Free Order on Motion for Leave - District Court of Colorado - Colorado

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

Document 194

Filed 08/10/2006

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 01-cv-002163-PAC-MEH SIERRA CLUB and MINERAL POLICY CENTER, Plaintiff(s), v. EL PASO GOLD MINES, INC., Defendant(s).

ORDER Patricia A. Coan, United States Magistrate Judge This is a citizen suit under the Clean Water Act. The matter before the court is Plaintiffs'Motion to Conduct Inspection of Interior of Roosevelt Tunnel, filed June 30, 2006. This case is currently set for a nine-day bench trial beginning October 30, 2006. Plaintiffs request leave of court to conduct a one-day inspection of the interior of the Roosevelt Tunnel, beginning at the Tunnel portal and continuing to the El Paso shaft, if access is unimpeded. Plaintiffs intend to conduct water quality sampling, solids sampling, flow measuring, photography, videotaping and dye testing. Plaintiffs seek additional evidence to prove their Clean Water Act claim, specifically: that pollutants discharged from the El Paso shaft into the Roosevelt Tunnel make their way to the Tunnel portal where they are then discharged into Cripple Creek. See Sierra Club v. El Paso Gold Mines, Inc., 421 F.3d 1133, 1146 (10th Cir. 2005). Plaintiffs represent that the information they obtain in the Tunnel will also be

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

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provided to the Colorado Water Quality Control Division for use in a parallel administrative enforcement proceeding and to the Environmental Protection Agency to assist those agencies in their investigation of permit issues pertaining to the Roosevelt Tunnel portal. Defendant argues that plaintiffs'motion is untimely. Defendant maintains that plaintiffs have had " ample opportunity"to enter the Roosevelt Tunnel during the past five years to obtain the information they seek now, but they inexplicably chose to delay until the eve of trial. Defendant contends that to allow plaintiffs to conduct an inspection at this late date will likely result in a postponement of the trial because of the probable need for both parties to file supplemental expert reports, rebuttal expert reports, and to take additional depositions. Under Fed.R.Civ.P. 26(b)(1) and (2)(iii), a party may obtain discovery on any relevant, non privileged matter unless the burden or expense of the proposed discovery outweighs its likely benefit, " taking into account the needs of the case, the amount in controversy, the parties' resources, the importance of the issues at stake in the litigation, and the importance of the proposed discovery in resolving the issues." The court may limit discovery where " party seeking discovery has had ample opportunity by discovery the in the action to obtain the information sought." Fed.R.Civ.P. 26(b)(2)(ii). Plaintiffs' motion is timely because I set a deadline of June 30, 2006 to file discovery motions, granting the parties' joint motion. See April 27, 2006 Minute Order. Although I agree with El Paso that plaintiffs could have conducted the requested discovery at an earlier date, I decline to deny plaintiffs' request on that ground because the information that plaintiffs seek may be important to an accurate resolution of the instant 2

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

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proceeding and, possibly, to resolution of a parallel state administrative enforcement proceeding. Moreover, El Paso has not shown that it will be prejudiced by the requested inspection occurring at this time, as opposed to an earlier date. Accordingly, it is HEREBY ORDERED that Plaintiffs'Motion to Conduct Inspection of Interior of Roosevelt Tunnel, filed June 30, 2006, is GRANTED. It is FURTHER ORDERED that plaintiffs shall conduct their inspection of the interior of the Roosevelt Tunnel on or before August 31, 2006. It is FURTHER ORDERED that plaintiffs shall contact the Clerk of the Court to obtain the key to the Roosevelt Tunnel portal gate. It is FURTHER ORDERED that the Final Pretrial Conference set for August 21, 2006 at 9:00 a.m is VACATED and will be reset at the August 15, 2006 status conference. Dated August 10, 2006. BY THE COURT: s/ Patricia A. Coan PATRICIA A. COAN United States Magistrate Judge

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