Free Motion for Sanctions - 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 SANCTIONS UNDER FED. R. CIV. P. 11 ______________________________________________________________________________

El Paso Properties, Inc. ("El Paso"), by its counsel, respectfully moves the Court to sanction Plaintiffs and their counsel pursuant to FED. R. CIV. P. 11(c)(1)(A). The record in this case and related state and federal cases demonstrates that Plaintiffs' central factual claim--that pollutants from the El Paso Shaft flow through the Roosevelt Tunnel to Cripple Creek--lacks evidentiary support and cannot be proven given the current state of scientific knowledge and the impossibility of obtaining additional information from the tunnel's interior. The record herein also shows that through no fault of its own, El Paso is wholly incapable of complying with any relief the Court might award even if Plaintiffs were to prevail on the merits. Finally, the fact that Plaintiffs cannot prove any harm to the environment suggests that Plaintiffs and their counsel are pursuing this citizen's suit for an improper purpose in violation of FED. R. CIV. P. 11(b)(1).

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LEGAL FRAMEWORK 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; Nat'l Wildlife Fed'n v. Gorsuch, 693 F.2d 156, 165 (D.C. Cir. 1982). Plaintiffs' claim rests on the factual premise that pollutants in water flowing from the El Paso Shaft into the Roosevelt Tunnel are conveyed two and one half miles to the tunnel portal and then into Cripple Creek. Plaintiffs bear the burden of introducing credible evidence to prove the truth of this premise by a preponderance of the evidence. It is not sufficient to show that pollutants are sometimes present at the El Paso shaft and sometimes present at the Roosevelt Tunnel portal. Bufford v. Williams, Civil Action No. 00-6055 at fn. 3 (10th Cir. July 2, 2002). Plaintiffs must introduce credible evidence showing that the El Paso shaft is the source of pollutants entering Cripple Creek. In Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 591 (1993), the United States Supreme Court made clear that the proponent of an expert opinion bears the burden of proving that the expert and her opinion testimony satisfy the criteria of FED. R. EVID. 702. Ralston v. Smith & Nephew Richards, Inc., 275 F.3d 965, 978 (10th Cir. 2001). Under FED. R. EVID. 702, expert testimony is only admissible if: (1) it is based on sufficient facts or data; (2) it is the product of reliable principles and methods; and (3) the expert has applied the principles and methods reliably to the facts of the case.
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By presenting a claim to the Court, an attorney certifies that allegations and other

factual contentions have evidentiary support and that the claim is not being presented for any improper purpose. FED. R. CIV. P. 11(b). The 1993 Advisory Committee Notes ("the Notes") explain that Rule 11 requires litigants to "conduct a reasonable inquiry into the law and facts" to force them to "stop and think" before signing initial pleadings. Exhibit 1 at 79. However, the Notes also emphasize the continuing nature of the lawyer's "duty of candor by subjecting litigants to potential sanctions for insisting upon a position after it is no longer tenable and by generally providing protection against sanctions if they withdraw or correct contentions after a potential violation is called to their attention." Id. According to the Notes, "a litigant's obligations with respect to the contents of these papers are not measured solely as of the time they are filed with or submitted to the court, but include reaffirming to the court and advocating positions contained in those pleadings and motions after learning that they cease to have any merit." Id. (emphasis supplied). Thus, Rule 11 imposes on counsel an affirmative duty to abandon a contention upon learning that it lacks evidentiary support: "if evidentiary support is not obtained after a reasonable opportunity for further investigation or discovery, the party has a duty under the rule not to persist with that contention." Id.

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I.

Plaintiffs' Factual Contentions Lack Evidentiary Support For ease of reference, the theory that pollutants flowing out of the El Paso shaft

are conveyed two and one half miles through the Roosevelt Tunnel and then discharged into Cripple Creek will be referred to as the "transport hypothesis." As discussed below, the scientific validity of the transport hypothesis, and indeed whether the transport hypothesis can be proven with existing evidence, has been questioned by scientists and judges since both before this action was brought and consistently afterward. A. Plaintiffs Have Asserted the Transport Hypothesis Twice

In the Complaint, Plaintiffs allege that pollutants from the El Paso shaft flow into the Roosevelt Tunnel, and that those pollutants then flow down the tunnel into Cripple Creek in violation of the federal Clean Water Act. [Doc # 1 at ¶ 37].1 In a separate action pending before this District Court, these Plaintiffs alleged that other parties are also liable for the discharge of pollutants from the El Paso shaft into Cripple Creek via the Roosevelt Tunnel. Sierra Club v. Cripple Creek and Victor Gold Mining Co., Civil Action No. 01-CV-02307-MSK-MEH ("the CC&V case"). In the CC&V case, Plaintiffs

1

Pleadings in this case will be cited by docket number.

