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

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EXHIBIT 5

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

)
)

.)
) )

)

THE UNITED STATES,
Defendant.

)
) ) )

No. 95-650L Judge Lawrence S. Margolis

INERROGATORIES AND REQUESTS

PLAINTIFFS' ANSWERS TO DEfKNDANT'S SECOND SET OF FOR PRODUCTION OF DOCUMÈNTS

Pursuant to Rules 26, 33, 34 and 36 of the Rules of the United States Court of Federal

Claims, Plaintiffs hereby respond to Defendant's Second Set of Interrogatories and Requests for
Production of Documents (Defendant's "Second Set of

Discovery") as follows:

GENERAL OBJECTIONS AND OBJECTIONS TO DEFINITIONS 1. Plaintiffs object to Defendant's Second Set of Discovery to the extent that it seeks
irrelevant information and/or döcuments.
2. Plaintiffs object to Defendant's Second Set of Discovery to the extent it seeks

information and/or documents that are protected by attomey"'client privilege, work product

doctrine, or any other applicable protection against disclosure.
. ~ !' t,'. 1-1/ '.". : 3. Plaintiffs object to Defendant's Secò,ijd~S,ët. Öf Discovery to the extent that it is overly

. . . t,. :....~

broad, vague and ambiguous, unduly burdensome and not reasonably calculated to lead to the
discovery of admissible 'evidence.

4. Plaintiffs object to overly broad and unduly burdensome definitions of terms,

including pronouns, plural/singular, and entities/persons.

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5. Plaintiffs object to the instrctions relating to the identification of documents on the
basis that, as to produced documents, 'it is unduly burdensome, as the information is as readily
available to defendant as to plaiptiffs.
6. Plaintiffs object to the instrctions and questions asking for descriptions of oral

communcations, as documented oral communications may be gleaned from any record of oral

communications as readily by defendant as by plaintiffs.
7. Plaintiffs object to Defendant's requests to state all facts about contacts,

communications and events pertaining to a response to an interrogatory because it is overly

broad and burdensome; Plaintiffs identify and describe suffcient facts to support their
substantive responses to Defendant's interrogatories as is practicable.
8. Plaintiffs' general objections and objections to definitions and instrctions are
"

incorporated into each and every response herein: regardless of whether specific objections are
i

assered in response to a particular discovery requ.e~t.

ANSWERS TO INTERROGATORIES
INTERROGATORY NO. I: For each and every mining claim that Plaintiffs contend was temporarly taken please identify:
a. the date upon which Defendant allegedly first temporarly took each
mining claim (the "date of

takng')

b. the date upon which the. alleged temporary taking ceased;
c. any interim or interening time period within the range of dates identified

in response to 1.a. and L.b. during which Plaintiffs contend there was no taking;
d. each and every mineral deposit or resource site within each mining claim

that Plaintiffs contend was temporarly taken; and
e. those mining claims and mIneral deposits or resources with respect to
which Plaintiffs intend to offer

proof of a temporar taking at tral.
l.

ANSWER

No.

1:

Plaintiffs re~pond t:,atPefendants (Second) Interrogatory No. I(a)

2

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appears to seek a legal conclusion rather than factual information. To the extent this
Interrogatory constitutes a contention interrogatory seeking explication of Plaintiffs' claims in
the action, plaintiffs respond as follows.
First, with

respect to each lettered paragraph answer to this (Second) Interrogatory No.1,

Plaintiffs do not contend solely that unpatented mining claims were temporarily taken, but also
contend that specific propery constituting

patented, fully 'private land was also temporarly

taken, chiefly the Mt. Laurel parcel (U. S. Mineral Survey No. 3161, Lot 45A), by virte of
Defendant's letter order of January 4, 1990 (FS # 50) ("the Stop Work Order"), which stated, "I
must inform you that

all activities, including acti,vities on private land accessed through National

Forest must stop imediately."
Second, as a legal proposition, defendant has to acknowledge what its obligations to

plaintiffs were on July 23, 1990. On that date, the Forest Service no longer had any basis under

the Endangered Species Act: (i) not to rescind the Stop Work Order (as to the previouslyapproved elements of plaintiffs' mining plan of operations); and (ii) not to immediately process

the balance of the All Phase Plan of mining operations, as required by its mining plan rules, 36

CFR 228.5(a), and as it formally represented to plaintiffs in its November 1989 plan approval
,~.;.
letter, "The (balance of

your proposed activities not approved here) wil be included in a master
an Environmental Analysis completed in the Spring of 1990 as we

Plan of Operation Two with

agree at our meeting." (FS # 46.). Until this legal

obligation is acknowledged or resolved,

there is uncertainty as to the exact dates of the temporary taking, thus:
a. Plaintiffs claim that Defendant temporarily took plaintiffs' rights on each mining

claim, and on the private parcel identified herein (and in the Complaint), and the period of the

compensable temporary taking commenced, either: (1) on July 23, 1990 (when the U. S. Fish

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and Wildlife Service tendered its biological opinion to the U. S. Forest Service that the 38-acre
projected area of surface disturbance for the plaintiffs' All Phase Plan of

operations for the
after July

Liberty Mine would not jeopardize the northern spotted owl); or (2) on the date shortly

23, 1990, when in the normal course of

business.

the U. S. Forest Serice would have notified

plaintiffs of its receipt of that biological opinion and taken the necessar administrative action to

authorize plaintiffs to return to work under the approved portions of their All Phase Plan of

mining operations. (The "All Phase Plan" is ,described more specifically in Answer No. 3
below.) Plaintiffs wrote defendant on September

24, 1998, regarding this dating of the

temporar taking perod (the USFS used other pages of this letter as an exhibit to its March I,
2007, Motions in the administrative contest). We asked in 1998 that defendant provide plaintiffs

with information so that the parties could consider stipulating to these dates:
Assume the Forest Service had notified plaintiffs of

the July 23, 1990, biological

/

i

opinion on July 23, or on the same date it began taking action on the timber sales "cleared" by the same opinion. Without rereading Marc Wiliams's deposition, I believe that was actually July 23. How long would it have taken the Forest Service to rescind or undo its "stop order" of Januàry 4, 1990 (Doc. FS #50), as to all previously approved activities (Phase I and those parts of Phase II approved in . 1989)? In other words, how long would it have been before plaintiffs could have gone back to work both on the five claims the agency representatives have been
sampling, and on the approved Mt. Laure~ property apex cut?

The same exercise pertains to Februry 1994.when the ~econd Fish and Wildlife

with the Februar 1994 second onlY' clearance that beneficialuse öfthe propertyfor mining was restored to the status quo as of July 23, i 990, that is, with no Endangered Species Act objection to the resumption of operations previously ordered to a halt. . ..
Service clearance was rendered. It was

Plaintiffs submit that the dates the paries might establish using this principle would

shortly follow the dates of the Fish and Wildlife Service letters, but the dates canot be set
without fixing the Forest Service's obligadons and process (see 36 CFR 228.5(a)) in light of

the

complete clearance of the entire all-phases plan of operations under the Endangered Species Act

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in both letters.
b.

