1993-10-28_GENERAL DOCUMENTS - C1981017

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agency knew what the other was doing in pursuing MCR. Their separate courses exposed MCR to the cost and aggravation of multiple punitive litigation for the same activity. The duality of prosecution did not conserve administrative agency resources. but instead spiraled costs to the State and MCR. [Emphasis supplied.] There is nothing in the technical or scientific aspects of the proceedings which justifies dual prosecutions. There were winter discharges of liquids bearing suspended solids, oil, grease, and iron. The point of discharge was evident, the cause of the discharge was obvious, the cure was apparent, and the responsible party was conspicuous. IV. T1iL DISTRICT COURT'S APPLICATION OF RES JUDICATA DOES NOT CONSTITUTE AN IMPROPER JUDICIAL INTERFERENCE WQCD argues that the district court's application of res judicator improperly interfered with WQCD's enforcement proceeding against Mid- Continent. WQCD's argument should not be considered on this appeal because WQCD failed to raise it before the district court below. This Court has held that where an issue is raised for the first time on appeal the court will not consider it. Franks v. Colo. Nat'l Bank - Arapahoe, 855 P.2d 455 (Colo. Ct. App. 1993); Shumate v. Dep't of Revenue, 781 P.2d 181 (Colo. Ct. App. 1989). See also Christensen v. Hoover, 643 P.2d 525, 531 (Colo. 1982); Hercules v. Smith, 138 Colo. 458, 461, 335 P.2d 255, 256 (1959). If this Court considers WQCD's new argument, it should find that WQCD's analysis of 11A COLO. REV. STAT. § 25 - 8 - 202(7) is misleading. WQCD incorrectly asserts that the CWQCA is `very clear regarding the distribution of enforcement authorities between the DMG [MLRD] and the WQCD at mine sites." See WQCD Opening Br. at 35. Apparently WQCD has overlooked the enabling fact that MLRD's authority regarding water quality extends beyond the mine site. The Colorado 31 See WQCD Opening Brief at 32 -39. Mid - Continent Answer Brief - 42 - Appeal No. 93 CA 297