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04/08/99 10:13 FAX 3037962777 BURNS FIGA & WILL 0 003 <br /> BURNS, FIGA & WILL, P.C. <br /> Cheryl A. Linden,Esq. <br /> April 8, 1999 <br /> Page 2 <br /> The county does not need the shelter of this Court to enforce its rights under the <br /> Plan as they are enforceable in the state court. . . All of the creditors had notice <br /> and are bound by the Plan's language which permits the County to exercise those <br /> rights and remedies in the state courts. . . The Court notes that the 10th Circuit <br /> recognizes a confirmed plan is like a contract_ Paul v. Monts, 906 F.2d 1468, <br /> 1476 (10' Cir. I990). The Bankruptcy Code's enforcement and modification <br /> provisions pertaining to Chapter 11 plans do not preempt a claim outside of the <br /> bankruptcy court for breach of contract premised on the plan of reorganization. <br /> Id.; see generally, In re BankEast Corp. 142 B.R. 12 (Bankr. D_ N.H. 1992); In re <br /> Penrod 169 B.R. 910, 916 (Bankr. N.D. In. 1994), affd. 50 F_3d 459 (7' Cir. <br /> 1995). Typically, the state arena is the appropriate forum to resolve claims based <br /> upon an alleged breach of the provisions in a plan confirmed several years earlier. <br /> Order at 5. <br /> Thus, it is clear beyond doubt that Mid-Continent's efforts to hold DMG to the <br /> Reclamation Plan are claims for breach of the Liquidation Plan contract which incorporates the <br /> Reclamation Plan from Mid-Continent's permit. Your attempt to arguc that DMG is not required <br /> to use bankruptcy funds for performance of the Reclamation Plan falls flat. This argument seems <br /> to hinge on the absence of the word "incorporates" and I notice that you are unable to cite any <br /> authority for the proposition you put forward in this portion of your brief. <br /> Even if you did get the judge to buy your argument that we are suing to enforce a statute <br /> rather than a contract claim, the Coal Act itself specifically waives sovereign immunity. C.R.S. <br /> § 34-33-135(1)(a), states in part, "any person having an interest which is or may be adversely <br /> affected may commence a civil action on such person's own behalf to compel compliance with <br /> the provisions of this article against (a) any person or governmental agency or instrumentality <br /> who is alleged to be in violation of any provision of this article or any rule or regulation <br /> promulgated or any order or permit issued pursuant to this article _ . ." The failures of DMG to <br /> comply with the Coal Act are numerous. See for example, C.Rk § 34-33-11l(1)(h), which <br /> states that consideration should be given to surface owner plans - i.e., don't tear down the <br /> Lamphouse; C.R.S. § 34-33-11 l(1)(1), requires compliance with water quality laws - the Dutch <br /> Creek Project may have created a nonpermitted point source discharge; C.R.S_ § 34-33-1200) <br /> requires minimization of disturbances to the hydrologic balance - i.e., don't cause downslopes to <br /> fail by engaging in experimental revege`tation techniques. see also, disturbances caused by <br /> Huntsman Project and Dutch Creel: diversion; see also, §§ 4.05.1(3) and 4.05.2(1) of the <br /> regulations. Your attempt to distinguish C.R.S. § 34-33-135 is cursory at best and I can only <br /> assume that you have no valid argument as to why this section does not apply. <br />