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DISTRICT COURT, MONTROSE COUNTY, <br />COLORADO <br />1200 North Grand Avenue <br />Montrose, CO 81401 <br />FRANK MORGAN, MARY LOU MORGAN, JOELLEN <br />TURNER, AND MICHAEL MORGAN, <br />Plaintiffs, <br />V. <br />WESTERN FUELS COLORADO, LLC, AND STATE <br />A` COURT USE ONLY • <br />OF COLORADO BY AND THROUGH THE <br />Case No. 2010 CV 367 <br />DEPARTMENT OF NATURAL RESOURCES, <br />DIVISION OF RECLAMATION, MINING & SAFETY, <br />AND COLORADO MINED LAND RECLAMATION <br />Division: 4 <br />BOARD, <br />Defendants. <br />[PROPOSED] ORDER <br />THIS MATTER having come before the Court on Defendant Colorado <br />Division of Reclamation, Mining and Safety's Motion to Dismiss Itself as a Party <br />Defendant, the Court, having reviewed the Motion and all related responsive <br />pleadings, and having been fully advised of the facts, hereby issues the following <br />findings and order: <br />FINDINGS <br />The Defendant argued that dismissal as a party- Defendant to Plaintiffs First <br />Amended Complaint pursuant to C.R.C.P 12(b)(5) is appropriate because the <br />Amended Complaint fails to set forth a statement of claim showing that the pleader is <br />entitled to relief against the Division. Defendant's assert that Plaintiffs' sole focus in <br />the Complaint is on the actions and conduct of Western Fuels Colorado, not on the <br />Division's actions. The Court agrees that the Amended Complaint does not assert any <br />allegations with respect to the conduct of the Division. Therefore, Plaintiffs' <br />Complaint fails to state a claim against the Division upon which relief can be granted. <br />Moreover, the purpose of C.R.S. §34 -33- 135(2.5) of the Colorado Surface <br />Coal Mining Reclamation Act is to allow the Board or Division a right to intervene in <br />a civil matter at its discretion. The intent is not that the Board or Division is a <br />necessary party to all civil actions brought by citizens under the Act. <br />