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acknowledged that Cotter has not initiated mine dewatering or taken even the first steps <br />necessary to get there." R:0218, 8 -10. <br />Cotter's vagueness challenge must be viewed in light of its knowledge that it was <br />pursuing a course of action that was not in compliance with the order. See Shell, 148 P.3d at <br />172. Cotter responded to the Division's August 13, 2010 letter by indicating that it was <br />"inappropriate for the Division to request a technical revision." R:0099. Cotter clearly knew <br />what the Division and the Board required and made a strategic decision to litigate rather than <br />comply with the August Order. Therefore, Cotter should not be permitted to avail itself of a <br />vagueness defense. The August Order, the subsequent letter from the Division, and the Rules <br />describe the conduct required in a manner that is understandable to a person of common <br />intelligence. Cotter has not met its burden of proving vagueness beyond a reasonable doubt. <br />C) The December Order is understandable to a person of common intelligence. <br />The December Order is unambiguous. There was a single underlying issue at the <br />November Hearing: whether Cotter had reinitiated dewatering in accordance with Corrective <br />Action 2. Cotter participated in the two -day hearing, during which it admitted that it had not <br />complied with Corrective Action 2. R:0252, 12 -17. A person of common intelligence could <br />readily understand that the Board's December Order required Cotter to cease and desist non- <br />compliance with Corrective Action 2 by implementing plans to reinitiate dewatering <br />immediately. Cotter understood and acknowledged the same at the hearing. R: 0202, 1. 5 -7 ("we <br />are being told that the division wants an order from the board to stop — for Cotter to stop failing <br />to comply. "). Cotter cannot now complain that the December Order is unclear. <br />" Cotter's violations for failure to post a financial warranty and pay civil penalties both relate to its <br />underlying violation of Corrective Action 2 for failure to initiate dewatering. <br />A7 <br />