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Motion to Dismiss

Motion to Dismiss

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Published by boulderlaw
MOUNTAIN STATES LEGAL FOUNDATION’S MOTION TO DISMISS
MOUNTAIN STATES LEGAL FOUNDATION’S MOTION TO DISMISS

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Published by: boulderlaw on Jul 02, 2013
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01/23/2014

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DISTRICT COURT, DENVER COUNTYSTATEOFCOLORADO1437 Bannock StreetRoom 256Denver, Colorado 80202XIUHTEZCATLMARTINEZ,etal.,Plaintiffs,v.STATE OF COLORADO, et al.,Defendants,andMOUNTAINSTATESLEGALFOUNDATION,Applicant for Intervention.COURT USE ONLYJames M. Manley (Reg. No. 40327)MOUNTAIN STATES LEGAL FOUNDATION2596 South Lewis WayLakewood, Colorado 80227(303) 292-2021 jmanley@mountainstateslegal.comAttorney for Applicant for InterventionCaseNo.:11CV4377Division:275
MOUNTAIN STATES LEGAL FOUNDATION’SMOTION TO DISMISS
COMES NOW, Applicant for Intervention, Mountain States Legal Foundation(“MSLF”), by and through undersigned counsel, and hereby moves, pursuant to C.R.C.P.12(b)(5), to dismiss Plaintiffs’ Amended Complaint for failure to state a claim upon which relief 
 
2can be granted.
1
As demonstrated below, Plaintiffs lack standing to bring this action. Their claim for relief is without basis in Colorado law and they have failed to allege an injury resultingdirectly from Defendants’ actions. Therefore, this Court should dismiss Plaintiffs’ AmendedComplaint with prejudice.
INTRODUCTION
On May 4, 2011, several individuals and WildEarth Guardians (“Plaintiffs”) initiated thislawsuit against the State of Colorado, the Governor, and a number of state agencies(“Defendants”), alleging that Defendants have contributed to global warming by failing to“reduce Colorado’s fair share of annual CO
2
emissions, in order to draw down atmospheric CO
2
to less than 350 ppm by the end of this century.” Am. Compl. ¶ 68. Plaintiffs raise a singleclaim for relief: Defendants’ alleged failure to reduce Colorado’s “fair share” of carbonemissions allegedly damages the atmosphere and therefore violates Defendants’ heretoforeunheard of “public trust” duties.
 Id 
. Plaintiffs seek a declaration that “the public trust doctrine isoperative in Colorado, and pursuant to this doctrine,” a declaration that Defendants must“significantly reduce” carbon emissions and greenhouse gas emissions in the State. Am. Compl.at 30. Plaintiffs seek to entangle the courts in a policy debate more appropriate to the political branches. Fortunately, this Court may avoid this entanglement because Plaintiffs lack of standing.
1
On July 13, 2011, MSLF filed a Motion to Intervene in this case, in which MSLF stated itsintention to comply with the July 29, 2011, deadline for responsive pleadings and motions set bythe Court. On July 28, 2011, Plaintiffs filed an objection and response to MSLF’s Motion toIntervene. Defendants do not oppose MSLF’s Motion to Intervene. MSLF’s Motion toIntervene is still pending and MSLF intends to file a reply to Plaintiffs’ objection and responsewithin the time allowed by C.R.C.P. 121, § 1-15(1).
 
3
ARGUMENTI.STANDARD OF REVIEW.
When reviewing a motion to dismiss for failure to state a claim, the material factualallegations in the complaint must be accepted as true.
 Public Service Co. of Colorado v. VanWyk 
, 27 P.3d 377, 386 (Colo. 2001) (citation omitted). In determining whether standing has been established, the court likewise must accept the truth of the material factual allegations madein the complaint.
State Bd. for Community Colleges and Occupational Educ. v. Olson
, 687 P.2d429, 434 (Colo. 1984);
Colorado General Assembly v. Lamm
, 700 P.2d 508, 516 (Colo. 1985)(“A decision that a plaintiff lacks standing because the claimed injury does not infringe anylegally protected right of the plaintiff may be viewed as equivalent to a holding that the plaintiff has failed to state a claim upon which relief may be granted.”). “The question of standinginvolves a consideration of whether a plaintiff has asserted a legal basis on which a claim for relief can be predicated.”
 Romer v. Board of County Commissioners
, 956 P.2d 566, 572 (Colo.1998).Accepting all of the allegations in the Amended Complaint as true, Plaintiffs have failedto show that they have standing to raise their asserted claim. As demonstrated herein, Plaintiffshave suffered no injuries as a direct result of Defendants’ actions and, importantly, there is no basis in Colorado law for Plaintiffs’ alleged “public trust” claim. Accordingly, Plaintiffs’Amended Complaint should be dismissed with prejudice.
II.PLAINTIFFS LACK STANDING.
Plaintiffs have failed to allege a judicially cognizable injury to a legally protected interestthat is the direct result of Defendants’ conduct. Accordingly, they lack standing and the instant

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