Free Motion for Ruling - 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. ______________________________________________________________________________ MOTION FOR RULING ON MINERAL POLICY CENTER STANDING ______________________________________________________________________________

Plaintiffs Sierra Club and Mineral Policy Center (also known as Earthworks) hereby file this Motion For Ruling on Mineral Policy Center Standing. INTRODUCTION Pursuant to this Court's Trial Procedures Order dated October 17, 2006 [Doc. #214], resulting from a Status Conference held by the Court on the same day, a five (5) day trial to the Court is set in this case for February 5, 2007. This Court entered Summary Judgment in favor of Plaintiffs on standing for both Sierra Club and Mineral Policy Center on November 15, 2002 [Doc. #95]. Further, Defendant El Paso Gold Mines, Inc. ("El Paso") stipulated during this Court's August 15, 2006 Status Conference, as reflected in this Court's subsequent Minute Order [Doc. #197], that it will not challenge Sierra Club's standing in this case. However, despite this stipulation and the conclusive Summary Judgment ruling entered in favor of both Plaintiffs' 1

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standing after a full opportunity for litigation, El Paso nevertheless expressed its intent to once again attempt a challenge to Mineral Policy Center's standing in this case. See El Paso Properties, Inc.'s Status Report dated August 25, 2006 [Doc. #198]. Due to El Paso's stated intent to challenge Mineral Policy Center's standing, this Court's October 17, 2006 Trial Procedures Order stated that any motion concerning dismissal of the plaintiff must be filed by November 17, 2006. This Motion also concerns Mineral Policy Center's standing in this case. Through this Motion, Plaintiffs seek an Order pursuant to Fed.R.Civ.P. 16 or Fed.R.Civ.P. 56 ruling that the Article III subject matter jurisdiction with respect to standing is established in this case because 1) Summary Judgment has previously been entered in this case in favor of standing for both plaintiffs, 2) Defendant has stipulated that is will not challenge Sierra Club's standing, and 3) there are no claims or jurisdictional issues that depend solely on Mineral Policy Center's standing for this Court to reach the merits of this case. This approach of a court not burdening itself with a standing inquiry for one plaintiff once standing for one or more other plaintiffs has been conclusively determined is fully supported by well-established caselaw from the United States Supreme Court and multiple lower courts. In addition, requiring additional proof of Mineral Policy Center's standing in this case beyond the already determined Summary Judgment will likely require the calling of multiple witnesses over several hours of testimony and the presentation of numerous pieces of documentary evidence thereby needlessly consuming substantial court, party, and attorney resources. As such, this Court should issue a ruling that pursuant to its authority to manage 2

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issues for trial under Fed.R.Civ.P. 16 and 56, it will not hear argument regarding Mineral Policy Center's standing at trial, and that Mineral Policy Center may remain in the case based on the uncontested and established fact that Sierra Club has standing, thereby establishing Article III subject matter jurisdiction. ARGUMENT I. This Court Has Broad Discretion to Formulate and Simplify Issues for Trial.

Under Fed.R.Civ.P. 16(c)(1), this Court has discretion to exercise its authority with respect to "the formulation and simplification of the issues, including the elimination of frivolous claims and defenses." Id. The Advisory Committee's notes on Rule 16 state that "the reference in Rule 16(c)(1) to `formulation' is intended to clarify and confirm the court's power to identify the litigable issues. It has been added in the hope of promoting efficiency and conserving judicial resources by identifying the real issues prior to trial, thereby saving time and expense for everyone." Id. Further, "the timing of any attempt at issue formulation is a matter of judicial discretion." Id. Similarly, Rule 16(c)(5) grants this Court discretion at the pre-trial stage to take appropriate action with respect to "the appropriateness and timing of summary adjudication under Rule 56." Fed.R.Civ.P. 16(c)(5). According to the Advisory Committee notes, paragraph (5) was added "in recognition that use of Rule 56 to avoid or reduce the scope of trial is a topic that can, and often should, be considered at a pretrial conference." Id. Thus, this Court has ample discretion to determine this Motion under Rules 16(c) and 56.

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II.

Federal Caselaw Firmly Establishes That Once Standing is Confirmed for One Plaintiff Group, Article III Subject Matter Jurisdiction Over the Case Exists and the Court Need Not Expend Resources in Additional Standing Inquiries.

