2012-07-17_GENERAL DOCUMENTS - C1981008

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35. The balance of equities also favors the granting of prompt declaratory and permanent injunctive relief in favor of Western Fuels- Colorado for all of these reasons. 36. All prerequisites necessary to the bringing of this action have been satisfied or discharged. 37. Additional or different facts may be offered by amendment or through evidence submitted by way of motion, hearing or trial. FIRST CAUSE OF ACTION (Declaratory Judgment — C.R.C.P. 57) 38. Plaintiff incorporates by reference and re- alleges all of the allegations set forth in paragraphs 1 through 37 above. 39. District courts "shall have the power to declare rights, status, and other legal relations whether or not further relief is or could be claimed." C.R.C.P. 57(a). "This Rule is declared to be remedial; its purpose is to settle and afford relief from uncertainty and insecurity with respect to rights, status, and other legal relations; and it is to be liberally construed and administered." C.R.C.P. 57(k). 40. Here, a present dispute, case and controversy exists between the parties concerning their respective legal rights. Western Fuels - Colorado claims that it and its agents and contractors have a right to access and traverse the Subject Lands for purposes of conducting reclamation activities and other operations authorized by the Mining Permit and required by Exhibits J and L, as well as applicable Colorado law. The Mining Lease and Mining Permit by which Western Fuels - Colorado claims these rights relate to mineral interests beneath the Subject Lands and vest Western Fuels- Colorado with the right to conduct its legally- required activities without undue interference by the lessor. Western Fuels- Colorado also claims that the Mining Lease requires that defendant not interfere with Western Fuels- Colorado's use of water on the Subject Lands, whether through exercise of defendant's water rights or otherwise. Therefore, the use of defendant's water rights, through the term of the lease, has been subordinated to Western Fuels- Colorado's use of water associated with the mining and reclamation of defendant's Subject Lands and adjacent properties. 41. Pursuant to C.R.C.P. 57 and other law, this Court should issue a declaratory judgment declaring the rights of the parties regarding access to the Subject Lands for the purposes of conducting reclamation activities required by the Mining Permit and Colorado law as expressed by the DRMS in Exhibits J and L, and other activities authorized by the Mining Lease. 42. In particular, the Court should declare that the Mining Lease continue in its validity, force, and effect, that Western Fuels- Colorado continue to enjoy all of its rights under the Mining Lease, specifically including rights for Western Fuels- Colorado and its agents and contractors to access the Subject Lands for purposes of conducting the activities ordered by Exhibits J and L, and such others as DRMS may require from time to time, upon the Subject ;00105064.1 } 7