Free Response to Motion - District Court of Colorado - Colorado

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Case No. 00-cv-02325-MSK-MEH SIERRA CLUB and MINERAL POLICY CENTER, Plaintiffs, vs. CRIPPLE CREEK AND VICTOR GOLD MINING COMPANY, ANGLOGOLD ASHANTI (COLORADO) CORP. ANGLOGOLD ASHANTI NORTH AMERICA INC. and GOLDEN CYCLE GOLD CORPORATION Defendants. and Civil Action No. 01-cv-02307-MSK-MEH SIERRA CLUB and MINERAL POLICY CENTER, Plaintiffs, vs. CRIPPLE CREEK AND VICTOR GOLD MINING COMPANY, et al., ANGLOGOLD ASHANTI (COLORADO) CORP. ANGLOGOLD ASHANTI NORTH AMERICA INC. and GOLDEN CYCLE GOLD CORPORATION Defendants.

PLAINTIFFS' CLOSING ARGUMENT

A trial on liability in this case was held from February 13, 2005 through February 22, 2005. At the conclusion of the trial this Court ordered the parties to file proposed findings of

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fact and written closing arguments. For the reasons stated herein,1 this Court should conclude that Plaintiffs have established liability on all causes of action.2 Accordingly, Plaintiffs also request that the Court enter a finding on the number of violations at each discharge location as identified in Exhibit 1 hereto. 1. INTRODUCTION This is a federal Clean Water Act ("CWA" or "Act") citizen enforcement action. 33 U.S.C. ' 1365. Defendants own and operate a large gold mining operation in Teller County, Colorado known as the Cripple Creek & Victor Gold Mine (also known as the "Cresson Project"). Ex. 295. Plaintiffs' Complaint alleges that Defendants are illegally discharging pollutants from point sources without a National Pollutant Discharge Elimination System ("NPDES") Permit, as is required by the Section 311 and 402 of the CWA. 33 U.S.C. '' 1311, 1342. The Cripple Creek & Victor Gold Mining Company ("CC&V") has been conducting gold mining operations in the Cripple Creek Mining District since at least 1976. Ex. 295, Bates 4855. The current permitted area of the Cripple Creek and Victor Gold Mine is 5,874 acres in size. Defendants' gold mine operates 24 hours a day, every day of the year. Ex. 295. Defendants mine more than 54,000 tons of earth each day. Over 12 million tons of ore are mined annually. After it is dug from the earth, the ore is crushed at a rate of 3,000 tons per hour. Ex. 295. The crushed ore is then placed in the Valley Leach Facility where a cyanide solution is dripped over the ore to extract the gold. Ex. 295. The Valley Leach Facility is located in a watershed known
1

Plaintiffs' Proposed Findings of Fact filed on March 6, 2006 are incorporated herein by reference.

2

Plaintiffs' Ninth Cause of Action and Eleventh Cause of Action are being asserted in the alternative to Plaintiffs' Eighth and Twelfth Causes of Action.

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as "Arequa Gulch". Defendants have filled a large portion of the Arequa Gulch valley with crushed ore soaked in a cyanide solution--hence the name "Valley" Leach Facility. The Valley Leach Facility will reach a total capacity of 260 million tons of cyanide soaked ore. The Valley Leach Facility will reach a height of 590 feet. The State of Colorado Water Quality Control Division ("WQCD") has issued 2 different discharge permits to CC&V for pollution discharges into local watersheds--the Carlton Tunnel Permit CO-0024562 for discharges from Outfall 002 into Fourmile Creek and the Arequa Gulch permit CO-0043648 for discharged from Outfall 001A into Arequa Gulch. At trial, Plaintiffs proved that there have been repeated violations of the terms and conditions of these discharge permits. Plaintiffs also proved at trial that there are discharges from four man-made structures at the CC&V gold mine which have not been authorized by a discharge permit--namely, the Carlton Tunnel ponds/waste rock seepage, the Roosevelt Tunnel, the Moffat Tunnel cribbing wall, and the Squaw Gulch Pond.3 2. STANDING