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based their citizen's suit on the fact that "[t]he surface features of the El Paso shaft are located within the current mine permit boundary" of CC&V. Exhibit 2 at 9, ¶ O.2 B. In 2001, Government Officials Concluded That More Information About the Roosevelt Tunnel Is Needed

Scientists questioned the transport hypothesis before Plaintiffs filed this case in 2001. The regulatory agencies with jurisdiction over water quality in Colorado, the U.S. Environmental Protection Agency ("EPA") and the Water Quality Control Division of the Colorado Department of Public Health and Environment ("WQCD"), have studied the Roosevelt Tunnel for decades. Less than two months before Plaintiffs sent their notice of intent to bring this citizen's suit, an interdisciplinary team of scientists from EPA and WQCD met to discuss the Roosevelt Tunnel. A Colorado Administrative Law Judge later found that during this meeting, WQCD employees: discussed placing recording weirs in the Roosevelt Tunnel to determine how much of the water in the Roosevelt Tunnel was coming down the El Paso Shaft and how much was coming from other sources. A weir is a measuring device that measures the flow of water past a point. It backs the water up and then allows the water to flow through an opening in a free fall. However, no such measuring devices were installed in the Tunnel. Exhibit 3 at 7 (Finding of Fact 21) (emphasis supplied). A July 19, 2001 WQCD memorandum describing the meeting reported in part:

Exhibit 2 contains relevant excerpts of Plaintiffs' Proposed Findings of Fact submitted in the CC&V case on March 6, 2006.
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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. Exhibit 4 at 1 (emphasis supplied). Plaintiffs sent their notice of intent to sue on September 4, 2001 and filed this case on November 5, 2001. The Complaint alleges that El Paso "is discharging pollutants from its El Paso Mine, shaft, mineral interests, properties and or facilities, into the Roosevelt Tunnel, which are then being discharged into Cripple Creek" [Doc # 1 at ¶ 37], a conclusion that government officials had indicated could not be proven without additional facts, data and scientific study. Plaintiffs did not plead any facts "likely to have evidentiary support after a reasonable opportunity for further investigation or discovery," and thus certified to the Court that their claims had "evidentiary support" pursuant to FED. R. CIV. P. 11(b)(3). Plaintiffs and their counsel were either unaware of or chose to ignore the WQCD memorandum. In either case, events since 2001 have so eroded any reasonable basis for that belief that none can exist today.

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C.

Plaintiffs Never Conducted Any Scientific Inspection or Study of the Roosevelt Tunnel Interior

On June 11, 2002, Plaintiffs sought leave under FED. R. CIV. P. 34 to enter the Roosevelt Tunnel "for the purpose of conducting an inspection." [Doc # 60 at 1]. On June 24, 2002, the court overruled El Paso's objections and granted Plaintiffs' motion in part. [Doc # 63]. In response, El Paso deposited a key to the Roosevelt Tunnel portal (obtained from the U. S Bureau of Land Management, which controls the portal) with the Clerk of Court. [Doc # 64]. Despite gaining such access, Plaintiffs never conducted any interior inspection or scientific study of the Roosevelt Tunnel before the close of discovery on August 20, 2002 and never offered any reasons for declining to do so. On June 30, 2006, Plaintiffs filed a Motion to Conduct Inspection of Interior of Roosevelt Tunnel in order "to conduct water quality testing, solids sampling, flow measuring, photography, videotaping and dye testing." [Doc # 179 at 1]. Given the risks and expenses associated with underground field work, Plaintiffs' motion tacitly admits to the need to obtain scientific evidence to support their claim. Id. at 2. 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 Plaintiffs' motion.

