_GENERAL DOCUMENTS - C1981017 (181)

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DISTRICT COURT, PITKIN COUNTY, COLORADO Case No. 93 CV 201 DEFENDANTS' MOTION TO AMEND ANSWER DIVISION OF MINERALS AND GEOLOGY, DEPARTMENT OF NATURAL RESOURCES, STATE OF COLORADO, Plaintiff, V. JOHN A REEVES; ROBERT DELANEY; DIANE DELANEY; AND MID-CONTINENT MINERALS CORPORATION, Defendants. Come now the defendants, by and through counsel, and, pursuant to C.R.C.P. 7 (b) and 15 (a) , move to amend their Answer, and state as follows: 1. The Answer was filed on or about October 12, 1993 and contains several affirmative defenses. Ans. , ¶ 1 37 through 42 . By this motion, the defendants seek to add the additional defenses of failure to mitigate and unclean hands . 2 . These defenses are based upon events occurring subsequent to the filing of the Answer, principally plaintiff' s opposition to Resources' proposed bankruptcy plan (the "Plan") .' In this action, the plaintiff seeks equitable relief to compel the performance of reclamation or, in the alternative, damages to enable reclamation to be performed. The Plan, on the other hand, provides funding for the required reclamation or a substantial portion thereof. If the Plan is approved, therefore, there will be no need for the relief which plaintiff seeks here. Plaintiff' s opposition threatens approval of the Plan and hence the availability of funding for reclamation. If the Plan fails due to plaintiff' s opposition, then plaintiff itself will have created the very need for which relief is sought in this action. Under such circumstances, plaintiff' s actions will establish the 1 Although plaintiff' s opposition to the Plan provides the principal basis for assertion of the additional defenses, it is not the only basis for such defenses. The defendants reserve the right to assert any other actions by the plaintiff which also support these defenses, including, without limitation, interference by plaintiff with the proposed sale by Resources of individual assets from time to time.