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DISTRICT COURT, DENVER COUNTY STATE OF COLORADO 1437 Bannock Street Room 256 Denver, Colorado 80202 XIUHTEZCATL

MARTINEZ, et al., Plaintiffs, v. STATE OF COLORADO, et al., Defendants, and MOUNTAIN STATES LEGAL FOUNDATION, Intervenor.

EFILED Document CO Denver County District Court 2nd JD Filing Date: Sep 26 2011 2:05PM MDT Filing ID: 40025535 Review Clerk: Charmaine Bright

COURT USE ONLY James M. Manley (Reg. No. 40327) MOUNTAIN STATES LEGAL FOUNDATION 2596 South Lewis Way Lakewood, Colorado 80227 (303) 292-2021 jmanley@mountainstateslegal.com Attorney for Intervenor MOUNTAIN STATES LEGAL FOUNDATIONS REPLY TO PLAINTIFFS RESPONSE IN OPPOSITION TO DEFENDANTS AND INTERVENORS MOTIONS TO DISMISS Case No.: 11CV4377 Division: 275

Intervenor, Mountain States Legal Foundation, (MSLF), by and through undersigned counsel, hereby files this reply to Plaintiffs Response In Opposition To Defendants And Intervenors Motions To Dismiss (hereinafter Pls. Resp.).1 Plaintiffs opposition to MSLFs Motion to Dismiss is unavailing for at least three reasons: (1) the public trust doctrine has no basis in Colorados statutes or its constitution; (2) Plaintiffs reliance on the common law public trust reveals a fundamental misinterpretation of the scope of the purported common law doctrine; and (3) Plaintiffs lack standing because they have failed to allege an injury resulting directly from Defendants actions. For these reasons, and those stated in MSLFs Motion to Dismiss, this Court should dismiss Plaintiffs Amended Complaint with prejudice. ARGUMENT I. THE PURPORTED PUBLIC TRUST DOCTRINE CANNOT SUPPORT PLAINTIFFS CLAIM. In order to state a claim for relief, Plaintiffs must allege an actual injury to a legally protected interest as contemplated by statutory or constitutional provisions. Wimberly v. Ettenberg, 570 P.2d 535, 539 (Colo. 1977). In a vain attempt to comply with this constitutionally mandated pleading requirement, Plaintiffs reiterate the baseless allegations contained in their Compliant regarding the preamble to the Colorado Constitution and Title 33 of

Plaintiffs request oral argument, Pls. Resp. at 1, but MSLF respectfully submits that oral argument is unnecessary in this case. Plaintiffs claim is plainly unsupported by Colorado law and the injuries alleged in Plaintiffs Amended Complaint are insufficient on their face to state a claim for relief. 2

the Colorado Revised Statutes. See Pls. Resp. at 14. Plaintiffs also cite inapposite precedent from other jurisdictions. Id. at 1920. Plaintiffs are grasping at straws. A. The Purported Public Trust Doctrine Is Without Basis In Colorado Law.

The weakness of Plaintiffs claim is revealed by the fact that it relies on the general welfare clause of the preamble to the Colorado Constitution. The preamble to the Colorado Constitution, like that of the Federal Constitution, is without independent legal significance. District Landowners Trust v. Adams County, 89 P.2d 251, 253 (Colo. 1939) (As to the preambles, they may not be invoked apart from specific provisions of the constitutions to invalidate a statute.); see also Jacobson v. Commonwealth of Massachusetts, 197 U.S. 11, 13 (1905) (Although that preamble indicates the general purposes for which the people ordained and established the Constitution, it has never been regarded as the source of any substantive power . . . .). Plaintiffs fail to address the fundamental inadequacy of a claim for relief grounded solely in the Colorado Constitutions preamble. Pls. Resp. at 14. Accordingly, Plaintiffs cannot base their claim on the goal to promote the general welfare expressed by the preamble. The statutory provisions Plaintiffs cite provide no more support for their claim than does the preamble. The statutes cited are narrowly tailored to address state parks, C.R.S. 33-10-101, Colorado Natural Areas, C.R.S. 33-33-102, and wildlife harvesting and management, C.R.S. 33-1-101. Pls. Resp. at 1415. These statutes have no connection to Plaintiffs claim for relief. The statutes cited by Plaintiffs make no mention of the atmosphere and do nothing to

