1999-04-26_GENERAL DOCUMENTS - C1981017

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contract arena, is a contract claim. Centennial Square, Ltd v. Resolution Trust Co., 815 P.2d 1002, 1004 (Colo. App. 1991). Once again, DMG's argument is without merit, and therefore, MCR's Fourth Claim for Relief should not be dismissed. VI. MCR'S SIXTH CLAIM FOR RELIEF SHOULD NOT BE DISMISSED A. MCR is Not Required to Continue Through Further Administrative Proceedin;s Because To Do So Would be Futile DMG argues that MCR's Sixth Claim for Relief, regarding responsibility for cleaning ponds that are covered by a permit currently in the name of MCR, should be dismissed because of MCR's failure to exhaust administrative remedies. However, as DMG acknowledges, there is an exception to this rule if pursuit of those administrative remedies would be futile. State of' Colorado v. Goldens Concrete Co., 962 P.2d 919, 923-24 (Colo. 1998). Such is the case here. Attached to this response as Exhibits M, N, O and P are letters dated June 8, 1995, August 11, 1995, February 9, 1996 and August 14, 1996 from the Colorado Department of Public Health and Environment ("CDPHE") to MCR in which CDPHE consistently takes the position that MCR must continue to be responsible for the sediment ponds and outfalls even after DMG took over the site. DMG states in its Motion to Dismiss at page 16 that there is no indication that it would be futile for the agency to review this issue. On the contrary, there is no indication at all that CDPHE or DMG will change their long held position that MCR must continue to take responsibility for discharge points and sediment ponds. B. A Live Controversy Exists Making Declaratory Relief Appropriate DMG's final argument is that there is no controversy between the parties regarding the discharge permits and therefore, MCR's Sixth Claim for Relief must be dismissed. However, as demonstrated by Exhibits M, N, O and P attached, there is indeed a significant controversy. MCR 15