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

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required by the citizens or from exercising the powers authorized or required by law.' Swieckowski v. City of Ft. Collins, 934 P.2d 1380 (Colo. 1997). As stated above, sovereign immunity issues involve subject matter jurisdiction and are to be determined through motions to dismiss in accordance with C.R.C.P. 12(b)(1). Fogg at 276. "In resolving whether a plaintiffs claim is barred by the [CGIA], the `diapositive question' is whether the claim is a tort claim or could be a tort claim for purposes of analysis under the [CGIA]." Berg, 919 P.2d at 258. MCR's second and third claims can or do fall within the State's immunity and are thus barred, as discussed in detail infra. The Colorado Surface Coal Mining Reclamation Act, C.R.S. §§ 34-33-101 - 137, sets forth a statutory duty to reclaim and revegetate surface lands affected by coal mining. After MCR petitioned in bankruptcy, the Division began reclamation of Coal Basin by using funds distributed pursuant to the Liquidation Plan. Amended Third Party Complaint,T¶ 18, 19 and 20. The Liquidation Plan provides that funds distributed to the Mined Land Reclamation Board shall be used pursuant to the "Reclamation Plan." ¶4.3.4 of the Liquidation Plan. The Liquidation Plan defines the Reclamation Plan as "the Debtor's plan for the Mine Site submitted pursuant to the [Reclamation Act] as approved by the [Board] in [MCR's permit] and governed by the terms of that Act." Liquidation Plan, MCR's Answer Exhibit 2 ¶ 1.32 (emphasis added). In short, the Division's reclamation of Coal Basin is funded by the Liquidation Plan, which refers to the Reclamation Plan and provides that the Reclamation Plan is governed by the Reclamation Act. The Liquidation Plan itself does not set forth reclamation requirements or any reclamation plan. MCR's allegations that steep slope revegetation is unwarranted (second claim), and that re- 8