The federal Clean Water Act provides that, "any citizen may commence a civil action on his own behalf--against any person...who is alleged to be in violation of (A) an effluent standard or limitation under this chapter". 33 U.S.C. §1365(a)(1). The CWA defines the term "citizen" to mean, "...a person or persons having an interest which is or may be adversely affected" (emphasis added). 33 U.S.C. § 1365(g). This language chosen by Congress confers standing on a "broad category of potential plaintiffs" who "can claim some sort of injury," be it actual or threatened, economic or noneconomic. Friends of the Earth v. Gaston Copper Recycling, 204 F.3d 149, 155

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Plaintiffs also assert in the alternative that there may have been unpermitted discharges at Arequa Gulch Outfall 001A.. See Plaintiffs' 11th cause of action.

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(4th Cir. 2000); Middlesex County Sewerage Authority v. National Sea Clammers Ass'n, 453 U.S. 1, 16-17 (1981). The CWA defines the term "effluent standard or limitation to include "...(6) a permit or condition thereof issued under section 1342...". 33 U.S.C. §1365(f)(6). This also includes the requirement to obtain a valid NPDES permit issued under 33 U.S.C. §1342(a). This section of the CWA also states that discharge permits may only be issued "after opportunity for public hearing." 33 U.S.C. § 1342(a)(1). Under Article III of the U.S. Constitution, plaintiffs prosecuting a CWA citizen suit must have standing in order to confer jurisdiction on the district court. In order to satisfy Article III's standing requirements, a plaintiff must establish4: (1) it has suffered an "injury in fact" (including the invasion of a legally protected interest) that is (a) concrete (which can be satisfied by a "geographical nexus") and (b) particularized (actual or imminent, not conjectural or hypothetical); and, (2) the injury is fairly traceable to the challenged action of the defendant; and, (3) it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision. Friends of the Earth v. Laidlaw, 528 U.S. 167, 180-181 (2000) citing Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992). See also, Committee to Save the Rio Hondo v. Lucero, 102 F.3d 445, 447; Ash Creek Mine Co. v. Lujan, 969 F.2d 868, 874 (10th Cir. 1992); American Wildlands v. Browner, 94 F.Supp.2d 1150, 1155 (D.Colo. 2000), affirmed in American Wildlands v. Browner, 260 F.2d 1192 (10th Cir. 2001). In proving "injury in fact", "[t]he relevant showing for purposes of Article III standing...is not injury to the environment but injury to the plaintiff." Laidlaw, 528 U.S. at 181.

Defendants have previously argued that an environmental organization must also prove that the organization formally approved of the citizen suit in order to establish standing. There is no legal authority supporting this argument. Defendants also failed produce any evidence at trial that this litigation was not formally approved by Sierra Club and Mineral Policy Center.

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See also, American Wildlands v. Browner, 94 F.Supp. 2d at 1155. "Plaintiffs adequately allege injury in fact when they aver that they use the affected area and are persons `for whom the aesthetic and recreational values of the area will be lessened' by the challenged activity." Laidlaw, 528 U.S. at 183 (quoting Sierra Club v. Morton, 405 U.S. 727, 735 (1972). Further, the "injury in fact" requirement in environmental cases is satisfied if an individual adequately shows that she has an aesthetic or recreational interest in a particular place, or animal, or plant species and that the interest is impaired by a defendant's conduct. See, Laidlaw, 528 U.S. at 183-184. See also, Oregon Natural Desert Association v. Dombeck, 172 F.3d 1092, 1094 (9th Cir. 1998); and, Ecological Rights Foundation, v. Pacific Lumber Company, 230 F.3d 1141, 1147 (9th Cir. 2000). The Supreme Court has also stated that "of course, the desire to use or observe an animal species, even for purely aesthetic purposes, is undeniably a cognizable interest for purposes of standing". Lujan v. Defenders of Wildlife, 504 U.S. at 562-563. A plaintiff need not wait until his waterbody becomes "barren and sterile or assumes and unpleasant color and smell before he can invoke the protections of the Clean Water Act." Friends of the Earth v. Gaston Copper Recycling Corp., 204 F.3d 149, 156-60 (4th Cir. 2000). Further, interference with a procedural right can also constitute an "injury in fact". Several courts have noted that, " `procedural rights' are special: The person who has been accorded a procedural right to protect his concrete interests can assert that right without meeting all of the normal standards for redressability and immediacy." Lujan v. Defenders of Wildlife, 504 U.S. at 504, footnote 7. See also, Oregon Natural Desert Association v. Dombeck, 172 F.3d 1092, 1094 (9th Cir. 1999)(citizen suit plaintiffs had standing under the Clean Water Act to challenge the lack of a water quality certification because they had suffered injury to their "procedural" rights); Committee to Save Rio Hondo v. Lucero, 102 F.3d 449 (10th Cir.