establish the broad, generalized duties Plaintiffs believe are encompassed by the so-called atmospheric public trust. Instead, the statutes cited set out general goals for the management of the particular resources governed by the three statutes. Tellingly, Plaintiffs have not alleged that any duty imposed by these statutes has been violated; instead, their claim for relief depends entirely upon the purported common law public trust theory. The Colorado Supreme Court has explicitly and repeatedly rejected the purported common law public trust doctrine. People v. Emmert, 597 P.2d 1025, 1027 (Colo. 1979); see Aspen Wilderness Workshop, Inc. v. Colorado Water Conservation Bd., 901 P.2d 1251, 1263 (Colo. 1995) (Mullarkey, J., dissenting) (This court has never recognized the public trust doctrine with respect to water.). Plaintiffs acknowledge that they seek a change in the common law rule in an attempt to breathe life into the public trust doctrine . . . . Am. Compl. 97. The legislature, not the judiciary, is the proper forum for the sort of drastic changes Plaintiffs seek. Emmert, 597 P.2d at 1027 (If a change in long established judicial precedent is desirable, it is a legislative and not a judicial function to make any needed change.) (quoting Smith v. People, 206 P.2d 826, 832 (Colo. 1949)). Because Plaintiffs claim lacks any basis in Colorados statutes, Constitution, or case law, they have failed to allege an actual injury to a legally protected interest as contemplated by statutory or constitutional provisions. Wimberly, 570 P.2d at 539; Bd. of County Comrs of County of Adams v. Colorado Dept. of Pub. Health & Envt, 218 P.3d 336, 338 (Colo. 2009); State Bd. for Community Colleges and Occupational Educ. v. Olson, 687 P.2d 429, 434 (Colo. 1984). Accordingly, Plaintiffs have failed to state a claim for relief and this Court should dismiss Plaintiffs Amended Complaint with prejudice. 4

B.

Out-Of-State Precedent Does Not Support Plaintiffs Claim.

Because Colorado has never recognized the public trust doctrine, Plaintiffs attempt to draw support from the case law of other jurisdictions. See Pls. Resp. at 19. The problem with this approach is twofold: (1) legislative or constitutional enactments establishing public trust duties in these other jurisdictions have no equivalent in Colorado law; (2) none of these cases applies the public trust to the atmosphere. Plaintiffs own authorities illustrate both of these problems. For example, Plaintiffs cite Baxley v. State, 958 P.2d 422, 434 (Alaska 1998), which declined to apply the public trust doctrine, but noted that the doctrine derives from the Alaska Constitutions guarantee of common use of fish, wildlife, and waters. Id. (citing McDowell v. State, 785 P.2d 1, 16 (Alaska 1989)). Plaintiffs also rely on In re Water Use Permit Applications, 9 P.3d 409, 44344 (Hawaii 2000), which held that article XI, section 1 and article XI, section 730 [of the Hawaii Constitution] adopt the public trust doctrine as a fundamental principle of constitutional law in Hawaii. The California cases Plaintiffs cite likewise apply a public trust doctrine related to water, which is derived from Californias statutes and constitution. See Marks v. Whitney, 491 P.2d 374, 379 (Cal. 1971) (citing Forestier v. Johnson, 127 P. 156, 160 (Cal. 1912) (citing Cal. Const. art. XV, 2)). Thus, Plaintiffs own authorities teach that the public trust doctrine relies in large part on statutory and constitutional recognition for its force and effect and does not apply to the atmosphere. As demonstrated above, the Constitution, statutes, and case law of Colorado do not recognize the public trust doctrine. This is in stark contrast to those jurisdictions pointed to by Plaintiffs that have enacted public trust duties through statute or constitutional provision. 5

Accordingly, the change Plaintiffs seek to Colorados long established judicial precedent of not recognizing the public trust doctrine is a legislative and not a judicial function . . . . Smith, 206 P.2d at 832. Plaintiffs have thus failed to allege an actual injury to a legally protected interest as contemplated by statutory or constitutional provisions. Wimberly, 570 P.2d at 539. Accordingly, Plaintiffs have failed to state a claim for relief and this Court should dismiss Plaintiffs Amended Complaint with prejudice. C. Ancient Common Law Does Not Support Plaintiffs Atmospheric Public Trust Theory.