; ,.;),' ,~:

'. . :', '\ ;~ ;..: ., ~ :

Plaintiffs claim that Defendanes ''temporar takng of plaintiffs' rights on each

...
.,

mining claim, and on the private parcel identified herein (and in the CompIaint), and the perod
of

the compensable temporar ended, either: (I) on February 8,1994 (this is when the U. S. Fish

and Wildlife Service tendered its second biological opinion (FS # 184) to the U. S. Forest

Service that the 38-acre projected area of surface disturbance for the all-phase plan of operations

of the Liberty Mine would not jeopardize the norter spotted owl, in a consultation treated by
the U. S. Fish and Wildlife Service as an "informil! consultation" not required by section 7 of

the

Endangered Species Act, in light of the fact that the projected area of surface disturbance and the
operations described in mining

plan of operations undergoing informal consultation were the for
the July.

all purposes the same as those evaluated in

23, 1990, no-jeopardy opinion); or (2) on the

, ':'~ ..:- L .

date shortly after Februar 8,1994, when in;th~iiormal course of business the U. S. Forest . t.. ,-'
Service would have taken the related administrative actions: (i) of authorizing plaintiffs to return

to work under the previously-approved portions of their all-phases mining plan of operations;

and (ii) of recommencing processing the balance of the All Phases Plan of mining operations
under 36 CFR 226.5(a), consistent with the Forest Service's representation to plaintiffs in FS #

46 (plaintiffs refer here to the unanswered 1998 correspondence regarding temporary taking

dates set out in Answer 1.a. above); or (3) baSed on the Forest Service's failure ever to take
further action with respect to plaintiffs' mining plan of operations after its receipt of the February
8, 1994, second biological opinion, some much later date.

c. There was no period of time betw,een the earliest date provided in Answer l.a.
p
(July 23, 1990), and the latest date

provided in ~1iswer L.b; above (in 1994 or thereafter) when
~.~~.~~: :~~ . ': .

defendant, by virte of its failure to implement its obligations consistent with the 1990 no-

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jeopardy opinion, did not wholly prevent plaintiffs from engaging in beneficial use of the
property for mining purposes, and did not wholly prevent plaintiffs from working an.d mining

under the previously-approved mining plan of operations.
d. Every "mineral deposit or resource site within each mining claim," and on the

private Mt. Laurel parcel, was wholly subject to the temporary takng, and plaintiffs were denied
beneficial use for mining purposes of any and all of them. More specifically, the mineral

deposits of economic value and present interest to plaintiffs in 1989 through 1995 were those

treated as ore blocks in "The Liberty - Eddy Gulch Gold Mines, A Discussion of Grade,
Tonnage, Recovery, Economic Calculations and Other Topics and Issues Related to the Liberty
'j,-.-

. ,.
vs. USFS Litigation," September 2007 (A-I 50),' and on the nine Spreadsheets that are

described
showing the location

in the September 2007 Ferrero Analysis (A-151), and the three sets of

maps

and values of these ore blocks (A-I

52, A-I53 and A-IS4), all of which A-150 through A-154

taken together constitute plaintiffs' working analysis of the design and profitability of their Eddy

Gulch mining operation (together, "the September 2007 Ferero Analysis").
Plaintiffs are not familiar with defendant's phrase "resource sites," but answer that it was

not just the mineral deposits on the mining claims (and on and accessed through the private Mt.
Laurel parcel) that were temporarily taken for this entire period. It was also the use and

enjoyment of all of the same ground for related mine development purposes, transportation of
employees, equipment and ore, construction and op~ration of mining support facilities including
.-, ;.1; :; ';... .

stockpiles, mill and related facilities, and as locations for disposal of mine and mil wastes.
These lawful mining uses of the mining claims and the private Mt. Laurel parcel render these
lands "resource sites" - and beneficial use for mining purposes of the entirety of this ground,

including as "resource sites" as so understood, was prohibited to plaintiffs through the entire

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period described in paragraphs La. and Lb. of

. , ,(

this Answer.

e. The "mining claims and minera~"deposits or resources with respect to which

Plaintiffs intend to offer proof of a temporar taking at tral" are identified as follows.
(I) With respect to "resource sites" (as plaintiffs understand defendant's choice of

phrase, and consistent with plaintiffs' response in paragraph d. of this answer above), the
resource sites include the private Mt. Laurel parcel, Usher Flat, and all roads in Eddy Gulch

referred to in plaintiffs' mining plan of operations, including those roads built, re-graded or
improved under plaintiffs' and their predecessors' plans of operations in 1988 and 1989 through
the Janua 4, 1990, Stop Work Order (FS # 50).

(2) With respect to the "mineral deposits," these are mapped and identified in the
September 2007 Ferrero Analysis (narative A-ISO, spreadsheets A-I5 I, and maps A-152, A-I53
and A-154) and the materials produced he~e or previously on which they are based.
..' . 2. .¡j~( .1

(3) Assuming defendant seeks the id~ntification of those mining claims and private
property parcels that contain mineral deposits identifed in subparagraph (e )(2) of this Answer:
the Sunse, Darel, Sunset, Yanee and Raindrop mining claims with respect to the mineral

deposits mapped and evaluated in the Klamath Mine section of the property; the East Fork,
Compressor, Union Extension and Big Fish claims with respect to the Union dump deposit; and
the Six O'clock, Compressor, Stevens and

Anna Johnson.claims with respect to the Mt. Laurel/

Ana Johnson deposits, and the Mt. Laurel private parcel (which contains mineral deposits
included in the Mt. Laurel/Anna Johnson deposits analyzed Ín the September 2007 Ferrero

Analysis, although it is not a "mining claim."). .

In this subparagraph, plaintiffs have si!IpIr listed the claims within the boundares of
; .~ c ,¡,', _ ~;

which the mineral deposits, identified as ofe~onomic'value and present interest to plaintiffs in
¡ .

t.._" i

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i 989- i 990 in the materials referred to in subparagraph (2) above, are situated, or on which is

found the apex or outcrop of the deposit. Whether a specific dump is "held" under the General
Mining Laws (30 V.S.C. 22 et seq.) by the placer claim or the lode claim it is

on, or by which of

two lode claims, when the boundares of two claims

embrace the one deposit, is immaterial for

purposes of this case, as was made clear by the Administrative Law Judge's Order óf May 2,
2007, in the contest proceeding denying ;the For,es,r Service's motion to declare certain claims
null and void because of the overlap in their bounaa.es.

INTERROGATORY NO.2: For

each and every alleged mineral depositor resource

. identified in response to Interrogatory l.d., please provide the following information:
a. the date on which each alleged mineral deposit or resource was located or

exposed (if a lode claim);
b. the identity of the person who located or exposed each alleged mineral

deposit or resource;
'\ c. the estimated quantity in tons' of ore of each mineral

deposit or resource,

including the data upon which each estimated quantity is based;
d. the dimensions of each mineral deposit or resource, including the data

upon which the dimensions are based;
e. the gold content per ton ",of ore, including the data upon which the estimated gold content is based; and' '::.

£ please provid~ a map da)ìhtirig as precisely as possible the location of
each alleged gold deposit or resource identified in response to Interrogatory No. I.e.
ANSWER No.2:
a.

