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Introduction <br />To recap defendant's Motion to Dismiss and the Brief in Support thereof ( "Opening <br />Brief'), plaintiffs' failure to challenge in timely fashion the Division's determination that <br />"Western Fuels is in compliance with Permit No. C- 1981 -008 and the requirements of the State <br />program," issued in response to the identical allegations as are stated in the First Amended <br />Complaint ( "FAC "), deprives this Court of subject matter jurisdiction to hear plaintiffs' claims <br />regardless of their form. WFC is therefore entitled to dismissal of this case. <br />Plaintiffs' Response ( "Response Brief') generally avoids specific discussion of the <br />allegations of the FAC and instead attempts to advance an argument that Colorado courts have <br />repeatedly rejected: that the requirement to exhaust remedies turns solely upon the causes of <br />action asserted, rather than the specific allegations of the complaint. Finally, plaintiffs advance a <br />bizarre argument that their claims have been "superseded" by a new administrative process, <br />which is "very far from being exhausted." Response Brief at 11. To say the least, this assertion <br />does not help plaintiffs' cause. <br />Argument <br />I. Plaintiffs Cannot Ignore Their Own Allegations. <br />Rather than showing, as it is their burden to do, that the allegations and relief sought in <br />the FAC trigger jurisdiction in this Court, plaintiffs appear to assume the Court can decide its <br />jurisdiction based on the mere fact that plaintiffs have asserted a breach of contract claim and a <br />citizen suit. Response Brief at 2. However, no Colorado court has ever accepted this approach. <br />Instead, "[w]e are not bound by the form in which the plaintiff asserts its claim, but rather it is <br />the facts alleged and the relief requested that decide the substance of a claim, which in turn is <br />2 <br />