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"could be a tort claim" for failure to comply with the Reclamation Act, Berg at 258, it must be so <br /> viewed by this Court for purposes of this motion to dismiss. Id. <br /> Another case that illustrates that MCR's second and third claims allege a failure to <br /> comply with the Reclamation Act is State Dept of Highways v Mountain States Tel & Tel Co., <br /> 869 P.2d 1289, 1291 (Colo. 1994), which held that when a State agency fails to comply with a <br /> statute, it may be held liable in tort if sovereign immunity is waived by the CGIA, specifically <br /> C.R.S. § 24-10-106. In Mountain States, a State highway crew damaged a telephone line while <br /> relocating a sign without first noting the location of near-by underground utilities. Digging <br /> without first locating utilities is a violation of the Excavation Requirements statute, C.R.S. § 9- <br /> 1.5-101 - 105. The Excavation Requirements statute does not provide for a waiver of sovereign <br /> immunity, Id., and violations of the Excavation Requirements statute are not included in those <br /> actions for which sovereign immunity has been waived by the CGIA. C.R.S. § 24-10-106. The <br /> court held that"if[a statute other than the CGIA] is involved, and it imposes a duty upon the <br /> state,the state could be liable for breach of that duty, but only if first it is determined that <br /> sovereign immunity is waived for the activity in question." Mountain States at 1291; Cf. State v. <br /> Moldovan, 842 P.2d 220, 224-225 (Colo. 1992) (State not immune from tort claim for violation <br /> of Colorado Fence Law, C.R.S. § 35-46-101 - 114, because CGIA expressly waives immunity for <br /> claims due to dangerous conditions of public highways, C.R.S. § 24-10-106(1)(d)(I).). <br /> Applying the Mountain States reasoning here,the Reclamation Act, § 34-33-135, does <br /> not waive sovereign immunity except for failure of the Division to perform non-discretionary <br /> acts. Id. First, MCR alleges no failure on the part of the Division; quite the opposite, MCR says <br /> the Division is doing too much in terms of revegetation of steep slopes and "re-revegetation" of <br /> 11 <br />