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1996)(failure to follow prescribed procedures under the National Environmental Policy Act creating an increased risk of environmental harm "may be the foundation for injury in fact under Article III."); Dubois v. USDA, 102 F.3d 1273, 1281 (footnote 10) (1st Cir. 1996)(procedural rights deserve special treatment when it comes to standing); and, Idaho Farm Bureau v. Babbitt, 900 F.Supp. 1349, 1360 (D. Id. 1995)(recognizing procedural standing under ESA). At least one circuit court has extended this analysis to procedural rights accorded by the Clean Water Act. Dubois v. U.S. Department of Agriculture, 102 F. 3d 1273, 1281, n. 10 (1st Cir. 1996). The procedural rights at issue in this case are based on Defendant's interference with Plaintiff's right to fully participate in the permitting process for unpermitted discharges from this facility, not on a constitutional violation of the 14th Amendment. See, Sierra Club v. Young Life Campaign, Inc., 176 F.Supp. 2d at 1085-1086. The burden of proving "injury in fact" is not onerous. "The injury need not be 'significant'; a 'small' stake in the outcome will suffice, if it is 'direct'." Dubois 102 F.3d 1273, 1281. In fact, the interest at stake need not be more than an "identifiable trifle". PIRG of New Jersey v. Powell Duffryn Terminals, 913 F.2d 64, 71 (3rd Cir. 1990), cert. denied, 498 U.S. 1109 (1991). The "fairly traceable" or causation requirement is satisfied when the alleged injury can be traced to the defendant's challenged conduct. See, Ecological Rights Foundation, et al. v. Pacific Lumber Company, 230 F.3d at 1152. To satisfy this element, the plaintiff need only show that a defendant's conduct contributed to the type of injuries alleged by plaintiff. The "fairly traceable" requirement ensures that there is a genuine nexus between a plaintiff's injury and a defendant's alleged illegal conduct. But traceability "does not mean that plaintiffs must show to a scientific certainty that defendant's effluent...caused the precise harm suffered by the plaintiffs... [I]f

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scientific certainty was the standard, then plaintiffs would be required to supply costly, strict proof of causation to meet a threshold jurisdictional requirement-even where, as here, the asserted cause of action do not itself require such proof". Gaston Copper, 204 F.3d at 161 (internal citations omitted). Finally, regarding the "redressability" element of standing, injunctive relief can provide redressability. Also, the Supreme Court has determined that civil penalties carry with them "a deterrent effect" that makes it "likely, as opposed to merely speculative, that penalties would redress" injuries in a Clean Water Act case. Laidlaw, 120 S.Ct. 693, 707. "To the extent that they encourage defendants to discontinue current violations and deter them from committing future ones, they afford redress to citizen plaintiffs who are injured or threatened with injury as a consequence of ongoing unlawful conduct." Laidlaw, 528 U.S. at 186. When considering "redressability," the potential assessment of attorneys fees and litigation costs under Section 505(d) of the CWA can also be considered as part of the "total deterrent effect." Id. at 178. In the context of interference with a procedural interest, "the plaintiffs need not demonstrate that the ultimate outcome following proper procedures will benefit them" in order to establish "redressability." ONDA v. Dombeck, 172 F. 3d 1092, 1094. Rather, the assertion of a procedural right "reduces plaintiff's burden of proving immediacy and redressability." Id. An association, such as Plaintiff, has standing to bring suit on behalf of its members when: 1) its members would otherwise have standing to sue in their own right, 2) the interests at stake are germane to the organization's purpose; and, 3) neither the claim asserted nor the relief requested requires the participation the participation of individual members in the lawsuit. Laidlaw, 528 U.S. at 180-181, citing Hunt v. Washington State Apple Advertising Commission, 432 U.S. 333, 343 (1977). See also, Colorado Taxpayers Union, Inc. v. Romer, 963 F.2d 1394,

