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3. The Morgan Property is encompassed within the mining permit held by WFC, <br />No. C -1981 -008, issued by the Colorado Division of Reclamation, Mining & Safety <br />( "DRMS "), and commonly known as the New Horizon 2 Mine. <br />4. WFC has conducted surface coal mining on the Morgan Property. As of this <br />time coal extraction from the Morgan Property is complete, but reclamation of the <br />Morgan Property is not complete. <br />5. Venue in this matter is proper in Montrose County, Colorado, and this Court has <br />personal jurisdiction over all parties to this action. <br />FINDINGS OF FACT <br />The evidence at trial established that Western Fuel began operations at the New <br />Horizon 2 Mine in 1993 after it purchased the mine from Peabody Coal Company. The <br />mine operates as the not - for -profit fuel source for the Nucla Station electrical generating <br />facility. In the transaction with Peabody, Western Fuels assumed the obligations under <br />Peabody's Permit Number C -81 -008, issued by the Colorado Mined Land Reclamation <br />Division, now known as the Division of Reclamation, Mining and Safety ( "DRMS "). <br />As mining progressed westward, Western Fuels sought to include more land <br />within the boundaries of its permit, including land owned by plaintiffs Frank and Mary <br />Lou Morgan. The coal lease from the Morgans was negotiated over a three -year period <br />starting with a draft prepared by Western Fuels and reviewed by the Morgans' lawyer. In <br />1998, as a part of the process of revising the permit to add land, Western Fuels engaged a <br />consultant to perform a soil survey, with the purpose, in part, to identify whether any of <br />the land to be included in the permit constituted "Prime Farmland," a designation which <br />would require such soil to be handled in particular ways. <br />One soil unit on the Morgan property, called `Barx fine sandy loam" (generally <br />referred to as `Barx ") can be considered Prime Farmland if certain variables (such as <br />slope, irrigation and pH) meet required parameters. The consultant, in express reliance on <br />a federal government publication containing an error, concluded that the soil on the <br />Morgan property was not "Prime Farmland" because the pH was too high. The permit <br />