Faced with a lack of support for their claim in Colorado law and a lack of relevant precedent from other jurisdictions, Plaintiffs turn to ancient common law to conjure an atmospheric public trust duty. Plaintiffs theorythat the public trust encompasses a freestanding common law duty owed generally to the people by the Statedepends on a tortured misinterpretation of history. See Pls. Resp. at 6. The history of the common law reveals no support for Plaintiffs argument that Defendants must regulate carbon emissions in a way that is consistent with Plaintiffs preferred course of action. Plaintiffs misunderstanding of the public trust begins with their selective quotation of the codification of the doctrine in Justinians Institutes. Id. Plaintiffs frame the public trust theory as deriving from public ownership of certain resources: The things which are naturally everybodys are: air, flowing water, the sea, and the sea-shore. Id. (quoting Caesar Flavius Justinian, The Institutes of Justinian, Book II, Title I, Of the Different Kind of Things (533)). This, however, is a misleadingly incomplete quotation of Justinian. The full quotation makes clear that the doctrine espoused by Justinian was a rule of appropriation, not preservation:

Things common to mankind by the law of nature, are the air, running water, the sea, and, consequently, the shores of the sea; no man therefore is prohibited from approaching any part of the seashore whilst he abstains from damaging farms, monuments, [and buildings], which are not in common as the sea is. James L. Huffman, Speaking of Inconvenient TruthsA History of the Public Trust Doctrine, 18 Duke Envtl. L. & Poly F. 1, 14 (2007) (hereinafter Inconvenient Truths) (substitution in original) (quoting Justinian, The Institutes of Justinian 2.1.1 (Thomas Cooper trans. & ed., 1841)).2 This full quotation of Justinian shows that farms, monuments, [and buildings], which are not in common were built in the seashore, in apparent conflict with the idea of common ownership. Scholars of Roman law have described this passage as revealing, [A] sentiment, primarily Stoic and philosophical, that unless and until a private person or the state required exclusive control of the resource, the sea and shore should be open for the use of all. . . . However, to concentrate on this aspect of Roman law to the exclusion of its complementsstate grants of exclusive rights and individual acquisition of ownership by occupationis to misunderstand the Roman law and to ignore the economic realities of the time. id. at 1415 (quoting Patrick Deveney, Title, Jus Publicum, and the Public Trust: An Historical Analysis, 1 Sea Grant L. J. 13, 2122 (1976)). Thus, an accurate account of history shows that the public trust as Plaintiffs conceive of it cannot be traced from Roman Law. Pls. Resp. at 6. Rather, Roman law viewed the things common to mankind as open to acquisition by individuals, not assets held in trust for perpetuity by the state. Nor is the public trust as Plaintiffs imagine it a creature of English law. Rather, the English rule, adopted by some founding era state courts, allowed the Crown to grant private rights in navigable waters. Huffman, Inconvenient Truths at 20. This view of the public trust is

Plaintiffs do not identify upon which translation of Justinian they rely. However, the 1841 Cooper translation quoted by Professor Huffman is substantively similar to the like portion of the quotation reproduced by Plaintiffs. 7

reflected in early American cases, which confirmed a States authority to make grants of public trust resources as necessary to achieve the States public policy goals. See, e.g., Den v. Assn of the Jersey Co., 56 U.S. 426, 43233 (1853) (upholding a claim to reclaimed tidal lands based upon a grant from the New Jersey legislature); Gough v. Bell, 22 N.J.L. 441, 459 (N.J. 1850) (holding that the State may make private grants destructive to some extent of common rights.). The modern American rule likewise allows the States to alienate trust resources as they see fit. Phillips Petroleum Co. v. Mississippi, 484 U.S. 469, 475 (1988) (citing Shively v. Bowlby, 152 U.S. 1, 26 (1894)). By quoting selectively from the Supreme Courts decision in Illinois Cent. R. Co. v. State of Illinois, 146 U.S. 387, 45355 (1892), Plaintiffs attempt to obscure the fact that the States have wide discretion to manage trust resources under the modern American interpretation of the public trust. See Pls. Resp. at 17, 50. In fact, the Illinois Central Court explicitly acknowledged that the State may abdicate its trust over property . . . when parcels can be disposed of without impairment of the public interest. Illinois Cent., 146 U.S. at 453. Plaintiffs conveniently excise this qualification from their discussion of Illinois Central, thereby recasting the Courts decision to suit their purposes. The fact of the matter is that Illinois Central is consistent with the longstanding rule that the States can manageand abdicate control overtrust resources in order to achieve public policy goals. Thus, Plaintiffs rely on an elaborate historical fiction to reach the conclusion that the public trust doctrine imposes a duty on the State of Colorado to manage the atmosphere in the way Plaintiffs desire. Rather, the notion that the common law public trust imposes such a duty on States is a modern invention of environmental activists. See Joseph L. Sax, The Public Trust 8

