2011-06-15_GENERAL DOCUMENTS - C1981008

Home Browse Search

3. Frank Morgan, Mary Lou Morgan, JoEllen Turner, and Michael Morgan v. Western Fuels Colorado LLC and the Colorado Department of Natural Resources, by and through the Division of Reclamation, Mining and Safety and the Colorado Mined Land Reclamation Board 2010 CV 548. On December 15, 2010 Plaintiffs filed an Appeal and Petition for Judicial Review of Final Administrative Action in Montrose County District Court. Although Plaintiffs timely filed the Judicial review complaint, it was not formally served on the Division or Board until March 21, 2011. The Plaintiffs seek judicial review of final agency action pursuant to C.R.S. §34 -33- 119(9) and §34 -33 -128 of the Act with respect to the Board's approval of Permit Revision Number 6 ( "PR -6 ") for Western Fuels' New Horizon 2 coal mine. The Division issued its proposed decision to approve PR -6 on October 1, 2010. On October 21, 2010, pursuant to C.R.S. §34- 33- 119(4) and Rule 2.07.04(3)(a), Plaintiffs requested that a formal Board hearing be held to review the Division's proposed decision. This request for hearing was an administrative appeal to the Board of the Division's proposed decision. After receiving and considering a tremendous amount of oral and written testimony, the Board issued a written order approving PR -6 on December 8, 2010. On April 5, 2011 the Division filed a Motion to Dismiss itself as a named defendant pursuant to C.R.C.P. 12(b)(5), failure to state a claim upon which relief may be granted. The Division argued that the Board, not the Division, took the final agency action in approving PR -6. In addition, the Division argued that the Board is the only entity that made final decisions regarding procedural issues related to the formal hearing. Since only final agency action is subject to judicial review under C.R.S. §34 -33 -128 of the Act and C.R.S. §24 -4 -106 of the APA, and the Division took no final agency action, Plaintiffs failed to state a claim upon which relief may be granted against the Division. Plaintiffs argued that, even though the Division did not take final agency action, the Division was a necessary part of the Board's decision making process. On June 6, 2011 the Court denied the Division's request for dismissal as a defendant. The Court's Order concluded that the motion to dismiss involved factual issues or issues of record that cannot be properly resolved based on the motion to dismiss alone. All parties to this judicial review action have filed their answer briefs. The next step in the judicial review process, as outlined in C.R.S. §24 -4 -106 of the APA, is that Plaintiffs must designate the official hearing record and file the record with the Court. This hearing record will include only the information presented to, and considered by, the Board during the November 2010 formal hearing on PR -06. The substantive briefing period commences with the designation of the record. As of the date of this memorandum, Plaintiffs have not designated the record.