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Plaintiffs' August 25, 2006 report to the court states: "Plaintiffs have recently been informed by several sources that the conditions inside the tunnel are unsafe for passage from the portal to the El Paso shaft." [Doc # 199 at 1] (emphasis supplied). However, Plaintiffs have known of dangerous and deteriorating conditions inside the Roosevelt Tunnel since at least August 21, 2001, when their former expert Kenneth Klco entered the tunnel during discovery in the CC&V case.3 Mr. Klco testified at his deposition that prior to entering the tunnel he knew that physical hazards "could prohibit our further investigation." Exhibit 5 at 65, l. 19 to 66, l. 3. Mr. Klco also testified that the tunnel entry team was forced to turn back by deteriorating air quality before reaching their intended destination. Id. at 98, l. 7 to 109, l. 9. Because of the risk to life, Mr. Klco and others accompanying him were forced to exit the tunnel by traversing almost three miles back to the portal at emergency speed. Id. at 104, l. 1 to 105, l. 22. Mr. Klco testified that Plaintiffs' counsel John Barth was present at the tunnel portal during the inspection. Id. at 66, l. 24 to 67, l. 10. Thus, it seems likely that Mr. Barth observed the entry team's hasty exit from the tunnel and discussed the hazardous conditions with Mr. Klco. Plaintiffs also had access to a November 9, 2001 letter from the U.S. Bureau of Land Management to El Paso reporting that "access can be very hazardous due to

3

Mr. Klco described the August 21, 2001 trip into the Roosevelt Tunnel during his deposition. Exhibit 5 at 64, l. 1 to 74, l. 25.
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unstable ventilation conditions, air quality and ground conditions." 4 Exhibit 6 (emphasis in original). Safety hazards and deteriorating conditions were also documented in letters from Cripple Creek & Victor Gold Mining Company dated July 15, 2003 and June 24, 2004. Exhibit 7 at 1 & Exhibit 8 at 2.5 El Paso does not question Plaintiffs' August 2006 decision to forego further entry into the Roosevelt Tunnel--that decision rightly values human safety and welfare over concerns for gathering evidence. But having decided not to enter the tunnel for safety reasons, Plaintiffs and their counsel knew by August 2006 that additional scientific evidence from the Roosevelt Tunnel interior was not available and would not likely be forthcoming. This would have been another appropriate juncture to "stop and think" as described in the 1993 Advisory Committee Notes to FED. R. CIV. P. 11. D. Scant Water Quality Sampling From Inside the Roosevelt Tunnel Exists

As noted earlier, Plaintiffs' case rests on the proposition that zinc6 in water flowing out of the El Paso shaft is transported two and one-half miles through the Roosevelt Tunnel and thence out of the portal into Cripple Creek. To test this hypothesis, one must consider water quality sampling data at the portal, at the El Paso shaft, and at

4 5

The letter is attached to the June 20, 2002 Report of Ann Maest, PhD. Plaintiffs identified these letters as trial exhibits 51 and 52. 6 The only pollutant specifically identified in Plaintiffs' expert report was zinc.
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intermediate locations within the Roosevelt Tunnel. The existing water quality sampling data within the Roosevelt Tunnel is scant and does not support the transport hypothesis or other conclusions drawn by Plaintiffs and their expert. El Paso concedes that water quality samples collected at the Roosevelt Tunnel portal sometimes contained measurable amounts of zinc. However, it is undisputed that water does not flow out of the Roosevelt Tunnel during much of the year, such as during winter when any flows are frozen. During the rest of the year concentrations of zinc are highly variable, and some sampling results have not detected the presence of any zinc. Since 1994, water samples have been collected inside the Roosevelt Tunnel on six days: May 13, 1994, October 14, 1994, October 26, 1995, October 23, 1996, November 16, 2000, and August 7, 2001. On four of those days, a sample was collected at the El Paso shaft. Only on three days were samples collected between the El Paso shaft and the Roosevelt Tunnel portal in the more than 14,000 feet of tunnel that separate the shaft and the portal. · On May 13, 1994, a water sample collected at the El Paso shaft revealed the presence of 2.1 parts per million (ppm) zinc. No samples were taken at the portal or between the shaft and the portal on that day. Exhibit 9. · On October 14, 1994, a water sample collected at the El Paso shaft revealed the presence of 4.1 ppm zinc. No sample was taken at the portal on that day, but three samples were collected between the shaft and the portal. At a location 2,000 feet from the shaft, the zinc concentration was 0.013 ppm. At 3,000 feet from the shaft, the concentration of zinc was 0.006 ppm, a 683-fold or 99.85
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percent reduction from the zinc level at the shaft. At 4,000 feet from the shaft, the concentration of zinc was 0.009 ppm. No other relevant samples were taken on that day. Id. · On May 26, 1995, a water sample was collected east of the El Paso shaft; no samples were collected at the portal, the shaft or between the shaft and portal. Id. · On October 23, 1996, a water sample collected halfway between the El Paso shaft and the portal revealed the presence of 0.916 ppm zinc. A sample collected at the portal on that day did not indicate the presence of zinc. · On November 16, 2000, a water sample collected at the El Paso shaft revealed the presence of 2.34 ppm zinc. At a location identified as "approximately 6,000 to 8,000 feet from the Shaft," a water sample revealed the presence of 0.637 ppm zinc. At a location identified as "approximately 700 feet east of the portal," a water sample revealed the presence of 0.203 ppm zinc. No sample was collected at the portal on that day. Exhibit 10. · On August 7, 2001, a water sample at the El Paso shaft showed 2.3 ppm zinc. A water sample collected at the portal on that day indicated 0.056 ppm zinc. No samples were collected in the 14,000 feet separating the shaft and the portal on that day. Exhibit 11. This description summarizes all of the available in-tunnel sampling data that could have been considered by Plaintiffs and their expert.7 Even to a layperson it is obvious that a total of twelve sampling data points, collected at seven different locations along a 14,000-

