Free Trial Brief - District Court of Colorado - Colorado

Case 1:01-cv-02163-BNB-MEH

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Case No. 01-CV-02163-BNB-MEH SIERRA CLUB and MINERAL POLICY CENTER, Plaintiffs, v. El PASO GOLD MINES, INC. (a.k.a., EL PASO PROPERTIES, INC.) Defendant. ______________________________________________________________________________ PLAINTIFFS' TRIAL BRIEF ______________________________________________________________________________

Pursuant to this Court's October 17, 2006 Trial Procedures Order [Doc. #214], Plaintiffs Sierra Club and Mineral Policy Center (also known as Earthworks) hereby submit Plaintiffs' Trial Brief. I. Relevant Background and Procedural History This citizen suit under the Clean Water Act was initiated by Plaintiffs against Defendant El Paso Properties, Inc. ("El Paso") on November 5, 2001 alleging an illegal unpermitted discharge of pollutants from the El Paso Shaft, owned and controlled by El Paso, into Cripple Creek, a navigable water under the Clean Water Act. Jurisdiction exists under 33 U.S.C. §1365(a) and 28 U.S.C. §1331. The parties have consented to determination of this case by a United States Magistrate Judge under 28 U.S.C. §636(c). This Court had previously resolved all issues of liability on Motions for Summary Judgment. See November 15, 2002 Memorandum Opinion and Order granting Summary

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Judgment in favor of Plaintiffs on the issues of standing and liability under the Clean Water Act [Doc. # 95]. El Paso appealed this Summary Judgment ruling to the Tenth Circuit Court of Appeals, where the court upheld the majority of this Court's legal analysis, but reversed the summary judgment ruling on the narrow issue of whether a genuine issue of material fact existed as to if pollutants from the El Paso Shaft reach the Roosevelt Tunnel Portal. See Sierra Club, et al. v. El Paso Gold Mines, Inc., 421 F.3d 1133, 1149 (10th Cir. 2005) ("Although, as the magistrate judge recognized, the experts agree that at least some of the water from the El Paso shaft reaches the portal, there is no agreement regarding whether pollutants coming from the shaft are ever discharged at the portal.")(emphasis in original). This Court has scheduled a 5-day bench trial to begin on February 5, 2007 on this one remaining narrow issue as to liability. II. Clean Water Act Liability Section 301(a) of the CWA states that "the discharge of any pollutant by any person shall be unlawful," unless authorized by an NPDES permit. 33 U.S.C. § 1311(a). Further, under the Act, a "discharge of a pollutant" is defined as "any addition of any pollutant to navigable waters from any point source." 33 U.S.C. § 1362(12)(emphasis added). Thus, as set forth by the Tenth Circuit: To establish a violation of these sections, a plaintiff must prove that the defendant (1) discharged (2) a pollutant (3) into navigable waters (4) from a point source (5) without a permit. See Nat'l Wildlife Fed'n v. Gorsuch, 693 F.2d 156, 165 (D.C.Cir.1982). Sierra Club v. El Paso Gold Mines, Inc., 421 F.3d 1133, 1142 (10th Cir. 2005). In its ruling on summary judgment, this Court found each of these necessary elements had been proved. See Doc. # 95. Further, in characterizing its own Summary Judgment decision in its subsequent

