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45. MCR and the Creditors'Trustee have been damaged by the actions of DMG because <br /> less money will be available for payment of residual claims pursuant to Plan Section 4.3.5. The amount <br /> of damages will be proven at trial. <br /> FIFTH CLAIM FOR RELIEF <br /> (Injunction) <br /> 46. MCR and Creditors' Trustee hereby incorporate all prior averments as if set forth in <br /> full. <br /> 47. Some of the real property subject to the Reclamation Plan in Coal Basin has been and <br /> will remain private property. <br /> 48. In particular, DMG proposes to raze and destroy the rock tunnel's lamp house, its <br /> power lines, a metal building near the former Preparation Plant, access roadways, culverts for stream <br /> crossings and a water tank all on property currently owned by Midcon Realty, LLC, a Colorado limited <br /> liability company. <br /> 49. Midcon Realty, LLC has expressed a desire to use the improvements for post-mining <br /> uses and does not want them destroyed. The Creditors' Trustee transferred the property to Midcon <br /> Realty, LLC on the express condition that the Creditors' Trustee would protect property values by <br /> preventing destruction of improvements required for post mining uses. <br /> 50. Thus, DMG's use of reclamation funds to destroy such improvements will be a <br /> waste of those funds. <br /> 51. Because the improvements are on real property, destruction of the improvements <br /> will cause irreparable harm and there is no adequate remedy at law. <br /> 52. Restraining the destruction of the improvements will be in the public interest. <br /> 53. The balance of the equities favors such an injunction. <br /> SIXTH CLAIM FOR RELIEF <br /> (Declaratory Judgment) <br /> 54. MCR and Creditors'Trustee hereby incorporate all prior averments as if set forth in <br /> full. <br /> 55. Despite DMG's takeover of the Coal Basin reclamation work from and after July <br /> 18, 1994, MCR remains permitee of record for CDPS-CO-0000396. <br /> AMENDED <br /> -8- <br /> CI\I,No. 97 cv 131-3 THIRD-PARTY COMPLAINT <br />