Free Motion for Leave to File - District Court of Federal Claims - federal

Case 1:01-cv-00039-BAF

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Richard M. Stephens John M. Groen GROEN STEPHENS & KLINGE LLP 11 I00 NE 8th Street, Suite 750 Bellevue, WA 98004 Telephone (425) 453-6206 Fax (425) 45376224 UNITED STATES DEPARTMENT OF THE INTERIOR OFFICE OF HEARINGS AND APPEALS UNITED STATES OF AMERICA, Contest Number OR 48970 A

VS.

WALTER B. FREEMAN, et al.,

CONTESTEE WALTER FREEMAN'S BRIEF ON AUTHORITY OF ADMINISTRATIVE LAW JUDGE TO DETERMINE VALIDITY AS OF CERTAIN DATES At the conclusion of the 25 day hearing in this matter, Judge Schweitzer requested briefing on his authority to determine the validity of Contestee's (Freeman) mining claims as of various dates. The issues regarding authority were expressed in the Notice of Status Conference, dated May 3, 2007. Attached to that notice were two prior ALJ decisions in which the respective ALJ decided not to determine validity of mining claims as of dates other than the date of the hearing.

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EXHIBIT 4

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For the following reasons, Freeman contends that the ALJ in this case has the duty to determine validity as of the date of hearing and in 1994 and 2000. REGARDLESS OF THE AUTHORITY TO DETERMINE VALIDITY AS OF 2000 AND 1994, THE ALJ MUST AT LEAST DETERMINE VALIDITY AS OF THE PRESENT TIME As noted by Judge Schweitzer in the course of the hearing on this matter, the Government's complaint in this action reads as follows: Minerals have not been found on any of the 161 mining claims in sufficient qualities or quantities to constitute a discovery. Any minerals could not have been marketed at a profit as of either 1994 or 2000. Complaint at 4. The first sentence clearly encompasses the present time by making no reference to any particular year, but instead states unconditionally that "minerals have not been found ...in sufficient qualities or quantities to constitute a discovery." Freeman and the Government are entitled to a decision as to whether that allegation is correct. In similar fashion, the Government's complaint alleges generally: "2. The lands encompassed by the 161 mining claims are non-mineral in character." This is a general allegation without reference to any specific date. Finally, the relief sought by the Government is that the "mineral entry be cancelled" and that the "claims be declared null and void." Complaint at 4. It is apparent to Mr. Freeman that the Government is not seeking merely a determination as to validity in 1994 and 2000, but is also seeking to have his claims presently invalidated. Innumerable cases reference the duty of the Secretary of the Interior to detelmine whether mining claims on federal land are valid. Best v. Humboldt Placer Mining Co., 371 U.S. 334, 336-40, 83 S.Ct. 379, 9 L.Ed.2d 350 (1963); Cameron v. United States, supra, 252

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U.S. at 460-61, 40 S.Ct. 410. Knight v. United States LandAss'n, 142 U.S. 161,178, 12 S.Ct. 258,262, 35 L.Ed. 974 (1891). By general statutory provisions the execution of the laws regulating the acquisition of fights in the public lands and the general care of these lands is confided to the Land Department, as a special tribunal; and the Secretary of the Interior, as the head of the department, is charged with seeing that this authority is rightly exercised to the end that valid claims may be recognized, invalid ones eliminated, and the rights of the public preserved. Rev. Stat. §§ 441,453, 2478 (Comp. St. §§ 681,699, 5120). Cameron, 252 U.S. 450, 459-60 (1920) (citations omitted). As Judge Holt noted in the Aloisi decision, "the law requires a determination on the date of the hearing." CACA 41272, at 5 (citing United States v. Mavros, 122 IBLA 297, 30102). The mining law as expressed in 30 USC section 22 requires that a valid mining claim contain a valuable mineral deposit at present. In Davis v. Weibbold, 139 U.S 507 (1891) this was affirmed in regard to a mineral patent. Such applications should not be granted unless the existence of mineral in such quantities as would justify expenditure in the effort to obtain it is established as a present fact. Id. at 523 (emphasis added). This "prudent man" test has been refined to require a showing that the mineral disclosed is "presently marketable at a profit," which simply means that the mining claimant '!must show that as a present fact, considering historic price and cost factors and assuming that they will continue, there is a reasonable likelihood of success that a paying mine can be developed. US v. Feezor, 130 IBLA 146, 189 (1994) (quoting In re Pacific Coast Molybdenum, 75 IBLA 16, 29 (1983).

