Free Brief in Opposition to Motion - 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' RESPONSE TO DEFENDANT'S MOTION TO DISMISS PLAINTIFF MINERAL POLICY CENTER FOR LACK OF STANDING ______________________________________________________________________________

Plaintiffs Sierra Club and Mineral Policy Center (also known as Earthworks) hereby file this Response to Defendant El Paso Gold Mines, Inc.'s ("El Paso") Motion to Dismiss Mineral Policy Center For Lack of Standing. INTRODUCTION In its Motion to Dismiss Mineral Policy Center ("Motion"), filed on November 17, 2006 [Doc. # 216], Defendant asks this Court to dismiss Mineral Policy Center from this case on the basis of a lack of Article III standing. In support of the Motion, Defendant contends that established caselaw allows for any party to raise jurisdictional issues at any time, and that Mineral Policy Center should be dismissed on the basis of collateral estoppel stemming from a ruling in another case. However, Defendant's reliance on caselaw allowing a challenge to a court's subject matter jurisdiction at any time is inapposite, as Defendant concedes that subject 1

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matter jurisdiction exists for all claims in this case based on the adjudicated and uncontested standing of co-Plaintiff Sierra Club. Further, Defendant ignores that this Court has already ruled that Mineral Policy Center has standing to bring this case both for itself and on the basis of associational standing. Here, Defendant challenges only Mineral Policy Center's associational standing, leaving this Court's ruling of standing for the organization itself unchallenged, which forms an independent basis for standing. Lastly, collateral estoppel does not apply to Plaintiffs in this case, but rather Defendant is barred from attempting to re-litigate an already determined issue under the doctrine of law of the case and the mandate rule. ARGUMENT I. El Paso Has Not Challenged This Court's Subject Matter Jurisdiction A. Subject Matter Jurisdiction Over All Claims Has Been Established and is Not in Dispute Because Sierra Club Has Standing.

As the basis for its Motion, El Paso argues that "[l]ack of subject matter jurisdiction, including lack of standing, can be raised at any time in the judicial process." Motion at 2 citing Fed.R.Civ.P. 12(h)(3). However, in this case, there is no dispute as to whether subject matter jurisdiction exists. This Court has previously ruled "as a mater of law that both plaintiffs [Sierra Club and Mineral Policy Center] have Article III standing to bring this citizen suit on behalf of themselves and their members." 2002 WL 33932715 at 5 [Doc. # 95]. While El Paso now attempts to challenge Mineral Policy Center on the basis of standing, it concedes that Sierra Club does possess Article III standing, as this Court previously ruled as a matter of law. Id. Critically, all claims in this case, and arguments in support of those claims, are put forth on behalf of both plaintiff organizations acting together. Thus, there are no claims that rely 2

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solely on Mineral Policy Center for which this Court's subject matter jurisdiction could be in question. As a result, El Paso does not challenge the subject matter jurisdiction of this Court to hear any of the claims at issue in this case, and its Motion should be denied. See also Plaintiffs' Motion for Ruling on Mineral Policy Center Standing, filed November 17, 2006 [Doc. # 217] (demonstrating why this Court need not consider El Paso's argument regarding Mineral Policy Center's standing because one other party, the Sierra Club, already has standing to bring all claims). B. This Court Has Ruled That Mineral Policy Center Has Standing on its Own Behalf, and Need Not Rely on its Members to Establish Standing.

El Paso argues that this Court should dismiss Mineral Policy Center because of a ruling in another case that Mineral Policy Center's "so-called" members did not possess the indicia of membership necessary to allow for associational standing (standing conferred on behalf of members) for Mineral Policy Center. Motion at 3-4. However, El Paso neglects to acknowledge that this Court's November 15, 2002 Order [Doc. # 95] specifically ruled "as a matter of law that plaintiffs have Article III standing to bring this citizen suit on behalf of themselves and their members." 2002 WL 33932715 at 5 (emphasis added). Thus, this Court ruled that Mineral Policy Center has standing both on its own behalf and on behalf of its members. As such, any argument that Mineral Policy Center does not possess associational standing on behalf of its members is insufficient to deprive Mineral Policy Center of standing given Mineral Policy Center's established standing on its own behalf. Controlling caselaw confirms that an organization such as Mineral Policy Center may avail itself to Article III standing either on its own behalf or on behalf of its members. Further, 3

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the "indicia of membership" test applies only to organizations seeking standing on behalf of its non-traditional members. For instance, in Colorado Taxpayers Union, Inc. v. Romer, 963 F.2d 1394 (10th Cir. 1992), while the Court in that case found standing lacking for the organization at issue, the court specifically recognized these two separate and distinct bases for conferring Article III standing on an organization seeking to bring a lawsuit in federal court. 963 F.2d at 1396 (recognizing standing on the organization's own behalf) citing Havens Realty Corp. v. Coleman, 455 U.S. 363, 378-79 (1982); 963 F.2d at 1397 (associational standing on behalf of the organization's members); see also Committee to Save the Rio Hondo v. Lucero, 102 F.3d 445, 447-448 n.3 (10th Cir. 1996)(recognizing that an organization may obtain standing either on its own behalf or on behalf of its members through associational standing). Importantly, the "indicia of membership" test from Hunt v. Washington State Apple Advertising Comm'n, 432 U.S. 333 (1977), upon which El Paso bases its entire argument in its Motion, applies exclusively to the associational standing analysis, and has no bearing or relevance to the organization that has established standing on its own behalf. See Colorado Taxpayers Union, 963 F.2d at 1397; Committee to Save to Rio Hondo, 102 F.2d at 447-448 n.3. As such, this Court should deny El Paso's Motion to Dismiss Mineral Policy Center because even assuming El Paso is right in its argument that Mineral Policy Center does not possess associational standing1, this Court has already determined that Mineral Policy Center has

