Free Motion for Attorney Fees - District Court of Colorado - Colorado

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 01-cv-2163-BNB-MEH SIERRA CLUB and MINERAL POLICY CENTER, Plaintiffs, vs. EL PASO PROPERTIES, INC., Defendant. ______________________________________________________________________________ EL PASO'S MOTION FOR ATTORNEY FEES AND LITIGATION EXPENSES ______________________________________________________________________________ El Paso Properties, Inc. ("El Paso"), by counsel, moves the Court for an award of attorney fees and litigation expenses pursuant to 33 U.S.C. § 1365(d) and states as follows: On June 4, 2007, this Court issued a Memorandum Opinion and Order dismissing this case with prejudice and awarding costs to El Paso. [Doc # 253] The Clerk of Court entered judgment against Plaintiffs Sierra Club and Mineral Policy Center on the following day, June 5, 2007. [Doc # 254] Therefore, this motion is timely under FED. R. CIV. P. 54(d) and D.C.COLO.LCIVR 54.1. I. The Court should award El Paso attorney fees pursuant to 33 U.S.C. § 1365(d). Section 1365(d) of the Clean Water Act ("CWA") provides that "[t]he court ... may award costs of litigation (including reasonable attorney and expert witness fees) to any prevailing or substantially prevailing party, whenever the court determines such award is appropriate." The Supreme Court has held that Congress, through its use of the phrase "any prevailing or substantially prevailing party," gave courts the discretion to award fees to prevailing defendants

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and prevailing plaintiffs. See Christiansburg Garment Co. v. Equal Employment Opportunity Commission, 434 U.S. 412, 416 n.7 (1978) (including the CWA in a list of statutes authorizing the award of legal fees to either party). Federal courts have held that prevailing plaintiffs acting as private attorneys general should ordinarily recover attorney fees unless special circumstances would render such an award unjust. Hensley v. Eckerhart, 461 U.S. 424, 429, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983); Browder v. City of Moab, 427 F.3d 717, 721 (10th Cir. 2005). By contrast, prevailing defendants in citizen's suits are only to be awarded attorney's fees when the plaintiff's claim is "frivolous, unreasonable, or groundless, or [] the plaintiff continued to litigate after it clearly became so." Christiansburg Garment Co., 434 U.S. at 422; Browder, 427 F.3d at 721. Once prevailing party status has been determined, the court must determine the reasonableness of the fee request. Browder, 427 F.3d at 721. A. Plaintiffs' claim against El Paso was frivolous, unreasonable and groundless or became so during the course of the litigation.

There is no question that El Paso is the prevailing party in this case. The Court dismissed Plaintiffs' case in its entirety with prejudice and awarded costs to El Paso as the prevailing defendant. [Doc # 253 at 26] The Court must thus determine whether at any time prior to trial the Plaintiffs' claim became frivolous, unreasonable or groundless. The Clean Water Act prohibits the discharge of any pollutant from a point source to navigable waters unless authorized by permit. 33 U.S.C. § 1311. Plaintiffs' claim rested on the factual premise that pollutants in water from the El Paso shaft flow into the Roosevelt Tunnel
EL PASO'S MOTION FOR ATTORNEY FEES AND LITIGATION EXPENSES Sierra Club, et al. v. El Paso Properties, Inc. (Civil Action No. 01-cv-2163-BNB-MEH) Page 2

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and are then conveyed into Cripple Creek. [Doc # 253 at 2] Plaintiffs bore the burden of proving this premise by a preponderance of the evidence. Sierra Club v. El Paso Gold Mines, Inc., 421 F.3d 1133, 1146 (10th Cir. 2005), cert. denied, 126 S. Ct. 1653 (2006). This Court found that Plaintiffs "failed to prove, by a preponderance of the evidence, that pollutants entering the Roosevelt Tunnel from the Shaft (a point source) are discharged at the Portal into Cripple Creek (a navigable water)," and thus, "failed to prove that El Paso violated the Clean Water Act." [Doc # 253 at 25]. Although a plaintiff's failure to prove his or her case at trial does not necessarily mean the claim was frivolous, unreasonable or groundless, Christiansburg Garment Co., 432 U.S. at 421-422, this Court recognized that Plaintiffs' claim for relief suffered from two fundamental flaws. First, Plaintiffs failed to establish the baseline water quality necessary to conduct a scientifically valid natural tracer study. [Doc # 253 at 24] Second, Plaintiffs failed to provide an objective scientific explanation for the fluctuating zinc levels in the water within the Roosevelt Tunnel. Id. at 25. Plaintiffs were aware of these flaws long before trial but failed to address them before or during trial. The record in this case and related state and federal cases demonstrates that Plaintiffs' claim - that pollutants from the El Paso shaft flow through the Roosevelt Tunnel into Cripple Creek - lacked merit because it could not be proven by the available evidence. Plaintiffs continued to litigate after becoming aware they had insufficient evidentiary support for their claim and that no further evidentiary support could be obtained due to the unsafe condition of the Roosevelt Tunnel.

