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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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5, and 6 hereto. The essence of both the judicial and administrative complaints is an alleged lack <br />of adequate Prime Farmlands investigation and resulting damage to the Property. <br />Plaintiffs' First Claim for Relief (breach of contract) alleges that the Coal Mining Lease <br />"is subject to all applicable provisions of the Act and implementing regulations" (id. ¶ 24) and <br />that "the acts and omissions of WFC described herein constitute violations of the Act and <br />applicable provisions of the Lease" (id. ¶ 26). Even though plaintiffs' First Claim for Relief is a <br />breach of contract claim, it does not cite or reference any express provisions of the Coal Mining <br />Lease, nor does it allege any breach of any such provisions. <br />Plaintiffs' Second Claim for Relief relies upon the alleged violations described above as <br />the basis for relief. Id. IT 28 — 33. Included among the relief plaintiffs seek is "mandatory <br />injunctive relief to compel compliance with the Act and its regulations, and specifically to <br />remediate or bring the Premises into compliance with the Act, to the extent possible." Id. ¶ 33. <br />The Second Claim for Relief references the citizen suit provisions of CRS § 34 -33 -135. Id. ¶ 32. <br />II. Exhaustion of Remedies is a Strict and Jurisdictional Requirement. <br />Plaintiffs' failure to challenge the Division's determination that "Western Fuels is in <br />compliance with Permit No. C- 1981 -008 and the requirements of the State program" (see Exhibit <br />2 at page 1), issued in response to the identical claims as are raised in the FAC, deprives this <br />Court of subject matter jurisdiction to hear those claims, regardless of the form in which <br />plaintiffs have chosen to present them. This in turn means that WFC is entitled to dismissal of <br />both of plaintiffs' Claims for Relief. <br />Colorado courts "strictly adhere to the exhaustion of remedies doctrine, which requires <br />parties to pursue statutory remedies before seeking relief in district court." Colo. Dept of Pub. <br />Health & Env't v. Bethell, 60 P.3d 779, 784 -785 (Colo. App. 2002), citing Denver - Laramie- <br />7 <br />
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