_GENERAL DOCUMENTS - C1981017 (181)

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In the present situation, the defendants allege that several administrative proceedings are pending and that this court should defer to these proceedings. However, the defendants fail to cite to any specific proceeding except an assessment con- ference report concerning a violation for failure to contempora- neously reclaim the mine site. See 2 CCR 407-2 , Rule 4 . 13 . Ac- cordingly, the plaintiff will only specifically address this notice of violation. As stated earlier, in 1989 and 1990, the Division found that Resources had committed several violations. Ultimately, Resources entered into a settlement agreement with the Division to resolve these violations. The Board then held a hearing in May 1991 at which the settlement agreement became a Board order. This order was reconfirmed by the Board in its January 1992 hear- ing. The only change to the reclamation schedule was made in May 1992 when the Board moved the date for commencement of recla- mation from June to August 1992. Thus, by this order Resources is to perform reclamation according to the schedule, as amended, and to maintain the site in compliance with all applicable law. The May 1991 order is the basis for the present lawsuit. The plaintiff seeks to enforce such order against the defendants as agents of the permittee. This order has been fully adjudicat- ed by the Board. It is a final order; Resources attended the hearings and never sought judicial review of it. The administra- tive action recently taken by the Division does not change or af- fect the May 1991 Board order. Indeed, it could not - the as- sessment conference held on the failure to contemporaneously reclaim the site is not a formal adjudicatory hearing such as the one the Board held regarding the order. **1 Thus, contrary to the defendants' argument, there is no reason for this court to defer any action in favor of agency ac- tion. The Board held a hearing, determined the issues, entered an order against Resources, and the present action is simply requesting enforcement of the order. The Division is not seeking to collect any civil penalties. The actions by the Division do not alter or interfere with this court's ability to enter appro- priate relief. 1** Please note that the assessment conference report attached to the defendant's motion provides that "Without a doubt {Resources} is not in compliance with the May, 1991 Board Order and recla- mation schedule. {Resources} was out of compliance with the Board Order when they revoked the permit in August, 1992 . " -8-