Free Motion for Leave - District Court of Colorado - Colorado

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

Document 179

Filed 06/30/2006

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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' MOTION FOR LEAVE TO CONDUCT INSPECTION OF INTERIOR OF ROOSEVELT TUNNEL ______________________________________________________________________________

Plaintiffs Sierra Club and Mineral Policy Center (also known as Earthworks) hereby request leave from the Court to conduct an interior inspection of the Roosevelt Tunnel pursuant to Federal Rules of Civil Procedure 26(b) and 34. In support, Plaintiffs state as follows: I. Basis for Motion for Leave Plaintiffs request leave to conduct a one-day inspection of the interior of the Roosevelt Tunnel on an agreed upon date in August or September 2006. The inspection will begin at the Roosevelt Tunnel portal, and if access is unimpeded, extend to at least the El Paso shaft. At present, Plaintiffs intend to conduct water quality sampling, solids sampling, flow measuring, photography, videotaping and dye testing. Plaintiffs will likely have 3-4 people entering the Roosevelt Tunnel.

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

Document 179

Filed 06/30/2006

Page 2 of 4

The inspection will not occur on the surface of Defendant's property. Therefore, the one-day inspection will not interfere with Defendant's ownership or activities. Although Defendants are welcome to attend the inspection, their presence is not necessary. Plaintiffs do request that the Court order EPGM to provide a current copy of the key(s) to the gate at the Roosevelt Tunnel portal so Plaintiffs can access the interior. Defendant claims that based on existing evidence it is unclear : 1) whether there is a hydrologic connection between the El Paso shaft and the Roosevelt Tunnel portal; and, 2) whether the pollutants discharging from the El Paso shaft into the Roosevelt Tunnel make their way to the portal and into Cripple Creek. The Tenth Circuit Court of Appeals has determined that Defendant's arguments prevent a determination of Clean Water Act liability at the summary judgment stage. While Plaintiffs believe the existing evidence proves both that there is a hydrologic connection and that pollutants from the El Paso shaft flow to the portal, Plaintiffs desire to conduct the inspection to address the issues raised by EPGM. The information gathered by Plaintiffs will also be provided to the State of Colorado Water Quality Control Division and U.S. Environmental Protection Agency to assist in their investigation of this matter. Plaintiffs do not intend to identify any new expert witnesses or offer any new expert opinions. Instead, the purpose of the inspection is to generate additional factual information which then will be provided to the existing expert witnesses for Plaintiffs and Defendant.

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

Document 179

Filed 06/30/2006

Page 3 of 4

This one-day interior inspection will not require any alteration to the existing litigation schedule set by the Court. For the reasons stated above, Plaintiffs have established good cause for conducting a one-day inspection of the interior of the Roosevelt Tunnel. II. CERTIFICATION OF COMPLIANCE WITH LOCAL RULE 7.1A The undersigned certifies that he consulted with Defendant's counsel in a good faith attempt to resolve the issues raised by this Motion. The parties were not able to resolve the issues.

Respectfully submitted by, June 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

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

Document 179

Filed 06/30/2006

Page 4 of 4

CERTIFICATE OF SERVICE I do hereby certify that on this 30th day of June 2006 a true and accurate copy of PLAINTIFFS' MOTION FOR LEAVE TO CONDUCT INSPECTION OF INTERIOR OF 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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