "practice." <br />The Division's letter to Cotter, dated September 16, 2010, undermines Defendants' <br />assertion that the Order constitutes a cease - and - desist order. See AR:00842 -43. In that letter, the <br />Division asserts that Cotter has failed to comply with portions of the Order and, as a result, will <br />hold an enforcement hearing and "may issue a Cease and Desist Order." Id. Not once does this <br />letter refer to the Order as a cease - and - desist order. Further, if the Division believed that the <br />Order constituted a cease - and - desist order, it would not have asserted that it may issue a cease <br />and desist order in the future for the same activity. <br />VIII. CONCLUSION <br />For the reasons stated above and as set forth in Cotter's Opening Brief, the Order is not <br />supported by substantial evidence, is contrary to law, is arbitrary and capricious and an abuse of <br />discretion, and violates Cotter's rights of due process and rights under the Colorado APA. As a <br />result, the Court should vacate the portions of the Order that direct Cotter to perform Corrective <br />Action No. 2, and the associated activities, restrain enforcement of those provisions, vacate the <br />portion of the Order levying civil penalties, and remand the matter to the Board for further <br />proceedings consistent with directions from this Court. <br />43 <br />