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Powertech's lawsuit against Mike King and the Colorado Mined Land Reclamation Board

Updated September 10, 2011



Christmas greetings from Powertech:  NOTICE OF COMMENCEMENT OF SUIT SEEKING JUDICIAL REVIEW - POWERTECH (USA) INC. v. STATE OF COLORADO MINED LAND RECLAMATION BOARD AND MIKE KING, EXECUTIVE DIRECTOR OF THE DEPARTMENT OF NATURAL RESOURCES - Signed by John D. Fognani, Fognani & Faught, PLLC - December 20, 2010 (PDF 754 KB, 13 pages)  Powertech has finally sent a notice of its lawsuit and the complaint to those who participated in the rule-making proceeding, as required by the Colorado Administrative Procedure Act.  The notice and complaint should have been sent by November 11.  In a bonehead move, Powertech failed to include any explanation of why the notice was sent.  So five days before Christmas, hundreds of people received a certified letter from a Denver law firm containing a court filing titled "Notice of Commencement of Suit..." and no cover letter.  For those concerned about receiving the notice, please see the related email sent by C.A.R.D. on December 23:  "Coloradoans Against Resource Destruction (C.A.R.D.) would like to pass along some information related to a certified letter a number of people have recently received from Fognani and Faught containing a copy of a complaint against the MLRB in the Denver District Court. This mailing is a requirement of Colorado state law. Any person who sues the state over a rulemaking is required to provide notice of the filing of the Complaint to everyone who participated in the rulemaking (CRS § 24-4-106(4)). Powertech should have done this over a month ago, but failed to comply until now. Those who have received letters are in no way implicated in the lawsuit. Those who have received letters need not do anything in response to the letter. Please feel free to pass this information to others that you think may have received this letter."  


STATE DEFENDANTS’ MOTION TO DISMISS PLAINTIFF’S CLAIMS AGAINST DEFENDANT MIKE KING - POWERTECH (USA) INC., A SOUTH DAKOTA CORPORATION, Plaintiff, v. STATE OF COLORADO MINED LAND RECLAMATION BOARD AND MIKE KING, EXECUTIVE DIRECTOR OF THE DEPARTMENT OF NATURAL RESOURCES, Defendants.  DISTRICT COURT, CITY AND COUNTY OF DENVER, COLORADO - December 8, 2010 (PDF 45 KB, 6 pages)  Colorado Attorney General John Suthers points out to Powertech attorney John Fognani that Powertech cannot sue Mike King, Executive Director of the Colorado Department of Natural Resources, because King, in his capacity as a member of the Mined Land Reclamation Board, hearing officer, and DNR executive director, did not take any "final agency action" as defined in the state's Administrative Procedure Act.  And in a footnote, Attorney General Suthers notes that Powertech filed its lawsuit on November 1, 2010, implying that the suit was not commenced within thirty days after the MLRB adopted the new uranium mining rules (the rules became effective on September 30).  Suthers explains that "a suit for judicial review of final agency action must commence within thirty days after such agency action becomes effective. C.R.S. §24-4-106(4)."


Powertech takes on state mining regulations in lawsuit - by Dan MacArthur, North Forty News (Northern Larimer County, Colorado) - December 1, 2010 (PDF 34 KB, 3 pages)  This story reports further on Powertech's inability to maintain a coherent position on Colorado's new uranium mining rules.  CARD attorney Jeff Parsons' take on Powertech's shifting statements: "Here's this company making lots of promises about protecting water and it can't keep its story straight," said Parsons. "If they're serious about it, they're going to have to clean up the water when they're done. This is a huge risk. There is no room for error."  MacArthur also asks Powertech CEO Dick Clement about reports on this website that the company is set to run out of cash by January or February of 2011 if additional investment capital is not obtained.  Clement "flatly dismissed" the reports, but failed to explain how the company intends to survive financially.  According to the notes to Powertech's September 30, 2010 financial statements, "The company requires additional funding by the first quarter of 2011 in order to fund operations and meet its liabilities as they come due."


Uranium mining goes to court - by Jay Davis, The Voice of Wellington (Wellington, Colorado) - December 1, 2010 (PDF 20 KB, 3 pages)


COLORADO ATTORNEY GENERAL NOTIFIES POWERTECH OF PROCEDURAL ERRORS IN FILING OF LAWSUIT; Attorney General Suthers points out mistakes made by law firm Fognani & Faught and informs Powertech that errors add sixty days to legal process - STATE DEFENDANTS’ NOTICE OF INTENT - POWERTECH (USA) INC., A SOUTH DAKOTA CORPORATION, Plaintiff, v. STATE OF COLORADO MINED LAND RECLAMATION BOARD AND MIKE KING, EXECUTIVE DIRECTOR OF THE DEPARTMENT OF NATURAL RESOURCES, Defendants. DISTRICT COURT, CITY AND COUNTY OF DENVER, COLORADO - JOHN W. SUTHERS, Attorney General - November 22, 2010 (PDF 41 KB, 3 pages)  When Powertech attorney John Fognani filed suit against the Colorado Division of Reclamation, Mining & Safety, he failed to serve the attorney general as required under the Colorado Rules of Civil Procedure.  Consequently, the state gets an additional sixty days to file a responsive pleading to the lawsuit.  The response must be filed by January 26, 2010.  In addition, the Colorado Administrative Procedure Act requires Powertech to send a notice of the lawsuit and a copy of the complaint by certified mail to “every person who has participated in a rule-making proceeding by written statement, or by oral comment at a hearing”.  The notice was required to be sent within ten days of the November 1 filing of the lawsuit.  As of December 2, no notices had been received by rule-making participants.