The exposure of the lode deposits on the relevant lode

mining claims pre-dates plaintiffs' involvement in Eddy Gulch, and involves miners and mining
operations from at least 1863 on (A-2), and known to plaintiffs only by historic claim and mining

records pertining to operations in the Liberty Mining Distrct in the Nineteenth Century. The
mineral deposits within the boundares of the extant lode claims in Eddy Gulch were located in

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1985, when the extant claims were staked and recorded. The actual staking of the claims,

including the surveying of their corners, boundaries and discovery points, completion of the

location notices, and recordation was tidertak:en by Alfred Aloisi and Thomas Ferrero.
Defendant has the location notices containing ni~st:~discovery points, as the Forest Service used

them as exhibits in its March 1, 2007, Motion in.the contest proceeding for which this case was

stayed - a Motion seeking an agency order that a number of the mining claims in this case null
and void for various reasons, which Motion was denied by

the Administrative Law Judge.

As to the basis of plaintiffs' knowledge of the mineral deposits of economic value and
present interest to plaintiffs in 1989-1990,

and included in the September 2007 Ferrero Analysis,

plaintiffs respond more specifically:
(1) The apex or outcrop of the Klamath Vein on the Sunse lode claim was physically
. exposed at the area known as the "Klamath Cut" 'by ¡the owners of prior claims covering the same

ground as the extant claims in this cas7, The;(~amath Cut was physically exposed for a
substatial length along the vein at the time the Sunrse lode claim was located. The dumps on
, _¡::'¡';~'..:r:-f \

the Sunrse lode claim were created by prior operators of the Klamath Mine during its periods of

operation, including the main periods of operation, from 1863-1881 and 1900-1906 (as described

by the California State Mineralogist and reported by Elmendorf(A-2)), and at additional times.

The existence of the Klamath Vein, the outcrop of which we treat here, was known, and
exploited underground down-dip of this outcrop, in every period when the Klamath Mine
operated. Additional extensions of the exposure of this same Klamath Vein to the west (on to the

Darel claim (the site of plaintiffs' sample KL-7) and to the east to the site of plaintiffs' sample
KL-22 were made by plaintiffs in the approved 1989 operations stopped by the January 4, 1990,

Stop Work Order (FS # 150). The additional extension of the exposure of this same Klamath
)d;~ '

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Vein to the east and south, farther on to the east side of the ridge on the Sunse claim (to

plaintiffs' sample site KL-21), was made by plaintiffs in the 2004 sampling operations conducted
within the administrative contest proceeding för which this

case was stayed at that time.

(2) The vein on the Six O'clock lode claim was physically exposed by New Cinch in its
drlling of core holes

in '1975-1976 (A-81 (g)). These vein intersections were duplicated by Mega

Gold in its drillng of core holes in 1986 (A-14, and A-67, Plates 3, 4 and 5). This vein does not
outcrop on the surface of the Six O'clock c,laini(r:ather, another intersecting vein does), so this

vein appears (and appeared in 1989-90) to constitute a so-called "blind lead." But its existence
was projected in the.1970s by New Cinch, from their understanding of

the ore body mined from

the underground workings

accessed. through portals and tunnels on the private Mt. Laurel parceL.

The core holes in 1975.-76 and reverse circulation holes in 1986 exposed the vein, and confirmed
the geological inference of the driiiers~
b. (1) The answers to paragraph 2.a: identified the person or persons involved in the ..

exposure and location ofthe lode claims.

(2) With respect to the placer deposits - the mine dumps from prior mining operations plaintiffs respond that these deposits, were exposed when dumped by the operators of the prior
mines on the claims. Those operators are not know~ ~? plaintiffs, nor are the specific dates when
.1, ":.' r

the dumping occurred over the life of the prior mining operations on this same ground. These
dumps were abandoned, and the claims then-extant when the dumps were deposited were lost,
prior to plaintiffs' location of

the now-extant claims involved in this case. These placer deposits

were, located in 1985 with the staking and reèordation of the mining claims listed in the
Complaint in this case. Defendant has the location notices and related recordation documents
under which the placer deposits were located and are held by plaintiffs, as noted in paragraph

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2.a. of this Answer.
c. The estimated quantity in tons of each mineral deposit of economic value and

present interest to plaintiffs, in 1989-1990 and thereafter, is set out in Spreadsheet 4 (in A-151)
as part of

the September 2007 Ferrero Analysis.
'-,:. -',c' ,.....

d. The dimensions of each mineral' deposit are derived from cross-sections of nearly

all of the dumps, and from cross-sections of the apex deposits, made by Mr. Ferrero. The field
notes for these cross-sections are A-148. The cross-sections and measurements are A-85 and A86. The dimensions were converted to tons using these ratios: 16 cubic feet per ton for dump
ore; 14 cubic feet per ton for apex ore; and 12 cubic feet per ton for underground ore.
e. The gold content per ton of ore is set out in Spreadsheets within the September

2007 Ferrero Analysis, chiefly Spreadsheets i, 3 andA (A-I

51). The data on which the gold

content is based have been previously provided to derendant in the A-series o.f documents. The
maps (A-152 through A-154) that ~re par of

the September 2007 Ferero Analysis identify and

locate all samples of the gold deposits by the

date and source of the sampling data. The All-

Sample Map (A-1 i 7(t) through A- i 77(1)) identifiès'à,id locates all samples of the gold deposits

known to plaintiffs by the date and source of the sampling plan. Using "CAD" programs on the

"dwg" and' "dcd" fies provided, or viewing the "pdl' fies, one can identify, and examine
individually, each set of samples by date and sampler, and the deposits sampled. There should

be no sampling data on these maps for which plaintiffs' sampling data has not already been
provided to defendant in the A-list documents.
f. The maps that are part of the September 2007 Ferrero Analysis depict each gold

deposit of economic value and present interest to plaintiffs in 1989- I 990. Using "CAD"
programs on the scaleable data in the electronic files provided to defendant in July 2007 and

\
)1';:

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here, defendant should be able to "zoom in" on each deposit included in the Séptember 2007
Ferrero analysis (A-151, SpreaClsheets 1,3 and4, and all the accompanying maps A-152, A-153
and A-154).

INTERROGATORY NO.3: Please identify each and every federal, state, county

and/or

local permit, license or approval Plaintiffs obtained with respect to the mining claims that Plaintiffs contend were temporarly taken, including but not limited to the date of the permit or license, the issuing agency, the mining claim to which the perit or license pertains, and the
precise activity aùthorized. ANSWER No.3:
The Forest ServiCe in June 1989 had approved plaintiffs' June

1989 plan of operations (A-22 and A-24.) The Forest Service on August 11,1989, approved
plaintiffs' July 27 additions to the June plan (A-139 and A-140). The Forest Service on
November 27, 1989 (A-142 and FS # 46), approved all of

phase 1 and identified portions of
mining plan of operations (A-25, and FS # 31), as

phase 2 of

plaintiffs' September 28, 1989,

,

) supplemented by plaintiffs October 25, 1989, mining plan of operations (A- I 41). (This
September 28 mining plan of operations, as supplemented on October 25, together, is called the
"All Phase Plan of

, \

mining operations."). The mining activities authorized by those approvals did
activities were being conducted

not require other state, federal and local perits, because those

largely on federal lands, as to which the Forest Service:exercised exclusive permitting control

over some activities (to the exclusion oflocal agencies), and lead agency control over the other
activities.

