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The proper measure of damages in this case is the loss of productive capacity, not the <br />cost of replacing soils. <br />Injunctive Relief <br />This Court concludes that injunctive relief is not a proper remedy in this case. <br />Monetary damages appropriately compensate the Morgans for the breach of contract and <br />violation of state statutes and regulations. The existing state regulatory procedures and <br />the lawsuit pending concerning those procedures are the appropriate forums to determine <br />future performance on the part of Western Fuels. This Court is not convinced by the <br />evidence presented that sufficiently similar soils are available at a reasonable cost to <br />require Western Fuels to replace the soils removed. <br />COUNTERCLAIMS <br />The Court concludes that there is insufficient evidence to support the counter <br />claims of harassment and breach of the covenant of quiet enjoyment provided for in the <br />lease. The conduct testified to by the mine manager does not rise to the level of denial of <br />possession, quiet enjoyment or harassment. Complaints filed by plaintiffs were not <br />frivolous for the most part and are part of the constitutionally protected right to petition <br />government for redress of grievances. Judgment shall enter for the plaintiffs and against <br />defendants on the counterclaims. <br />DECLARATORY JUDGMENT <br />Western Fuels seeks a declaratory judgment concerning rights of Michael Morgan <br />and JoEllen Turner to be on the property being actively mined. The Court first notes that <br />the coal lease is between Mr. and Mrs. Morgan Sr. and Western Fuels. Michael Morgan <br />and JoEllen Turner are not parties to the lease and have no rights under the lease. The <br />fact that there is a farm lease between the senior Morgans and Michael Morgan and Ms. <br />Turner does not give them rights as related to Western Fuels. While they may have had <br />in the past and may have in the future certain employment relationships with Western <br />Fuels and may have had mine safety training, they do not have the right to be in the area <br />of the Morgan property being actively mined without prior permission of Western Fuels. <br />ATTORNEYS' FEES <br />The Court concludes that Frank Morgan and Mary Lou Morgan are the prevailing <br />parties in this lawsuit and pursuant to the provisions of CRS 34- 33- 135(4) and the Court <br />