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On December 8, 2010 Frank Morgan and JoEllen Turner retained counsel to represent <br />them in all pending litigation concerning the Division and Western Fuels. Rather than rule on <br />the Division's Motion to Dismiss the Court allowed Plaintiffs counsel to file an amended <br />complaint in this matter, due no later than February 26, 2011. By Order dated March 9, 2011 the <br />Court advised the parties that Plaintiffs failed to comply with the Court's Order regarding the <br />filing of an amended complaint and provided Plaintiffs 30 days to show cause why the case <br />should not be dismissed for failure to prosecute. By Order dated April 14, 2011 the Court <br />dismissed 2010 CV 368 for failure to prosecute. <br />Plaintiffs did not file an amended complaint in this matter. However, on January 31, <br />2011, Plaintiffs did file (but never served a copy on the Division) an amended complaint in the <br />companion civil action brought against Western Fuels, 2010 CV 367. Rather than file an <br />amended complaint in 2010 CV 368, Plaintiffs added the Division as a party defendant in the <br />civil action against Western Fuels. Plaintiffs are no longer seeking monetary damages against <br />the Division. <br />2. Frank Morgan, Mary Lou Morgan, JoEllen Turner, and Michael Morgan v. <br />Western Fuels Colorado LLC and the Colorado Department of Natural <br />Resources, by and through the Division of Reclamation, Mining and Safety <br />2010 CV 367. <br />The original complaint in 2010 CV 367, filed in August 2010 named only Western Fuels <br />as the Defendant, and alleged property damages against Western Fuels in the amount of <br />$5,130,635.00 and sought injunctive relief from the Court. On January 31, 2011 Plaintiffs filed <br />an Amended Complaint in 2010 CV 367, which added the Division as a party- defendant to the <br />civil action. Although the Amended Complaint was filed in January 2011, it was not formally <br />served on the Division until March 17, 2011. <br />in the Amended Complaint, the Division was named as a Defendant only to the extent <br />that the Court may issue prospective injunctive relief against Western Fuels regarding yet -to -be <br />determined future violations of the Act which may be within the Division's jurisdiction. <br />Plaintiffs wanted the Division to participate in this civil matter, not as a true defendant, but as an <br />advisor to the Court on mining law and regulation. However, no specific allegations, claims or <br />controversy were asserted against the Division. Claims regarding breach of the coal mining <br />lease agreement, diminution of property value, and Prime Farmlands /property damages, and <br />injunctive relief were only asserted against Western Fuels. <br />On April 8, 2011 the Division filed a Motion to Dismiss itself as a named Defendant <br />pursuant to C.R.C.P 12 (b)(5), failure to state a claim upon which relief may be granted. After <br />review of the briefs submitted by both the Division and Plaintiffs, on June 6, 2011 the Court <br />granted the Division's request to be dismissed based on the arguments presented by the Division. <br />Therefore, the Division is no longer a Defendant in the civil matter between Plaintiffs and <br />Western Fuels. <br />2 <br />