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Order granting in part and denying in part plaintiffs' motion for attorney fees [Doc. # 139] this Court stated: On summary judgment, I held that El Paso had a statutory obligation to obtain a permit for its illegal discharge of pollutants into Cripple Creek from the El Paso shaft and the Roosevelt Tunnel, because the undisputed evidence was that some of the polluted water conveyed to the Tunnel by means of the El Paso shaft is discharged at the Tunnel portal on an intermittent basis. Because the CWA prohibits "any addition of any pollutant," 33 U.S.C. § 1311(a), § 1362(12), the unpermitted discharge of any amount of pollutant into navigable waters from a point source violates the CWA. Sierra Club v. El Paso Gold Mines, Inc., 2003 WL 25265873 at 1 n.2 (italics in original, bold emphasis added). On appeal to the Tenth Circuit Court of Appeals, El Paso confined its challenge to this ruling to the first element, e.g., whether El Paso "discharged" under the Act. See Sierra Club, 421 F.3d at 1142. As mentioned supra, in reversing this Court's summary judgment ruling, the Tenth Circuit ruled only that facts must be determined at trial as to whether the pollutants flowing from the El Paso Shaft actually make it to the Roosevelt Tunnel Portal. Id. at 1149. III. The Sole Issue Left for Trial: Whether Any Amount of Pollutants Travel From the El Paso Shaft to the Roosevelt Tunnel Based on the foregoing, the issues remaining for trial in this case have been substantially narrowed by this Court's previous summary judgment ruling finding Clean Water Act liability [Doc. # 95] and the 10th Circuit Court of Appeals determination of El Paso's appeal therefrom. In fact, there is only one issue left to be tried in this case: whether a hydrological connection exists between any pollutants discharged from the El Paso shaft into the Roosevelt Tunnel, and any pollutants discharged from the Roosevelt Tunnel into Cripple Creek. Notably, the issue of whether there is a hydrological connection between the water discharged from the El Paso Shaft and the water discharged by the Roosevelt Tunnel has been

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established. All that remains is a factual determination as to whether any pollutants remain in the water during its trek down the drainage tunnel. This Court's August 10, 2006 Memorandum Opinion and Order [Doc. # 196] (2006 WL 2331082) denying El Paso's recent Motion to Dismiss Based on Collateral Estoppel explicitly and repeatedly recognized the sole narrow issue left for determination at trial as a result of the prior summary judgment determination and the narrow reversal by the Tenth Circuit: In this case, the record from the summary judgment proceeding established that "at least some of the water from the El Paso shaft reaches the [Roosevelt Tunnel] portal." Sierra Club, 421 F.3d at 1149. The issue remaining for trial is whether pollutants coming from the shaft water are ever discharged at the portal. Id. Sierra Club v. El Paso Gold Mines, Inc., Slip Copy, 2006 WL 2331082 at 5. The Tenth Circuit Court of Appeals reversed the grant of summary judgment, concluding that genuine issues of material fact remained about whether pollutants discharged from the El Paso shaft into the Roosevelt Tunnel were exiting the Tunnel portal into Cripple Creek. See Sierra Club v. El Paso Gold Mines, Inc., 421 F.3d 1133, 1149-50 (10th Cir.2005). Id. at 1. To prevail on a claim under the Clean Water Act, the plaintiffs must prove: (1) the discharge (2) of a pollutant (3) into navigable waters (4) from a point source (5) without a permit. Sierra Club, 421 F.3d at 1142. Specifically, plaintiffs must establish that pollutants discharged from the El Paso shaft into the Roosevelt Tunnel make their way to the Tunnel portal where they are then discharged into Cripple Creek. Sierra Club, 421 F.3d at 1146. In other words, plaintiffs must prove a hydrological connection between the pollutants discharged at the El Paso shaft and the pollutants discharged at the Tunnel portal. Id. Id. at 5. The Tenth Circuit held in Sierra Club that the "addition/discharge" requirement "is satisfied by the contemporaneous introduction of polluted water from El Paso's property, through a point source owned and maintained by El Paso, to a navigable stream, Cripple Creek." 421 F.3d at 1144. Plaintiffs' evidence in the summary judgment proceeding showed that water samples taken at the El Paso shaft contained zinc and manganese. Id. at 1149 and n. 8. Accordingly, plaintiffs establish a "discharge" in this case by proving

