1999-04-01_GENERAL DOCUMENTS - C1981017 (2)

Home Browse Search

founded in contract. Decker v. Browning-Ferris Indus. of Colorado. Inc., 931 P.2d 436, 443 (Colo. 1997). The Liquidation Plan contains no language setting forth a duty of good faith and fair dealing, so the MCR's claim may not be founded in contract. Here, any breach of the implied covenant of good faith and fair dealing is a tort for which sovereign immunity has not been waived. CGIA § 106. As a tort claim for which immunity stands, dismissal for lack of subject matter jurisdiction is appropriate. Fogg at 276. 4. This Court is without jurisdiction to hear MCR's sixth claim for relief because MCR has failed to exhaust administrative remedies concerning its rights, status, or potential liability under its Colorado Discharge Permit for cleaning the 001 Ponds. MCR alleges in its sixth claim for relief that this Court should issue a declaratory judgment regarding MCR's rights, responsibilities and liabilities with respect to the 001 Ponds under its water discharge permit. The water discharge permit was issued by the Colorado Department of Public Health and Environment("Health Department"). MCR has filed an application for permit renewal with the Health Department. Exhibit 1. MCR's application raises with the Health Department the very issues that MCR wants this Court to address. This Court should decline MCR's request for a declaratory judgment. First,the Court should defer to contemporaneous agency proceedings where the agency is empowered to handle the issues and entrusted with enforcement of the relevant laws. See Navajo Freight Lines. Inc.; Litvak Meat Co.; Heron. Second, given its pending application for permit renewal, MCR has failed to exhaust its administrative remedies as to its water discharge permit. If a party fails to satisfy the exhaustion requirement, the district court is without jurisdiction to hear the action. State of Colorado v Golden's Concrete Company, 1998 WL 251638 (Colo.). 15