7

Plaintiffs identified these sampling results as trial exhibits 23, 24 and 60.

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foot underground tunnel on five separate days8 spanning a seven-year period, is insufficient to draw conclusions about the source of zinc in water at the Tunnel portal. E. Plaintiffs' Expert Report Contains No Supporting Rationale

Ann Maest, PhD signed her Expert Report in this case on June 20, 2002. The body of Dr. Maest's report, attached as Exhibit 12, is noteworthy in many respects: · The report is only three and one half pages in length; · The report recites the same conclusion (that the transport hypothesis is true) at least five times (in the introductory paragraph, in paragraph 3 stated two different ways, in the last sentence of paragraph 4, and in the report's summary in paragraph 9) without any analysis or data reference whatsoever; · The report does not discuss any water quantity or quality data for any parameter at any specific time or location; indeed, the report contains no numeric or quantitative discussion at all--it does not contain a single formula, equation, or tabulation of any scientific data; · The report instead employs lay phraseology such as: "at least some", Exhibit 12 at 2, ¶ 3; "significant contributor", id. at 2, ¶ 4; "dissolve the metal salts much like sugar dissolves in tea", id. at 3, ¶ 6; "very high concentrations", id. at 3, ¶ 7; and "other contaminated water", id. at 3, ¶ 9; · While acknowledging the existence of "other contaminated water" in flows from the Roosevelt Tunnel portal to Cripple Creek, the report does not discuss the origins of this "other contaminated water" or even purport to distinguish the multiple flow sources or quantify the portal concentrations by their sources, id. at 3, ¶ 9;

8

Excluding May 26, 1995, when no relevant samples were collected at the shaft, the portal or at any location in between.
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· The report cites information sources which have been withdrawn by Plaintiffs and judicially discredited, including Kenneth Klco's expert report--as discussed below, the court in the CC&V case found that Mr. Klco lacked sufficient qualifications to express expert opinions and did not use reliable methodologies; · The report fails to acknowledge or discuss conflicting opinions and data, such as sampling data from October 1994 showing a 99.85% decrease in zinc concentrations in the first 3,000 feet downgradient from the El Paso shaft, Exhibit 9; · The Report lacks indicators of science including any map of the region or local area, any diagram or schematic illustration of any concept, process or point, any graph or comparison of data and even a list of references or attachments. Dr. Maest testified that she prepared her reports in this case and in the CC&V case in a manner that was "very similar." Exhibit 13 at 101, ll. 4-6. In the CC&V case, Dr. Maest engaged in "one or two" discussions with John Barth (and with no one else, including any technical person) before her report was written. Id. at 96, ll. 6-20. Mr. Barth wrote the first draft of Dr. Maest's report in both the CC&V case and this case; Dr. Maest corrected Mr. Barth's misuse of geochemical terms such as "sulfates" and "sulfides." Id. at 96-97 & 101, l. 4-8. Dr. Maest did not identify any other changes or corrections to Mr. Barth's drafts, and earlier drafts are not available for comparison. Id. at 99, l. 5 to 100, l. 4. Dr. Maest sent her corrections to Mr. Barth and the two met again because "there were some additional documents that he [Mr. Barth] wanted me to look at that he hadn't