The federal courts, including the U.S. Supreme Court, have long held that so long as standing is established for one plaintiff group, Article III subject matter jurisdiction is confirmed, and the court need not delve into a potentially time and resource consumptive analysis as to whether other plaintiffs or plaintiff groups also have standing in order to reach the merits of the case. The U.S. Supreme Court has consistently and repeatedly followed this rule, holding that where standing, and thereby Article III "case and controversy" subject matter jurisdiction, is established as to one plaintiff, the courts need not burden themselves with multiple standing inquiries: A threshold issue is whether the Members of Congress, members of the National Treasury Employees Union, or the Union itself have standing to challenge the constitutionality of the Act in question. It is clear that members of the Union, one of whom is an appellee here, will sustain injury by not receiving a scheduled increase in benefits. See § 252(a)(6)(C)(i); 626 F.Supp., at 1381. This is sufficient to confer standing under § 274(a)(2) and Article III. We therefore need not consider the standing issue as to the Union or Members of Congress. See Secretary of Interior v. California, 464 U.S. 312, 319, n. 3, 104 S.Ct. 656, 660, n. 3, 78 L.Ed.2d 496 (1984). Cf. Automobile Workers v. Brock, 477 U.S. 274, 106 S.Ct. 2523, 91 L.Ed.2d 228 (1986); Barnes v. Kline, supra. Accordingly, we turn to the merits of the case. Bowsher v. Synar, 478 U.S. 714, 721 (1986). See also, U.S. Dept. of Labor v. Triplett, 494 U.S. 715, 719 (1990); Clinton v. City of New York, 524 U.S. 417, 431 n.19, 118 S.Ct. 2091, 2100 n. 19 (1998) ("Because both the City of New York and the health care appellees have standing, we need not consider whether the appellee unions also have standing to sue. See, e.g., Bowsher v. 4

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Synar, 478 U.S. 714, 721, 106 S.Ct. 3181, 3185, 92 L.Ed.2d 583 (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); Secretary of the Interior v. California, 464 U.S. 312, 319 n.4, 104 S.Ct. 656, 660 n.4 (1984). ("Petitioners state their disagreement with the Court of Appeals for the Ninth Circuit's holding that environmental groups and local governments have standing to sue under CZMA § 307(c)(1), but do not challenge that standing decision here. Since the State of California clearly does have standing, we need not address the standing of the other respondents, whose position here is identical to the State's."). Various circuit courts and district courts have made identical rulings. For instance, the 9th Circuit Court of Appeals has held: Because some of the plaintiffs have standing, it is not necessary to determine whether the others do. See Doe v. Bolton, 410 U.S. 179, 188-89, 93 S.Ct. 739, 746, 35 L.Ed.2d 201 (1973); see also Watt v. Energy Action Educ. Found., 454 U.S. 151, 160, 102 S.Ct. 205, 212, 70 L.Ed.2d 309 (1981); Grove v. Mead School Dist. No. 354, 753 F.2d 1528, 1532 (9th Cir.), cert. denied, 474 U.S. 826, 106 S.Ct. 85, 88 L.Ed.2d 70 (1985). Guam Soc. of Obstetricians and Gynecologists v. Ada, 962 F.2d 1366, 1369 (9th Cir. 1992). See also 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); Board of Natural Resources of the State of Washington v. Brown, 992 F.2d 937, 942 (9th Cir. 1993) ("If any of these [plaintiffs] has standing, we may reach the merits without considering whether the other two also have standing."). In a case decided just two months ago, the 11th Circuit Court of Appeals also confirmed that "[s]o long as one party has standing, other parties may remain in the suit without a standing 5

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injury. Clinton v. City of New York, 524 U.S. 417, 434-36, 118 S.Ct. 2091, 141 L.Ed.2d 393 (1998)." Ouachita Watch League v. Jacobs, 463 F.3d 1163, 1170 (11th Cir. 2006). Lastly, in a case directly analogous to this case, a citizen suit brought under the Clean Water Act for a discharge to navigable waters without a proper permit, the District of Montana squarely ruled that: It is undisputed that three plaintiffs have standing. All plaintiffs are asserting the same grounds for relief and have been making only one submission to represent their collective arguments. Since no dispute exists as to the standing of three plaintiffs, this Court need not consider the standing issue as to the other six plaintiff organizations. See Bowsher v. Synar, 478 U.S. 714, 721, 106 S.Ct. 3181, 3185, 92 L.Ed.2d 583 (1986) (concluding that when one party has standing, court need not address standing of other parties); Secretary of Interior v. Cal., 464 U.S. 312, 319 n. 3, 104 S.Ct. 656, 660 n. 3, 78 L.Ed.2d 496 (1984) (stating no need existed to address standing as to parties who had identical positions since standing of one party was already established); Board of Natural Resources v. Brown, 992 F.2d 937, 942 (9th Cir.1992) (noting that if any one of a group of plaintiffs had standing, court may reach merits of case without considering whether the others have standing). The Court notes, however, that up to this point, one submission by plaintiffs to the Court has represented the interests of all plaintiffs. The Court sees no reason why this ruling should affect that practice; therefore, absent leave of the Court, only one submission will continue to be expected from plaintiffs. Beartooth Alliance v. Crown Butte Mines, 904 F.Supp. 1168, 1171 (D.Mt. 1995). Similarly, in this case, Summary Judgment has been entered in favor of standing for both Sierra Club and Mineral Policy center. Additionally, El Paso has stipulated that it does not seek to challenge Sierra Club's standing in any way. Further, in the full five years since this case was originally filed, and in both this Court and in the 10th Circuit Court of Appeals, both Sierra Club and Mineral Policy Center have asserted the same claims and grounds for relief and have been making only one submission to the Court to represent their collective arguments. Counsel 6