EL PASO'S MOTION FOR ATTORNEY FEES AND LITIGATION EXPENSES Sierra Club, et al. v. El Paso Properties, Inc. (Civil Action No. 01-cv-2163-BNB-MEH) Page 3

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1.

Plaintiffs failed to establish baseline water quality necessary to conduct a scientifically valid natural tracer study.

Plaintiffs relied on sulfate as a "natural tracer" in attempting to prove that pollutants in water from the El Paso shaft reach Cripple Creek. [Doc # 253 at 17] Plaintiffs called two experts to testify at trial, Dr. Ann Maest and Dr. James McCord. Dr. Maest and Dr. McCord each testified that "to use a natural tracer to support a fate and transport analysis, there must be a clear distinction between the concentration at the source and the concentration naturally occurring in the environment." Id. at 22. Plaintiffs conceded that only ten relevant water samples have ever been taken in the interior of the Roosevelt Tunnel. Id. at 5-7. Of those ten samples, Plaintiff relied on just one to establish a baseline concentration of naturally occurring sulfate, a sample taken by Cripple Creek & Victor Gold Mining Company ("CC&V") on October 14, 19941 at a location 4000 feet from the El Paso shaft and designated RT-EP 4000. Id. at 22-23. Two samples taken on the same day at locations 3000 feet and 2000 feet from the El Paso shaft were designated RT-EP 3000 and RT-EP 2000 respectively. Id. at 23. While Dr. Maest asserted that sample RT-EP 4000 was taken from a granite seep in the Tunnel ceiling, she testified that RT-EP 3000 and RT-EP 2000 were taken from the Tunnel floor. Id. Her claim that sample RT-EP 4000 came from a granite seep was based on one word in a column heading found on one page of Plaintiffs' Exhibit 16 and the testimony of Water Quality Control Division ("WQCD") official David Akers, neither of which the Court found sufficient to

1

The Court's order contains a typographical error in that it states in one place that the sample was taken on October 14, 1996 instead of October 14, 1994. [Doc # 253 at 23]

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prove "that the water collected at RT-EP 4000 was taken from a granite seep." Id. at 23-24. The Court thus concluded that "Plaintiffs have failed to establish the baseline water quality, and their natural tracer theory collapses because they cannot distinguish the water quality at the Portal from the baseline water quality." Id. at 24. Prior to and during this litigation, Plaintiffs were simultaneously suing CC&V for an identical violation of the Clean Water Act--the unpermitted discharge of pollutants from the Roosevelt Tunnel into Cripple Creek. Sierra Club v. Cripple Creek and Victor Gold Mining Co., Civil Action No. 01-CV-02307-MSK-MEH. Plaintiffs' Exhibit 16 is a letter from CC&V's Assistant General Counsel Peter O'Connor to the U.S. Environmental Protection Agency ("EPA") with roughly seventy pages of attachments, including copies of a power point presentation from a June 5, 2001 meeting attended by CC&V, EPA, the Department of Justice and the WQCD. Mr. O'Connor testified in the trial of this case that at the time the meeting occurred, state and federal environmental officials were actively seeking to hold CC&V liable for the Roosevelt Tunnel discharge. Mr. O'Connor admitted that he prepared Plaintiffs' Exhibit 16 as part of an effort to avoid Clean Water Act liability for the Roosevelt Tunnel discharge. Plaintiffs have known since at least the spring of 2006, ten months prior to trial, that they would need to differentiate man-made and naturally occurring sources of pollutants in the Roosevelt Tunnel in order to prevail. On April 13, 2006, District Court Judge Marcia Krieger entered an order in the CC&V case criticizing the Plaintiffs' failure to do so: the mere presence of identified chemicals in the water does not constitute a violation of the Clean Water Act because such
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chemicals could be there naturally. If water contains a substance in the same amount or degree as naturally occurs in the environment, then it is unlikely that anything has been added or discharged into the water. Sierra Club has presented no evidence as to whether, what or the degree to which the chemicals or other substances reported in the test results are naturally found in the water at the subject locations. Thus, the Court has no evidence from which it can determine whether any pollutant has been added or discharged into the water. Exhibit 23 to Motion for Sanctions at 41. Judge Krieger subsequently ordered Plaintiffs to pay a portion of the attorney fees and litigation expenses incurred by the CC&V defendants. Exhibit 24 to Motion for Sanctions at 12. Notwithstanding Judge Krieger's ruling, Plaintiffs proceeded to trial in this case relying on the natural tracer theory, which this Court recognized requires proof of baseline levels of the chemical used as the tracer. Instead of presenting new evidence, Plaintiffs argued for the first time during trial that sample RT-EP 4000 was representative of the naturally occurring level of sulfate and other constituents entering the Tunnel through the granite. However, the Plaintiffs offered no rational explanation for distinguishing the sample RT-EP 4000 from RT-EP 2000 and RT-EP 3000. [Doc # 253 at 23-24] Given that the Plaintiffs' natural tracer theory rested on only one sampling data point in the entire Cripple Creek Mining District, the Plaintiffs and their counsel had an ethical obligation to make a reasonable effort to investigate and verify the location where the sample was taken. This is particularly true because of conflicting sampling data from 1926 reported in a U.S. Geological Survey article entitled "Rock Strata Gases," excerpts of which were attached to Dr.

