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23. Western Fuels- Colorado has conducted vegetation reclamation activities under the <br />Mining Permit on the Subject Lands every year since 1998, without complaint or dispute by San <br />Miguel Power Association or Lessor at any time. The map attached as Exhibit I shows the <br />commencement date of these activities on the Subject Lands and adjacent lands. <br />24. Until defendant 4/7, LLC took title, there never was a dispute between Lessee and <br />Lessor as to the right of the Lessee to access or conduct operations on the Subject Lands, or as to <br />any material obligation, performance, or right of the Lessee under the Mining Lease. <br />25. However, after taking title to the Subject Lands and executing Exhibit F, <br />defendant has stated it does not recognize Western Fuels- Colorado's rights to enter upon the <br />Subject Lands, and contends that the Mining Lease is not valid. An existing, live dispute has <br />therefore arisen between the parties as to the current validity of the Mining Lease and Western <br />Fuels - Colorado's rights thereunder. <br />26. Removal of coal from the Subject Lands has been completed and reclamation <br />activities continue on the Subject Lands pursuant to the Mining Permit, specifically the <br />revegetation plan attached as Exhibit J hereto, as excerpted in pertinent part. Mining operations, <br />including removal of coal and reclamation activities, continue on contiguous or nearby lands as <br />part of an integrated mining operation or mining plan. <br />27. These reclamation activities will benefit the surface estate of the Subject Lands <br />because they will restore the Subject Lands to their pre- mining productivity and condition in <br />accordance with the regulatory standards administered by DRMS. <br />28. Defendant has taken actions hostile to Western Fuels- Colorado's rights under the <br />Mining Lease by stating in a public forum that Western Fuels - Colorado does not have a valid <br />lease, specifically by filing a complaint with the DRMS alleging that there is no valid right of <br />access to the Subject Lands for coal mining purposes. See, Exhibit K, materials from complaint <br />filed with DRMS. <br />29. Defendant has also taken actions adverse to Western Fuels- Colorado's lease <br />interest in the Subject Lands with regard to water rights by filing two applications, Case <br />Nos. 12CW16 and 12CW19, in the District Court in and for Water Division No. 4, and by <br />attempting to re- establish use of a ditch not used by its predecessor in years (the Meander Ditch <br />water right). <br />(a) Case No. 12CW16 was filed by defendant on March 7, 2012, in the <br />District Court in and for Water Division No. 4. By its application, <br />defendant seeks to change a water right, NPDES Pond 007, which was <br />adjudicated by and is owned by Western Fuels- Colorado. NPDES <br />Pond 007 is a National Pollution Discharge Elimination System <br />( "NPDES ") sediment control structure and Western Fuels- Colorado must <br />continue to control that water right to remain in compliance with the <br />DRMS Order attached as Exhibit L. <br />{00105064.1 1 5 <br />