1979-06-06_ENFORCEMENT - M1978352 (13)

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CONCLUSION Defendants ' claims that William Nottingham is not a proper party, that Plaintiff has not exhausted its administrative remedies, and that Plaintiff has received proper notice are clearly without merit. William E. Nottingham, Jr. should remain a party to this action so that complete relief may be afforded the Plaintiff. It is undisputed that the March 1st meeting of the Board of Mined Land Reclamation was "final agency action" and therefore Plaintiff is entitled to judicial review. It is undisputed that the statutory notice required of applicant was never sent by applicant to the Plaintiff who is undisputedly a party to whom such notice is to be given. Further, it is undisputed that the applicant provided no sort of substituted notice on Plaintiff which would have complied with the requirements of the statutory notice provisions of §34-32-112 (10) (c) , C.R.S. 1973 . Plaintiff did not receive the advance notice he is entitled to in order to adequately prepare for the Board meeting and was unable to properly protect his property interest, all in violation of the State and Federal Constitutions . The issuance of a Summary Judgment is proper where there is no genuine issue as to any material fact. Terell v. Walter E . Heller Company, 165 Colo. 463 , 439 P. 2d 989 (1968) . The undisputed facts demonstrate that the notice requirements of the statute and the Constitution were never complied with and therefore Summary Judgment for Plaintiff is proper. In light of these same facts and for those reasons stated in the above brief, it is clear that Defendants ' Motion to Dismiss or Motion for Summary Judgment must fail . For the reasons stated above, Plaintiff requests an order awarding Plaintiff Summary Judgment, that the record be judicially reviewed and that the findings of the Board of Mined Land Reclamation be set aside as contrary to law and to the evidence; that said Board decision be vacated and set aside; and that Defendants, -19-