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Maest's expert report. The "Rock Strata Gases" report includes data from sampling locations specifically described as seeps in the granite within the Roosevelt Tunnel that show much higher sulfate concentrations than the one sample relied upon by Plaintiffs. Defendant's Trial Exhibit Z at 47. Plaintiffs apparently ignored this conflicting data. The RT-EP 4000, RT-EP 3000 and RT-EP 2000 samples were all taken by CC&V. Plaintiffs have been suing CC&V for the Roosevelt Tunnel discharge since 2000 and thus had an opportunity to conduct discovery regarding the location from which these samples were collected. Plaintiffs could have submitted requests for admission and interrogatories regarding the samples to CC&V or asked CC&V officials about sampling locations during deposition, but they did not. Despite the fact that these samples were taken thirteen years ago, and that Plaintiffs incurred roughly $250,000 in attorney fees between 2001 and 2003, Plaintiffs made no effort to verify their assumptions about the sampling locations or to obtain other reliable baseline sulfate data. 2. Plaintiffs failed to provide an objective scientific explanation for fluctuating zinc levels in the water within the Roosevelt Tunnel.

This Court found that Plaintiffs' inability to "provide an objective scientific explanation for the wildly fluctuating zinc levels in the Roosevelt Tunnel" was another fundamental defect in their case. [Doc # 253 at 17 at 26]. Plaintiffs were aware of these fluctuations long before trial and yet failed to provide any rational explanation for the fluctuations.

EL PASO'S MOTION FOR ATTORNEY FEES AND LITIGATION EXPENSES Sierra Club, et al. v. El Paso Properties, Inc. (Civil Action No. 01-cv-2163-BNB-MEH) Page 7

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In January 2003, trial was held in a state administrative proceeding against El Paso styled In Re: The Matter of El Paso Gold Mines, Inc. (Case No WQ2002-001).2 After hearing the evidence, Administrative Law Judge Mathew Norwood issued a decision on April 21, 2003,3 in which he found the state's failure to explain the fluctuating levels of pollutants in the Roosevelt Tunnel was a critical defect in the government's case against El Paso: 30. In addition to the lack of reliable flow measuring devices, the dramatic drop offs of zinc and manganese levels between the Shaft and the portal are not explained by objective scientific data. 31. Because of the lack of scientific flow measuring devices and because of the unexplained drop offs in the levels of zinc and manganese from the Shaft to the portal, the ALJ finds as fact that there is insufficient evidence to find that [El Paso] is responsible for the zinc and manganese in the water at the portal. Exhibit 3 to Motion for Sanctions at 11 (emphasis supplied). Judge Norwood's ruling with respect to failure of the state's claim was explicit: The Division [WQCD] has failed to prove that the zinc and manganese in the water coming out of the Roosevelt Tunnel has its origin in the El Paso Mine owned by [El Paso]. Reliable measuring devices to determine the flow of water in the Roosevelt Tunnel have not been used. This, along with the dramatic drop in zinc and manganese concentrations from the El Paso Shaft to the portal, casts sufficient doubt on whether any of the zinc and manganese tested at the portal is coming from the El Paso Mine. Id. at 12 (Conclusion of Law 3).
2 3

Plaintiffs filed a Request for Notice in the state case but failed to attend or participate in the trial. The ALJ's decision was transmitted to the WQCD along with a memorandum from the Division of Administrative Hearings dated April 22, 2003. Although the memorandum is stamped "RECEIVED" by the WQCD on April 24, 2003, the decision was provided to El Paso via facsimile on August 15, 2003. Exhibit 1. The memorandum transmitting the decision to the WQCD indicated that a copy was sent to Plaintiffs' counsel.

