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Introduction <br />Plaintiffs' First and Second Claims for Relief in this action allege violations of the <br />Colorado Surface Coal Mining Reclamation Act, CRS § 34 -33 -101 et seq., and implementing <br />rules and regulations (the "Colorado Coal Program" or the "State Program "). These claims arise <br />from WFC's initial Prime Farmlands soil investigation conducted in 1998 and pre -2008 topsoil <br />management practices on the Morgan Property. However, the identical claims were presented to <br />the Colorado Division of Reclamation, Mining and Safety ( "DRMS" or the "Division ") which <br />reviewed and rejected them by order issued April 23, 2010. Plaintiffs failed to seek review by <br />the Colorado Mined Land Reclamation Board (the "Board ") within the 90 -day period allowed by <br />CRS § 34- 33- 124(1)(a) and applicable Board rules, or at any time prior to filing this action. <br />Plaintiffs therefore failed to exhaust available administrative remedies, depriving this Court of <br />subject matter jurisdiction to hear their claims. After this suit was filed, plaintiffs attempted to <br />raise these same issues during a permit hearing before the Board, at which point the Board ruled <br />it lacked jurisdiction to hear them. Western Fuels is therefore entitled to dismissal pursuant to <br />C.R. C.P. 12(b)(1) of plaintiffs' First Amended Complaint. <br />Statement of Facts <br />I. Background: the Coal Mining Lease and the Mining Operation <br />1. On September 10, 1998, the parties entered the Coal Mining Lease attached <br />hereto as Exhibit 1, as it has been amended from time to time. <br />2. As stated in the Division's order attached as Exhibit 2, active mining entered the <br />lands subject to the Coal Mining Lease (the "Property") in 2004, and has progressed from east to <br />west since that time. Mining of the Property will not be complete until July or August 2012. <br />►J <br />