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that pollutants coming into the Roosevelt Tunnel from the El Paso shaft make their way to the Tunnel portal and then exit the portal into Cripple Creek. Id. at 6 n.9. IV. El Paso Should Not be Allowed to Relitigate Those Issues Already Resolved By Prior Proceedings in this Case Plaintiffs expect that El Paso may attempt to expand the proper scope of the trial in order to relitigate issues that have already been conclusively and finally determined in the prior summary judgment and appellate proceedings in this case. As discussed herein, the only issue left for trial is whether, assuming already that water travels at least on an intermittent basis from the El Paso Shaft to the Roosevelt Tunnel Portal, whether pollutants also travel between those points. Should El Paso attempt to relitigate any other issues, it should be barred by from doing so. In the Tenth Circuit, the law of the case and mandate rule provide that "[g]enerally, `once a court decides an issue, the same issue may not be re-litigated in subsequent proceedings in the same case' and there must be compliance with the reviewing court's mandate." Grigsby v. Barnhart, 294 F.3d 1215, 1218 (10th Cir. 2002) quoting Ute Indian Tribe of the Uintah and Ouray Reservation v. Utah, 114 F.3d 1513, 1520-1521 (10th Cir. 1997). Although this principle is discretionary, not mandatory, it is discretionary generally only where jurisdictional issues are raised anew. See Kennedy v. Lubar, 273 F.3d 1293, 1299 (10th Cir. 2001)). The Court should apply these principles here, as this Court has already determined as a matter of law all elements of liability in this case as well as determined all relevant issues of fact, and these rulings and factual findings have been upheld on appeal by the Tenth Circuit Court of Appeals, save for the one narrow factual issue of whether any amount of pollutants travel from the El Paso

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Shaft to the Roosevelt Tunnel. Indeed, the Tenth Circuit explicitly defined the narrow scope of the remand in this case (ie, whether any amount of pollutants from the El Paso Shaft discharge at the Roosevelt Tunnel Portal), and remanded only "for further proceedings consistent with this opinion." 421 F.3d 1133, 1151. Litigation of any issues beyond that narrow remand would not be consistent with the Tenth Circuit's decision in this case. Overall, this Court should not be burdened with having to re-determine matters of law, nor to hear additional testimony on factual issues already determined. As such, any attempt by El Paso to relitigate law or facts already so determined should be disallowed as precluded under the doctrines of law of the case and the mandate rule. The doctrine of collateral estoppel also supports disallowing El Paso from relitigating issues of law and fact already determined in this case. Although collateral estoppel generally applies only to relitigation of issues decided in a separate case, the doctrine is instructive here. As set forth by this Court in its August 10, 2006 Memorandum Opinion and Order [Doc. # 196] (2006 WL 2331082) denying El Paso's recent Motion to Dismiss Based on Collateral Estoppel: "[W]hen an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit." Ashe v. Swenson, 397 U.S. 436, 443 (1970). In Blonder-Tongue Laboratories, Inc. v. Univ. of III. Foundation, 402 U.S. 313, 328-29 (1971), Sierra Club v. El Paso Gold Mines, Inc., 2006 WL 2331082 at 4. Collateral estoppel "precludes relitigation of issues actually and necessarily decided in a prior action. Parklane Hosiery Co. v. Shore, 439 U.S. 322, 99 S.Ct. 645, 58 L.Ed.2d 552 (1979)." In Re Lombard, 739 F.2d 499, 502 (10th Cir. 1984). Collateral estoppel applies where the party seeking to establish the defense proves the following elements: (1) the issue decided is identical with the one presented in the action in question, (2) the prior action has been finally adjudicated on the merits, (3) the party

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against whom the doctrine is invoked was a party, or in privity with a party, to the prior adjudication, and (4) the party against whom the doctrine is raised had a full and fair opportunity to litigate the issue in the prior action. Dodge [v. Cotter Corp. 203 F.3d 1190, 1198 (10th Cir.2000)],(citing Murdock v. Ute Indian Tribe of Uintah & Ouray Reservation, 975 F.2d 683, 687 (10th Cir.1992)). Sierra Club v. El Paso Gold Mines, Inc., 2006 WL 2331082 at 4. In this case, collateral estoppel applies to the issues decided were identical, as they were the elements of liability under the Clean Water Act with respect to the El Paso Shaft and Roosevelt Tunnel in this same case. The prior action was finally adjudicated on the merits via this Court's summary judgment ruling [Doc. # 95]. As discussed herein, the only ruling appealed and reversed by the Tenth Circuit was this Court's finding that no genuine issue of material fact exists as to whether any pollutants from the El Paso Shaft travel within the water that flows from the Shaft to the Roosevelt Tunnel. Third, there can be no dispute as to privity, as El Paso is still the Defendant. Lastly, with respect to El Paso's "full and fair" opportunity to litigate these issues, the Tenth Circuit has explicitly found that briefing on summary judgment constitutes such an opportunity: In the context of a defendant's motion for summary judgment, a plaintiff has a full and fair opportunity to litigate if it is allowed to submit evidence to defeat a motion for summary judgment. See Exhibitors Poster Exch., Inc. v. Nat'l Screen Serv. Corp., 421 F.2d 1313, 1319 (5th Cir.1970) ("It would be strange indeed if a summary judgment could not have collateral estoppel effect."); 18 Charles Alan Wright, et al., Federal Practice and Procedure § 4419 (1981) ("It is clear enough that issue preclusion generally is appropriate if some effort is made to litigate the issue, but the evidence introduced is held insufficient to carry the burden of persuasion or even the burden of production."). Matosantos Commercial Corp. v. Applebee's Intern., Inc., 245 F.3d 1203, 1211 (10th Cir. 2001). Thus, all elements of collateral estoppel are met in this case with respect to every element of liability in this case, save the issue of whether any amount of pollutants from the El Paso Shaft