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The Tenth Circuit Court of Appeals also recognized that fluctuating levels of zinc in the Roosevelt Tunnel was a potential flaw in the Plaintiffs' case. Sierra Club v. El Paso Gold Mines, Inc., 421 F.3d 1133 (10th Cir. 2005). The Tenth Circuit held that Plaintiffs' case "ignores the evidence showing dramatic declines in zinc levels as water flows from the El Paso shaft toward the portal." Id. at 1149. The Tenth Circuit also observed that: Even the Plaintiffs' strongest evidence--that water samples at the shaft and the tunnel portal (samples taken by Cripple Creek & Victor Mining Co.) both contain zinc and manganese--is less than convincing given the uncertainties by which the data were collected. Id. (emphasis supplied). At trial, Dr. Maest attempted to explain the fluctuating levels of zinc by reference to the geochemical processes of precipitation, dissolution, solubility, oxidation, adsorption, and neutralization. [Doc # 253 at 15-16]. This Court found that none of these theories explained "what is occurring inside the Tunnel, approximately 2000 feet and 3000 feet west of the Shaft, at RT-EP 2000 and RT-EP3000, on October 14, 1994." Id. at 25. Plaintiffs have known since long before they filed their citizen's suit that there was not sufficient evidence regarding the hydrology of or the flow of pollutants in the Roosevelt Tunnel to prove that El Paso is responsible for a discharge of pollutants. Less than two months before Plaintiffs served their notice of intent to bring this suit, an interdisciplinary team of scientists from EPA and WQCD met to discuss the Roosevelt Tunnel. A July 19, 2001 memorandum describing the meeting reported in part:

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[w]e agreed that more work needs to be done before the responsible parties can be identified. The primary source contributing the base flow to the tunnel's discharge comes from the El Paso shaft which drains the underground mine working of the El Paso and connecting mines, and the water produced from fractures in the tunnel. The full extent of the underground mine working probably has not been mapped, and the effects of the workings on hydrology is uncertain because of the limited information. More information is needed about the underground working of the El Paso Mine and any other mines connected to the El Paso along with ownership. Plaintiffs' Trial Exhibit 61 at 1. Plaintiffs filed this case on November 5, 2001 without having any more information than was available to the EPA and the WQCD during the July 19, 2001 meeting. The record demonstrates that Plaintiffs were aware of available scientific methods that could help prove their theory of the case and yet failed to use them. In his April 2003 ruling, Judge Norwood found: 29. * * * The experts were unanimous as to the need for accurate, scientific and generally accepted water flow measuring devices for the flow of water in the Roosevelt Tunnel. Yet [no one] has ever measured the flow of water in the Roosevelt Tunnel using such devices. Exhibit 3 to Motion for Sanctions at 7. Judge Norwood held that the failure to accurately record the Roosevelt Tunnel flows cast "sufficient doubt on whether any of the zinc and manganese tested at the portal is coming from the El Paso Mine." Id. at 12 (Conclusion of Law 3). The Tenth Circuit also recognized that the lack of evidence regarding the hydrology of the Roosevelt Tunnel was a defect in Plaintiffs' case. The Tenth Circuit found that Plaintiffs'

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evidence "fails to take into account the apparently complex process of infiltration and exfiltration that occurs along the length of the Roosevelt Tunnel." 421 F.3d at 1149. During oral argument, the panel inquired of Plaintiffs' counsel whether "dye testing, properly conducted, could establish with a high degree of certainty whether pollutants from the El Paso shaft are ultimately discharged at the portal." Id. at 1151 n.9 (10th Cir. 2005). Plaintiffs' counsel conceded that it could. Id. Despite having the benefit of prior rulings from Judge Norwood, the Tenth Circuit and Judge Krieger, Plaintiffs never conducted an independent scientific inspection or study of the Roosevelt Tunnel. This Court recognized that "Plaintiffs did not conduct any water quality sampling of their own." [Doc # 253 at 7] The Court also found as fact that "Plaintiffs have never used devices such as flumes, pygmy meters, weirs, or artificial tracers inside the Roosevelt Tunnel to accurately measure water flow in the Tunnel or to determine the path of water flow from the Shaft." Id. at 7. Plaintiffs twice requested and received permission to enter the Roosevelt Tunnel for discovery purposes. On June 11, 2002, Plaintiffs sought leave to enter the Roosevelt Tunnel "for the purpose of conducting an inspection." [Doc # 60 at 1]. Although the Court granted Plaintiffs' motion over El Paso's objections [Doc # 63], Plaintiffs did not conduct an interior inspection or scientific study of the Roosevelt Tunnel before the close of discovery and never offered any reasons for declining to do so. On remand, Plaintiffs filed a motion on June 30, 2006 requesting the opportunity "to conduct water quality testing, solids sampling, flow measuring,