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given to me previously including some photographs and some water samples. And he [Mr. Barth] wanted me to look at them and see if they were consistent with what I had seen previously." Id. at 100, ll. 16-20. This testimony shows that, in addition to drafting Dr. Maest's report, Mr. Barth also selected and delivered the attachments to Dr. Maest. In contrast to Dr. Maest's report, Robert Brogden's expert report contains many indicia of scientific investigation and analysis: it contains maps of the study site, descriptions of the general geology and hydrogeology of the area, and a discussion of flows from the Roosevelt Tunnel and the Carlton Tunnel which explains how and why construction of the Carlton Tunnel dramatically impacted the functioning of the Roosevelt Tunnel. Exhibit 14. Mr. Brogden's report discusses the results of a surface field investigation, contains schematic diagrams prepared by him and other professionals and concludes with a list of general references and a list of 46 mine maps he reviewed. Id. Even considering all of this information, Mr. Brogden concluded that "[d]efining the exact contribution of overlying property owners to the flow from the Roosevelt requires more knowledge of the fracture patterns and actual movement of ground water than is currently known." Id. at 17. Mr. Brogden was compensated approximately $12,500 for preparing his initial report on behalf of El Paso in this case. Id. at 1. According to Plaintiffs' February 25, 2003 Motion for Award of Attorneys Fees, Expert Witness Fees and Litigation Expenses, Dr. Maest worked for a total of five and
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one quarter hours on this case before signing her report on June 20, 2002, representing about $650 worth of professional time. [Doc # 113 at Exhibit 13]. Other than a brief telephone call on June 7, 2002, all of Dr. Maest's work on her report was done in the two days before and the day of the report's due date. Id. Unlike Dr. Maest, Mr. Brogden prepared a rebuttal report acknowledging that he had reviewed the expert reports prepared for the opposing party. Exhibit 15. Mr. Brogden reviewed in detail the reports of many individuals who had traversed the Roosevelt Tunnel interior and noted that "[u]nfortunately, there is no indication the flows in the tunnel were gauged by the inspectors." Id. at 2. Mr. Brogden concluded: pinpointing an exact source or sources of water that flows from the portal is difficult because of the lack of data that adequately describe the geology and hydrology of the area, and the actual movement of ground water in the country rock. Considerably more data are required before any quantitative conclusions can be drawn as to the exact sources of water flowing from the portal. Id. at 3 (emphasis supplied). Plaintiffs have never responded to Mr. Brogden's analysis or conclusions. In her report, Dr. Maest states "I may be asked to review additional documents related to this case at a later date and may also conduct an inspection of the Roosevelt Tunnel or the El Paso Mine. I therefore reserve the right to revise or supplement this report in the future." Exhibit 12 at 4, § C. Despite reserving this right, Plaintiffs have

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never supplemented or revised Dr. Maest's report. After receiving Dr. Maest's report in 2002, El Paso requested from Plaintiffs' counsel copies of any other reports or documents prepared by Dr. Maest. Exhibit 16. In September 2006, El Paso reiterated its request for documents reflecting Dr. Maest's work product. Exhibit 17; see also FED. R CIV. P. 26(e). Plaintiffs never supplied any documents in response to these requests. Between production of Dr. Maest's report in June 2002 and the December 12, 2006 exchange of trial exhibits, Plaintiffs did not disclose or produce a single additional page of work product from Dr. Maest. F. Colorado Administrative Law Judge Matthew Norwood Found That the WQCD Failed to Prove the Transport Hypothesis

In January 2003, Colorado Administrative Law Judge Matthew E. Norwood heard expert testimony from EPA and WQCD witnesses as well as Mr. Brogden in the state's efforts to hold El Paso liable for the Roosevelt Tunnel portal flow into Cripple Creek. In Re: The Matter of El Paso Gold Mines, Inc. (Case No WQ2002-001). Plaintiffs herein filed a Request for Notice in the state case but failed to attend or participate in the fourday trial, during which expert witnesses for all parties were examined. The WQCD witnesses included EPA hydrologist Mike Wireman and WQCD employee David Akers.9

9

Plaintiffs have listed these same individuals as witnesses who may be called as part of their case in chief herein, but did not endorse them as expert witnesses. [Doc # 219 at 42-43]
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After hearing the evidence, Judge Norwood issued an Initial Decision finding that the lack of scientific data was a crucial defect in the government's case against El Paso: 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 neither Vardiman [a CC&V employee] nor anyone else has ever measured the flow of water in the Tunnel using such devices. 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. These drop offs have been detected on numerous occasions. 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 at 11 (emphasis supplied). Judge Norwood found that the WQCD bore the burden of proving its case by a preponderance of the evidence, the same burden and standard of proof applicable to Plaintiffs here. Id. at 12 (Conclusion of Law 2). Judge Norwood's ruling with respect to the transport hypothesis 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 EPGM. 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.