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In fact, because of this need for a determination of"present marketability", the Department has even held that an ALJ could use the present commodity prices and mining costs after the time of the hearing. United States v. Gold Placers, Inc., 25 IBLA 368,374-75 (1976). The Department of the Interior's Policy on Mineral Commodity Pricing confirms that the ALJ should determine the validity of the claims as of the date of the hearing. See generally Notice of Policy on Mineral Commodity Pricing, 65 Fed. Reg. 41,724 (July 6, 2000) (copy provided hereto as Attachment A). While this policy is not a formally adopted role and is not binding on the general public, 1 it is the official policy applicable to Mineral Examiners. See Morton v. Ruiz, 415 U.S. 199, 235, 94 S.Ct. 1055, 1074, 39 L.Ed.2d 270 (1974) (agencies must follow their own policies). That policy discusses marketability dates for three categories of cases: (A) mining claims on withdrawn lands; (B) mining claims in patent applications; and (C) "All others." 65 Fed. Reg. at 41725 (Attachment A). Because the Freeman claims are not withdrawn and the government is not reviewing his claims as if it is processing his patent application, under the policy this hearing fits in the policy's category as "all others." That portion of the policy provides: For any mining claim validity determination where there is no patent application and no withdrawal, BLM will determine the validity of the claim as of the date of the mineral examination.

1 This policy statement is not an agency rule that can be binding on Freeman. See, e.g., Chamber of Commerce v. United States Department of Labor, 174 F.3d 206,212 (D.C. Cir. 1999).

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Except for claims subject to paragraph B above [regarding review of patent applications], if a mineral examiner concludes that the claim is invalid as of the date of the mineral examination, the examiner must be prepared to address any evidence the claimant might present at the contest hearing regarding the validity of the claim on the date of the hearing. Id. (emphasis added). In the present case, evidence was presented by Freeman regarding the validity of the claim as of the date of the hearing. The prices for nickel, iron and chrome were all given for 2007. Likewise, Freeman updated the costs of production and capital costs to 2007 leveis. All of this testimony and related exhibits were heard and received without objection by the Government. Indeed, the Government defended against Freeman's claims for present validity by presenting evidence that the current high nickel prices will not continue. Certainly, all of this evidence will be carefully set forth and scrutinized in the briefs on the merits. In short, regardless of whether other dates are considered, the validity as of the date of the hearing is a decision mandated by law and the practicalities of this case. Mr. Freeman should not have to go through an extensive hearing contesting the validity of his claims with the result that validity as of the present date is not determined. While knowing whether the claims are valid as of 1994 and 2000 may be particularly useful to the Depamnent and Freeman in their proceedings before the Court of Federal Claims, that does not mean that the 2007 date is of no use to Freeman. The Government has filed a contest to Freeman's claims. Regardless of what decision is made as to the years 1994 and 2000, the validity today of those claims remains vital to Mr. Freeman. As the holder of claims contested by the Government, the case law acknowledges that there is a duty to resolve the present validity of those claims.