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photography, videotaping and dye testing." [Doc # 179 at 1]. Although the Court granted Plaintiffs' motion over El Paso's objections on August 10, 2006 [Doc # 194], Plaintiffs neither entered the Roosevelt Tunnel nor conducted any of the scientific studies listed in their motion due to safety concerns. Thus, Plaintiffs knew with certainty at least by August 25, 2006 that no additional scientific evidence from the Roosevelt Tunnel interior could be collected. 3. Equitable considerations support an award of attorney fees.

In explaining the different standards for prevailing plaintiffs and defendants, the Supreme Court identified two primary equitable considerations. First, the Supreme Court reasoned that a prevailing plaintiff is "the chosen instrument of congress to vindicate a policy that Congress considered of the highest priority." Christiansburg Garment Co., 434 U.S. at 418. Second, the Supreme Court explained that "when a district court awards counsel fees to a prevailing plaintiff, it is awarding them against a violator of federal law." Id. The Supreme Court noted that these policy considerations are not present in the case of a prevailing defendant. Id. at 419. However, El Paso bears little resemblance to the large, financially profitable corporate defendants against which most Clean Water Act citizen's suits are brought. El Paso has never conducted mining or any other activity on its property and has no ongoing operations today. See, Exhibit 2 attached hereto at ¶¶ 7 & 11. El Paso is not a successor to any company that conducted mining operations. Id. at ¶ 8. El Paso is a closely-held family corporation that was formed in 1968, four years before the Clean Water Act was passed, for the sole purpose of buying one hundred acres of mining claims in Teller County, Colorado. Id. at ¶¶ 4-6.

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It is El Paso's ownership of property that forms the sole basis for Plaintiffs' claim against El Paso. Other than the property at issue in this case, El Paso has no assets or cash flow. Id. at ¶ 11. El Paso did not file income tax returns for many years prior to the filing of this lawsuit and has not done so in the years since. Id. at ¶ 12. Moreover, El Paso is judgment-proof and could not have borne the cost of water treatment or paid any civil penalties or attorney fees that might have been assessed in this case. Id. at ¶ 13. El Paso's inability to comply with any monetary relief the Court could have entered is demonstrated by the record herein. After granting Plaintiffs' motion for summary judgment [Doc # 95], the Court entered an order on February 10, 2003 [Doc # 111] directing El Paso to pay a civil penalty of $94,900 to the federal treasury and apply to the WQCD for a discharge permit. Id. at 28. On May 2, 2003, the Court entered judgment awarding Plaintiffs' counsel

$247,246.19 in attorney fees [Doc # 138]. El Paso was wholly unable to pay the civil penalties, attorney fees or litigation costs or secure a bond or surety for these amounts. El Paso has never conducted any activity that it could cease or modify in order to mitigate or abate the flows from the Roosevelt Tunnel into Cripple Creek. Exhibit 2 at ¶ 9. Those flows occur as a result of construction of the Roosevelt Tunnel more than a century ago and the natural hydrologic cycle. El Paso has no ownership or other property interest in the Roosevelt Tunnel, which is under the jurisdiction of the U.S. Bureau of Land Management ("BLM"). [Doc # 253 at

EL PASO'S MOTION FOR ATTORNEY FEES AND LITIGATION EXPENSES Sierra Club, et al. v. El Paso Properties, Inc. (Civil Action No. 01-cv-2163-BNB-MEH) Page 13

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3 (Finding of Fact 7)].4 Thus, there is nothing that El Paso can do to prevent water containing pollutants from flowing out of the Roosevelt Tunnel. Exhibit 2 at ¶ 10. Finally, even if El Paso were able to build and operate a treatment system at the Roosevelt Tunnel portal, any benefits to Cripple Creek water quality would be negligible. At the summary judgment stage, this Court concluded that "Plaintiffs have failed to prove any actual harm to the environment" caused by the discharge from the Roosevelt Tunnel. [Doc # 111 at 19] The Roosevelt Tunnel discharges into Stream Segment 21 of the Upper Arkansas River Basin. This stream segment is not listed as a water-quality-limited segment on Colorado's Section 303(d) list or as a water body for which there is reason to suspect water quality problems on Colorado's Evaluation Monitoring List. Exhibits 27 & 28 to Motion for Sanctions. Furthermore, Cripple Creek water quality data obtained upstream and downstream of the Roosevelt Tunnel portal shows that water quality in the Creek is most often better downstream of the Roosevelt Tunnel flow. [Doc # 111 at 19] Thus, none of the remedies the Court may have imposed would have improved Cripple Creek's water quality. Despite these circumstances, Plaintiffs forced El Paso to endure through six years of litigation that would have resulted in nothing more than a paper judgment had Plaintiffs succeeded on their claim. Since El Paso has no cash flow or assets other than its property, El Paso has borrowed hundreds of thousands of dollars to defend itself from Plaintiffs' citizen suit

