2013-01-04_REVISION - C1981008 (8)

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Colorado Division of Reclamation, Mining & Safety January 3, 2013 Page 3 A copy of the judgment is attached as Exhibit 2. As of this filing WFC has not paid or satisfied the money judgment owing to Frank and Mary Lou Morgans. In relevant part SCMRA provides that a permit issued under its provisions will carry the right of successive renewal: "unless it is established by a preponderance of the evidence and written findings by the board are made that: I) The terms and conditions of the existing permit are not being satisfactorily met; ... Il) The present surface coal mining and reclamation operation is not in compliance with the environmental protection standards of this article or regulations promulgated thereunder; [or] III) The renewal requested substantially jeopardizes the operator's continuing responsibility on existing permit areas..." C.R.S § 34- 33- 109(7)(a) emphasis added. The DRMS regulations go slightly farther, in relevant part stating that a permit will not be renewed where it is established that "[t]he present surface coal mining and reclamation operation is not in compliance with the Act and these Rules;" Rule 2.08.5(3)(a)(ii). Thus, the renewal of an existing permit is properly denied where the applicant is shown to be in violation of SCMRA or its regulations. WFC is in violation of SCMRA and its regulations as they pertain to the Morgan Property. The Court entered judgment against WFC based upon the fact that it failed to adhere to SCMRA and its prime farmland regulations prior to entry onto the Morgan Property, and these violations resulted in damage to the Morgan Property 2. That damage (as represented by the judgment) remains uncured as of this filing. DRMS is bound to give effect and recognition to this judgment in its current permitting decision. A court judgment is valid and binding on all parties until it is modified, set aside or reversed. Tuscany, LLC v. Western States Excavating Pipe & Boring, LLC, 128 P. 3d 274, 281 (Colo. App. 2005) cert. den. Similarly, a party to an administrative proceeding cannot engage in administrative process to collaterally attack a judicial determination. Crocker v. Colo. Dept. of Revenue, 625 P.2d 1067, 1071 (Colo. 1982)(drivers license revocation proceeding could not be used to attack prior traffic conviction). Ultimately, DRMS is bound by, and must act within, its enabling legislation. O'Connor v. Rolfes, 899 P.2d 227, 229 (Colo. App. 1994) cert. den. It is 1 In a transparent attempt to escape the effect of the Court's judgment, on December 24, 2012 WFC filed a permit revision application Number 7 with DRMS. This application apparently seeks to "reevaluate" prime farmland soil mapping on the Morgan property —the very subjects which were litigated in 10 CV 367 and determined adversely to WFC. As of this filing the Morgans have not been provided with a copy of the application materials in that proceeding, but will be responding in due course. Although WFC has filed a motion for costs and for stay of execution, it has not moved for a new trial or similar post trial relief, and its deadline for doing so has expired.