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1397-98 (10th Cir. 1992), cert. denied 507 U.S. 949, 113 S.Ct. 1360, 122 L.Ed. 2d 739 (1993); Sierra Club v. Young Life Campaign, Inc., 176 F. Supp.2d 1070, 1084 (D.Colo. 2001); and, American Wildlands v. Browner, 94 F.Supp.2d at 1155. Here, Plaintiff asserts standing on its own behalf, as well as on behalf of its members.5 Standing is determined on the date the action is commenced. Laidlaw, 528 U.S. at 188192. A mootness analysis would apply when events affecting standing occur after the commencement of the case. Id. However, "[a] defendant's voluntary cessation of a challenged practice does not deprive a federal court of its power to determine the legality of the practice. If it did, the court would be compelled to leave the defendant free to return to his old ways." Id. at 189 (internal quotations omitted). See also, Bighorn Forest Users Coalition, Inc. v. Thompson, 170 F.Supp.2d 1091, 1093 (D.Colo. 2001). Numerous court have recognized that a plaintiff may prosecute a citizen suit when the defendant fails to obtain a valid CWA permit. Committee to Save the Mokelumne River v. East Bay Municipal Utility District, 35 ERC 1537 (E.D.Ca. 1992), affirmed in 13 F.3d 305 (9th Cir. 1993); Washington Wilderness Coalition v. Hecla Mining Company, 870 F.Supp. 983 (E.D. Wash. 1994); Beartooth Alliance v. Crown Butte Mines, 904 F.Supp. 1168 (D. Mt. 1995); Sierra Club v. Abston Construction Co. Inc., 620 F.2d 41 (5th Cir. 1980). Given that citizen suit plaintiffs may prosecute a CWA case for failure to obtain a CWA permit, it follows that

As long as one plaintiff group has standing, the court need not consider whether the other plaintiff(s) have standing in order to reach the merits. "If any of these [plaintiffs] has standing, we may reach the merits without considering whether the other two also have standing." Board of Natural Resources of the State of Washington v. Brown, 992 F.2d 937, 942 (9th Cir. 1993). The Supreme Court has consistently followed this rule. See Clinton v. City of New York, 524 U.S. 417, 431 n.19 (1998); U.S. Dept. of Labor v. Triplett, 494 U.S. 715, 719 (1990); Bowsher v. Synar, 478 U.S. 714, 721 (1986); Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252, 264, and n. 9, (1977); Buckley v. Valeo, 424 U.S. 1, 12 (1976) (per curiam); Mountain States Legal Foundation v. Glickman, 92 F.3d 128 (D. C. Cir. 1996), citing Watt v. Energy Action Educational Foundation, 454 U.S. 151, 160 (1981); Beartooth Alliance v. Crown Butte Mines, 904 F.Supp. 1168, 1173 (D.Mt. 1995) (Clean Water Act context).

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plaintiffs have standing to pursue such violations. Beartooth Alliance v. Crown Butte Mines, 904 F.Supp. 1168, 1171. As established herein and at trial, Plaintiffs have satisfied each of the three requirements of standing. Based on the evidence presented at trial, it is clear that Sierra Club and Mineral Policy Center have standing to bring this case. 6 Both Sierra Club and Mineral Policy Center are environmental organizations. Part of the mission of these organizations is to protect the environment from illegal pollution. The illegal discharge of pollution in this case interferes with the organizational interests of Sierra Club and Mineral Policy Center. Sierra Club and Mineral Policy Center also have standing through their members. Marilyn Fay and Kirby Hughes have been consistent members of both Sierra Club and Mineral Policy Center since before this lawsuit was filed. Ms. Fay is a part-time resident of Victor, Colorado. She owns residential property in Victor, owns and operates a business in Victor, and participates in numerous civic activities. Mr. Hughes is a resident of Colorado Springs and frequently visits the Victor area and the local watersheds. Ms. Fay and Mr. Hughes regularly use and recreate in the watersheds at issue in this case. Both Ms. Fay and Mr. Hughes are familiar with all of the discharge locations at issue in this case. Both Ms. Fay's and Mr. Hughes' use and enjoyment of the watersheds has diminished as the result of the excessive (Arequa Gulch Outfall 001A and Carlton Tunnel Outfall 002), unpermitted (Carlton Tunnel pond/waste rock seepage, Roosevelt Tunnel discharge, Moffat Tunnel Cribbing Wall discharge, and Squaw Gulch Pond seepage), and aesthetically offensive pollution being discharged from the CC&V gold mine. Ms. Fay and Mr. Hughes both have limited their use of the watersheds because of the excessive pollution being discharged and because there is no regular monitoring or pollution limits at the
6

