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(b) Case No. 12CW19 was filed on March 14, 2012, in the District Court in <br />and for Water Division No. 4. By this application, defendant seeks to <br />change the point of diversion, type of diversion, and place of use of the <br />Furry Ditch for diversion on and irrigation of the Subject Land. <br />Defendant seeks to divert the Furry Ditch at Western Fuels- Colorado's <br />diversion point and use Western Fuels - Colorado's distribution network, <br />consisting of a pump and a network of irrigation pipe. <br />(c) Defendant has also taken actions to re- establish the Meander Ditch water <br />right on the Subject Lands despite the fact that it has not been used in <br />connection with the Subject Lands for a significant period of time. <br />30. Defendant's use of water rights on the Subject Lands, including but not limited to <br />NPDES Pond 007, pursuant to Case No. 12CW16, the Furry Ditch, pursuant to Case <br />No. 12CW19, or the Meander Ditch, would interfere with Western Fuels- Colorado's rights under <br />the Mining Lease, which provides that Western Fuels- Colorado "shall have the right to ... the <br />use and disposal of sufficient water in said mining and processing operation ... as lessee may <br />deem necessary ...." Exhibit A It 2. <br />31. Western Fuels - Colorado will suffer irreparable harm that presently may not be <br />susceptible of estimate, proof or compensation if prompt declaratory and injunctive relief is not <br />entered in its favor. <br />32. Specifically, Western Fuels - Colorado's continuing compliance with its Mining <br />Permit and its reclamation obligations pursuant thereto may be jeopardized, leading to <br />enforcement or other action by DRMS and other involved governmental agencies, with unknown <br />consequences for Western Fuels- Colorado, including orders, citations, injunctive relief or civil <br />penalties being entered against it. Delay of reclamation activities to a different growing season <br />may result in Western Fuels - Colorado having to continue such activities for additional years and <br />absorb additional but as yet unknown expenses, such as maintaining, irrigating, and otherwise <br />continuing to reclaim the Subject Lands. Similarly, delay of or interference with Western Fuels - <br />Colorado's activities on other nearby lands resulting from its inability to use the haul road may <br />result in damage to those activities that cannot be easily quantified or compensated. <br />33. A material portion of the damages, losses and other harm Western Fuels- Colorado <br />may suffer may not now or ever be estimated, proven or compensated. As a result, Western <br />Fuels- Colorado has no other plain, speedy and adequate remedy at law that will fully compensate <br />it aside from seeking declaratory and injunctive relief. On the other hand, not only will <br />defendant not suffer any damage from allowing Western Fuels- Colorado to complete <br />reclamation, but will instead be benefitted. Use of the haul road, as it has been used without <br />objection since the early 1990s, will not damage the Subject Lands in any respect. <br />34. The granting of permanent mandatory injunctive relief in favor of Western Fuels - <br />Colorado will serve the public interest. <br />100105064.1 } 6 <br />