With respect to the mining activities described in the balance of phase 2 and in phase 3 of
the All-phase Plan of mining operations: (1) Plaintiffs were working with

Siskiyou County

regarding any land use permit that might be required for those activities, as the County was the

lead agency with respect to California state agency approvals for activities on private lands,
including any "SMARA" or Water Resources Control Board approvals (e.g., A-42); (2) Plaintiffs
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were conducting MSHA compliance training of their employees in i 989 in preparation for fiing

notice with MSHA when they commenced the reconditioning of the tunnels on the Mt. Laurel
private parcel and on other lode claims to initiate underground mining operations; and (3)

Plaintiffs had designed .their mil to operate as' a closed circulation system, thus requiring no
water discharge permit for its operation (seeA-42).
The Forest Serice never undertook any effort after Januar 4, 1990, to re-authorize the

mining operations it had previously-approved. (The Forest Servce did not acknowledge to
. plaintiffs until early 1992 that it had received the biological. opinion clearig the operations, and

when it did so it did not disclose that the opinion was more than a year and a half old, until
plaintiffs demanded a copy of it. At that point, the Forest Service demanded that plaintiffs re-

submit their i 989 All Phase Plan of mining operations, and it commenced a new and
unnecessary consultation with the U. S~ Fish and Wildlife Servce on the re-submitted plan -

plaintiffs do not consider these to have been efforts to fe-authorize the mining operations, rather, .
they only served to avoid efforts toward re:.authprizing the mining operations previously

approved.) Moreover, the Forest Servce took

no steps toward processing the balance of

phase 2

and phase 3 of the All Phase Plan of mining oper~tions. In light of the Forest Service's total
. ;.- .,;(~' ;

shutdown of beneficial mining use of theirpiopert, plaintiffs did. not spend their limited
resources to acquire any other perits that may have been required for the mining operations

described in the balance of phase 2 and phase 3 of their All Phase Plan of mining operations.

INTERROGATORY NO.4: Please identify each and every sale by Plaintiffs of gold or

gold-bearing ore that was extracted from the mining claims that Plaintiffs contend were
temporarly taken, and for each transaction include:
a. the mining claim and mineral deposit or resource from which the gold or
gold-bearng

ore was extracted;

i 13

~~

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b. the quantity of gold or gold-hearng ore sold;
c. the gold content of the material sold;
d. the price received perimit'of gold or gold-bearing ore sold (specifyng the
unit weight of the material sold, i.e., whetherby the

ounce, pound, or ton);

e. to whom the gold or gold-bearing ore was sold; and
f. the date of each transaction.

ANSWER No.4:

(a. though f. Plaintiffs did not sell any gold from the claims (or

from the Mt. Laurel private parcel). The Forest Service's Januar 1990 Stop Work Order
stopped "all activities" as plaintiffs were engaged in severing ore from the apex mining sitès, and

just after plaintiffs had begun to haul this ore down from the Klamath Mine to Usher Flat,
awaiting only deliver and erection of the balance of the mil equipment that was available from
Don Moore per the price quotation thatthe plaintiffs ,had receive in early 1990

(A-33 ). Erection

of the mil to process the ore alreay mined and being mined, and being hauled to the mil

staging area, with sale of mil product gold, was~tactly what the approved phases of the All
, :~, .
Phase Plan called for, and what the baseless actiÒÎls of the Forest Service

after July 23, 1990,

prevented from occurrng. The actions of the Forest Service prevented plaintiffs from realizing

any gold production and sale, or taing any further action toward gold production and sale, for

the full period ofthe temporar taking in this case.

Plaintiffs allege was temporarly taken by Defendant, please identify the owner or owners as of the date upon which Plaintiffs taking"). contend that the mining claim was first temporarily taken (the "date of
INTERROGATORY NO.5: For each mining'claim that

ANSWER No.5:

(1) With respect to all of the lode mining claims (with the

exception of those held and leased by Melvin Usher - the Boot Jack, the Security and the Ida
May), and with respect to the Sunset placer claim, the answer is provided in plaintiffs Answer of

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September 2002 to Interrogatory No. S in the Administrative Contest, and documented there. (2)

With respect to the association placer claims, the answer is provided in plaintiffs Answer of
September 2002 to Interrogatory No.8 in the Administrative Contest, and documented there.
"

INTERROGATORY NO. 6: Pleas~ describe any license, or otherwise gain economic value of

and all efforts by Plaintiffs to sell, lease,

any . kind from each mining claim allegedly temporarly taen by Defendant, including, but not linl1ted to, the dates (or range of dates) of the
to Plaintiffs to buy, lease, or license any mining claims, and whether any offers were accepted or rejected.
actions taken, whether any offers were extended

ANSWER No. .6:
Inc., on or about April

(I) Fred Aloisi entered into a "Lease Agreement" with W AZCO,

1, 1993, under which W AZCO promised to make a "minimum production
first two years of the Lease to Aloisi (the "W AZCO Lease

payment" of $500 per month for the

Agreeent (FS # 142). The Forest Servce never approved any mining operations by W AZCO,

nor any mining plan of operations submitted by W AZCO. To plaintiffs' knowledge W AZCO
) never sought Forest Service approval to conduct any mining operation on the leased property,

nor did W AZCO even provide notice to the Forest S.ervice under 36 CFR 228.4 that it intended

to conduct any surface disturbing activities below the level of casual use of the surface that
requires no Forest Serice

plan of operatiohs. .~!
i !. H :1': '

In late March 1994 plaintiffs notified WA.zcb it was in breach of this Lease Agreement.
A-161. One of the stated breaches by

lessee was that W AZCO had assigned the W AZCO Lease

Agreement to Liberty Consolidated Mines, Inc. ("LCM"), a corporation organized by a number
of

the principals ofW AZCO, without seeking or securing lessor's approval as required under the

Lease (A-161, listing WAZCO's defaults). In response to

that notice, the principals ofWAZCO

and LCM (again, many of them the same) and plaintiffs negotiated a revised, renovated lease
agreement.

(2) Out of the breach notice regarding the W AZCO lease, Fred Aloisi and Don Goodman
IS

'': ;"

. ; .,.J;:'.... .

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entered into a Lease and Option Agreement (FS # 147) with LCM (the "LOA"). This LOA was
executed by the parties in December 1994, but with.a stated effective date of

November 1, 1993.

LCM promised to pay plaintiffs a "minimum production payment" of $2,500 per month through

September 1, 1994, and $2,715 monthly thereafter, with $500 of that monthly payment being
made directly to Melvin Usher under the ters of a leae between Usher and Aloisi of Usher's

three mining claims in Eddy Gulch - the Boot Jack, Security, and Ida May claims - that were
also subject to the LOA.

On or about December 6, 1994 (well after the Fish and Wildlife Service had provided its

second and unnecessary biological opinion advising the Forest,Service that the 38-acre surface
disturbance footprint Eddy Gulch mining operation would not jeopardize the spotted owl), LCM

filed a mining plan of operations with the! Forest Service under 36 CFR 228.5 to conduct
underground mining operations, using existing underground workings on the property after reconditioning, and involving constrction ofa mil,C??the property at Usher Flat. (See A-147, and
., '. ". .'~'

o ¡ t

Forest Service "LCM" indexed files produced to plaintiffs in 1997- i 999.) The Forest Service
approved the LCM mining plan of operations on or about August 5, 1996. As plaintiffs

understad, LCM executed the conditions of the August 5, i 996, Forest Service approval, but
never posted the bond required as a condition of

the Forest Service's plan approvaL. LCM never
than clearng Usher Flat (its

conducted any of the mining operations on the property, other

approved mil location) and pourng a concrete foundation slab there, on which portions of the
mil could be erected. On or about July 28, 1999, plaintiffs notified LCM it was in breach of

its

. lease terms, and demanded cure of the defaults (A-l

55). On or about September 9, 1999,

plaintiffs notified LCM that the Lease and Option Agreement was terminated (A-156).