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Case 1:01-cv-00039-BAF

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The determination of the present validity of the claims is also consistent with the direction from the Court of Federal Claims. The Court of Federal Claims did not ask for validity on any particular date. Rather, the Court's order states: This case is remanded to the United States Department of the Interior for determination of validity of plaintiffs mining claims. Order, October 10, 2001 (copy provided as Attachment B). The parties should not return to the Court of Federal Claims without at least having a ruling as to the present validity of the claims. Even if the ALJ decided it does not have authority to rule on validity as of 1994 and 2000, it must, at a minimum, render a ruling as to the validity as of the date of the hearing. THE ALJ ALSO HAS AUTHORITY TO RULE WHETHER FREEMAN'S MINING CLAIMS WERE VALID IN 2000 AND IN 1994 Freeman recognizes the traditional dates by which determinations of vaiidity are made are (1) the date of the hearing, (2) the date of patent application, and (3) the date of withdrawal in cases where there is a withdrawal. Freeman contends that while the Office of Hearings and Appeals does not typically consider other dates° this does not mean that the ALJ lacks legal authority to issue a ruling upon them. The Department of Interior's regulations, 43 CFR Section 4. I provide that the Office of Hearings and Appeals is an authorized representative of the Secretary for the purpose of hearing, considering and determining, as fully and finally as might the Secretary, matters within the jurisdiction of the Department involving hearings, and appeals and other review fimctions of the Secretary.

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Case 1:01-cv-00039-BAF

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This language strongly suggests that the Office of Hearings and Appeals and, therefore, the ALJ within the Office, have the full authority of the Secretary in regard to matters within the jurisdiction of the Department. Surely, the Secretary of the Interior has the authority to hold a hearing consistent with due process and determine whether Freeman's mining claims were valid as of 2000 and 1994. The above quoted regulation provides that the Office of Hearings and Appeals (including ALJs) are the "authorized representative" to make that determination. Nothing in this or any other regulation circumscribes the ALJ's authority to only the traditional or typical dates of analysis (i.e. the date of the hearing, date of patent, and date of withdrawal). The ALJ stands in the shoes of the Secretary and there is nothing to restrict the authority of the Secretary from making a validity determination on any particular date. Likewise, there is nothing in the Secretary's delegation of authority to indicate that the consideration of other dates of potential mining claim validity is circumscribed. Courts have described the power and duty of the Department of the Interior to resolve "all issues" relative to claims upon lands in which legal title is in the United States. As long as legal title to land remains in the United States, "there is continuing jurisdiction in the Department [of the Interior] to consider all issues in land claims." Schade v. Andrus, 638 F.2d 122, 124-25 (gth Cir.1981); see also Ideal Basic Indus. v. Morton, 542 F.2d at 1368 ("So long as the legal title remains in the Government, the Secretary has the power and duty upon proper notice and hearing to determine whether the claim is valid.") Seldovia Native Ass'n, Inc. v. Lujan, 904 F.2d 1335, 1346 (9th Cir. 1990). It stands to reason that "all issues in land claims" would include issues as to the validity of mining claims in dates past if validity of those dates is important to the Secretary of the Interior. In this case, it

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Case 1:01-cv-00039-BAF

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is important, not because it replaces a function of the judicial branch, but because it determines the administration's position for purposes of the underlying litigation. It will also be useful to the Secretary in the consideration of potential settlement of the litigation in the Court of Federal Claims. The purpose of determining whether there was a valid discovery as of 1994 and 2000 is to determine whether title to the public lands was encumbered by a valid claim at that time. Of course, the United States could have elected to determine validity as of I994 and 2000 through proceedings at the Court of Federal Claims. See United States v. Zweifel, 508 F.2d 1150 (10th Cir. 1975). However, the United States also may elect to have that same determination made through the administrative tribunal of the Department of Interior. We therefore hold that the United States may, at its election, proceed either in the administrative tribunal of the Depamnent of the Interior or, under 28 U.S.C. 1345, in the district court to clear title to public lands where the validity of unpatented mining claims is at issue. Id. at 1155. The election having been made, the ALJ clearly has authority to render a decision. Judge Schweitzer has identified two prior ALJ decisions that may pertain to the question. USA v. Aloisi, CACA 41272, and USA v. Storey, Idaho 15674. The Aloisi case is quite different from the present case. The motion before Judge Holt was seeking a determination of what dates the ALJ should use in the hearing coupled with a complaint that made no reference to special or nontraditional dates. Judge Holt properly concluded that he should not be resolving the questions as to which dates were critical to the underlying takings claim.

