Free Response to Motion [Dispositive] - District Court of Federal Claims - federal

Case 1:95-cv-00650-LSM

Document 129-7

Filed 03/05/2008

Page 1 of 13

EXHIBIT 6

Case 1:95-cv-00650-LSM

Document 129-7

Filed 03/05/2008

Page 2 of 13

IN THE UNITED STATES COURT OF FEDERA CLAIMS
ALFRED ALOISI, et aI.,

.., .. ~ '.,
",-,", --""'"

) )

! J~ /v " ~" I"..,/!) ¡
L,.rjJäccu:. Z006

I ¡,/t:~::¡;;.,~-.N

Plaintiffs
v.

) )
) ) )

UNED STATES OF AMRICA,
Defendant.

)
) )

--'0 Hon. LawrenceS. Margolis ~m ~ :S~ ;00
i: ::

No. 95-650L ~l:'!...¡/!.~. r. ~'-)'.

~~I'1.4L _.; i ~ Ol~

I

z
I

~"T

:; L.

vi
QUARTERLY JOINT STATUS REPORT

Me ",,~..(/)
:: 1

:.~:j
~:: ~
t/) rT

V N
i'V

.b.

-z o~ zo

Pursuant to the Cour's Orders of

October 6, 1999, and May 21,2002, counsel

jointly

provide the following quarerly report on the status ofthe matter for which the captioned case is
stayed:
(1) The contest proceeding before the Admnistrative Law Judge (ALJ) ofthe
Deparment ofthe Interior remains pending, awaiting completion of

plaintiffs' sampling and

testing operations.
(2) In October, plaintiffs conducted some of the drlling operations in their approved

plan for the sampling of the minng claims. That work was not completed, due to equipment
damage caused by the loss of water circulation in the drll stem when it penetrated historic

underground workings at the first drll location. The drlling operations could not be resumed
before the onset of the wet season. Plaintiffs are assessing whether the balance of the approved

drlling work wil be completed when seasonal conditions allow, or whether they will forego it.
(3) Plaintiffs were unable to recondition the millng equipment on site, in advance of

the onset of the wet season, to conduct the miling ofthe bulk samples from the claims. They

1

Case 1:95-cv-00650-LSM

Document 129-7

Filed 03/05/2008

Page 3 of 13

wil conduct this work as soon as the equipment has been properly reconditioned, and weather

conditions are reliable. While the milling ofthe bulk samples is not subject to the seasonal
restrctions the Forest Service imposed on the balance of

the sampling operations (those

conducted on the mining claims), plaintiffs want a reliable window of acceptable weather in
which to conduct the bulk sample millng. Interrption of

the operations by storms and winter

. conditions could affect access to the site and the integrty ofthe milling, as well as resulting in
additional labor and operations costs. Plaintiffs intend to conduct this third segment ofthe field
sampling and testing work related to the contest proceeding as soon as reliable weather retus in

the Spring, and expect to have the equipment ready to operate then.

Dated: Januar 3,2006

:ZfiiyS~~ fh~~ck
awrence G. McBride, Esq.
FOLEY & LARDNER LLP

-~tß~
Susan V. Cook, Esq.

3000 K St., N.W., Suite 500 Washington, D.C. 20007-5109 (202) 295-4017 (Ph) (202) 672-5399 (fax) Attorney for Plaintiffs

Natual Resources Section

Environment & Natual Resources Division U. S. Deparent of Justice
P. O. Box 663, Benjamin Franin Station

Washington, D.C. 20044-0663 (202) 305-0470 (Ph) (202) 305-0506 (fax) Attorney for Defendant

WASH_1521574.1

2

Case 1:95-cv-00650-LSM

Document 129-7

Filed 03/05/2008

Page 4 of 13

CERTIFICATE OF SERVICE
I here certify that a copy of the foregoing:

QUARTERLY JOINT STATUS REPORT
has been served upon counsel by United States first-class mail, postage prepaid, properly

addressed, this 3rd day of Januar, 2006, to:

Lawrence G. McBride Foley & Lardner 3000 K St., N.W., Ste. 500 Washington, D.C. 20007

~ii~ ~
LECIA A. LESESNE
190592.1

Case 1:95-cv-00650-LSM

Document 129-7

Filed 03/05/2008

Page 5 of 13

Shqpl-ýó I W,.//'è-Wl
'.

IN THE UNITED STATES COURT OF'FEDERAL CLAIMS
ALFRED ALOISI, et al.,
Plaintiffs
v.

)
) ) ) ) ) ) ) ) )

d ~
No. 95-650L

,.0
:S ;;:-:¡'1C:

:i !ó

::

;z:
l

"1::

TL
::;-l
-'- i

:.~ ..

~o
_w(/

~
f'
.~.:

UNITED STATES OF AMERICA,
Defendant.

