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MLRD are the same facts supporting the WQCD NoV. <br />Third, the State of Colorado had an adequate opportunity to litigate the <br />discharge from the Outfall No. 016 when it proceeded through MLRD against Mid - <br />Continent. The State was fully apprised of the facts, because MLRD and WQCD <br />cooperated extensively in the investigation and adjudication of the discharge <br />violations. MLRD's conference officer made adjudicatory findings of fact regarding <br />the discharge from Outfall No. 016, determined the issues, and entered into a <br />settlement agreement and final judgment with Mid - Continent after a conference. <br />When Mid - Continent paid the penalty, the State was afforded civil penalty relief for <br />the Coal Basin episode. <br />Considering those facts, we fail to see how WQCD can in good-faith argue <br />that the State did not have an opportunity to litigate respecting an appropriate civil <br />penalty. The State is attempting to relitigate the same "cause of action" using only <br />a different statutory theory (that is, prosecution of a CDH permit violation). The <br />State's second administrative civil penalty proceeding is contrary to the res judicator <br />doctrine, generally, and Colorado's adoption of the same - injury rule, particularly. See <br />State Eng'r v. Smith Cattle, Inc., 780 P.2d 546 (Colo. 1989); Lehr v. Guild, 71 Colo. <br />349, 206 P. 803 (1922). The State's second proceeding is also contrary to the <br />Memorandum of Understanding between MLRD and WQCD, which provides that the <br />agencies "will meet to coordinate enforcement proceedings and eliminate dual <br />enforcement." MCR Exhibit No. 24, Record 00791 - 00793, BriefAppendix, Appendix -8. <br />Again, Mid- Continent suspects that WQCD is emphasizing a peculiar "sovereign" <br />authority to relitigate the same episode under a CDPS permit rubric because EPA <br />Mid - Continent Answer Brief <br />- 40 - Appeal No. 93 CA 297 <br />