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In contrast, the Government here has identified in its complaint the 1994 and 2000 dates. Presumably, it has chosen these dates believing them to be useful to the Government in its decisions regarding how to address Freeman's claims when this matter goes again before the Court of Federal Claims. Moreover, unlike Aloisi, the parties here are not asking Judge Schweitzer to decide a dispute between Freeman and the Government as to which dates to
use.

In Aloisi, Judge Holt continued by stating that he did not have the authority to determine the validity of claims as of the dates requested by the government even if they were identified in the complaint. Although recognizing that 43 CFR section 4.451-1 is worded broadly, Judge Holt noted that the Government may not exercise this authority "boundlessly." Id. at 3. Freeman agrees that 43 CFR section 4.451-1 is a broad authority. The sections states: The Government may initiate contests for any cause affecting the legality or validity of any entry or settlement or mining claim. Id. (emphasis added). Although not boundless authority, this language is broad and certainly includes the allegations by the Government that in 1994 or 2000 the Freeman claims were not a legal or valid discovery. As discussed above, the Secretary has reasons for wanting to know whether Freeman's claim constituted a valid discovery on those dates. The election was made to make that determination through the administrative hearings process. The authority to render a decision is clearly provided by 43 CFR sections 4.1 and 4.451-1. The selection of dates that are believed to be useful to the Government (and the claimant) in pending federal litigation is not a boundless exercise of authority. While

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Case 1:01-cv-00039-BAF

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Freeman believes and contends that the allegations of the complaint are factualIy incorrect, his objection is not based on the dates selected by the Government in its complaint. This case is in a completely different posture than if a mining claimant were forced to respond to a complaint seeking to declare claims invalid as of dates past. Again, Freeman does not object to the consideration of whether his claims were valid as of 1994 and 2000. Judge Holt was rightfully concerned that he was being asked to step into the role of the judiciary (as he clearly was in the motion to determine which date to use for purposes of the litigation). That does not mean that the Department's determination of the validity of claims for subsequent use by a federal court is not an administrative responsibility. The Secretary of the Interior needs to know what his position is in regard to the validity of Freeman's claims in past points of time. The Secretary has given the role of making that determination to the Office of Hearings and Appeals. The Storey decision is the same case also known as Skaw v. US and is reported at 2 C1.Ct. 795 (1983), vacatedby 740 F.2d 932 (Fed. Cir. 1982). See also subsequent proceedings at 13 C1.Ct. 7 (1987) and 847 F.2d 842 (Fed. Cir. 1987). Although the initial names in the title of the case differ (Storey vis-/~-vis Skaw), the description of the mining claims are identical. The Storey/Skaw case is in a completely different posture than that of the Freeman case. The ALJ in Storey dismissed the case after the Idaho office had ruled that the contestees's claims were invalid for failure to file recordation of assessment work. Importantly, the dismissal was made prior to what would have been a relatively lengthy hearing and extensive discovery (depositions in Texas and Washington). The ALJ ruled:

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Case 1:01-cv-00039-BAF

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Under the circumstances, it would be unfair to put the parties, their witnesses and this office to the time, expense and inconvenience of further preparation for, and attendance at, what has been estimated will be a two-week hearing. Storey, Idaho 15674 at 3. In contrast, here an even greater burden to the parties has already occurred in that the very extensive heating has been completed. One cannot assume that in the present case, as in Storey, it would be unfair to conclude the case and issue a decision. Rather, the policy reason for the decision for Storey in avoiding unfairness calls for a conclusion that decisions as to validity in 1994 and 2000 should be rendered. While, as in Storey/Skaw, Freeman and the United States could litigate the validity of Freeman's claims in 1994 or 2000 in the Court of Federal Claims, the waste of everyone's resources would be tremendous, a factor not relevant in Storey/Skaw. In Storey/Skaw, the Government was asking the ALJ to hold the contest proceeding in abeyance. The ALJ refused because it might preclude the claimants from continuing to seek relief in the Court of Claims. Id. at 3. Additionally, the parties did not object to the dismissal of the contest. Id. Finally, it is significant that the ALJ in Storey noted that he had "no basis to specifically determine the validity of the claims" as of points in time other than date of withdrawal and the date of the hearing. Having "no basis" is not the same as ruling that he had no jurisdiction. In the present case, the ALJ's decision should not be interpreted as a ruling that no jurisdiction or authority exists to consider alternative dates. As discussed above, there is broad authority for the ALJ to carry out its fimction for the Secretary and issue a ruling on the validity of claims in 1994 and 2000.

