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reclamation as it sees fit, citing United,States v. Nave o Freight Lines, Inc., 339 F.Supp. 554 (D. <br /> Colo. 1970-, Litvak Meat Co. v. Denver Union Stockyard C'o., 303 F.Supp. 715 (D. Colo. 1969) and <br /> Heron v. City of Denver, 1 )1 Colo. 501, 283 P.2d 647 (1955). However, none of those cases <br /> applies to the current dispute. In each of those cases, the government was regulating private <br /> activities pursuant to specific regulatory and statutory schemes. Here, DMG is not regulating <br /> private activity at all, rather it is performing reclamation work with funds received from MCR's <br /> bankruptcy estate that are to be expended pursuant to the specific terms of MCR's Liquidation Plan. <br /> Even assuming, arguendo, that DMG should be accorded wide discretion in its reclamation <br /> activities, the Court can and should hold DMG in check when it abuses its discretion. Colorado <br /> Real Estate Commission v. Hanegan, 947 P.2d 933, 935 (Colo. 1997). Attached as Exhibit L is a <br /> summary report from MCR's reclamation experts, Greg Lewicki and Michael S. Savage <br /> summarizing a few of the instances of DMG's waste of bankruptcy fiends and lack of compliance <br /> with the Reclamation Plan. <br /> Finally, DMG cites State Personnel Board v. Lloycl, GILD., 752 P.2d 559 (Colo. 1988). <br /> Again, this case has no application to the instant matter because that case was decided on the <br /> plaintiffs failure to follow the notice provisions under the applicable statute. <br /> In summary, none of the cases cited by DMG has facts analogous to this situation where the <br /> State has fully participated in a bankruptcy Liquidation Plan and then actually become the actor <br /> itself by taking over the reclamation of the project. Consequently, DMG's position is baseless and <br /> its Motion should be denied. <br /> D. MCR's Fourth Claim is not Barred by Sovereign Immunity <br /> MCR's Fourth Claim for Relief is for breach of duty of good faith and fair dealing for <br /> DMG's failure to perform reclamation in a reasonable and economic manner. For all the reasons <br /> 13 <br />