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Id. at 12 (Conclusion of Law 3). The April 22, 2003 memorandum transmitting Judge Norwood's decision to the WQCD indicated that copies were sent to Plaintiffs' counsel. Id.

G.

The Tenth Circuit Court of Appeals Ruled that Plaintiffs Had Not Proven the Transport Hypothesis

El Paso appealed this Court's order granting summary judgment to the Tenth Circuit Court of Appeals. 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." Sierra Club v. El Paso Gold Mines, Inc., 421 F.3d 1133, 1151 n.9 (10th Cir. 2005). Plaintiffs' counsel conceded that it could. Id. After a de novo review of the evidence, the Tenth Circuit found that Plaintiffs' conclusion that the transport hypothesis is true "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 found that Plaintiffs' evidence "further fails to take into account the apparently complex process of infiltration and exfiltration that occurs along the length of the Roosevelt Tunnel." Id. The Tenth Circuit 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.)
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both contain zinc and manganese--is less than convincing given the uncertainties by which the data were collected. Id. (emphasis supplied). The Tenth Circuit characterized Mr. Brogden's opinion that water and pollutants enter and exit the Roosevelt Tunnel at numerous places along the two and a half miles of tunnel between the El Paso shaft and the portal as "compelling and unrebutted" by Plaintiffs. Id. at 1150. Plaintiffs filed a Petition for Panel Rehearing in which they essentially reargued the transport hypothesis. Exhibit 18 at 4-6. The Tenth Circuit refused to reevaluate the evidence and granted the petition for panel rehearing "for the sole and limited purpose of correcting the dates when water samples were taken from the Roosevelt Tunnel portal." Exhibit 19 at 1. H. Plaintiffs Failed to Prove the Transport Hypothesis in the CC&V Case

Plaintiffs originally listed Kenneth Klco, Ann Maest and Robert Burm as expert witnesses in this litigation and in the CC&V case. Defendants in the CC&V case challenged the admissibility of opinions from these witnesses pursuant to FED. R. EVID. 702, as El Paso has done herein. After three individual evidentiary hearings, the District Court ruled that none of Plaintiffs' proffered expert opinions were admissible. In response, Plaintiffs have since deleted Mr. Burm and Mr. Klco from their list of expert witnesses in this case. [Doc # 219 at 42-43].

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On June 3, 2005, the District Court in the CC&V case ruled that Mr. Klco (upon whose report Dr. Maest relied) "lacks sufficient qualifications to express opinions 1, 3, and 4, all of which pertain to an assessment of the source of water, path of transport of water, and destination of water through the Roosevelt Tunnel and into Cripple Creek." Exhibit 20 at 7, ll. 21-25. The District Court found that Mr. Klco either had no methodology other than the expression of opinion based on visual observations or, if his methodology was to review documents and visually inspect the tunnel without conducting tracer tests, "that is not a reliable method customarily used by experts in the field in order to trace the flow of water in a fate and transport analysis." Id. at 8, l. 1 to 9, l. 13. On August 25, 2005, the District Court found that Plaintiffs failed to prove that Dr. Maest's methodologies were generally accepted in the scientific community and ruled that her opinions regarding the origins of constituents in flows at the Roosevelt Tunnel portal were inadmissible. Exhibit 21 at 10, ll. 6-13. On November 16, 2005, the District Court held that Robert Burm could not testify to many proffered opinions because they constituted legal conclusions. Exhibit 22 at 12. Despite these adverse evidentiary rulings, Plaintiffs proceeded to trial in the CC&V case. After hearing Plaintiffs' evidence in the CC&V case, the District Court concluded:

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The Sierra Club repeatedly argues that it is not required to "prove the origin of the pollutants in order to establish liability." This argument begs the question. With regard to a non-permit claim, the Sierra Club must establish that there was a discharge of a pollutant into the water--the mere presence of identified chemicals in the water does not constitute a violation of the Clean Water Act because such 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 at 41 (emphasis supplied). The District Court did not find that Plaintiffs' evidence was inadequate or less than convincing; the Court found that the Plaintiffs presented "no evidence." The defendants in the CC&V case subsequently sought an award of attorney's fees from Plaintiffs, and the District Court granted the motion in part. Exhibit 24. The District Court found that while "the claims may have been justified at their inception, the subsequent development of the case brought the claims to a point where they were clearly without foundation." Id. at 11. The District Court went on to hold: In addition, by virtue of the Court's rulings on the Plaintiffs' proffered expert opinions, the Plaintiffs should have known that they had no evidentiary support to establish either an ongoing violation of the existing permits, and as to the unpermitted discharges, that they had no evidence to establish the source of the water samples or their constituents. It might have been possible to plug these holes with other evidence but Plaintiffs never sought to do so. They did not seek to supplement the opinions, seek
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reconsideration, seek to reopen discovery or otherwise obtain evidence to support these essential elements of their claims. In the absence of evidence essential to their claims, Plaintiffs could have dismissed them, sought an interlocutory appeal or entered into a stipulated judgment reserving the right to appeal the Court's Rule 702 determinations. Instead the Plaintiffs proceeded to trial without evidence to establish essential elements of their claims. In the absence of adequate evidence to present a prima facie case, and with no attempt to obtain such evidence, the Court finds that Plaintiffs' decision to continue pursuing their claims after November 15, 2005 was unreasonable.

Id. at 11-12. Criticizing Plaintiffs' "dogged pursuit of factually unsupported claims," the District Court entered an award of fees pursuant to the Clean Water Act.10 Id. at 12. The District Court ordered Plaintiffs to pay $324,644.25 in attorney fees to Defendants by January 31, 2007, in addition to $29,000.00 in costs to which the parties had previously stipulated. Id. at 16. II. Plaintiffs Continue Prosecuting this Case for Improper Purposes The citizens suit provision of the Clean Water Act provides that any citizen may commence a civil action against any person alleged to be in violation of the Act. 33 U.S.C. § 1365(a)(1). When private plaintiffs bring citizen's suits, they "are suing as private attorneys general." Sierra Club v. Chevron U.S.A, Inc., 834 F.2d 1517, 1522 (9th
The District Court declined to award sanctions against Plaintiffs or their counsel pursuant to Rule 11 in part because Defendants had not complied with the safe harbor provisions of FED. R. CIV. P. 11(c)(1)(A). Exhibit 19 at 10.
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Cir. 1987). The citizen's suit is designed to supplement, rather than supplant, government enforcement action. Gwaltney of Smithfield Ltd v. Chesapeke Bay Foundation, Inc., 484 U.S. 49, 50 (1987). The ultimate purpose of the Clean Water Act is to improve water quality by eliminating discharges of pollutants to navigable waters. Plaintiffs must be maintaining this citizen's suit for an improper purpose because it is undisputed that: (a) El Paso cannot comply with any injunctive or other order entered by the Court; and (b) no actual harm to the water quality has occurred. A. El Paso Has No Resources

El Paso is a closely held Colorado corporation that was formed and bought its property in 1968, four years before the Clean Water Act became law. [Doc # 111 at 3 (Finding of Fact 2)]. El Paso's sole financial asset is one hundred acres of mining claims in Teller County, Colorado, [id. at 2 (Finding of Fact 1)]; it is El Paso's ownership of this property that forms the sole basis of Plaintiffs' citizen's suit. Other than this property, El Paso owns no assets, has no cash flow and has not filed income tax returns for many years. [Doc # 111 at 9 (Finding of Fact 41)]. El Paso is essentially judgment-proof and cannot bear the cost of water treatment or pay any civil penalties that may be assessed in this case. El Paso has never conducted mining or any other significant activity on its property and it has no ongoing operations today. [Id. at 2 (Finding of Fact 2)]. El Paso is
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not a successor to any other entity that conducted mining activities impacting water quality. Unlike a citizen's suit defendant that is actively conducting operations, El Paso cannot cease or modify any conduct in order to mitigate or abate the flows from the Roosevelt Tunnel into Cripple Creek. Those flows occur as a result of construction of the Roosevelt Tunnel more than a century ago and the natural hydrologic cycle. There is nothing that El Paso can do to prevent water containing "pollutants" from flowing out of the Roosevelt Tunnel. El Paso's inability to comply with any monetary or injunctive relief the Court might enter is amply 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]. The Court entered judgment on the following day. [Doc # 112]. El Paso filed a notice of appeal [Doc # 120] and moved to stay the relief entered by the District Court [Doc # 121]. On April 21, 2003, the Court denied El Paso's motion to stay and ordered El Paso to post a surety bond of $50,000 to secure Plaintiffs' costs and attorney's fees on appeal [Doc # 135]. On May 2, 2003, the Court entered judgment awarding Plaintiffs' counsel $247,246.19 in attorney fees [Doc # 138]. El Paso was unable to post the surety bond ordered by the Court and sought a stay of all trial court
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relief in the Tenth Circuit Court of Appeals. Exhibit 25. The Tenth Circuit denied the request for a stay. Exhibit 26. Unable to comply with the trial court's judgment, El Paso risked being found in contempt of court because it was unable to comply with either the monetary or injunctive relief entered against it. B. Cripple Creek Water Quality is Not Impaired.