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CONCLUSION Freeman contends that Judge Schweitzer has the authority to determine the validity of Freeman's claims as of the date of the hearing in 2007 and also on the dates included in the Complaint, those being 1994 and 2000. RESPECTFULLY SUBMITTED this 29th day of June, 2007.

By: Richard M. Stephens Jolm/M. Groen Attorneys for Walter B. Freeman GROEN STEPHENS & KLINGE LLP I 1100 NE 8t~ Street, Suite 750 Bellevue, WA 98004 Telephone (425) 453-6206 Fax (425) 453-6224

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Case 1:01-cv-00039-BAF

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UNITED STATES DEPARTMENT OF THE INTERIOR OFFICE OF HEARINGS AND APPEALS

3 4 5 6 7

UNITED STATES OF AMERICA, VS. WALTER B. FREEMAN, et al.

Contest No. OR 48970 A

HEARING IN THE ABOVE-CAPTIONED MATTER 8 9 ~0 ii 12 13 14 PRESIDING JUDGE: 15 16 17 WITNESSCS): 18 19 2O 21 22 23 24 25 TERRY S. MALEY HARVEY C. SWEITZER Administrative Law Judge U.S. Department of the Interior 405 South Main Street, Suite 400 Salt Lake City, Utah 84111 HELD AT PIONEER COURTHOUSE 700 SOUTHWEST SIXTH AVENUE PORTLAND, OREGON MARCH 14, 2007

REPORTED BY: KAREN M. GRANT, CERTIFIED COURT REPORTER NO, P.O. Box 328 Milton, Washington 98354 O~£~ce: (253)927-4578, Cell; (253)376-4425 2155

EXHIBIT 5

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1 2 3 For the Contestant:

APPEARANCES

MR. BRAD GRENHAM and 5 MR. BRIAN J. PERRON Office of the Solicitor Paczfic Northwest Region 500 N.E. Multnomah Street, Suite 607 Portland, Oregon 97232 (503)231-6826 [email protected] [email protected]

For the Contestee: 10 MR. JOHN GROEN Groen SZephens ~ Klinge, LLP 11100 N.Z. 8th Streeu, Suite ?50 Bellevue, Washington 98004 12 (425)453-6206 [email protected] 13 14 15 16 17 18 19 2O 21 22 23 24 25 [email protected]

2

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1 2 3 4 COUNSEL:

EXAMINATION INDEX

WITNESS: TERRY S. MALEY

PAGE: i0 23 29

Opening Statements by Mr. Grsnham .......... Opening Statements by Mr. Green ........... 6 7 8 9 10 11 12 13 14 15 16 17 18 19 2O 21 22 23 24 25 Direc~ Examination by Mr. Perron ..........

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i0 1 2 3 4 5 6 7 8 9 i0 Ii 12 13 14 15 16 17 18 19 20 21 22 23 24 25 THZ COURT: Thank you. Okay. Do you want to make a statement now or just call your first witness? MR. GRENHAM: I'd like to make an opening statement, Your Honor. THE COURT: All right. MR. GRENHAM: Over the next several weeks, you'll hear considerable detailed testimony on geology, metallurgy, mine engineering, and mine economics. In order to provide some context for this testimony, I'm going to cover three topics in this opening statement. First I'll provide the background or procedural posture of how we got here. Second, I'll outline the order of direct testimony. And lastly, I'll touch on some of the primary themes that you'll hear during the direct testimony. So first the background. We're here as a result of a complaint Mr. Walter Freeman filed in the Court of Federal Claims. Mr. Freeman asserts that the United States has taken his 161 mining claims. Mr. Freeman asserts title to these 161 claims which are located in southern Oregon and cover an area of about 5,000 acres. The claims are known as the Rough and Ready claims or, alternately, as the Nicore claims, or sometimes as simply the Freeman claims. The claims were located at various times beginning in the 1940s, and Mr. Freeman's family established a