Ron. Lawrence S. Margolis

..-in .:; /'
r.,I) rr -;z a '2 Zo

.è I~:':

QUARTERLY JOIN STATUS REPORT
October 6, 1999, and May 21,2002, counsel jointly

Pursuant to the Cour's Orders of

provide the following quarerly report on the status of the matter for which the captioned case is
stayed:
(1) The contest proceeding before the Administrative Law Judge (AU) of

the

Deparent of

the Interior remains pending, awaiting completion of

plaintiffs' sampling and

testing operations.
. (2) In October, plaintiffs conducted some of

the drillng operations in their approved

plan for the sampling of the mining claims. That work was not completed, and plaintiffs are stil
assessing whether the balance of the approved drilling work will be completed

when seasonal

conditions allow, or whether they will forego it.
(3) Plaintiffs were unable, before winter conditions at the site prevented it, to put

their millng equipment in working còndition to mil the bulk samples. They have continued
over the winter to set up, refubish and recondition an appropriate miling circuit, with the
expectation that they wil be able to conduct the test miling of

their bulk samples from the

pfec: .
0,0 -1-' 'Z '3 - 32 l; I

Case 1:95-cv-00650-LSM
".

Document 129-7

Filed 03/05/2008

Page 6 of 13

claims, when the weather becomes reliable again after April 15. This winter season has not

provided decent windows of reliable weather that would assue continuous access to the site, and

contiuous perods to complete testing ofthe miling equipment, to schedule Forest Servce

attendance to witness the test miling, and provide for uninterrpted operations rung the bulk
samples.
(4) Plaitiffs expect in the coming quarer to conduct some test rus using mil feed

comparable to but other than the bulk samples involved in ths case, as soon as seasonal

conditions allow. Then, when their equipment is operating, they wil notify the Forest Serice to
agree on a schedule for the test miling of the bulk samples from the claims - the third segment
of

the field sampling and testing work related to the contest proceeding.

Dated: March 31, 2006

Respectfully submitted,

cf~ q/ )Jtn-l
Lawrence G. McBride, Esq.

FOLEY & LARDNER LLP
3000 K St., N.W., Suite 500 Washington, D.C. 20007-5109 (202) 295-4017 (Ph) (202) 672-5399 (fax) Attorney for plaintiffs

~ V ~ 1# ~~~~ f: ft~
Susan V. Cook, Esq.

General Litigation Section Environment & Natual Resources Division U. S. Department of Justice
P. O. Box 663, Benjamin Franlin Station

Washington, D.C. 20044-0663 (202) 305-0470 (Ph)
(202) 305-0506 (fax)

Attorney for defendant

2

Case 1:95-cv-00650-LSM , ..

Document 129-7

Filed 03/05/2008

Page 7 of 13

CERTIFICATE OF SERVICE

The undersigned hereby cerfies that the foregoing QUARTERLY JOINT STATUS
REPORT was served on the followig, by first class mail, on March 31,2006:

Susan V. Cook, Esq.

U.S. Deparent of Justice Environment & Natual Resources Div. General Litigation Section
P.O. Box 663, Ben Franlin Station

Washington, D.C. 20044

~.GV"7Y /h~~
Lawrence G. McBride

Case 1:95-cv-00650-LSM

Document 129-7

Filed 03/05/2008

Page 8 of 13
btcn..\.~) ~ b.1:

.i

I

IN THE UNITED STATES COURT OF FEDERAL CLAIMS
ALFRED ALOISI, et aI.,
Plaintiffs
v.

)
)
) )

UNITED STATES OF AMERICA,
Defendant.

) ) ) )
)

No. 95-650L

d 0\

Ron. Lawrence S. Margolis

i
-v.J
I

L. c:

--0 ..;::0 ~-i "'''i= ,:;c ;.~ --1:2~ ,~.:
i

/' 0 __ rr

)

-0

-QUARTERLY JOINT STATUS REPORT
jointly

;J) rr

z~ 0

,:;z

Pursuant to the

Court's Orders of

October 6,1999, and May 21,2002, counsel

provide the following quarerly report on the status of

the matter for which the captioned case is

stayed:
(1) The contest proceeding before the Administrative Law Judge ("AU") of

the

Deparent of

the Interior remains pending, awaiting completion of

plaintiffs' sampling and
Hearngs and

testing operations. The case has been reassigned within the Deparent's Offce of

Appeals, and the new ALJ has requested a status report later in July.
(2) Plaintiffs are stil assessing whether to complete the balance of

the approved

drillng work that was par of

their approved sampling plan of operations. This drllng was the

second of

the three phases of

plaintiffs' sampling plan to develop evidence on the quality and

quantity of

the mineral resource on the claims contested by the Forest Servce in the pending

contest proceeding. Plaintiffs began this drillng work last October but did not complete it, due

to equipment failure - loss of drill pressure and resulting damage to the bit and rotar equipment

JJ" ;A

P~q,- ~
qò-\-i~-~~lo\

Case 1:95-cv-00650-LSM

Document 129-7

Filed 03/05/2008

Page 9 of 13

- in the first drill hole, caused when the drill encountered a void created by prior earlier

underground mining of the vein strcture targeted by the drillng program.
(3) Plaintiffs are completing the assembly and testing of

the miling equipment

moved to the site last falL. The last series of issues before they can mil the bulk samples
previously taken relate to the generator on-site, and assurng the proper powerng of

the mil

equipment.