4

Despite the fact that the BLM controls the Roosevelt Tunnel portal, Plaintiffs have never pursued a Clean Water Act claim against the BLM, a federal agency that clearly has sufficient resources to comply with any court-ordered relief.

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and is unable to repay these loans. Exhibit 2 at ¶ 15. Other than reimbursement for actual costs incurred, the last payment from El Paso to its attorneys was made nearly three years ago, on July 16, 2004. Id. at ¶ 16. El Paso presently owes its attorneys and expert witnesses substantial sums for services rendered. Id. Given its financial situation, El Paso is not in the position to recover the funds it has expended. By contrast, Plaintiff Sierra Club is the best-known environmental organization in the world and has sufficient assets available to ensure the scientific validity of the claims it asserts. According to a 2005 Audit conducted by KPMG, LLP at the request of the Sierra Club Foundation Board of Trustees, the Sierra Club reported assets of over $87 million in 2005. See, [cite to web address]. Despite these enormous financial resources, Plaintiffs failed to conduct the necessary scientific investigation to evaluate the source of pollutants at the Roosevelt Tunnel portal. The record in this case reveals that Dr. Maest spent less than seven hours developing her theories in this case, while the Plaintiffs' counsel incurred nearly $250,000 in attorney fees through the summary judgment stage of these proceedings. [Doc # 113] 4. Conclusion.

Plaintiffs' citizen suit has posed an existential threat to El Paso and its ability to continue owning its sole asset. The policy considerations for refusing to award fees to prevailing defendants do not apply to the circumstances of this case. El Paso is not a violator of federal law. El Paso has never conducted any operations on its property and has no ability to prevent water or pollutants from exiting the Roosevelt Tunnel portal. El Paso has never generated

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income through its ownership of the El Paso shaft, and the financial resources of the Plaintiffs far outstrip those of the prevailing defendant. As a matter of policy, a non-profit environmental group that chooses to zealously prosecute a citizen's suit against an entity with considerably fewer or no assets should be held to a higher standard of conduct. In this case, Plaintiffs attempted to overwhelm El Paso without spending sufficient time or resources to verify the factual basis for their claims. Plaintiffs knew before filing this lawsuit in 2001 that the available scientific data was severely limited and that the hydrology of the Roosevelt Tunnel was complex and poorly understood. When Plaintiffs received Judge Norwood's decision on August 14, 2003, they knew that fluctuating levels of zinc in the Roosevelt Tunnel would require explanation. By the time Judge Krieger issued her April 13, 2006 order in the CC&V case, Plaintiffs knew that they would need to present baseline data to distinguish concentrations of man-made constituents from the El Paso shaft from naturallyoccurring concentrations in the Roosevelt Tunnel. Finally, Plaintiffs knew at least by August 26, 2006 that they would not be able to enter the Roosevelt Tunnel to obtain additional scientific evidence to support their claim. For these reasons, El Paso respectfully contends that Plaintiffs' decision to continue prosecuting this citizen's suit without obtaining additional factual evidence to support their claim clearly became frivolous, unreasonable and groundless at least by August 26, 2006, and as early as the date the complaint was filed, November 5, 2001.

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II.

El Paso's Request for Fees and Expenses A. The attorney fees claimed by El Paso are reasonable.

If the Court grants El Paso's Motion for Attorney's Fees and Litigation Expenses, El Paso claims between $444,090.30 and $117,559.50 in attorney's fees. See, Chart. The starting point in calculating a reasonable attorney fee is the "lodestar figure," which is "the number of hours reasonably expended on litigation multiplied by a reasonably hourly rate." Hensley, 461 U.S. at 433 (1983); see also Ramos v. Lamm, 713 F.2d 546, 552 (10th Cir. 1983). There is a strong presumption that the lodestar is a reasonable fee. Blum v. Stenson, 465 U.S. 866, 897 (1984). A reasonable hourly rate should be calculated "according to the prevailing market rates in the relevant community." Id. at 895. "The hourly rate at which compensation is awarded should reflect rates in effect at the time the fee is being established by the court, rather than those in effect at the time services were performed." Ramos, 713 F.2d at 555. The Court may rely on affidavits of local attorneys, including counsel of record, concerning the reasonableness of the hourly rate charged by the prevailing party's counsel. Zuchel v. City and County of Denver, 997 F.2d 730, 746 (10th Cir. 1993); see also D.C.COLO.L.CIV.R. 54.3(a). "Normally [an award of attorney fees] will encompass all hours reasonably expended on the litigation." Hensley, 461 U.S. at 435. When determining whether the time charged by an attorney is reasonable, the court should review the time charged and decide whether the hours billed were reasonably expended for each task described. Id. at 433-34. A lawyer "is not

