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a third party defendant since the debtor was the mining <br /> permittee and is also liable under Colorado law for <br /> reclamation. " <br /> b. In its present objection, the DMG states in a <br /> footnote that "special counsel will not be needed after <br /> any reclamation schedule is set . By demanding <br /> "immediate" reclamation of the mine in the DMG <br /> Litigation, which the defendants have pled "is barred by <br /> . . . impossibility of performance, " the DMG has placed <br /> the reclamation schedule at issue. Despite the DMG's <br /> Notices of Violation directing the Debtor to implement <br /> the reclamation plan, and despite the fact that the DMG <br /> has acknowledged that a "conceptual reclamation schedule" <br /> will span four years or more, the DMG apparently <br /> contemplates that the reclamation schedule will be <br /> resolved in the DMG Litigation without the participation <br /> of the Debtor as mining permittee. <br /> Other Considerations <br /> 22 . No other interested parties in the bankruptcy case <br /> have objected to the employment of special counsel for possible <br /> intervention in the DMG Litigation. It thus becomes clear that the <br /> Objection is merely an attempt by a litigant to gain advantage in <br /> litigation which it initiated, by attempting to prevent the Debtor <br /> from even employing counsel to represent the Debtor's interest. <br /> 23. Whether or not the Debtor should be permitted to <br /> intervene in the DMG Litigation is an issue which properly should <br /> be considered by the Pitkin County District Court, which presides <br /> over that litigation. The DMG is free to object to intervention in <br /> that court if and when the Debtor seeks to intervene. <br /> 24 . Finally, the DMG objects to the payment of a $20, 000 <br /> retainer to special counsel, stating that "to use cash collateral <br /> to pay a $20, 000 retainer prior to performance of services is not <br /> in the best interests of the estate. " The Debtor notes that <br /> neither Sanwa, the entity with an interest in cash collateral, nor <br /> the Unsecured Creditors ' Committee objected to the payment of the <br /> proposed retainer. The Debtor further notes that the Application <br /> to employ special counsel clearly stated that "Notwithstanding the <br /> payment of a retainer, the fees and expenses of Parcel Mauro, <br /> including but not limited to any draws on a retainer, shall be <br /> subject to prior review and authorization by this Court in <br /> accordance with applicable law. " Given the controls over <br /> disbursement of the retainer, the amount of the retainer is not <br /> particularly material. <br /> -6- <br />