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CONCLUSION <br />Rased on the foregoing, defendant Mined Land Reclamation <br />Board respectfully request that its decision of March 22, 1989, <br />approving of the permit application be affirmed. <br />In the event that the court decides the matter:c addressed <br />in this brief in favor of plaintiff CES, the Board respectfully <br />requests, in the alternative, that the court render a~ decision <br />without entering judgment in this action until all claims for <br />relief have been resolved. See C.R.C.P. 54(b). The Board has <br />asserted an affirmative defense that CES lacks the capacity to <br />pursue this action. The question of CES's capacity must be <br />decided based on a trial rather than review of an administrative <br />decision. C.R.C.P. 9(a)(1). Of course a decision in favor of <br />defendants on all of the claims raised by CES in its Opening <br />Brief will resolve all claims, and judgment must enter in favor <br />of defendants. However, a decision in CES's favor on the issues <br />addressed in this brief does notidecide the Hoard's claim that <br />CES lacks capacity and judgment should not enter. In that event, <br />this action must continue in ordei ~o determine the question of <br />CES's capacity. <br />Respectfully submitted this Z7id"ay of November 1989. <br />1/ CES's contention that augmentation plans are to be submit- <br />ted to the Colorado Water Conservation Board is incorrect. The <br />Water Conservation Board is charged with the protection and <br />-I7- <br />