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required to record in great detail how each minute of his time was expended, but "must explain how the hours worked were allotted to specific tasks." Sussman v. Patterson, 108 F.3d 1206, 1212 (10th Cir. 1997). An attorney's "sworn testimony that, in fact, it took the time claimed is evidence of considerable weight on the issue of time required in the usual case." Perkins v. Mobile Housing Board, 847 F.2d 735, 738 (11th Cir. 1988). To deny compensation "it must appear that the time claimed is obviously and convincingly excessive under the circumstances." Id. "The reasonableness of the time spent in compensable services must, of course, be measured by the complexity of the case, the strategies pursued and the resistance encountered." Cunico v. Pueblo School District No. 60, 705 F.Supp. 1466, 1468 (D. Colo. 1988) aff'd, 917 F.2d 431 (10th Cir. 1990). The fact that a law firm utilized the services of multiple attorneys in a complex case is not grounds for reducing an attorney fee award. Johnson v. University College, 706 F.2d 1205, 1208 (11th Cir. 1983). "The use in litigation of a team of attorneys who divide up the work is common today for both plaintiff and defense work..." Id. A court should reduce compensable hours for duplication "only if the attorneys are unreasonably doing the same work." Id. A prevailing party may also recover fees for services provided by non-lawyers. Ramos, 713 F.2d at 558-59. A fee award should also include time spent securing attorney fees. Mares v. Credit Bureau of Raton, 801 F.2d 1198, 1205 (10th Cir. 1986). El Paso believes that there are four possible measures of attorney's fees that could reasonably be applied in the Court's discretion. From the inception of this case through June 18, 2007, the undersigned law firm expended a total of 3,325.5 hours defending this case, including

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469.8 hours of compensable time that was not billed to the client, representing a total of $444,090.50 in fees. From the date that Judge Norwood's decision was served on the parties (August 15, 2003) to date, El Paso's attorneys billed for 1,231.4 hours of professional time representing $204,380.00 in fees. Between Judge Krieger's April 13, 2006 order in the CC&V case and June 18, 2007, El Paso's attorneys billed 822.70 hours representing $143,462.50 in fees. Finally, from the close of discovery (August 26, 2006) to present, El Paso's attorneys billed 656.4 hours representing $117,559.50 in fees. These amounts are substantiated in detail in the actual billing statements mailed to El Paso, which are attached hereto as Exhibit C to Exhibit 3. The hourly rates charged by El Paso's attorneys are lower than the typical hourly rates in the Denver metropolitan area. According to the National Law Journal's "Billing Rate" summary for 2002, rates for attorneys in Denver firms ranged from $200-$425 per hour for partners and $125-$275 for associates. By contrast, between 2001 and 2007 El Paso's attorneys billed between $175-$225 per hour for partner time and $100 per hour for associate time. In their Motion for Attorney Fees filed with this Court on February 25, 2003, Plaintiffs' attorneys claimed fees at rates between $145 and $250 per hour. [Docket # 113 at 7]. At the conclusion of the summary judgment proceedings, Magistrate Judge Patricia Coan ruled that the rates claimed by Plaintiffs' counsel were reasonable. The rates actually charged by El Paso's attorneys in 2007 are significantly lower than those charged by Plaintiffs four years ago. This case presented complex factual and legal issues and Plaintiffs vigorously prosecuted this case against El Paso. For the past six years, El Paso has reasonably defended itself in this

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case because the consequences of failing to do so would have been severe. After the Court granted summary judgment against El Paso, Plaintiffs argued that "the maximum penalty the Court could impose is $62,442,500." Plaintiffs' Post-Trial Brief at 5 (December 24, 2002). Judge Coan subsequently ordered El Paso to pay nearly $100,000 to the United States Treasury as civil penalties and nearly $250,000 to the Plaintiffs for fees and costs. [Docket # 111] Judge Coan also ordered El Paso to apply for a federal discharge permit that the Plaintiffs themselves argued could require construction of an expensive water treatment system. Plaintiffs' Post-Trial Brief at 9. El Paso conducted focused discovery, filed strategic motions and took only one deposition. El Paso's counsel have certified that the rates they charged were reasonable and that all of the time billed was necessary for the successful defense of this case. Exhibit 3 ¶ 10. Thus, El Paso's request for attorney fees is reasonable. B. The expert witness fees claimed by El Paso are reasonable.