Plaintiffs incorporate herein by reference their Proposed Findings of Fact on standing.

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unpermitted discharge locations. Both Ms. Fay and Mr. Hughes have been denied the opportunity to participate in the public comment process for the unpermitted discharge locations given that Defendants have never applied for a permit for these discharges. The injuries alleged by Ms. Fay and Mr. Hughes are fairly traceable to the Defendants given that all of the discharges either originate from the permitted boundary of the CC&V gold mine or from property owned, operated or controlled by the Defendants. Finally, this Court can remedy the harms alleged by Ms. Fay and Mr. Hughes by requiring permits for unpermitted discharges, by imposing appropriate injunctive relief to address excessive discharges at permitted locations, and/or by the imposition of civil penalties to deter future violations. Accordingly, the Court should conclude that both Sierra Club and Mineral Policy Center have standing to prosecute this citizen suit. 3. OWNERS AND OPERATORS UNDER THE CWA

The Tenth Circuit recently made clear that "owners and operators" are liable for point source discharge located on their property or operations. Sierra Club v. El Paso Gold Mines, Inc., 421 F.3d 1133, 1143-45 (10th Cir. 2005). Discharge permits have been issued to CC&V for the Carlton Tunnel Outfall 002 discharge and the 1996 Arequa Gulch Outfall 001A and thus CC&V is clearly an owner and/or operator of those discharge locations. Moreover, all of the unpermitted point sources discharges (with the exception of the Roosevelt Tunnel portal) are located within the mine permit boundary of CC&V's mining operation. Stipulations 22, 23, 28 & 47 Amended Final Pretrial Order. CC&V also owns property interests in all of the unpermitted point sources at issue in this case. Stipulations 21, 26, 30, & 46. Amended Final Pretrial Order. Since Defendant CC&V is nothing more than a partnership between AngloGold Colorado and Golden Cycle Gold Corporation ("GCGC"), all three of these entities are liable as "owners or operators" of both the permitted and unpermitted point sources at issue in this case.

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DATED this 6th day of March 2006. Respectfully Submitted, s/ John Barth ___________________ John Barth Attorney at Law P.O. Box 409 Hygiene, CO 80533 (303) 774-8868 [email protected] Jeffrey C. Parsons Roger Flynn Western Mining Action Project 2260 Baseline Road, Suite 101A Boulder, CO 80302 303) 473-9618 Randall M. Weiner, Atty. No. 23871 1942 Broadway, Suite 408 Boulder, Colorado 80302 Tel: 303-938-3773 Fax: 303-442-6622 [email protected] CERTIFICATE OF SERVICE I, the undersigned, hereby certify that a copy of the foregoing Plaintiffs' Closing Argument was filed electronically with the Clerk of the Court on March 6, 2006 and was then forwarded electronically to the following persons via the ECF system: Eugene J. Riordan Vranesh and Raisch P.O. Box 871 Boulder, CO 80306-871 [email protected] Don Sherwood 10861 West 28th Place Denver, CO 80215 43 Craig Carver Carver, Kirchhoff, Schwartz, McNab & Bailey, P.C. Hudson's Bay Centre 1600 Stout Street, Suite 1700 Denver, CO 80215

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[email protected] Robert C. Troyer Hogan and Hartson One Tabor Center 1200 17th Street, Suite 1500 Denver, CO 80202 [email protected] s/ John Barth ____________________ John Barth

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