(3) One Giles Florence visited Eddy Gulch in 1998, unexpected by Mr. Aloisi. Based on
j ,-.:'~

16

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their conversation, Mr. Aloisi indicated he was not interested in leasing or selling the

property to

Florence. Thereafter, perhaps a year later, represented

by one Michael Johnson, Don Chisholm

and Giles Florence negotiated with plaintiffs for a lease-purchase agreement of the propery. On
or about Februar 22, 2000, Fred Aloisi and Don Goodman offered to Don Chisholm and Giles .
Florence a Lease-Purchase Agreement undefit~s.set out in a February 22, 2000, Letter

Agreement (A-157), which attached the offered.ôraft Lease-Purchase Agreement, also dated
February 22,2000 (A-l

58). The Letter Agreement (A':157) obligated Chisholm and Florence to

conduct $20,000 worth of sampling they had said they wanted to do before having to commit to

and execute the offered Lease-Purchase Agreement. Chisholm and Florence never executed the

Letter Agreement, and never undertook the sampling they said they wanted to conduct. On or

about April 3, 2000 (A-159), Aloisi and Goodman revoked their offer to enter into a LeasePurchase Agreement under the terms of

the February 22 draft.

(4) At various times post-dating the temporar taking in this case, third parties have
expressed interest in the property, and plaintiffs have dealt with these third paries. One third
part that did express enough interest to visit the pröperty, take some samples, and make maps of
the property, was the same Michael Johnson w~~¡had earlier played a role in connecting Don

Chisholm and Giles Florence with plaintiffs in connection with Answer (3) above. Michael
Johnson, as a principal of Baramundi Gold, never made any offer to lease or buy the property.

The Michaèl JohnsonlBarramundi sampling and information provided to plaintiffs has been
produGed as A-135. In addition, Michael Johnson prepared a computerized rendering of

maps of

underground workings which was provided to plaintiffs in electronic form (A-l 17(a), A-117(b)
and A-I

17(c)). Mr. Ferrero has incorporated these Baramundi computer data into the base map

computer fies from which he created the mapping within the September 2007 Ferrero Analysis.

17 1

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INTERROGATORY NO.7: With respect to each and every lease or license relating to any of the mining claims at issue, please provide the following the information:

execution of each lease or license, including the identity of the iridividuals who . . .1
paricipated in any communication, regarding leasng or licensing any mining claim at

~~~ .
e.

a. the circumstances surrounding initiation of any negotiations leading to the

b. the date upon which the initial contact between any party, or
representative of a pary, to the leases or licenses was made;
c. the time period during which each lease was, in effect (if the effective

period of any lease or license is disputed by the paries to the lease, provide the dates .
each party to the lease or license contends that the lease was in effect);
d. the amount and date of each payment received pursuant to each lease or

license, including in your response the identity of the lease under which the payment was received, from whom it was received, the date of receipt, and the amount received;
the total amount in rent or consideration received under each lease or

license;
f. whether any lessee developed to production a mine on any leased or

licensed mining claim;
g. the amount of gold, . or gol¡Ø-bearing ore, produced from each leaed or

licensed mining claim; and " ,.;,
l, c

h. the quantum of any and alÍpayments received as a production or royalty

payment (such as was contemplated in Article 6 found in both FS Document Nos. 142
and 147) under each lease or license.
ANSWER

No. 7:

This Answer employs the same numbering as Answer No.6,. to

identify the agreement or offer with respect towhich the Answer pertains.
a. (1) By 1991, plaintiffs had been allowed to do no more of the work the Forest

Serce approved in November 1989 than they had completed by January 4, 1990. Per the

sequence of events in the approved phases of the All Phase Plan, the test mil could have been
erected, and operating under Forest Service approval, in i 990. Per the plan income from gold
production would have begun to be available to fund succeeding stages in mine development.

)8
'I -i

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As it was, not only had plaintiffs not been allowed:hack to work, but the Forest Service had lifted
not a finger tp process the rest of

the All Phase PlanofMining Operations, notwthstanding their

representation in November 1989 (FS # 46) to complete environmental analysis on the balance of
the All Phase Plan in the Spring of 1990. Plaintiffs mortgaged the Rollin and Mt. Laurel private

parcels, and used the loan proceeds to pay expenses, including servicing the equipment payment

expenses. The lender - mortgagee on the Mt. Laurel parcel was one David Davies, a' business

associate of Aloisi's father, who leared of this property and became interested in that loan
opportnity at that time.
The Forest Servce in early 1992 finally acknowledged its receipt of the July 1990

biological opinion, but then the Forest Service's insisted that plaintiffs' April I, 1992, version of

its All Phase Plan was a new plan, not simply a demanded re-statement of the several
: J i

submissions that constituted the 1989 All Phase plan; ,Plaintiffs, unable to pay on the Mt. Laurel
,'.'.;:.n
loan note, defaulted, and Davies foreclosed (A-l

62).

Davies had a business associate in Nortern California, in millng, named Mark Gavard,
also known to Mr. Aloisi. From Aloisi's perspective Gavard had coveted the Eddy Gulch

propery for years. When Davies advised Gavard that he was foreclosing on the Mt. Laurel

loan

(A-162 pertains to this foreclosure sale), Gavard and Davies made some arangement for Gavard
(through W AZCO) to lease, buy or otherwise control the Mt. Laurel property, which they saw as

the crucial property for purposes of controllng long-term underground development of the Eddy
Gulch property. W AZCO/Gavard approached A~oisi. to lease or purchase all the mining claims.

From this position, forced on plaintiffs by the Forest Servce on the one side and Davies and
W AZCO (Gavard) on the other, plaintiffs workedput t~e 1993 W AZCO Lease Agreement:
. :' :t.i.d.

(2) The principals of W AZCO were also th6principals of LCM, although LCM had new,

19

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additional principals in addition. . Plairtiffs understood LCM's motivation to negotiate a
successor lease, when lessor notified' W AZCO of

its default under the W AZCO lease (A-161), to

be as follows - LCM had taken an assignent of the W AZCO lease, without notifyng lessor or

securing lessor's approval, and was either then sellng, or intending to sell, stock in LCM, whose

primary asset was the assigned W AZCO lease bfthe Eddy Gulch propert. This, plaintiffs
~:

. ,

. .

.! ' l.

understood, was the reason why LCM wanted the LCM LOA, though executed in December
1994, to be effective

a year prior, November 1, i 993, and supersede' the W AZCO Lease

Agreement for that period - a perod

from in which LCM may have been sellng stock on a

company whose priary asset was a Lease at risk of termnation for breach.
b. (1) Plaintiffs canot re-create when WAZCO contacted plaintiffs, although it was

shortly

after Davies initiated foreclosure a¡ction on plaintiffs' default on the mortgage

of the Mt.

Laurel private parceL. (2) Contact

between the principals of LCM and plaintiffs was periodic

.,' .)

and continual from and through the execution of the W AZCO leas.e. After the six-month time
period provided in Exhibit B of the W AZCb lease for W AZCO to "initiate a mining plan" had
passed without W AZCO doing so, plaint~ffs' 'Y,~re in regular contact with W AZCO about
W AZCO's breach of

this material contract obligation.

c (1) The W AZCO Lease Agreement was in effect from on or about April 1, 1993,
and was superseded on November i, 1993, per the terms of

the LCM LOA. (2) The LCM LOA

was executed by the paries in December 1994, and declared that it was effective November 1,

1993. It was terminated on or about September 9, ,1999 (A-156).
Plaintiffs are aware of no disputes over these dates. (1) To

the extent WAZCO disputed

whether its lease was in default due to its breach of the lease terms, that dispute was mooted by

the execution of the LCM lease. (2) The termination of the LCM LOA has, to plaintiffs'

, 20

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knowledge, never been disputed in any way or in any forum.
d. (1) Aloisi believes that he received monthly "minimum production payments" of

$500 for 20 months under the W AZCO lease, for April 1993 through November 1994. (2)
Under the LCM LOA, LCM made the monthly "minimum production payments" through June

1999. LCM's failure to make the July 1999 monthly payment was one of the breaches on the
basis of

which the LCM LOA was terminated.
e. , Under the W AZCO lease, per lease provisions described in

paragraph ' 7.d.,

$10,000. Under the LCM LOA, $500 of each monthly payment went not to Aloisi and
Goodman, but directly to Melvin Usher to service his lease to Aloisi of three claims Lessor
subleased to LCM in the LCM LOA. With the LCM LOA effective November 1, 1993, the 10

months at the $2,500 monthly payment rate had already passed when the LCM LOA was
executed. In each of

those 10 months, LCM owed an additional net to plaintiffs of $1,500, and

LCM owed an additional net sum of$1,715 for the months from September through November

1994. In connection with executing the LCM LOA, LCM made a payment, with other
adjustments, of about $17,000 to plaintiffs. After the execution of the LCM LOA through June
1999 when it stopped paying, LCM paid about $93,000 under the LCM LOA.
f. This question was answered in Answer 6, paragraphs (1) and (2) above.

g. Plaintiffs have reason to believe that W AZCO or LCM, or both, removed

stockpiled ore from various locations onthe property during the period of their Lease Agreement

or LOA and had the ore miled at the Bowerman Mil, located outside of Eddy Gulch. Plaintiffs'

belief is grounded in the fact that ore mined by plaintiffs from the Klamath Cut, and hauled to

Usher Flat in 1989 before the Forest Service shut down the mining operation, was no longer
there at some point durng these leases, and likewise, ore stockpiled by prior owners of the Mt.

21

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Laurel private parcel near the mouth of

the M J Tunnel ~n that

parcel

was also removed from the

property during this period.
Plaintiffs are aware of no other motive for any lessee to remove this volume of ore

from

the property other than to have it miled and sell the gold. However, neither lessee ever reported
any production of gold to plaintiffs under either leasè; and neither lessee ever paid any royalty,

as

. ,,'. ~

required under either lease, on the production and sale of any gold from those ore piles.
h. Plaintiffs received no "production or royalty payment" under either the W AZCO

Lease or the LCM LOA.

INTERROGATORY NO.8: Please describe in detail all investment amounts o.r costs incured and/or paid by Plaintiffs with respect to each mining claim at issue that Plaintiffs contend were lost or diminished in valueb,y the ~lleged tempora~ taking, including:
a. the amount incÙIed;
b. whether the incurred amount was

paid;

c. the purpose of

the cost incurred;

d. the date the cost was incurred; and
, ": '; ...: ¡ ~ ' .

e. an explanation as to how,'aid iil what amount, each investment or cost
incurred was lost or diminished. in value as a result of

the alleged temporary taking.

ANSWER No.8:

(I) Plaintiffs detail their investment in equipment to conduct the mining and millng
operations in their Answer to Interrogatory No. 10, and as reflected in the expenditures itemized