Doctrine in Natural Resource Law: Effective Judicial Intervention, 68 Mich. L. Rev. 471 (1970). History is clear: the public trust doctrine does very little to constrain the States authority to manage trust assets. Thus, even assuming that the public trust theory applied to the atmosphere, Colorado would still be free to balance protection of the atmosphere against other important public policy goals, such as economic development. The State has endeavored to achieve just such a balance between environment and economy. See, e.g., C.R.S. 25-7-101 et seq. Accordingly, Plaintiffs public trust claim is without basis in law and Plaintiffs therefore lack standing to sue. Wimberly, 570 P.2d at 539. This Court should thus dismiss Plaintiffs Amended Complaint with prejudice. II. PLAINTIFFS HAVE NOT ALLEGED JUDICIALLY COGNIZABLE INJURIES. Even if Plaintiffs claim had any basis in law, Plaintiffs would still have to allege an injury that is the direct result of Defendants actions in order to state a claim for relief. [T]he whole question is whether the damage claimed springs directly to plaintiff from defendants. Wimberly, 570 P.2d at 538 (citation omitted). It is not sufficient to allege an injury that is the indirect and incidental result of the challenged action. Id. at 539; Cloverleaf Kennel Club, Inc. v. Colorado Racing Commn, 620 P.2d 1051, 1055 (Colo. 1980). Plaintiffs have not alleged injuries that are the direct result of Defendants actions. A. Plaintiffs Have Alleged Only Indirect, Generalized Injuries.

Plaintiffs alleged injuries are the sort of generalized, indirect injuries that cannot support standing. See Wimberly, 570 P.2d at 538. Essentially, Plaintiffs allege two distinct injuries: (1) injury to the atmosphere caused by Defendants failure to protect the public trust; and (2)

injury to their recreational interests caused by the carbon emissions of third parties. See Pls. Reps. at 29. Thus, the only harm that Plaintiffs allege that is the direct result of Defendants actions is generalized harm to the environment. If such generalized harm were sufficient to support standing, the injury in fact requirement of Wimberly would be eviscerated. See Summers v. Earth Island Inst., 555 U.S. 488, ___, 129 S.Ct. 1142, 1149 (2009) (an allegation of harm to the environment, in and of itself, will not support standing); Friends of the Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc., 528 U.S. 167, 181 (2000) (The relevant showing for purposes of Article III standing . . . is not injury to the environment but injury to the plaintiff.); Sierra Club v. Morton, 405 U.S. 727, 734736 (1972) (rejecting the idea that an interest in protecting the environment alone could establish standing). Accordingly, Plaintiffs lack standing because they have failed to allege a particularized injury that is the direct result of Defendants actions. The cases on which Plaintiffs rely regarding the public trust in other States only help to highlight the deficiency of Plaintiffs Complaint. In those cases, plaintiffs could show direct harm caused by the State, either because the State was transferring water into private ownership, National Audubon Society v. Superior Court, 658 P.2d 709, 712 (Cal. 1983), or preventing the public from accessing public lands, Pele Defense Fund v. Paty, 837 P.2d 1247, 1258 (Hawaii 1992). Under the atmospheric public trust theory as proposed by Plaintiffs, the injury in fact requirement of Wimberly would be met by any plaintiff who alleges that the atmosphere is being mistreated in some way, by some person, somewhere. Such a standard falls far short of the kind of direct, particularized injury the Colorado Supreme Court has held to be required to prove

