2013-03-08_REVISION - C1981008 (2)

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Colorado Division of Reclamation, Mining & Safety March 7, 2013 Page 3 property and unavailable for reclamation of the Morgan land. That failure on the part of Western Fuels and its agent constituted a breach of the contract and a violation of state statutes and regulations... Findings of Fact, Conclusions of Law and Judgment, pp. 6 -7. 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 Morgan. With respect to a permit revision SCMRA provides that the applicant must demonstrate that it is "in compliance with all the requirements of this Article." C.R.S. § 34 -33- 114(1). Further, the Mined Land Reclamation Board Regulations, Rule 2.07.6(1)(b), state that the "Division shall not issue the permit" if any surface coal mining operation owned by the applicant "is currently in violation of the Act or any other law, rule, regulation referred to in this paragraph." 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. 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) cent. 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, 652 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) cent. den. Unless and until WFC satisfies the judgment in Case 10 CV 367 it will remain in violation of SCMRA and this agency is without authority to approve PR7. 4. PR 7 REPRESENTS AN IMPROPER COLLATERAL ATTACK ON A JUDGMENT. As noted above, the subject of the existence and extent of prime farmland soils on the Morgan property was litigated in 10 CV 367. In that action WFC unsuccessfully argued, among other things, that it had not violated SCMRA because the actual acreage of the Morgan property ' The "contract" referred to in the Court's order is the Coal Mining Lease between the Morgans and WFC. Thus, not only is WFC in violation of the SCMRA, but its right of entry, as required for continued operations on the Morgans' lands, is no more than a tenancy at will or at sufferance which the Morgans may elect to terminate at any time. This objection constitutes notice that the Morgans do not consent to the operations by WFC as contemplated by PR7, as required for approval of the this revision per C.R.S. 34- 33- 114(2)(f)(I).