Free Statement - District Court of Colorado - Colorado

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

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Filed 09/21/2006

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Case No. 01-CV-02163-PAC-MEH SIERRA CLUB and MINERAL POLICY CENTER, Plaintiffs, v. El PASO GOLD MINES, INC. (a.k.a., EL PASO PROPERTIES, INC.) Defendant. ______________________________________________________________________________ JOINT STATEMENT OF EXPERT OPINIONS FOR FRE 702 HEARING ______________________________________________________________________________

Pursuant to the Court's Order of August 29, 2006 [#200], the parties hereby provide the names of the expert witnesses through which each party intends to proffer expert opinions, the expert opinions to be offered by each expert witness, and the challenges to the expert opinions. A copy of the resume of each expert witness is attached hereto to establish the qualifications of each witness. I. PLAINTIFFS' EXPERT WITNESSES AND EXPERT OPINIONS A. Dr. Ann Maest

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Opinion 1 The shaft and related workings of the El Paso Mine are hydrologically connected to Cripple Creek via the Roosevelt Tunnel. Defendant's Challenges to Maest Opinion 1 1. 2. 3. The opinion is not based on sufficient facts or data. The opinion is not the product of reliable principles and methods. Dr. Maest did not apply the principles and methods reliably to the facts of the case.

Defendant reserves the right to call Robert Brogden and Art O'Hayre to testify at the Rule 702 hearings in support of the above-listed challenges. Opinion 2 Gold and other metal ores are located in areas of geologic mineralization. Mineralized rock in the El Paso Mine contains metal sulfide such as sphalerite (zinc sulfide), galena (lead sulfide), pyrite (iron sulfide), and chalcopyrite (copper iron sulfide) that will weather when exposed to oxygen in the atmosphere and water will release zinc, copper, lead, iron, and sulfuric acid to waters that come in contact with them. When snowmelt and infiltrating rainwater flow through the El Paso shaft and underground workings, they pick up the metals and other contaminants from the mineralized rock and carry them to the Roosevelt Tunnel. Defendant's Challenges to Maest Opinion 2 1. 2. 3. The opinion is not based on sufficient facts or data. The opinion is not the product of reliable principles and methods. Dr. Maest did not apply the principles and methods reliably to the facts of the case. 2

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Defendant reserves the right to call Robert Brogden and Art O'Hayre to testify at the Rule 702 hearings in support of the above-listed challenges. Opinion 3 The large waste rock pile located where the shaft intersects the earth's surface and rubble inside the El Paso shaft will also contain metal sulfides. The shaft itself and underground workings leading to the shaft similarly contain minerals that will release metals and other contaminants to water flowing through these underground workings. Compared to unmined mineralized rock, waste rock and underground workings have more surfaces exposed to the elements, and the rate of weathering and release of metals increase in these materials that have been altered by man. Weathering of metal sulfides produce secondary metal salts such as zinc and iron sulfates that dissolve rapidly in infiltrating precipitation. Defendant's Challenges to Maest Opinion 3 1. 2. 3. The opinion is not based on sufficient facts or data. The opinion is not the product of reliable principles and methods. Dr. Maest did not apply the principles and methods reliably to the facts of the case.

Defendant reserves the right to call Robert Brogden and Art O'Hayre to testify at the Rule 702 hearings in support of the above-listed challenges. Opinion 4 Water quality sampling results shows that the same metals that are found at the mine are found in the water draining the shaft and underground workings. El Paso shaft discharge water was found to contain very high concentrations of zinc, a known aquatic toxin, indicating that the 3

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El Paso shaft is a source of contamination to water in the Roosevelt Tunnel. Zinc and other contaminants are being discharged into Cripple Creek from the Roosevelt Tunnel. Defendant's Challenges to Maest Opinion 4 1. 2. 3. The opinion is not based on sufficient facts or data. The opinion is not the product of reliable principles and methods. Dr. Maest did not apply the principles and methods reliably to the facts of the case.

Defendant reserves the right to call Robert Brogden and Art O'Hayre to testify at the Rule 702 hearings in support of the above-listed challenges. Opinion 5 At least some of the metals and other contaminants being discharged into Cripple Creek from the Roosevelt Tunnel are generated from the El Paso mine, the El Paso shaft, and related underground workings. Defendant's Challenges to Maest Opinion 5 1. 2. 3. The opinion is not based on sufficient facts or data. The opinion is not the product of reliable principles and methods. Dr. Maest did not apply the principles and methods reliably to the facts of the case.