(4) The Forest Service recently reiterated, by letter to plaintiffs, the agency's
intention to observe the test miling of

the bulk samples when it occur. Plaintiffs are aware of

their commtment to provide the Forest Service advance notice before they conduct this miling,

and wil so coordinate with the agency. Plaintiffs hope to provide that notice shortly, durng
July, and have been working on site to conduct this test miling durng ths sumer season.
(5) This test miling of

the bulk samples plaintiffs took, and the subsequent
the mil run products, is the third and final segment of

. metallurgical analysis of

the field

sampling and testing work required for plaintiffs to prepare and present their case in the contest
proceeding.

Dated: July 5, 2006

~.lJn~
Respectfully submitted,

Lawrence G. McBride, Esq.

FOLEY & LARDNER LLP
3000 K St., N.W., Suite 500 Washington, D.C. 20007-5109 (202) 295-4017 (Ph) (202) 672-5399 (fax)

Attorney for plaintiffs

2

Case 1:95-cv-00650-LSM

Document 129-7

Filed 03/05/2008

Page 10 of 13

~ /(. J~ ~ bj cÝ wJ
Bruce K. Trauben, Esq. i

General Litigation Section Environment & Natural Resources Division U. S. Department of Justice P. O. Box 663, Benjamin Franlin Station Washington, D.C. 20044-0663 (202) 305-0238 (Ph) (202) 305-0267 (fax)

Attorney for defendant

3

Case 1:95-cv-00650-LSM

Document 129-7

Filed 03/05/2008

Page 11 of 13

CERTIFICATE OF SERVICE

The undersigned hereby cerifies that the foregoing QUARTERLY JOINT STATUS
REPORT was sered on the following, by first class mail, on July 5, 2006: .

Bruce K. Trauben, Esq. U.S. Deparent òf Justice Environment & Natual Resources Div. General Litigation Section P.O. Box 663, Ben Franklin Station Washington, D.C. 20044

cf I:. /vflt,;-~
Lawrence G. McBride

Case 1:95-cv-00650-LSM

Document 129-7

Filed 03/05/2008

Page 12 of 13

Case 1 :95-cv-00650-LSM Document 87-1 Filed 09/29/2006 Page 1 of 2

IN THE UNITED STATES COURT OF FEDERA CLAIMS
ALFRED ALOISI, et aI.,
Plaintiffs
v.

) ) )

)
) )

No. 95-650L
Hon. Lawrence S. Margolis

UNITED STATES OF AMERICA,
Defendant.

) ) ) )

QUARTERLY JOINT STATUS REPORT
Pursuant to the Court's Orders of October 6, 1999, and May 21,2002, counsel

jointly
is

provide the following quarterly report on the status of

the matter for which the captioned case

stayed:
(1) The contest proceeding before the Administrative Law Judge ("ALJ") of

the

Department of

the Interior remains pending. As indicated in the parties' last Status Report, the

contest proceeding was reassigned within the Department's Offce of Hearings and Appeals, and
the new ALJ requested status reports in July.

(2) The parties filed their status reports, and the ALl scheduled an Initial Prehearing
Conference for August 15,2006. In that conference, the parties' discussed a potential hearing
schedule and the scheduling of

the preliminary matters necessary to prepare for hearing.

(3) On August 16, 2006, the ALJ issued his Prehearing Scheduling Order, setting the
contest for hearing to begin June 5, 2007, in Medford, Oregon, and scheduling discovery and dispositive motion deadlines, and setting the prehearing conference between August 16, 2006
and the hearing date.

Case 1:95-cv-00650-LSM

Document 129-7

Filed 03/05/2008

Page 13 of 13

Case 1 :95-cv-00650-LSM Document 87-1 Filed 09/29/2006 Page 2 of 2

(4) Contestees have arranged to ship a number of

the bulk samples to a facility in

Arizona for test milling. Contestees' removal of

these bulk samples from the locations where

they were placed after they were taken from the claims, and loading them for transport to the

facility in Arizona, is to occur the week of September 25. Contestees duly notified the Forest
Service, and the Forest Service notified Contestees it expected to have its representative(s) on

site to witness the loading and transport. Contestees have also been duly notified of the test
milling arrangements, so that they may notify Contestees if they plan to attend any or all of

the

test miling of

the portion of

the bulk sample material shipped to the Arizona facility.

Although fied by counsel for the United States, this Status Report was prepared, and is

being fied, jointly by the parties.

Dated: September 29,2006

Respectfully submitted,

SUE ELLEN WOOLDRIDGE Assistant Attorney General Environment and Natural Resources Division

Isl Bruce K. Trauben

Bruce K. Trauben, Esq. Natural Resources Section Environment & Natural Resources Division U. S. Department of Justice P. O. Box 663, Benjamin Franklin Station Washington, D.C. 20044-0663 (202) 305-0238 (Ph)
(202) 305-0267 (fax)

Attorney for Defendant, the United States

-'2 -