Free Reply to Response to Motion - District Court of Colorado - Colorado

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

Document 191

Filed 07/30/2006

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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. ______________________________________________________________________________ PLAINTIFFS' REPLY TO DEFENDANT'S RESPONSE TO PLAINTIFFS' MOTION FOR LEAVE TO CONDUCT INSPECTION OF INTERIOR OF ROOSEVELT TUNNEL ______________________________________________________________________________

Plaintiffs Sierra Club and Mineral Policy Center (also known as Earthworks) hereby submit this Reply to Defendant's Response to Plaintiffs' Motion for Leave to Conduct Inspection of Interior of the Roosevelt Tunnel. This Court should allow an additional inspection of the Roosevelt Tunnel because such inspection imposes no undue burden or expense upon Defendant, such an inspection is likely to generate facts confirming that flow and pollutants from the El Paso shaft discharge to Cripple Creek, and it is in the public interest to identify the parties responsible for the unpermitted discharge from Roosevelt Tunnel portal. 1. The Requested Inspection Imposes No Burden and Expense on EPGM

Without adequately explaining why, Defendant argues that an inspection of the Roosevelt Tunnel will impose an undue burden and expense on EPGM. This is simply not true. The inspection will not impose any burden on EPGM because it is not currently conducting any 1

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

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active mining operations and the inspection will not take place on the surface of EPGM's property. Thus, there will be no interference to EPGM. Further, it is not necessary for EPGM to participate in the inspection. Thus, EPGM need not incur any expenses related to the inspection unless it voluntarily decides to participate. Thus, the burden of this inspection on EPGM would not outweigh its potential benefits. Fed.R.Civ.P. 26(b)(2)(ii). 2. The Inspection May Be Important to Resolution of the Issues at Trial.

EPGM argues that Plaintiffs have not proven that an inspection of the Roosevelt Tunnel will produce information relevant to this case. This argument can be easily dismissed. The Tenth Circuit Court of Appeals has stated that Plaintiffs must show that pollutants from the El Paso shaft reach Cripple Creek. Plaintiffs will gather facts during an inspection that will address this issue. The facts developed during an inspection would obviously be relevant to the issues at trial. Thus, the proposed discovery may be important in resolving the issues at trial. Fed.R.Civ.P. 26(b)(2)(iii). EPGM also argues that the issue for trial is whether there was an ongoing violation at the time the complaint was filed. Plaintiffs conducted an inspection of the Roosevelt Tunnel in August 2001-- just weeks before filing suit against EPGM. Plaintiffs will have witnesses testify at trial regarding the observations made during that inspection. Plaintiffs will also rely on ten years of inspection reports and water quality results of the Roosevelt Tunnel from 1991-2001. Collectively, this evidence shows that the El Paso shaft is the most significant source of water and pollutants discharging at the portal into Cripple Creek. Thus, Plaintiffs have ample

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evidence of an ongoing violation (unpermitted discharge) at the time the complaint was filed against EPGM. An inspection in 2006 will also support a finding of ongoing violation because evidence of post-complaint violations is relevant to whether the violation was ongoing on the date the complaint was filed. Sierra Club v. El Paso Gold Mines, Inc. 421 F.3d 1133, 1140 (10th Cir. 2005). An inspection will also help address the issues raised by the Tenth Circuit. Defendants argue that an inspection of the Roosevelt Tunnel will not help because "[t]he experts will not be able to reliably correlate any evidence gathered in August or September 2006 with conditions existing during the past ten years." EPGM Response at p. 3. This argument is premature because the evidence has yet to be gathered and the experts have yet to evaluate it. EPGM does not support this argument with any evidence--such as an affidavit from an expert witness. Instead, this is nothing more than conclusory argument by opposing counsel and thus is not persuasive. In summary, the information to be gathered in an inspection may be important to resolution of the issues at trial. Fed.R.Civ.P. 26(b)(2)(iii). 3. Plaintiffs' Request is not Untimely

This Court set the date of June 30, 2006 for filing motions for additional discovery. EPGM consented to this date. Thus, Plaintiffs' Motion is not untimely. Given that the parties consented to the date for requesting discovery, EPGM should be estopped from arguing that the Motion is now somehow untimely.

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4.

The Inspection is in the Public Interest

This case has important public interest implications. The State of Colorado has determined that the pollutants in the discharge from the Roosevelt Tunnel would violate the limits in a permit that are designed to protect water quality. See, Exhibit 1 hereto. Thus, the discharge from the Roosevelt Tunnel poses a threat to public health and the environment. The State of Colorado is also prosecuting EPGM for discharging pollutants without a permit. The facts gathered in an inspection would also be useful to the regulatory agencies. EPGM repeatedly argues that more information is needed to prove liability, but when Plaintiffs attempt to gather such information EPGM opposes the request. EPGM's real motivation to prevent the inspection is to preserve its' argument that not enough information is available to determine liability. This is hypocritical. Preservation of EPGM's litigation strategy is not a compelling reasons to deny a reasonable discovery request. 5. Conclusion

Plaintiffs have met the requirements of Fed.R.Civ.P. 26(b)(2). The requested discovery will not impose an undue burden on EPGM, the inspection will generate important information, the request is timely because it was filed before the deadline for requesting discovery, and it is in the public interest to allow the inspection because the regulatory agencies and the public have an interest in ensuring the proper parties obtain a permit for the discharge from the Roosevelt Tunnel. Accordingly, Plaintiffs request that the Court grant the motion for leave to conduct an inspection of the Roosevelt Tunnel.

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Respectfully submitted by, July 30, 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 CERTIFICATE OF SERVICE I do hereby certify that on this 30thth day of July 2006 a true and accurate copy of PLAINTIFFS' REPLY TO DEFENDANT'S RESPONSE TO MOTION FOR LEAVE TO CONDUCT INSPECTION OF THE ROOSEVELT TUNNEL was filed with the Electronic Case Filing system which is then to serve the same on the following by electronic means: 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

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