i0

Case 1:01-cv-00039-BAF

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ii 1 2 3 4 5 6 7 8 9 I0 11 12 13 14 15 16 17 18 19 2O 21 22 23 24 25 residence on the claims in the late 1940s. Mr. Freeman resides there until this time. When the Court -- the Court has suspended proceedings, and the Court of Federal Claims remanded the matter to the Department of the Interior to conduct a validity determination. Upon remand, the parties conferred and stipulated that the validity of determination would cover the two dates that Mr. Freeman alleges were the dates of taking by the United States. Those two dates are October 1994 and October 2000. This stipulation is reflected in Government Exhibits i01, 105, and 106. The first date, October 1994, is the date that Congress enacted the patent process and moratorium. Mr. Freeman had previously filed with co-locators a 9th of September 1992 application for patent. As of that time, Mr. Freeman and his co-locators certified that they were entitle to a patent of 151 claims, certified they had met all requisites for discovery on all of those 151 claims. Consequently, Mr. Freeman seeks an order that as of 1994, October 1994, he had made a discovery of valuable mineral on all of these claims. The second date, October 2000, is the date of the final Forest Service approval of the Record of Decision issued in response to Mr. Freeman's proposed plan of operations. Mr. Freeman proposed certain activities on

II

Case 1:01-cv-00039-BAF

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12 1 2 3 4 5 6 7 8 9 I0 ii 12 13 14 15 16 17 18 19 2O 21 22 23 24 25 certain claims, and a plan of operations in October 2000 reflected the final date of the Forest Service decision in response to that. Mr. Freeman alleges that the content of that Record of Decision amounts to a taking of the claims at issue. Given the extensive number of claims, again about 161 claims covering 5,000 acres, the mineral exam team ~ecognized this would be a considerable endeavor to verify and requested from Mr. Freeman all information supporting his assertion of the discovery. THE COURT: Let me ask, at one time I understood you to say 151 and then 161. What's the ten-claim disparity there? MR. GRENHAM: Certainly. The patent application encompasses 151 claims. Mr. Freeman asserts ownership of 161 claims and, in correspondence with the mineral exam team, has asserted that all 161 claims are at issue in some manner. So to deal with everything at issue, the mineral exam team proceeded to cover all 161 claims. THE COURT: Thank you. MR. GRENHAM: In response to the mineral exam team's request for all information, Mr. Freeman provided a January 2003 document entitled "Economic Analysis of Rough and Ready/Nicore Mining Claims." One of Mr. Freeman's consultants, retired Forest Service Mineral Examiner David

12

Case 1:01-cv-00039-BAF

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3323

1

UNITED STATES DEPARTMENT OF THE INTERIOR OFFICE OF HEARINGS AND APPEALS

2

3 4

UNITED STATES OF AMERICA,

vs.

Contest No. OR 48970 A

5

WALTER B. FREEMAN, et al.

