Laserfiche WebLink
<br />Plaintiff, a landowner doing business as a farmer, brings a claim for damages arising out <br />of mining operations conducted on his property. [Complaint, ¶¶1, 3]. Plaintiff alleges the <br />Defendant, a regulatory body that governs mining operations, as overseen by federal authorities, <br />allowed the violation of certain Colorado laws governing surface mining on farmlands, causing <br />"irreparable" damages to Plaintiff's property. [Complaint, ¶¶5]. Plaintiff claims damages in the <br />amount of $5,130,635, plus court costs and attorneys' fees. [Complaint, ¶6]. <br />Plaintiff fails to plead facts such that would state a claim for damages pursuant to the <br />statutes he relies upon in his complaint. Moreover, to the extent that Plaintiff's complaint is <br />stating tort claims against the Division, the claims do not fall within a waived area under the <br />Colorado Governmental Immunity Act and are therefore barred. Finally, to the extent the <br />complaint purports to state constitutional claims, such claims against the State are barred by <br />sovereign immunity. Therefore, the claims against the Defendant must be dismissed, and, the <br />Division is entitled to an award of attorney fees pursuant to § 13-17-201, C.R.S. <br />ARGUMENT <br />I. Standard <br />When raised by a motion to dismiss based on lack of subject matter jurisdiction pursuant <br />to C.R.C.P. 12(b)(1), the court must resolve the question of subject matter jurisdiction before <br />trial. Trinity Broadcasting v. Westminster, 848 P.2d 916, 923-24 (Colo. 1993). Factual <br />allegations asserted in the complaint are not taken as true on a motion to dismiss for lack of <br />subject matter jurisdiction. Fogg v. Macaluso, 892 P.2d 271, 276 (Colo. 1995); Trinity, 848 P.2d <br />at 924-5. Rather, the trial court should conduct proceedings, including an evidentiary hearing, to <br />2