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standing. Wimberly, 570 P.2d at 538 ([T]he whole question is whether the damage claimed springs directly to plaintiff from defendants.); Cloverleaf Kennel Club, Inc., 620 P.2d at 1055. Plaintiffs rely on Pub. Interest Research Grp. of N.J. v. Powell Duffryn Terminals, 913 F.2d 64, 72 (3d Cir. 1990), and Center for Biological Diversity v. National Highway Traffic Safety Admin., 538 F.3d 1172, 1217 (9th Cir. 2008), for the proposition that their alleged injuries need not be the direct result of Defendants actions. See Pls. Resp. at 26. These cases are inapposite. Center for Biological Diversity concerns the federal regulatory requirement that agencies consider the cumulative impacts of their actions. See 538 F.3d at 1217 (citing 40 C.F.R. 1508.7). Obviously, the requirements of 40 C.F.R. 1508.7 do not apply to the State of Colorado and Center for Biological Diversity has no application in this litigation. Powell Duffryn offers no more support for Plaintiffs position. In that case, the Third Circuit held that Clean Water Act (CWA) plaintiffs must demonstrate they are more than concerned bystanders, by showing there is a substantial likelihood that defendants discharged pollution into a discrete water body used by the plaintiffs. 913 F.2d at 6869, 72 (quoting Duke Power Co. v. Carolina Environmental Study Group, Inc., 438 U.S. 59, 75 n.20 (1978)); see also, e.g., Friends of the Earth, Inc. v. Gaston Copper Recycling Corp., 204 F.3d 149, 156162 (4th Cir. 2000) (en banc) (discharge into a waterbody upstream from a private lake); Sierra Club v. Cedar Point Oil Co., 73 F.3d 546, 550 (5th Cir. 1996) (discharge into the Galveston Bay); Natural Res. Def. Council v. Watkins, 954 F.2d 974, 97677 (4th Cir. 1992) (discharge into a tributary of Savannah River).

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Powell Duffryns CWA contributor theory however, has no application in the instant case because there is no discrete area. Cf. Lujan v. National Wildlife Federation, 497 U.S. 871, 889 (1990) ([A]verments which state only that one of respondents members uses unspecified portions of an immense tract of territory, on some portions of which [regulated] . . . activity has occurred or probably will occur by virtue of the governmental action, are insufficient to show that the members rights have been adversely affected or aggrieved by Government action.). The relevant area in the instant case is the Earths atmosphere. Because of the immense size of the Earths atmosphere it is utterly unreasonable to presume causation. Indeed, to take Plaintiffs theory at face value would mean that every person on Earth was within the discharge zone and would have standing to sue to enforce the atmospheric public trust in Colorado State Court. Plaintiffs only alleged injuries are at best the indirect and incidental result of Defendants action. Wimberly, 570 P.2d at 539. Plaintiffs have thus not alleged injuries that are the direct result of Defendants actions and they have therefore failed to state a claim for relief. Wimberly, 570 P.2d at 538; Cloverleaf Kennel Club, Inc. v. Colorado Racing Commn, 620 P.2d 1051, 1055 (Colo. 1980). B. Plaintiffs Reliance On Massachusetts v. EPA Is Misplaced.

Plaintiffs rely on Massachusetts v. EPA, 549 U.S. 497 (2007), for the proposition that there exists a generalized right to sue to address the perceived causes of global climate change. See Pls. Resp. at 24. The holding in Massachusetts is far narrower than Plaintiffs suggest and that case does nothing to alleviate Plaintiffs lack of standing.

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In Massachusetts, the Supreme Court held that the State of Massachusetts had standing to challenge the decision of the Environmental Protection Agency not to regulate greenhouse gas emissions from new motor vehicles under the Clean Air Act (CAA). 549 U.S. at 526. That Congress ha[d] authorized this type of challenge in the CAA was of critical importance to the Courts standing analysis. Id. at 516. Recognizing that a plaintiff normally must meet the immutable requirements of standing, id. at 517, the Court relied on the procedural right in the CAA to find that Congress had exercised its power to define injuries and articulate chains of causation that will give rise to a case or controversy where none existed before. Id. at 516 (quotation omitted); id. at 51718 ([A] litigant to whom Congress has accorded a procedural right . . . can assert that right without meeting all the normal standards for redressability and immediacy[.]) (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 572 n.7 (1992)). Here, Plaintiffs have not been granted a procedural right akin to that conferred by the CAA, because Plaintiffs claim rests on a common law atmospheric public trust theory of their own devising. Accordingly, Massachusetts has no application in this litigation.3 Plaintiffs are in the same position as other litigants who, post-Massachusetts, have failed to prove standing absent a statutorily granted procedural right. For example, in Center for Biological Diversity v. U.S. Department of the Interior, 563 F.3d 466 (D.C. Cir. 2009), environmental groups challenged an offshore oil and gas leasing program on both substantive