PAGES 3323 - 3403

6 7 HEARING IN THE ABOVE-CAPTIONED MATTER 8 9 HELD AT PIONEER COURTHOUSE 700 SOUTHWEST SIXTH AVENUE i0 Ii JUNE i, 2007 12 PORTLAND, OREGON

13 14 PRESIDING JUDGE: 15 HARVEY C. SWEITZER Administrative Law Judge U.S. Department of the Interior 16 405 South Main Street, Suite 400 Salt Lake, City Utah 84111 17 WITNESSES: 18 ROBERT BRADDOCK ALLAN YOUNG OTTO SCHUMACHER 19 20 21 22 23 REPORTED BY: KAREN M. GRANT, CERTIFIED COURT REPORTER NO. 2155 24 P.O. Box 328 Milton, Washington 98354 25 Office: (253)927-4578, Cell: (253)376-4425

EXHIBIT 6

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3325

1 2 3 4 COUNSEL:

EXAMINATION INDEX

WITNESS: ROBERT BRADDOCK PAGE:

Re-Direct Examination by Mr. Stephens ........3337 5 Recross-Examination by Mr. Grenham ......... 3365 Re-Direct Examination by Mr. Stephens ........3383

WITNESS: ALLAN YOUNG

COUNSEL:

PAGE:

Re-Direct Examination by Mr. Perron .........3385 Re-Direct Examination by Mr. Grenham ........3386 i0 ii 12 13 COUNSEL: WITNESS: OTTO SCHUMACHER PAGE: Recross-Examination by Mr. Stephens .........3392

Re-Direct Examination by Mr. Grenham ........3396 14 15 16 - -o0o- 17 18 19 20 21 22 23 24 25 Recross-Examination by Mr. Stephens ......... 3400

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3326

1 2 NO: 3 4 5 6 45 54 186 187

EXHIBIT INDEX

MARKED: RECEIVED: (withdrawn) (withdrawn) -3336 3328 3336

DESCRIPTION:

Copy of blown-up version of Plate 6-1

7 188 8 189 9 F-39 I0 F-284 ii F-285 12 F-292 13 F-321 14 F-322 15 F-323 16 17 18 - -oOo- 19 20 21 22 23 24 25 3339 3343 Chapter 819, House Bill 3633, from 2001 Oregon laws 3338 3343 Oregon Revised Statute 757.601 -3328 -3334 -3334 -3334 -3330 3396 3400 5/23/2007 email from Marc Hellman 3387 3391 Paper by T.R. Miles

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3400

1 2 3 4 5 6 7 8 9 I0 ii 12 13 14 15 16 17 18 19 20 21 22 23 24 25 present? BY MR. STEPHENS: Q. Exhibit 189. Mr. THE COURT: Stephens?

(Hearing at recess.) In order.

MR. STEPHENS:

First, we have no objection to

THE COURT: It is received.

RECROSS-EXAMINATION

Mr. Schumacher, in the 1999, 2000, and 2001 time

frame, were you investigating industrial electric prices for any client of yours? A. No. MR. STEPHENS: I have no further questions. THE COURT: Anything more for Mr. Schumacher? MR. GRENHAM: No, Your Honor. THE COURT: That's all, sir. Does either party have any further evidence to

MR. GRENHAM: None here. MR. STEPHENS: None here. THE COURT: Okay. Then -MR. GRENHAM: This can't be true. THE COURT: I will say this of record, though. According to my account, this is day 25 of this hearing.

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3401

1 2 3 4 5 6 7 8 9 I0 ii 12 13 14 15 16 17 18 19 20 21 22 23 24 25

It's been the most enjoyable and enriching experience for me, due in considerable part on account of the cooperation and the excellence of all counsel. With that, then, there has been earlier today some discussion off the record about briefing. We'll go off the record now and see if we have those dates down firm, and when we do, we'll go back on the record and I'll announce them. Off the record, please. THE COURT: On the record. Before concluding the record, I want to announce that the following briefing times have been agreed to by counsel and approved by me. First let me say that the dates given are the dates by which the document has to be served on opposing counsel and filed in my office. Fax is permissible, provided followed promptly by hard copy, all briefs to be concurrent as respects the filing and service. On the jurisdiction question, opening June 29, '07, reply, if any, July ii, '07. Without any assurance that the jurisdiction question will be resolved before the briefing times set out here on the merits, the briefing times on the latter are as follows: Opening August 24, '07, reply September 24, '07. If there's nothing else to be said by any counsel, that concludes the record for this hearing, subject to the