Powertech sues Colorado over new mining regulations - by Dan Yurman, Idaho Samizdat: Nuke Notes - November 25, 2010 (PDF 13 KB, 2 pages)  In this article by nuke news blogger Yurman, Powertech CEO Dick Clement says he is looking to the Colorado mining industry to help with the costs of his recently-filed lawsuit against the State of Colorado.  Yurman describes Powertech officials as being "incensed" and suffering "heartburn" from various provisions of the new uranium mining rules.  Clement also confirms that Belgian firm Synatom has decided to sell its nearly 20% stake in Powertech.  (Synatom has single-handedly financed Powertech's operations since mid-2008.  Apart from funding its lawsuit, Powertech must find new financing to simply survive as a company.  According to its September 30 financial statements, "The Company requires additional funding by the first quarter of 2011 in order to fund operations and meet its liabilities as they come due.")


Powertech goes to bat for uranium industry - by Bobby Magill, Fort Collins Coloradoan - November 18, 2010 (PDF 17 KB, 2 pages)  Powertech CEO Dick Clement finally decides to comment on the company's lawsuit against the State of Colorado (more than two weeks after it was filed), claiming that Powertech filed the suit  "on behalf of industry, not just Powertech." Clement did not say which other companies or organizations are backing the lawsuit.  In a 2009 radio interview, Powertech attorney John Fognani asserted that company officials "have tried their very best to make this an open and transparent process, and for that I applaud them."  In this spirit of openness and transparency, Clement should disclose who is financing Powertech's lawsuit.  Is support being provided by the Colorado Mining Association, the National Mining Association, or the Uranium Producers of America? Are other foreign uranium companies kicking in money, such as Canadian companies Cameco or Uranium One?  What about Atomredmetzoloto, the Russian state-owned mining company that wants to increase its presence in the western U.S.?


Uranium mining firms step up legal pressure as state regulations stiffen; Powertech, Cotter sue state regulatory agencies over water reclamation issues - by David O. Williams, Colorado Independent - November 16, 2010  (PDF 51 KB, 3 pages)  Powertech has sent out silver-tongued lawyer John Fognani to be its point man on the lawsuit filed against the State of Colorado.  Fognani denies that Powertech is concerned about the financial impact of the new uranium rules.  Rather, he claims Powertech considers this a "water resource issue", implying the Canadian uranium company is concerned about high water usage.  Powertech may want to limit the water used to clean up the aquifers, but it has no qualms about using large quantities of water to extract uranium.  The company has budgeted over $9 million to purchase Colorado Big-Thompson water rights and transport treated water from the North Weld County Water District to the mine site. Thirty to forty percent of the uranium in the Centennial project is located at or above the water table, and six out of nine mine units have insufficient hydraulic pressure to conduct in-situ leaching.  Powertech's novel solution: inject CBT water to raise the water table in these mine units.  The scheme has been referred to by Powertech as water mounding, aquifer enhancement, or hydraulic fencing.  Whatever they call it, it's a speculative, untested, and unproven process.  And it would consume massive quantities of valuable water.  Read about it here, here, and here.


Powertech Uranium Corp sues Colorado over northwestern Weld County site - Greeley Tribune - November 13, 2010 (PDF 14 KB, 2 pages) Todd Hartman, natural resources spokesman, said, “We're still examining the lawsuit, but our initial response would be to emphasize that we have an extensive stakeholder process and rule-making process that's behind those uranium-mining regulations. We feel that it's a strong process and, of course, we think it's critically important to be protecting the state's water supplies.”


Are Colorado's Water-Quality Regulations Too Stringent for Uranium Miners? Powertech and Cotter Think So - by Michael de Yoanna, 5280 (magazine) - November 12, 2010 (PDF 36 KB, 1 page)  From the article: Powertech is required to fully decontaminate—to the starting-point baseline—the water it uses in its proposed mine operation 15 miles northeast of Fort Collins, but the company says it is irrational for the state to ask such a thing. The cleanup of the groundwater is too expensive, according to the company, and would require the use of too much water from somewhere else.

"Uranium miner files lawsuit over new state regulations" by Monte Whaley, Denver Post - November 12, 2010

Powertech sues over water rules; residents want mining company to be accountable - by Tom Hacker, Loveland Reporter Herald - November 12, 2010


Powertech Uranium lawsuit: Cleaning groundwater too expensive, burdensome - by Bobby Magill, Fort Collins Coloradoan - November 11, 2010 (PDF 14 KB, 2 pages)  Recently re-elected State Representative John Kefalas' reaction to Powertech's lawsuit: Powertech, he said, told lawmakers in 2008 that the in situ leach mining technology was proven and will protect the groundwater and public health. “Here it is at this juncture, they’re singing a different tune and I find that quite curious,” Kefalas said.


Powertech challenges state's uranium mining rules - Northern Colorado Business Report - November 11, 2010


News release - "Canadian Mining Corporation Files Suit Against State of Colorado" - Coloradoans Against Resource Destruction (C.A.R.D) - November 11, 2010 (PDF 8 KB, 2 pages)  CARD broke the story of Powertech's lawsuit against the Colorado Mined Land Reclamation Board, which was filed on November 1.  Why didn't Powertech announce the lawsuit?