in ledgers and accounting information in A-164 through A-168.
(2) Plaintiffs invested in labor in their: 1988 and 1989 operations, as detailed ,in the

produced ledgers and accounting information A:.164 through A-168.
(3) Plaintiffspaid Robert Pincombe and

,his Mara Ventures entity, and through him the

22" ,
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,
estate of Alex Patterson (who originally held, and leased to Pincombe, both the two private

parcels and the bulk of the prior set of claims on the property in the early 1980s, but whose'
failure to make anual filings with the Bureau of Land Management led to the location of the
current set of claims) $50,000 for the two private parcels within the property (the Mt. Laurel and

Rolln parcels, Mineral Survey No. 3161, Lots 45Aand 45B, respectively). This $50,000 also
acquired Mara Ventures' interest in the claims owned by Ruth Markon in Eddy Gulch (the Ana
Johnson group at the extreme east of the property). A- i 63 documents this transaction. Payment

on this agreed purchase price was completed in 1991 in "back -to-back" transactions where all

obligations to Pincombe / Mara Ventures were fully sa6sfied, and the private parcels were then
titled in Liberty Mining,

Inc. and Energel, Inc., and then used as collateral for secured loans to
his thee

Libert and EnergeL. Also, plaintiffs paid Melvin Usher $14,000 under their lease of

lode claims that included the area at Usher Flat. (That 1990 Usher lease, and its 1994

amendment, are Exhibits B-1 and B-2 to the LCM LOA.) As to the Usher lease and claims,
plaintiffs defaulted on payments under the Usher lease, and lostit when LCM ceased making its
lease payments.

INTERROGATORY NO.9: Please identify any and all stockpile(s) of ore on each
mining claim that

Plaintiffs contend has been staged for miling and production of a product

intended for sale, including the precise location of the stockpile, the source of the ore stockpiled the quantity of ore stockpiled, the date upón which the ore was stockpiled, and the gold content of the stockpiled ore.

ANSWER No.9: ' (l) Plaintiffs understand the word "stockpile" does not define the
;,. J."

placer (mine dump) deposits as ore "stockpiles" for puroses of this answer. Nonetheless,

plaintiffs note that the dump deposits of economic value and present interest to plaintiffs in
i 989-1990 are effectively "stockpiled" for millng and production of gold for sale. There is no

cost of "mining" such as scraping; blasting or overburden removal, involved in realizing their
value. The only cost is loading and hauling any dump deposit to the mil location, just like any
23

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mined apex ore stockpiled a haul distance from the milL.
(2) In 1989 during their approved operations, and prior to the January 4, 1990, Stop

Work Order, plaintiffs began hauling ore from the Klamath Cut to Usher Flat, where it was
stockpiled for miling. Plaintiffs do not contend there is' any milable stockpile at Usher Flat

now. During the life of the WAZCO Lease Agreement or LCM LOA, the lessee removed or i
wasted this ore. The lessee either hauled it to the Bôweran mil (but never reported production'
or paid royalty to plaintiffs), or wasted it in the course of

blading the Usher Flat site and pouring

the concrete mil foundation slab, or both.
(3) There are three

stockpiles of apex ore from the Klamath Vein on the Sunse lode.
the exposure of

claim: the fist on the Darel claim at the west end of

the Vein, at plaintiffs' KL- .

7 sample location; the second at the Klamath Cut near sample KL-l, and the third at the ridge pit near KL-6. This ore was mined and stockpiled in 1989 under plaintiffs' approved mining plan of

operations prior to the Forest Service's Stop Work Order. The volumes of these stockpiles are
specifically measured in the mapping in A-85 and A-86. The tonnage of

these stockpiles is

included in the economic evaluation with the additional not-yet-severed (excavated and piled)
apex ore at the same locations. The unified tonnage,~I?d values of i 'i - .' ~ ',':

the mined (stockpiled) and un-

mined apex ore at each of these sites are inclw;lediIi the September 2007 Ferrero Analysis (A150), and on its Spreadsheets 4-9 (A-I5!).
INTERROGATORY NO. 10: Please identify:
a. any and all mining, miling .and processing equipment that was in place

and available for Plaintiffs' use upon the date of inception of the alleged temporary
taking, including but not limited to any crushing, miling, screening, concentrating,

and/or other ore processing equipment;
b. for each piece of equipment identified in response to 10.a., please state:

1. its precise location as of the date of taking;

24

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ii. when each piece of equipment was purchased and/or leased;
iii. the name of the purchaser and/or lessee of

the equipment;

iv. the seller or lessor of

the equipment;

v. . when each piec of equipment was transported to a miling site for
processing Qre extraCted from the mining claims allegedly taken;

vi. the location ofthe miling site;

vii. whether the equipment was new or previously used when purchased or leased; .
viii. any repairs or refubishing necessary to make the equipment

operational;
ix. the cost of each piece of equipment purchased or the rent paid

under any lease;
X. the cost of

transporting and setting in place the equipment;

Xl. the cost of any repairs needed to make the equipment operational;

and

the complete miling process were performed using the equipment identified in your response to 10.a.
xii. whether and, 'if so, when, any tests on ANSWER No. 10: To create a matrx responôing discretely to each of

twelve subpars

of a subsection of one interogatory would be unnecessarily burdensome and unnecessarly

lengten this Response. Plaintiffs respond to the substance of Defendant's request, individual
piece of equipment

by individual piece of equipment. As to Interogatory 1 O.b.xii., plaintiffs did

not erect the milling equipment - the Forest SerVice baselessly prohibited them from doing so.

As the Forest Servce prohibited the erc;ction af the miling equipment, the

Forest Service

prohibited its being tested.
! ,~ .' i r ~
Some of the mining equipment on-site in 1990 was filmed

in 1990 (A-73, voice on tape

generally Don Moore; fimed at Rolln). Ths film does not show the gravity separation miling
equipment then at the ET Placer Pit. The miling equipment not described below as having been

,25

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purchased by plaintiffs is described in docnment A-33, Don Moore's pricing sheet in early 1990
for the balance of the miling equipment.
1. (a) Two Tri-R Concentrators, (b) Cedar Rapids 5 by 15 Triple Deck Screen, (c) a 60

KW generator, and (d) 2 20-foot flatbed tràilers - all purchased for $69,000 from BenCo (Steve
Bennett, a principal with Aloisi in Jefferson State) in i 988; originally acquired by Jefferson State

in 1986 and used in the ET Placer operation; this suit of equipment remained at the ET Placer
site until 1992, when the Forest Service demanded its

removal, at which point this equipment

was moved to Rolln, where it is today; it was operational in 1989-1990 at the ET Placer site.

2. (a) one Bico pulverizer; (b) one Braun jaw crusher - bench scale (112 ton per .hour)

assaying equipment - purchased new for the operation in 1988-1989 for $6,000; on Rolln in
1989; stil at Rolln.
3. Underground operations

equipment suite: (a) Manchi Motor for underground "train,"

and battery and battery charger for the ¥anchi,Motor; (b) five ore cars; ( c) one underground
mine flatcar; (d) 260 KW generator; and (e) Eimco 12B mucker - acquired in 1988-1989 used
for $20,000 in exchange for forgiveness of debt owed Aloisi by Norman Haber; on the property

in 1989; sold (except for the generator) to WAZCO (Gavard) in 1993, and removed from the
property by LCM during its LOA, or upon terminatiori of its LOA; generator sold for $13,000 to . -. ~
.',\':
an equipment outfit in Portland, Oregon, by Jim Kendle

in 1991.

4. Caterpilar D8H-46A, serial number 27123 - provided used by

Don Goodman, direct

costs to plaintiffs included $10,000 to trck to California and $20,000 in improvements
(installation of parallel rippers and "U" blade from Steve Wilson Equipment); in use on-site in

1 989 as primar apex ore excavation equipment; sold to Bob Johnson in 1998 or 1999 for
$22,000; price new then approximately $250,000.

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5. Caterpilar 950 rubber-tired loader - purchased used for $45,000

from an equipment

supplier in Portland, Oregon; on-site and used in 1989

operations; sold for $17,000 to Bob

Johnson in 1999 or 2000.

6. Two' Terex T24 scrapers - purchased used for $65,000 from the same Portland
eqipment supplier; on-site and used in 1989 operationt); sold for $7,500 (one operational, the

other not at time of sale) to Jenner Ranch in 1998.

7. Caterpilar 977 tracked loader - acquired used by delivery from Don Goodman;

$12,000 in refurbishing in 1989 by Steve Wilson (Medford), installing winch and forks; used in
operations in 1989; returned to Wilson in 199 i for seryicing, kept by Wilson for non-payment of

sericing / repair charges.

8. Longyear 44 wire-line core drill and 1000 feet of steel core pipe, and accessories _
cost $150,000 new in 1988; used in 1988-1989; when mounted on Mack Truck, used to drill

sample hole at Union Mine underground target; seen in A-73 video cassette recording; was
