dissenting.
The issue here is whether, by an implied waiver of sovereign immunity, a tort action for damages can be maintained against the state for alleged negligent excavation pursuant to the provisions of the Excavation Requirements Act, § 9-1.5-101 et seq., C.R.S. (1986 Repl.Vol. 3B). Because I conclude that the action is barred by the Governmental Immunity Act, I disagree, and therefore respectfully dissent.
With limited exceptions explicitly set forth in the statute, the Governmental Immunity Act bars any action against a public entity for injury that lies, or could lie in tort. See § 24-10-106 and 24-10-108, C.R.S. (1988 Repl.Vol. 10A); City & County of Denver v. Desert Truck Sales, Inc., 837 P.2d 759 (Colo.1992). No legislatively created exception is applicable here. See § 24-10-106, C.R.S. (1988 Repl.Vol. 10A). See also Colo.Sess.Laws 1971, eh. 323, at 1206 (1971 exceptions also inapplicable). Plaintiff’s argument, not reached by the majority, that this case involves the operation of a motor vehicle — an activity exempted from sovereign immunity under § 24-10-106(l)(a) — is incorrect. See Bain v. Town of Avon, 820 P.2d 1133 (Colo.App.1991) (backhoe is not a motor vehicle).
The Governmental Immunity Act is the sole source of claims for relief for recovery of damages against the state for actions which lie or could lie in tort. See § 24-10-102, C.R.S. (1988 Repl.Vol. 10A) (“The general assembly [recognizes] the desirability of including within one article all the circumstances under which the state, or any of its political subdivisions, or the public employer of such public entities may be liable in actions which lie in tort or could lie in tort_” (emphasis added)); § 24-10-105, C.R.S. (1988 Repl.Vol. 10A) (“It is the intent of this article to cover all actions which lie in tort or could lie in tort. [No] public entity [and no public employee] .shall be liable [except] as provided in this article.” (emphasis added)); § 24-10-106 (“A public entity shall be immune from liability [except] as provided otherwise in this section.”). See Colo.Sess.Laws 1971, ch. 323 at 1204, 1206 (identical relevant language).
Accordingly, I do not agree that sovereign immunity for an action otherwise barred by the Governmental Immunity Act, can be waived “by implication.” Thus, the absence of an explicit waiver of sovereign immunity in § 24-10-106 for the negligent activity alleged.here is dispositive.
Nor can State v. Moldovan, 842 P.2d 220 (Colo.1992) be relied upon as authority to expand the parameters of sovereign immunity beyond the terms of the Governmental Immunity Act. In Moldovan, supra, our supreme court concluded that the state could be liable in damages for breaching its statutory duty to maintain fences along public highways. However, that conclusion was not based upon a finding of implied waiver. Rather, it was premised upon the court’s explicit determination that sovereign immunity for the negligent activity involved, i.e. maintaining a dangerous condition of a public highway, is specifically waived by § 24-10-106(l)(d) of the Governmental Immunity Act. Thus, the holding in Moldovan that there is a private cause of action created under the Fence Law included the prior determination that the cause of action is not otherwise barred by the Governmental Immunity Act. The cause of action here, on the other hand, is barred by that Act.
Moreover, the analysis in Moldovan makes it clear that the existence of a statutory duty of care imposed on the state, here by the Excavations Requirements Act, is not determinative of the independent question of whether sovereign immunity bars the lawsuit. In Moldovan, despite its determination that the Fence Law imposes a statutory duty on the state, the supreme court nevertheless concluded that the waiv*507er of sovereign immunity set forth in § 24-10-106(l)(d) is limited, then permitted only a private cause of action for .negligence, but barred plaintiff’s claim for negligence per se based upon sovereign immunity. Thus, the issue of whether sovereign immunity is a bar to suit must be separately analyzed from the issue of whether there exists a statutory duty or private cause of action. Here, since I conclude that sovereign immunity is a bar to plaintiffs suit, there is no need to proceed to the second inquiry of whether the statute imposes a statutory duty upon the state and also creates a private cause of action in damages.
Finally, however, even if I were to assume that sovereign immunity is not a bar to this action, I am not convinced that the Excavations Requirements Act creates a private cause of action in damages. Under the Act, repeated breaches of its notification requirement may be remedied by in-junctive or other equitable relief. See § 9-1.5-104, C.R.S. (1986 Repl.Vol. 3B). References in the statute to liability for damages merely acknowledge the existing common law remedy of a tort action in negligence, see § 9-1.5-104 (injunctive or equitable relief ordered to remedy repeated violations “may be in addition to any claim for compensatory damages”), and distinguish when an action may be brought for negligence, or negligence per se. See § 9-1.5-103(6), C.R.S. (1986 Repl.Vol. 3B) (if notice given and owner or operator fails to provide timely information, excavator only liable for damages “upon proof of his negligence”).
Therefore, because I conclude that the action is barred by the Governmental Immunity Act, and also that, in any event, the Excavations Requirements Act creates no private cause of action for damages, I would reverse the judgment and remand the matter to the trial court with instructions to dismiss.