1999-04-26_GENERAL DOCUMENTS - C1981017

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� r I. INTRODUCTION After frilly invoking the judicial system by appearing in MCR's bankruptcy case, taking an ID active role in negotiating the terms of MCR's Liquidation Plan, obtaining $3 million in cash and credits for reclamation from the Bankruptcy Plan and finally taking over and performing reclamation, DMG now asserts that its actions are beyond judicial review. In support of its argument that it is immune from some of the claims brought by MCR, DMG is forced in its Motion to Dismiss to misconstrue significant law cited while omitting pertinent law altogether, some of-it from this very lawsuit. DMG's arguments are simply not meritorious and therefore, its Motion to Dismiss should be denied. H. DMG IS BOUND BY THE RECLAMATION PLAN DMG starts its Motion to Dismiss with a tortured argument that the Bankruptcy Liquidation Plan didn't really include the Reclamation Plan found in Mid-Continent's permit because the word "incorporates" was not actually used in the Liquidation Plan,and because the Reclamation Plan was not specifically filed with, or approved by, the bankruptcy court as part of the approval of the Liquidation Plan. As DMG acknowledges, "Reclamation Plan" is defined by the Liquidation Plan as the "Debtor's reclamation plan for the Mine Site submitted pursuant to the Colorado Surface Coal Mining Reclamation Act, C.R.S. Title 34, Article 33, as approved by the MLRB [Mine Land Reclamation Board] in permit C-81-017 and governed by the terms of that Act". (Liquidation Plan paragraph 1.32.) Since the State of Colorado approved the permit and DMG negotiated the Liquidation Plan in which this language appears, it is disingenuous of DMG to now argue that the Reclamation Plan no longer governs reclamation of Coal Basin. The permit referred to in paragraph 1.32 consists of approximately eleven three inch thick loose leaf notebooks as well as additional voluminous changes and amendments that were