equipment in place for use in phmned i 990 drilling in Mt. Laurel/ Anna Johnon area, drillng
work for which the Forest Service gave interm authorization in 1991 to plaintiffs to improve the

road to the drill site, but never approved the actual drilling under interim authorization in 1991,
as an exception to the Stop Work Order; sold for $65,000

of which only 16,000 was received in

i 999-2000;

traced to an equipment yard in the Sierra

foothils later, and acquired by Andrew
'. -! ,; ,

Edwards (Britania Constrction) of Ashland, Oregon, and used, mounted on a surplused Army

truck, in plaintiffs' sampling plan test drillng in 2004, which penetrated underground mine voids
in the Klamath Mine down-dip of

the Klamath apex ore deposits here; now in Andrew Edwards'

yard in AsWand, Oregon.
9. Forty foot trck and trailer - acquired for $7,500 used in 1988-89; used to haul

,

)

..

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plaintiffs' cyanide vats from the Pima Mine to Don Moore's in Tucson, Arzona, awaiting
shipment to the mine site; truck and trailer stored in Ashland and lost for rental.
10. Underground long-hole drill and drill steel (for underground drill core

sampling),

slusher and Detroit 250 (din) compressor - acquirf;d for $3',00 from Ed Rutter in Winston, New
Mexico in i 988; the compressor and slusher were ~oth used in 1989 operations, with the slusher
used to load ore from apex cuts; the compressor remains at Rollin (not in working condition); the'

slusher was sold to Mark Gavard during the W AZtO Lease Agreement, and removed from the
property during the LCM LOA's life, or at its termin'ation; the underground drill and drill steel is
in storage in New Mexico.

. , ,i

11. Eight steel, brick-lined vats for cyanide leaching - purchased used for $12,000

($1,500 . each) from Don Moore, who had acquired surplus equipment. at the Pima Mine
southwest of Tucson, Arzona; 4 remain at Don Moore's; the other 4 were'loaned to Norman

. Haber, thereafter lost by or stolen from Haber from an equipment yard of his, which loss
constituted par of the debt from Haber to Aloisi referred to in Answer No. 10(3).

12. Six Denver flotation cells - used, worth $8,000, exchanged to Aloisi by Norman
Haber in forgiveness of Haber debt to Aloisi, intended for Eddy Gulch as part of flotation circuit,
exchanged to Don Moore in exchange for metall.ur.gical testing and other services to Liberty

Mining.
13. Two hoppers - bought used for $1,000 each from Benco (Steve Bennett), out of

the

dissolution of the Jefferson State nperation; used in the ET Placer operation, moved to Rollin in
1989 and ready for use in mill set-up; they remain at Rollin.
14. Two grizzlies - bought used for $1,000 each from Benco (Steve Bennett), out of

the

dissolution

of the Jefferson State operation; used in the ET Placer operation, moved to Rolln in

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1989 and ready for use in mil set-up; they remain at Rolln.

15. Cedar Rapids Pitmaster and two conveyor belts, with portable screen and crusher
jaws and

rolls (mil pre-crush in advance of ball mill, 25 tonlour capacity) - purchased for

$26,000 used from Don Swanson; moved on~site in 1989 for mil set-up; stil at Rolln.
16. Joy 185 (cfm) compressor - cost about $2,000; bought

in 1982 by Aloisi and used in

the Double Eagle and Jefferson State operations

at the ET Placer pit; moved to Rollin in 1989

and used to power drillng and blasting in cònnection with approved 1989 access road
constrction and improvement; stil being used near

Eddy Gulch (at local lumber mil).

17. One pressure washer - bought new for $4,500; used in 1989- i 991 road work, sold
around 1993.

18. International Shop Truck (one and a

half ton) - bought .used for $2,500 from

Webfoot of Medford in late 1980s; on-site durng 1988-1989 operations; in storage in New
Mexico now.

19. International flat-bed truck (two and a half ton) - bought used from Webfoot of

Medford for $3,500; used on-site during operations; sold durng 1990s for $500.

20. Boles Aero 32-foot trailer (for camp use) - bought for used $6,000, moved on-site in

1988-89, and used for employee housing in 1988.89 during operations; in storage in New
'.1 -;1

Mexico.

21. Mack trck (the core drill was mounted on it) - bought used for $4,000 from Kendle
Trucking in i 988; available on-site and used in drillng operations then (see Answer No.1 0(8).

22. Portable Alaska sawmil - purchased used for $6,800 in 1988; used on-site to mil
lumber from trees marked by the Forest Service for cutting in connection with approved 19881989 clearing, road construction and improvement; this lumber was used to built various cabins

29

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. \

and other strctures at Rolln which were usen in the 1989 operations. Salmon Mountain

Forestr (Jim Vilapiano) miled the cut trees, at a rate of $100 per 1,000 board feet, so in
exchange for millng the 68,000 board feet of

timber he acquired the sawmil for $6,800;

Vilapiano removed the sawmil from Eddy Gulch under those terms after completing the lumber
miling work.
23. 1989 Ford 4 by 4 (thee-quarer ton) pickup trck - purchased new for $25,000; this

was the main supervisory work trck on site in 1989; Aloisi acquired and kept it after operations
were shut down.

24. Fifth wheel Army "Dolley" (used as portable axles to move portable but unwheeled

equipment) - purchased used in Talent, Oregon, for $500 in i 989 and used to move the
Pitmaster; stil at Rollin.

25. Northwest 41 dragline - bought for $7,500 used from Danny Chancellor for use in
,"\
J

the miling circuit to load the Tri-R / Triple-Deck concentrator, and to clean out sedimentation.
ponds; sold to Chrstian Hardy in i 992 for $4,000.
26. Welder- bought used for $1,500 from BillBaron in 1988, used in

1988-1990 for all

welding uses; in storage in New Mexico now.
27. Campbell-Houser portable air compressor - bought new for $2,500 in 1989, used in

operations; in storage in New Mexico now.
28. Powder magazine - bought used for $3,000 in 1982 for the Double Eagle place
operation; at Rolln during the operation in 1988-1989; sold to, LCM during the LOA for $1,000,

and removed from the property by LCM either during the LOA or upon its termination.

29. One 2200 Honda generator and one 3500 Honda generator -- $4,000 new, used in .
1989 operations, and ¡jisposed of after operations ceased.

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INTERROGATORY NO. 11: Please identify with paricularty, by wrtten description
and on a map, the discovery point(s) for each mining claim as of the date of the inception of

allege temporar taking.
ANSWER No. 11: Plaintiff~ object that

the

this Interrogatory is irrelevant to the case.

Under the General Mining Laws, whether a claiimintholds ground within a claim against other

..j

competing claimants, or has a "discovery" that validates the claim for purposes of seeking a
patent under the mining law, or constitutes the claim as a ''valid existing right" unaffected by a
withdrawal of the land - is determined by the state of knowledge, and the exposure of

mineralization as a whole at the relevant date for making such a determination. It is not based on

or grounded in the "discovery point" employed in the claim location notice and monumented on
the ground atthat time. In addition; the location of discovery points within a claim is immaterial

to the Forest Service's obligation to process mining plans of operations under its surface
management regulations at 36 CFR Part 228 - the' Forest

Service is obligated to process such
. ~ ..~ t ..:

plans whether claims are properly monumented, whether the claims have discovery points, or

whether the claims are supported by discovery ofa valuable mineral deposit or not, on
;

"open ground" as Defendant has admitted all the land in all the mining claims in this case is
"open ground."
(I) The "discovery point" for each mining claim, in the usual meaning of that phrase

under the Mining Law of 1872, is identified on each claim location notice fied in connection
with the staking, location and recordation of the mining claim. The map and related descriptions
are par of each location made in 1985 by plaintiffs. Defendant has all of these maps and

descriptions as evidenced by their use by the Forest Service in its failed March 2007 Motion in
the administrative contest seeking an order declarn~. some of

the claims to be null and void.

(2) The "discovery points" for each claim, '.in the alternative sense of the places on each ,
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claim that contain mineralization of such quantity and quality as would justify a prudent person
in the expenditure of his or her labor and means with the reasonable expectation of developing a
paying mine, are identified and

evaluated in the September 2007 Ferrero Analysis, and the maps

that are par of that Analysis, and as described more specifically in Answer No. l.d., Answer No.
l.e;, and Answer No. 2.e. above.

INTERROGATORY NO. 12: Please identify each and every ore sample and sample location on each mining claim upon which Plaintiffs wil rely upon at tral.
ANSWER No. 12: These samples, and

their locations, are displayed on the maps that

are part of

the 2007 Ferrero Analysis.

INTERROGATORY NO. 13: Please identify all persons involved in any and all
sampling, processing and testing of the alleged..gold or gold ore deposits found on Plaintiffs' mining claims, including but not limited to Messrs. McBr