Free Status Report - District Court of Colorado - Colorado

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

Document 198

Filed 08/25/2006

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 01-PC-2163 (MEH) SIERRA CLUB and MINERAL POLICY CENTER, Plaintiffs, vs. EL PASO PROPERTIES, INC., Defendant. ______________________________________________________________________________ EL PASO PROPERTIES, INC.'S STATUS REPORT ______________________________________________________________________________ Pursuant to the Court's August 15, 2006 Minute Order, Defendant El Paso Properties, Inc. ("El Paso"), hereby submits this Status Report. I. Mineral Policy Center's Standing El Paso intends to challenge Plaintiff Mineral Policy Center's ("MPC") standing to pursue this Clean Water Act ("CWA") citizen's suit. While an organization may have standing to bring a lawsuit on behalf of its members, federal courts have held that organizations without members lack Article III standing. It is undisputed that at the time Plaintiffs filed this action, MPC's articles of incorporation prohibited it from having members. Additionally, the "members" MPC claims to have do not possess the indicia of traditional membership sufficient to confer standing such as the ability to elect officers, the ability to serve as officers, and the ability to finance the organization. Judge Krieger relied upon these undisputed facts in holding that MPC lacked standing in the case of Sierra Club v. Cripple Creek and Victor Gold Mining Co., Civ. No. 00-MK-2325 (MEH).

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

Document 198

Filed 08/25/2006

Page 2 of 3

El Paso believes that the matter can be resolved as a matter of law and that the Court should schedule briefing on the matter. II. Remedies Record In the event that the Court finds that Plaintiffs have proven a violation of the CWA, El Paso agrees with Plaintiffs' suggestion that the parties rely upon the evidentiary record made during the December 9 and 10, 2002 remedies trial. El Paso believes that the parties should have an opportunity to present written and oral arguments based upon the prior record and any new developments that have occurred since December 2002. In light of the parties' agreement, El Paso believes that the trial can be completed in five days. III. Defendant's Rule 702 Witness Availability El Paso's expert witness Robert Brogden is available to testify at the Rule 702 hearings currently scheduled for October 3 and October 4, 2006. Respectfully submitted this 25th day of August, 2006

s/ Stephen D. Harris Stephen D. Harris MERRILL, ANDERSON, & HARRIS, LLC 20 Boulder Crescent Colorado Springs, Colorado 80903-3300 (719) 633-4421 (telephone) (719) 633-4759 (facsimile) [email protected]

Counsel for Defendant El Paso Properties, Inc.

EL PASO PROPERTIES, INC.'S STATUS REPORT Sierra Club v. El Paso Properties, Inc. Civil Action No. 01-PC-2163 (MEH)

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

Document 198

Filed 08/25/2006

Page 3 of 3

CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing EL PASO PROPERTIES, INC.'S STATUS REPORT was sent to the Clerk of Court using the ECF system, which will send notification of such filing to the following: John M. Barth, Esq. Attorney at Law Post Office Box 409 Hygiene, Colorado 80533 [email protected] Roger Flynn, Esq. Jeffrey C. Parsons, Esq. Post Office Box 349 412 High Street Lyons, CO 80540 [email protected] [email protected]

s/ Michael J. Gustafson Michael J. Gustafson, Associate Attorney

EL PASO PROPERTIES, INC.'S STATUS REPORT Sierra Club v. El Paso Properties, Inc. Civil Action No. 01-PC-2163 (MEH)

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