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claim states that in the future the Division will perform reclamation activities that"will likely <br /> cause extensive sedimentation of. . . Ponds." Amended Third Party Complaint, ¶57. There are <br /> several contingencies in MCR's sixth claim for relief: <br /> . 1) Whether sedimentation will in fact occur is open to question("will likely cause"), <br /> Id.; <br /> 2) Whether any sedimentation that does occur will be severe enough to be a concern <br /> is unknown; and <br /> 3) MCR has no indication that it will be held accountable for the purely hypothetical <br /> sedimentation by the Division or by the Health Department. <br /> Assuming all the facts alleged by MCR in its sixth claim for relief are true, MCR has <br /> clearly established that, at this time, it has sustained no injury in fact under the O'Bryant <br /> standard. Dismissal under C.R.C.P. 12(b)(5) is thus warranted. <br /> IV. CONCLUSION <br /> Plaintiff MCR's second,third and fourth claims fail to state a claim upon which relief can <br /> be granted because the Liquidation Plan is not a contract but a judgment. Moreover,these claims <br /> are barred by the Governmental Immunity Act. As to MCR's sixth claim, MCR has failed to <br /> exhaust administrative remedies and therefore that claim should be dismissed. In addition, the <br /> sixth claim depends on the outcome of future events, and thus falls short of establishing standing. <br /> WHEREFORE Third-Party Defendant, the Division of Minerals and Geology, requests <br /> that this Court dismiss MCR's second,third, fourth and sixth claims for relief, and for such other <br /> relief as the Court deems appropriate. <br /> 18 <br />