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hereby affirms that these circumstances will not change, and that both Plaintiffs will continue to litigate this case as one. Overall, given the uniform caselaw, the previous Summary Judgment ruling in this case establishing standing for both plaintiffs, and El Paso's stipulation that it does not challenge Sierra Club's standing, this Court should rule that additional standing inquiries are unnecessary and would serve only to needlessly consume judicial, party, and attorney resources. III. Inquiry Into Mineral Policy Center's Standing Will Likely Consume Substantial Trial Time.

Should this Court determine that it wishes to expend trial time on Mineral Policy Center's standing despite the forgoing, the inquiry and evidence will likely consume substantial Court, party, and attorney resources. For instance, if necessary, Plaintiffs expect to present evidence of Mineral Policy Center's status as a non-profit environmental organization with the mission of protecting the environment from illegal pollution. Plaintiffs may further be required to present evidence that the illegal discharge of pollution in this case interferes with the organizational interests of Mineral Policy Center. Plaintiffs will present evidence that Mineral Policy Center also has standing through its members. For instance, Plaintiffs expect to call members of Mineral Policy Center and Sierra Club as witnesses to testify at trial. These witnesses include Marilyn and Richard Fay, Kirby Hughes, Bill Clymer, and Marshall Winblood to confirm that they have been consistent members of either or both Sierra Club and Mineral Policy Center since before this lawsuit was filed. These relevant facts were set forth in affidavits submitted along with the Motion for Summary Judgment on the issue of standing filed by Plaintiffs in this case [Doc. #82], which was granted by this Court 7

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[Doc. #95], and not challenged by El Paso on appeal to the Tenth Circuit Court of Appeals. Other facts that Plaintiffs expect to elicit at trial include that these witnesses are residents of Victor, Colorado, own residential property in Victor, own and operate a business in Victor, and participate in numerous civic activities. Also these witnesses will likely testify as to their frequent visits to the Victor area and the local watersheds, along with their regular use and enjoyment of the watershed at issue in this case. All witnesses are familiar with all of the discharge location at issue in this case, and their use and enjoyment of the watershed has diminished as the result of the unpermitted and aesthetically offensive pollution being discharged from the Roosevelt Tunnel and the El Paso Shaft. This impaired enjoyment has resulted in these potential witnesses limiting their use of the watershed because of the excessive pollution being discharged and because there is no regular monitoring or pollution limits at the unpermitted discharge location. These witnesses will also likely testify as to having been denied the opportunity to participate in the public comment process for the unpermitted discharge given that Defendant has never properly applied for a permit for the discharge. These injuries are fairly traceable to the Defendant given that the discharge originates from the property owned, operated or controlled by the Defendant. Finally, this Court can remedy the alleged harms by requiring a permit for the unpermitted discharge and/or by the imposition of civil penalties to deter future violations. 8

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Plaintiffs also expect to put forth evidence as to the participation and control exercised by these members of Mineral Policy Center, such that regardless of not having official voting members, those persons that voluntarily pay dues and participate in the operation of Mineral Policy Center have sufficient indicia of membership to establish standing for the organization to bring this suit on their behalf. In all, putting on this evidence may require several hours, if not days, to elicit the witness testimony and to authenticate and admit the necessary documents to demonstrate standing. Accordingly, if this Court decides that it wishes to engage in additional standing analyses despite the Summary Judgment ruling previously entered in this case on the issue of standing, and despite the caselaw set forth herein demonstrating that Article III subject matter jurisdiction exists once standing is established for one plaintiff, Plaintiffs submit that it would needlessly consume substantial court, party, and attorney resources. As such, this Court should grant this Motion, and thereby adhere to the Advisory Committee's intent in drafting Fed.R.Civ.P. 16(c) of "promoting efficiency and conserving judicial resources by identifying the real issues prior to trial, thereby saving time and expense for everyone." CERTIFICATION OF COMPLIANCE WITH LOCAL RULE 7.1A The undersigned certifies that he consulted with Defendant's counsel with respect to this Motion and that Defendant opposes this Motion. Respectfully submitted by, November 17, 2006 9 s/ Jeffrey C. Parsons _________________________

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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 CERTIFICATE OF SERVICE I do hereby certify that on this 17th day of November 2006 a true and accurate copy of PLAINTIFFS' MOTION FOR RULING ON MINERAL POLICY CENTER 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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