Under the Clean Water Act, the prevailing party may also recover expert witness fees and litigation expenses. 33 U.S.C. § 1365(d). To defend this case, El Paso retained two expert witnesses. El Paso hired Robert Brogden of Bishop-Brogden Associates, Inc. as an expert hydrologist and Dr. Arthur O'Hayre of Norwest Corporation as an expert in pollutant fate and transport. Mr. Brogden and Dr. O'Hayre billed El Paso a total of $70,922.03 for services provided incident to this litigation. Exhibits 4 & 5. The hourly rates charged by Mr. Brogden and Dr. O'Hayre are consistent with market rates and their testimony was not duplicative. The

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amount of expert fees incurred by El Paso in each of the four specific time periods is summarized in the chart below: Expert Robert Brogden Time Period November 5, 2001 ­ Present August 14, 2003 ­ Present April 13, 2006 ­ Present August 26, 2006 ­ Present Dr. Arthur O'Hayre C. August 26, 2006 ­ Present Total Fees $53,721.98 $22,919.50 $22,919.50 $22,919.50 $17,200.05

The litigation expenses claimed by El Paso are reasonable.

"Reasonable attorneys' fees...must include reasonable expenses because attorneys' fees and expenses are inseparably intertwined as equally vital components of the cost of litigation." Brown v. Gray, 227 F.3d 1278, 1298 (10th Cir. 2000); Davis v. City and County of San Francisco, 976 F.2d 1536, 1556 (9th Cir. 1992). Courts should award costs that "are normally itemized and billed in addition to the hourly rate," so long as they are reasonably incurred and not normally absorbed by a law firm as part of its overhead. Brown, 227 F.3d at 1298. El Paso's attorneys itemized and billed El Paso for case-specific postage, courier, long distance telephone, automobile mileage and parking expenses incurred during the defense of this lawsuit as set forth in the billing statements attached hereto as Exhibit C to Exhibit 3 & Exhibit 6. The total amount billed for those expenses is $3887.74. Since these expenses are typical of those charged by private practitioners to paying clients, they are reasonable and should be

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included in the award of fees and litigation expenses against Plaintiffs. The amount of litigation expenses claimed by El Paso are summarized by relevant time period in the chart below: Time Period November 5, 2001 ­ Present August 14, 2003 ­ Present April 13, 2006 ­ Present August 26, 2006 ­ Present Total Litigation Expenses $43,887.74 $1,346.79 $898.31 $762.92

In addition to the litigation expenses requested herein, El Paso has also filed a bill of costs with the Clerk of the Court for taxable expenses allowed by law. These costs have not been itemized or claimed separately in this Motion. A telephonic hearing on El Paso's Bill of Costs has been scheduled with the Clerk of Court for July 17, 2007 at 9:00 a.m. CONCLUSION For the reasons discussed above, El Paso respectfully requests that this Court find that Plaintiffs' claim was frivolous, unreasonable, or groundless because Plaintiffs brought and/or maintained their lawsuit when they should have known that their claim lacked evidentiary support, and award El Paso its attorneys' fees, expert witness fees, and litigation costs pursuant to 33 U.S.C. § 1365(d).

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CERTIFICATION OF COMPLIANCE WITH D.C.COLO.L.CIV.R 7.1 Stephen D. Harris, counsel for El Paso, certifies that he consulted with counsel for Plaintiffs concerning this Motion. Plaintiffs oppose this Motion.

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Respectfully submitted this 19th day of June, 2007. s/Stephen D. Harris James L. Merrill, #9466 Stephen D. Harris, #24178 Michael J. Gustafson, #37364 MERRILL, ANDERSON, & HARRIS, LLC 20 Boulder Crescent Colorado Springs, CO 80903-3300 Telephone: (719) 633-4421 Facsimile: (719) 633-4759 Counsel for El Paso Properties, Inc.

CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing EL PASO'S MOTION FOR ATTORNEY'S FEES AND LITIGATION EXPENSES was sent electronically via ECF this 19th day of June, 2007, to the following: John M. Barth, Esq. Attorney at Law Post Office Box 409 Hygiene, Colorado 80533 Roger Flynn, Esq. Jeffrey C. Parsons, Esq. 2260 Baseline Road, Suite 101A Boulder, Colorado 80302 s/Sarah D. White Sarah D. White

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