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CERTIFICATE OF COMPLIANCE WITH C.R.C.P. 121 § 1- 15(8): Pursuant to <br />C.R.C.P. 121, § 1- 15(8), undersigned counsel has consulted with counsel for the Mined Land <br />Reclamation Board and counsel for Defendant Western Fuels— Colorado regarding this motion. <br />Both attorneys have indicated they have no objection to the Division being dismissed from this <br />matter. Undersigned counsel consulted with counsel for Plaintiff about this motion on March 28 <br />and 29, 2011. It was agreed to allow Plaintiffs' counsel until April 4, 2011 to discuss this matter <br />with his clients. Undersigned counsel sent a follow up status check e-mail on April 4, 2011. At <br />the time of this filing undersigned counsel has not heard from Plaintiffs' counsel regarding their <br />position on this motion. <br />1. The Plaintiffs seek appeal and judicial review of final agency action pursuant to C.R.S. <br />§34- 33- 119(9) and §34 -33 -128 of the Colorado Surface Coal Mining Reclamation Act ( "Act ") <br />with respect to the Mined Land Reclamation Board's ( "Board ") approval of Permit Revision <br />Number 6 ( "PR -6 ") for the New Horizon 2 surface coal mine. z The Board issued a written order <br />approving PR -6 on December 8, 2010. <br />2. In the administrative hearing before the Board in this matter, the Division made no final <br />agency decisions on the PR -6 application subject to §34 -33- 119(9) or judicial review under §34- <br />33 -128 of the Act. The Division's decision regarding PR -6 was a proposed decision, subject to <br />public comment and appeal to the Board. The Board is the entity that took the final agency <br />action by approving PR -6. Any possible relief this Court could impose against the Division will <br />not address the Plaintiffs' alleged injury as pled in the complaint. Therefore, the Plaintiff fails to <br />bring a claim upon which relief may be granted as to the Division. <br />3. In the complaint the Plaintiffs incorrectly treat the Division and the Board as one entity <br />within the Department of Natural Resources and state that the Division was "acting by and <br />through the Mined Land Reclamation Board ". Complaint at 17. The Division and the Board are <br />definite and distinct entities. Cold Springs Ranch v. Dept. of Nat. Res., 765 P.2d 1035 (Colo. <br />App. 1988). <br />2 Section 34- 33- 119(9) of the Act states that decisions of the Board may be appealed in accordance with C.R.S. §34- <br />33 -128. C.R.S. §34 -33 -128 provides the right to seek judicial review of a final decision/action of the Board. <br />