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District Court, County Of Pitkin, State Of Colorado <br /> Case No. 97 CV 13 1-1 <br /> PTTKIN COUNTY'S ANSWER TO AMENDED THIRD-PARTY COMPLAINT <br /> Page 5 <br /> AFFIRMATIVE DEFENSES <br /> 60. The Amended Third-Party Complaint fails to state a claim upon which relief may be <br /> granted. <br /> 61. The Third-Party Plaintiffs have failed to join indispensable parties as required by <br /> C.R.C.P. 19. <br /> 62. The Third-Party Plaintiffs have failed to exhaust administrative remedies. <br /> 63. The Amended Third-Party Complaint is barred in whole or in part by waiver, <br /> estoppel and/or laches. <br /> 64. The Third-Party Plaintiffs have failed to mitigate alleged damages. <br /> 65. This Court lacks jurisdiction to hear all or part of the claims asserted in the Amended <br /> Third-Party Complaint, including, but not limited to, the Fifth Claim for Relief, which seeks an <br /> injunction against enforcement of the Reclamation Plan ordered as part of the bankruptcy court's <br /> Plan of Liquidation. <br /> 66. Third-Party Plaintiffs' claims for injunctive relief are barred by the doctrine of <br /> unclean hands, including Defendants' failure to accept a full market value offer for a portion of <br /> the property subsequently sold to Mid-Con Realty, L.L.C. due at least in part to the desire of <br /> MCR's principal, Robert Delaney, to control post-conveyance use of the property; Defendants' <br /> refusal to continue to work with the United States of America in connection with a plan for <br /> public acquisition of all of the Coal Basin property, due in part to Defendants' disagreement with <br /> reclamation of roads and structures insisted upon by the United States of America and included <br /> as part of the Reclamation Plan; and Defendants' self-created "hardship" in accepting a condition <br /> of conveyance which is directly contrary to accepting the Reclamation Plan. <br /> 67. Further review by Pitkin County is a condition precedent to any change in the <br /> Reclamation Plan, which condition Defendants have not satisfied. In particular, prior to <br /> bankruptcy, Defendant MCR operated its mine in Coal Basin under special use permits, approved <br /> by Pitkin County. The most recent permit was Resolution No. 86-139, a copy of which is <br /> attached as Exhibit 1 and incorporated by this reference. When active mining ceased, the permit <br /> was modified by Resolution No. 91-21, a copy of which is attached as Exhibit 2 and incorporated <br /> by this reference. These Resolutions recognize the authority of the DMG regarding reclamation <br /> 5 <br />