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SENT}9Y~Xerox Telecopi~r 7021 <br />•z'he following <br />30 525~G0 MINED LAND REG'L iii 9 <br />1- 7-93 ~ S~OaPM <br />is taken from the <br />T. 1NTRODUCTION <br />Plaintiffs' sole claim for relief in this matter is based <br />on CNB's alleged breach of fiduciary duties owed to plaintiffs as <br />beneficiaries of two separate trusts in which CNB is the trustee. <br />One substantial element of the plaintiffs' alleged damages relates <br />to the coal mine waste pile that is on the trust property (the <br />"waste Pile"). The Court is Familiar with the basic facts of this <br />case so a detailed description of the context in which plaintiffs' <br />damage claim related to the Waste Pile arises is unnecessary. <br />Suffice it to say, plaintiffs' claim that in negotiating the <br />Supplemental Lease with Energy Fuels, Inc. ("Energy Fuels") in <br />March of 1985 (the "Supplemental Lease"), CNB should have <br />negotiated terms that would have required Energy Fuels, as the <br />tenant/operator, to indemnify the trusts for future potential <br />damages related to the Waste Pile; and moat specifically, with <br />respect to the dumping of mining waste materials on trust property <br />that result from Energy Fuels' mining activities on property other <br />than property owned by the trusts. <br />In Plaintiffs' own words, their complaint about the waste <br />Pile ie that: <br />There are no provisions in the leases allowing <br />waste from the mining and processing of coal <br />from adjoining lands to the Premises to be <br />dumped on the Premises. This is a trespass. <br />The premises [sic] are injured and the value <br />impaired. Also, ~ such waste is determined <br />to be hazardous, then the trusts would ]fig <br />responsible for cleaning up the site. waste <br />froth the mining and processing of coal is <br />presently temporarily exempted from hazardous <br />waste laws pending a study. A damage factor <br />is the coat of removal of the waste. (emphasis <br />added) <br />Plaintiffs' Pretrial Memorandum at paragraph 5, p.1B. <br />Thi$ damac~a claim is frought with difficulties of proof <br />of CNB's liability.l Nonetheless, even assuming arguendo that CNB <br />~' For example, plaintiffs have not, and simply cannot, ass®Yt a <br />claim agaj,nst CNB for trespass. Thus, such claim must be in the <br />nature of breach of fiduciary duty by CNB for allowing such a <br />trsspaa® by npt negotiating restricting provisions in the leases. <br />Howevsr,• th® gupplemental Lease is no different in this respect <br />than th3 lease negotiated by plaintiff Joseph vento as counsel far <br />the trusts With the predecessor to Energy Fuels in 1978. <br />sww.i see oi~u~m ~ o~ oti <br />