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2013-03-08_REVISION - C1981008 (2)
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2013-03-08_REVISION - C1981008 (2)
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Entry Properties
Last modified
8/24/2016 5:14:42 PM
Creation date
3/8/2013 1:55:55 PM
Metadata
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Template:
DRMS Permit Index
Permit No
C1981008
IBM Index Class Name
REVISION
Doc Date
3/8/2013
Doc Name
McAnany Objection
From
Dufford Waldeck
To
DRMS
Type & Sequence
PR7
Email Name
DAB
SB1
MLT
Media Type
D
Archive
No
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Colorado Division of Reclamation, Mining & Safety <br />March 7, 2013 <br />Page 4 <br />that constituted prime farmland soils was much less than the total acreage of the property and, <br />therefore, its entry without complying with prime farmland regulations was not a violation <br />of the Act. This contention was ultimately rejected by the Court. <br />Despite this result, WFC now attempts to offer the same arguments and evidence in a <br />transparent attempt to reverse prior prime farmland determinations by this agency and the <br />decision of the Court in 10CV 367. Indeed, PR7 consists largely of expert report materials and <br />exhibits that were offered at trial in 10 CV 367. See e.g. PR7 Map 2.06.6 -32, which was a trial <br />exhibit offered by Defendant in 10Cv 367. An administrative agency has no jurisdiction to <br />reverse a court judgment. See Crocker v. Colo. Dept. of Revenue, 652 P.2d at 1071. Likewise, a <br />court decree, even if disputed by a litigant, is not subject to collateral attack in another <br />proceeding. Closed Basin Landowners Assoc. v. Rio Grande Water Conserv. Dist., 734 P.2d <br />627, 637 (Colo. 987). All efforts by WFC to reverse prior determinations as to prime farmland <br />status or the extent of prime farmland on the Morgan property are unlawful and must be <br />dismissed. <br />5. WFC IS PRECLUDED FROM ALTERING THE PRIME FARMLAND <br />DESIGNATION ON THE MORGAN PROPERTY DUE TO ITS FAILURE TO <br />APPEAL PRIOR PERMIT DECISIONS. <br />The record of decision in this matter is clear that in August, 2009 DRMS, as part of <br />Permit Renwal No. 5, held that the entirety of the Morgan Property was to be designated as <br />prime farmland. Thereafter, Permit Revision No. 6 issued in November, 2010 similarly <br />designated the entirety of the Morgan Property as prime farmland. See Permit, Section <br />2.04.9 -19 (as revised in PR6). WFC was the principal author of all permit submittals in PR6. <br />If WFC disputed anything decided in PR6 it was incumbent upon it to timely raise the issue <br />with the agency and appeal same pursuant to C.R.S. § 34 -33- 120(9) and 128. WFC did not, and <br />it is now precluded from revisiting that issue. Moreover, given the passage of three years, <br />the completion of a full permit revision, and the completion of a trial on the merits, the filing of <br />PR7 is rightly seen as a cynical abuse of process by WFC. <br />6. PR7 UNLAWFULLY ATTEMPTS TO REVERSE RIME FARMLAND <br />DETERMINATIONS AFTER DISTURBANCE. <br />In a nutshell SCMRA does not permit an operator to reverse engineer soil mapping to <br />fit its preconceived objectives. All of the provisions under SCMRA and the Board Rules <br />mandate that WFC should have undertaken a "preapplication investigation" of the permit area to <br />determine the presence and extent of prime farmlands based upon identified Natural Resources <br />Conservation Service soil survey map units. Rule 2.04.12; C.R.S. § 34- 33- 110(2)(q). By <br />definition, the preapplication investigation is to occur prior to the issuance of a permit and prior <br />to commencement of mining. Contrary to these requirements, PR7 attempts to reclassify lands <br />
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