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2012-03-30_GENERAL DOCUMENTS - C1981008
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2012-03-30_GENERAL DOCUMENTS - C1981008
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Last modified
8/24/2016 4:55:41 PM
Creation date
2/21/2014 9:54:09 AM
Metadata
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Template:
DRMS Permit Index
Permit No
C1981008
IBM Index Class Name
General Documents
Doc Date
3/30/2012
Doc Name
Defendants Brief in Support of Motion to Dismiss for Lack of Subject Matter Jurisd 2010 CV 367
From
Christopher Kamper, Craig R. Carver, Carver, Schwarz, McNab & Baily, LLC
To
District Court, Montrose County, Colorado
Permit Index Doc Type
General Correspondence
Email Name
DAB
Media Type
D
Archive
No
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21. On March 30, 2011, the OSM concluded its informal review of TDN #X 10 -140- <br />182 -003, the complaint plaintiffs initially filed April 1, 2010, by issuing the document attached <br />hereto as Exhibit 9. <br />22. Plaintiffs never sought review of Exhibit 9 through available avenues of appeal. <br />Standard of Review <br />C.R. C.P. 12(b)(1) governs motions to dismiss for lack of subject matter jurisdiction. The <br />plaintiffs bear the burden of proving jurisdiction. Trinity Broad. of Denver, Inc. v. City of <br />Westminster, 848 P.2d 916 (Colo. 1993); Moss v Wildlife Comm'n, 250 P.3d 739, 743 (Colo. <br />App. 2010). The trial court may receive any competent evidence pertaining to the motion. <br />Trinity, 848 P.2d at 924 — 925, citing 2A Moore's Federal Practice T 12.07[2. -1 ] at 12 -47 (2d ed. <br />1992). C.R.C.P. Rule 12(b)(1) differs from Rule 12(b)(5) because a trial court may consider <br />evidence pursuant to Rule 12(b)(1) without converting the motion to one for summary judgment <br />as it would in reviewing a Rule 12(b)(5) motion. See, 848 P.2d at 925. <br />Argument <br />I. The Allegations of the Complaint Duplicate the Administrative Complaints. <br />Plaintiffs' claims in this case consist of the following. The First Amended Complaint <br />alleges defects in WFC's Prime Farmlands soil investigation prior to mining. See, First <br />Amended Complaint ( "FAC ") 1112 — 16. The FAC then alleges that, as a result, topsoil was <br />mishandled during the course of mining operations. Id. IT 17 — 22. These are the basis of <br />plaintiffs' damages claims, and there are no other allegations of conduct that damaged plaintiffs. <br />The above allegations, set forth in the General Allegations section of the FAC, duplicate <br />completely the allegations of the complaints plaintiffs filed with DRMS as set forth in Exhibits 4, <br />on <br />
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