Defendant reserves the right to call Robert Brogden and Art O'Hayre to testify at the Rule 702 hearings in support of the above-listed challenges. B. Other witnesses

Plaintiffs reserve the right to call Benjamin L. Harding, P.E. Hydrosphere Resource Consultants, 1002 Walnut Street, Suite 200, Boulder, CO 80302, Dr. James McCord, PhD, P.E. , 4

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Hydrosphere Resource Consultants, 115 West Abeyta Street, Suite A, P.O. Box 445, Socorro, NM 87801, and/or Robert Burm, P.E., 1832 Union Drive, Lakewood, CO 80215 as witnesses both in support of Dr. Maest's opinions, methodologies, facts, and application of facts as well as in rebuttal to all of the opinions, methodologies, facts, and application of facts of Mr. Brogden, Mr. O'Hayre, or any other witness called by Defendants. The resumes of Dr. Maest, Mr. Harding, Dr. McCord, and Mr. Burm are attached hereto. El Paso objects to these witnesses testifying "in support of Dr. Maest's opinions." El Paso does not object to Plaintiffs calling Messrs. Harding, McCord and Burm to testify regarding Dr. Maest's methodologies, facts and application of facts or as rebuttal witnesses to Mr. Brogden or Mr. O'Hayre.

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DEFENDANT'S EXPERT WITNESSES AND EXPERT OPINIONS A. Robert Brogden Mr. Brogden's qualifications are found in his resume which is attached hereto. Opinion 1 The Roosevelt Tunnel gains and loses water between the El Paso shaft and the Roosevelt

Tunnel portal. Plaintiffs' Objections to Brogden Opinion 1 1. 2. 3. 4. Lack of qualifications. The opinion is not based on sufficient facts or data. Relevance. The opinion is not the product of reliable principles and methods. 5

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5. case.

Mr. Brogden did not apply the principles and methods reliably to the facts of the

Plaintiffs reserve the right to call Ann Maest, Benjamin Harding, James McCord, and/or Robert Burm in support of these challenges or in rebuttal. Opinion 2 Flow of water at the Roosevelt Tunnel portal is not indicative of water flow within the Tunnel. Plaintiffs' Objections to Brogden Opinion 2 1. This specific opinion was not disclosed by Defendants as is required by

Fed.R.Civ.P. 26(a)(2). Nor was the basis for this opinion or the facts relied upon in rendering this opinion. 2. 3. 4. 5. case. Plaintiffs reserve the right to call Ann Maest, Benjamin Harding, James McCord, and/or Robert Burm in support of these challenges or in rebuttal. Opinion 3 The existing data are not sufficient to identify the source of water flowing from the Roosevelt Tunnel portal. 6 Lack of qualifications. The opinion is not based on sufficient facts or data. The opinion is not based on reliable principles and methods. Mr. Brogden did not apply the principles and methods reliably to the facts of the

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Plaintiffs' Objections to Brogden Opinion 3 1. This specific opinion was not disclosed by Defendants as is required by

Fed.R.Civ.P. 26(a)(2). Nor was the basis for this opinion or the facts relied upon in rendering this opinion. 2. Lack of qualifications. 3. The opinion is not based on reliable principles and methods. 4. The opinion is not based on sufficient facts or data. 5. Mr. Brogden did not apply the principles and methods reliably to the facts of the case. Plaintiffs reserve the right to call Ann Maest, Benjamin Harding, James McCord, and/or Robert Burm in support of these challenges or in rebuttal. Respectfully submitted by, September 21, 2006 s/ John Barth _________________________ John M. Barth, #22957 Attorney at Law P.O. Box 409 Hygiene, CO 80533 (303) 774-8868 Roger Flynn, Esq. # 21078 Jeffrey C. Parsons, Esq. #30210 WESTERN MINING ACTION PROJECT 2260 Baseline Road, Suite 101A Boulder, CO 80302 (303) 473-9618 COUNSEL FOR PLAINTIFFS

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s/ Stephen Harris Merrill Anderson & Harris LLC 20 Boulder Crescent Colorado Springs, CO 80903 (719) 633-4421 CERTIFICATE OF SERVICE I do hereby certify that on this 21st day of September 2006 a true and accurate copy of JOINT STATEMENT OF EXPERT OPINIONS FOR FRE 702 HEARING was filed with the Electronic Case Filing system which is then to serve the same on the following by electronic means: John Barth Attorney at Law P.O. Box 409 Hygiene, CO 80533 (303) 774-8868 Roger Flynn/Jeff Parsons Western Mining Action Project P.O. Box 349 Lyons, CO 80540 (303) 823-5738 Steve Harris 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/ John Barth __________________________ John Barth 8