Even if it had the ability to comply with Court-ordered relief, it would be difficult for El Paso to obtain a discharge permit. El Paso has no ownership or other property interest in the Roosevelt Tunnel portal, which lies about two and one half miles from El Paso's property. El Paso does not know who owns the property on which the portal is located but believes that the land is federal property. The portal gate itself is controlled by the U.S. Bureau of Land Management, from which El Paso obtained the key tendered to the court on June 26, 2002. [Doc # 64].11 Even if El Paso were able to obtain the necessary permits to build and operate a treatment system at the Roosevelt Tunnel portal, any benefits to Cripple Creek water quality would be negligible. The Roosevelt Tunnel discharges into Stream Segment 21 of the Upper Arkansas River Basin, described by the WQCD as the "Mainstem of Cripple Creek from the source to the confluence with Fourmile Creek." This stream segment is
11

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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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. 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.] Finally, this Court has already concluded that "plaintiffs have failed to prove any actual harm to the environment" caused by the discharge from the Roosevelt Tunnel. Id. Thus, any remedies the Court imposes will not have the effect of improving the quality of water in Cripple Creek. C. Institutional Considerations

Another federal district court judge and a Colorado ALJ have ruled, after full trials on the merits, that neither the WQCD nor Plaintiffs herein have proved the transport hypothesis. By continuing this litigation, Plaintiffs invite this Court to rule inconsistently with those tribunals. A ruling inconsistent with those of District Court Judge Marcia Krieger and Administrative Law Judge Matthew Norwood would undermine confidence in the judicial system and the preexisting state and federal adjudications of this issue. In addition, an inconsistent ruling by this Court will virtually guarantee the need for further proceedings before this Court and the Tenth Circuit Court of Appeals in order to resolve the factually inconsistent judgments. Even if Plaintiffs were to prevail after all appeals,
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the Court could only order El Paso to apply for a discharge permit from the WQCD, despite the fact that the WQCD has already determined that El Paso does not need such a permit. A judgment in Plaintiffs' favor will guarantee more legal process, more expense for the parties and additional burdens on the federal courts and the WQCD. What it will not do is improve the water quality in Cripple Creek. Since the Court cannot impose any remedies that will improve the water quality in Cripple Creek, the only rational conclusion is that Plaintiffs are pursuing this suit for improper purposes. CONCLUSION El Paso is mindful of the Advisory Committee Notes to the 1993 Amendments to Rule 11 that "counsel should be expected to give informal notice to the other party, whether in person or by a telephone call or letter, of a potential violation before proceeding to prepare and serve a Rule 11 motion." Exhibit 1 at 81. As shown by the attached electronic mail correspondence, El Paso's counsel has previously communicated to Plaintiffs' counsel the belief that Plaintiffs' main factual contention lacks evidentiary support. Exhibit 29. In addition, the litany of reports and tribunal rulings described in this motion (all in cases in which Plaintiffs were involved) should have apprised Plaintiffs that they lack scientific evidence to evaluate, much less prove, the transport hypothesis which is the centerpiece of their claim here.
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For the reasons discussed above, El Paso respectfully requests that this Court find that Plaintiffs have violated FED. R. CIV. P. 11(b)(1) and (3) and order further proceedings as appropriate to determine sanctions pursuant to FED. R. CIV. P. 11(c).

Respectfully submitted this 30th day of January, 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.

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CERTIFICATE OF SERVICE
I hereby certify that pursuant to FED. R. CIV. P. 11 a copy of the foregoing EL PASO'S MOTION FOR SANCTIONS UNDER FED.R.CIV.P. 11 was sent via Federal Express this 8th day of January, 2007 and sent electronically via ECF this 30th day of January, 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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