In Massachusetts, the Court also noted that it was of considerable relevance that the party seeking review here is a sovereign State and not . . . a private individual. In other words, when a State sues in its sovereign capacity, it is entitled to special solicitude in our standing analysis. Id. at 51920; see also Connecticut v. Am. Elec. Power Co. Inc., 582 F.3d 309, 33738 (2d Cir. 2009), revd on other grounds and remanded, 131 S.Ct. 2526 (2011). In the case at hand, however, no Plaintiff is a State, and therefore, the relaxed standing requirements of Massachusetts do not apply. 13

and procedural grounds. Id. at 47172. The groups argued that the federal agency had failed to consider the global climate change consequences purportedly associated with the program. Id. at 475. The D.C. Circuit ruled that the groups lacked standing to challenge the leasing program on substantive grounds because their alleged injury from global climate change was too general.4 Id. at 478. It also ruled that, even if the groups would have been able to show a judicially cognizable injury, they still would lack standing because they could not establish a causal link between the agency action and the alleged injury. Id. at 47879. The D.C. Circuit properly rejected the plaintiffs attenuated casual chain because it relied on the speculation that various different groups of actors not present in th[e] casenamely, oil companies, individuals using oil in their cars, cars actually dispersing carbon dioxidemight act in a certain way in the future. Id. at 479. Similarly, in an unsuccessful challenge to oil and gas lease sales in New Mexico, the plaintiffs alleged injuries purportedly caused by global climate change. Amigos Bravos v. U.S. Bureau of Land Management, 2011 WL 3924489, *1 (D.N.M. 2011). The injuries alleged by the Amigos Bravos plaintiffs included, earlier winter snow melt, shorter spring runoffs, . . . decreased water quality, . . . changes to aquatic habitats, . . . increased tree mortality due to beetle infestation, . . . and negative public health impacts. Id. at *5. These alleged injuries are similar to the injuries alleged by Plaintiffs in this case. Compare id. with Pls. Resp. at 2425.5 The District Court held that such injuries were insufficient to confer standing, because Plaintiffs

The D.C. Circuit ruled that the plaintiffs only had standing to challenge procedural violations of certain statutes. Id. at 479.
5

The plaintiffs in Amigos Bravos also alleged a number of other injuries that Plaintiffs in this case have not allegedly suffered. 14

paint a bleak picture of the future of New Mexicos environment, but their allegations are not sufficiently reliable or trustworthy to establish injury-in-fact. Id. at *6. The District Court recognized that measuring injury-in-fact with respect to global climate change involves both constitutional and prudential considerations: With climate change, the Court must enforce some limits on what constitutes an injury-in-fact; otherwise, it would be overwhelmed by a flood of lawsuits asserting generalized grievances against polluters large and small. Article IIIs standing requirement was designed to prevent just this sort of occurrence, limiting disputes to those which are appropriately resolved through the judicial process, as opposed to legislative or executive action. Id. at *10 (quoting Whitmore v. Arkansas, 495 U.S. 149, 155 (1990)). Plaintiffs have no procedural rights granted by any statute that could modify the basic requirements of standing in this case. Instead, they rely on the same attenuated causal chain rejected by various federal courts as a basis for standing. Accordingly, Plaintiffs have failed to allege a particularized injury that is the direct result of Defendants actions and they therefore lack standing. CONCLUSION For the foregoing reasons, and those stated in its Motion to Dismiss, MSLF respectfully requests that this Court dismiss Plaintiffs Amended Complaint with prejudice.

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DATED this 26th day of September 2011. Respectfully Submitted:

/s/ James M. Manley James M. Manley, Esq. MOUNTAIN STATES LEGAL FOUNDATION 2596 South Lewis Way Lakewood, Colorado 80227 Telephone: (303) 292-2021 Facsimile: (303) 292-1980 jmanley@mountainstateslegal.com

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CERTIFICATE OF SERVICE I certify that on the 26th day of September 2011, the foregoing document was filed with the Court and true and accurate copies of same were served on all other counsel of record via LexisNexis File and Serve: Ashley D. Wilmes WildEarth Guardians 827 Maxwell Avenue, Ste. L Boulder, CO 80304 wilmeslegal@gmail.com James J. Tutchton WildEarth Guardians 6439 E. Maplewood Ave. Centennial, CO 80111 jtutchton@wildearthguardians.org Attorneys for Plaintiffs

John W. Suthers Casey A. Shpall Andrea Gelfuso Goetz Natural Resources & Environment Section 1525 Sherman Street, 7th Floor Denver, CO 80203 Telephone: (303) 866-5069, (303) 866-500 FAX: (303) 866-355 casey.shpall@state.co.us andrea.goetz@state.co.us Attorneys for Defendants

/s/ James M. Manley James M. Manley

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