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make their way to the Roosevelt Tunnel Portal. As such, this Court should ensure the integrity of the judicial process, and conserve the Court's, the attorneys', and the parties' time and resources by refusing to allow El Paso to relitigate legal or factual issues already determined. V. Expert Testimony as to the Chemical Connection Between the El Paso Shaft and the Roosevelt Tunnel Portal Discharge As discussed herein, the only issue remaining in this case is whether there exists a chemical connection between the pollutants discharged from the El Paso Shaft and those discharged from the Roosevelt Tunnel. Given that there already exists an established hydrological connection between the water discharging from the El Paso Shaft and the water discharging from the Roosevelt Tunnel, this only remaining issue is solely one of geochemistry. However, neither of Defendant's identified experts will render an opinion at trial in this case with regard to whether the pollutants from the El Paso Shaft reach the Roosevelt Tunnel Portal. For instance, Defendants have admitted that "Mr. Brogden will not render opinions on issues of chemistry...." Defendant's Response to Motion to Exclude Expert Opinions of Robert Brogden, at 10 [Doc. # 185]. Further, the Court has already noted, and Defendant has conceded, that Mr. O'Hayre will not offer any opinions at all at trial, including any regarding whether any amount of pollutants from the El Paso Shaft discharge at the Roosevelt Tunnel. Final Pretrial Order at 9 [Doc. # 219]("El Paso does not intent to call Mr. O'Hayre to testify as an expert at trial.") As a result, only Dr. Ann Maest, Plaintiffs' expert witness, will be offering any opinions as to the ultimate issue of fact in this case. Defendants do not dispute that Dr. Maest is wellqualified to render her opinions. Instead, they solely take issue with the facts and methodologies used by Dr. Maest in rendering her opinions. Dr. Maest will testify that she employed adequate

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methodologies, and that there were adequate facts and data to render an expert opinion on the ultimate issue of fact ­ whether any pollutant in any amount from the El Paso Shaft reaches the Roosevelt Tunnel Portal. Plaintiffs' additional expert, Dr. James McCord, will also testify as to the reliability of Dr. Maest's methodology and the sufficiency of the facts and data she considered in rendering her opinions. As such, should this Court find Dr. Maest's testimony admissible, it will be the only relevant expert testimony on the ultimate issue for trial in this case.

Dated: January 22, 2007

Respectfully submitted by, s/ Jeffrey C. Parsons _________________________ Roger Flynn, Esq. # 21078 Jeffrey C. Parsons, Esq. #30210 WESTERN MINING ACTION PROJECT P.O. Box 349 Lyons, CO 80540 (303) 823-5738 John Barth, #22957 Attorney at Law P.O. Box 409 Hygiene, CO 80533 (303) 774-8868 COUNSEL FOR PLAINTIFFS

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CERTIFICATE OF SERVICE I do hereby certify that on this 22nd day of January, 2007 a true and accurate copy of PLAINTIFFS' TRIAL BRIEF was filed with the Electronic Case Filing system which is then to serve the same on the following by electronic means: Steve Harris James L. Merrill Merrill Anderson & Harris 20 Boulder Crescent Colorado Springs, CO 80903-3300 [email protected] Connie King Law Firm of Connie King, LLC 4711 Constitution Ave. Colorado Springs, CO 80915 [email protected] s/ Jeffrey Parsons __________________________ Jeffrey Parsons

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