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revision expanding the mine, known as "PR -05," was approved in April 2000 after no <br />parties objected to the DRMS proposal to approve the permit, and it did not require <br />Western Fuels to treat any of the Morgan property as Prime Farmland. Western Fuels did <br />not learn until 2008 that the federal publication had a typographical error, and the Barx <br />soil on the Morgan property should have been characterized and treated as Prime <br />Farmland. <br />In the intervening years between 2000 and 2008, the New Horizon 2 mine <br />progressed in accordance with its permit. After the land was cleared, topsoil was stripped, <br />overburden was removed and then the coal was taken. Reclamation behind the active pit <br />proceeded while mining continued. As a result, material being removed was not always <br />returned to the location from which it came; rather some of it was used to reclaim land <br />previously mined. For part of this time, topsoil was removed in a single lift, rather than <br />two lifts, after this procedure was approved by DRMS. The operation entered the Morgan <br />Property in 2004. <br />Sometime in 2007, while mining on the Morgan property, Western Fuels took <br />topsoil from the Morgan land and used it on a property to the east where Western Fuels <br />contract farmer advised it that additional topsoil was needed. Company records show that <br />a total of approximately 20,000 cubic yards of soil was removed from the Morgan <br />property to the nearby field where it was needed. The evidence was in conflict as to <br />whether this took place in April or October 2007. Plaintiffs claim as much as 200,000 <br />cubic yards were removed. <br />In early 2008, as soon as it understood that Prime Farmlands might be involved, <br />Western Fuels began handling all of the Morgan soil as if it was Prime Farmland. It then <br />amended its permit to document appropriately its change in soil handling practices and to <br />revise its reclamation plan, PR -06. Each such permit revision has been approved by the <br />DRMS and by the Mined Land Reclamation Board (the "Board" or "MLRB "), the two <br />agencies in Colorado with primary jurisdiction over coal mining in Colorado. Plaintiffs <br />have preserved their rights to challenge only the most recent of these, PR -06, approved <br />by the Board in November 2010. That appeal is pending in another action in Montrose <br />County District Court, Civil Action No. 10 -cv -548. <br />