There is no basis for an argument that Mineral Policy Center has "lost" its standing in this case. No circumstances have changed since the time this Court determined as a matter of law that Mineral Policy Center has standing. El Paso has not brought forth any changed circumstances, nor challenged the prior dispositive ruling on Mineral Policy Center's standing as somehow mistaken or otherwise unsound. Thus, this Court should not revisit this issue. 4

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standing on its own behalf, an independent basis for standing and one not challenged by El Paso in its Motion. II. Collateral Estoppel Does Not Apply to Mineral Policy Center's Standing on its Own Behalf

El Paso argues that the doctrine of collateral estoppel bars Mineral Policy Center's standing in this case. Motion at 4. However, collateral estoppel does not apply to deprive Mineral Policy Center of standing in this case. As described in El Paso's Motion, collateral estoppel "protects litigants from the expense and vexation of multiple lawsuits, conserves judicial resources and fosters reliance on judicial action by minimizing the possibility of inconsistent decisions." Motion at 5 citing Montana v. United States, 440 U.S. 147, 153 (1979). As also set forth by El Paso, collateral estoppel applies: "when: (1) the issue previously decided is identical to the issue presented in the action in question; (2) the prior action was finally adjudicated on the merits; (3) the party against whom the doctrine is invoked was a party to the prior action; and (4) the party against whom the doctrine is raised had a full and fair opportunity to litigate the issue in the prior action." Motion at 5 citing In Re Lombard, 739 F.2d 499, 502 (10th Cir. 1984). El Paso neglects to mention, however, that collateral estoppel only "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 at 502 (emphasis added). In this case, the issue to be determined in this case is not identical to the issue decided in Sierra Club v. Cripple Creek and Victor Gold Mining Co., Case No. 00-cv-2325 ("CC&V case"). In the CC&V case, the court dealt only with whether Mineral Policy Center possessed 5

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associational standing, on behalf of its members. The CC&V court did not address in any respect whether Mineral Policy Center had standing on its own behalf, as had been previously determined on summary judgment in this case. Lastly, the ruling with respect to Mineral Policy Center's associational standing was not necessary to the outcome of the CC&V case, as it found Sierra Club to have standing and went on to reach the merits of all claims. As a result, the collateral estoppel test is not met here because the identical issue was not decided on the merits in CC&V, and the CC&V court's ruling on associational standing was not necessary to the outcome of that case. As such, collateral estoppel is inapplicable. III. El Paso is Barred From Challenging Mineral Policy Center's Standing Under the Doctrines of Law of the Case and the Mandate Rule.

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, particularly where true jurisdictional issues are raised (see Kennedy v. Lubar, 273 F.3d 1293, 1299 (10th Cir. 2001)), this Court should apply this principle here, as the contested issue will have no bearing on this Court's jurisdiction to hear this case given Mineral Policy Center's unchallenged standing on its own behalf and Sierra Club's unchallenged standing on its own behalf and on behalf of its members. In this case, it is undisputed that summary judgment has already been entered in favor of Mineral Policy Center's standing, both on its own behalf and on behalf of its members. See 2002 6

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WL 33932715 at 5 [Doc. # 95]. Thus, these issues have been fully litigated, with full opportunity for El Paso to argue its case. El Paso has cited to no reason why it did not have a full and fair opportunity to present that case. Regardless, as referred to herein, El Paso has put forth no argument attacking this Court's determination that Mineral Policy Center has standing on its own behalf. Rather, El Paso argues only that Mineral Policy Center does not have associational standing on behalf of its members. In any case, the issue of Mineral Policy Center's standing has been fully litigated, and should not be allowed to be re-litigated simply because El Paso now admits that it failed to identify and litigate this issue in previous proceedings. Overall, this Court should not be burdened with having to re-determine matters of law already determined, nor to hear additional testimony on issues already determined, simply because El Paso only now, at this late stage, identifies them as possible arguments. In any case, as repeatedly argued herein, whether Mineral Policy Center possesses associational standing is irrelevant, given this Court's unchallenged ruling that Mineral Policy Center has standing to bring this case on its own behalf. As such, this Court should deny El Paso's motion as precluded under the doctrines of law of the case and the mandate rule. CONCLUSION Based on the forgoing, this Court should deny El Paso' Motion to Dismiss Mineral Policy Center on the basis of lack of standing. As demonstrated, it is undisputed that this Court has subject matter jurisdiction over all claims in this case. Further, this Court has already adjudicated as a matter of law that Mineral Policy Center possesses standing both on its own behalf as well as associational standing on behalf of its members. Thus, any argument that 7

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associational standing does not exist would not affect Mineral Policy Center's standing on its own behalf in this case. Because the CC&V court did not address Mineral Policy Center's standing on its own behalf and any ruling was not necessary to the outcome of that case, collateral estoppel does not apply. In any case, El Paso is barred from re-litigating issues already fully litigated and determined in this case, including Mineral Policy Center's associational standing.

Respectfully submitted by, December 11, 2006 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 11th day of December, 2006 a true and accurate copy of PLAINTIFFS' RESPONSE TO DEFENDANT'S MOTION TO DISMISS PLAINTIFF MINERAL POLICY CENTER FOR LACK OF STANDING 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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