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• The Board acted contrary to law because neither its August 2010 Order nor its <br />December 2010 Order clearly and precisely defined the conduct required to comply; <br />and <br />• The December 2010 Order is unlawful because the Board refused to consider Cotter's <br />evidence that compliance with the August 2010 Order was impossible. <br />In their Joint Answer Brief, Defendants provide no effective rebuttal to any of these <br />grounds. They contend the Act's limitation of civil penalties to a violation of a "permit" should <br />be ignored, and the Court should instead transform "violation of a permit" to mean "violation of <br />the Act or permit" even though the legislature consciously omitted such language from section <br />34 -32- 124(7). They argue the Board had authority to modify the August 2010 Order by adding a <br />cease and desist order, even though the Board lacked jurisdiction after Cotter appealed from the <br />Order. They assert the August 2010 Order provided sufficient precision and clarity, yet the <br />record demonstrates the Division of Reclamation, Mining and Safety ( "Division ") and individual <br />Board members held seven different opinions on what the Order required Cotter to do. Finally, <br />Defendants attempt to turn the record on its head by claiming the Board heard testimony about, <br />and considered, Cotter's impossibility defense when, in fact, the Board persistently rejected <br />Cotter's attempt to submit such evidence. Consideration of Cotter's grounds for review and <br />Defendants' response compels only one conclusion — the Board exceeded its authority, acted <br />contrary to law, and abused its discretion. The Court should set aside the December 2010 Order <br />as unlawful and, restrain Defendants from enforcing it. <br />2 <br />