2011-09-19_ENFORCEMENT - M1977300

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Assembly made an omission; rather, the General Assembly's failure to include particular language is a statement of legislative intent. ") (citation omitted). Defendants attempt to bolster their position by citing a statutory provision, Colo. Rev. Stat. § 34- 32- 109(5)(a), contained in an entirely different section of the Act. (Joint Answer Brief at 19.) This section merely states that reclamation permits "shall be effective for the life of the particular mining operation if the operator complies ... with the provisions of this article ...." Thus, while violations of the Act might provide grounds to find that a permit is no longer effective, this does not mean that the permit, itself, is violated for purposes of section 124(7). Defendants also argue incorrectly that limiting section 124(7) to its plain language (i.e., violation of a "permit ") would somehow create an "irreconcilable conflict" between sections 109(5)(a) and 124(6)(a). (Joint Answer Brief at 20.) Based on section 109(5)(a), however, the Board could adopt regulations for revoking a permit where the Act has been violated, and thus the Board is neither entitled nor needs to stretch the language of section 124(6)(a) to include a statutory violation within a "violation of a permit." There is simply no basis for imposing civil penalties based on an alleged violation of the Act where the legislature consciously limited civil penalties to violation of a permit. 2. The Board cannot overcome its lack of statutory authority by relying on an inconsistent regulation. Defendants contend the Board "is authorized to promulgate a reasonable rule such as Rule 3.3.2 that clarifies and reconciles the Act's overlapping regulatory concepts," and the Court should defer to the Board's application of this Rule. (Joint Answer Brief at 20 -21.) Colorado law is clear, however, that an administrative agency cannot overcome its lack of statutory authority by relying on an inconsistent regulation. 5