Free Motion to Exclude - District Court of Colorado - Colorado

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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. ______________________________________________________________________________ CONTINGENT MOTION TO EXCLUDE PLAINTIFFS' EXPERT WITNESS OPINIONS AND REQUEST FOR EVIDENTIARY HEARING ______________________________________________________________________________ Should the Court deny Defendant El Paso Properties, Inc.'s contemporaneously filed Motion for Judgment, El Paso hereby moves the Court in the alternative to exclude the purported expert witness opinions of the three experts disclosed by Plaintiffs in this case, Kenneth Klco, Ann Maest, Ph.D., and Robert Burm. El Paso bases this Motion on the doctrine of collateral estoppel and on Rule 702 of the Federal Rules of Evidence. El Paso also hereby incorporates by reference herein the arguments made in its Motion for Summary Judgment on the Basis of Collateral Estoppel. I. This Court is Bound By Judge Krieger's Rule 702 Rulings Regarding Plaintiffs' Experts Under the Doctrine of Collateral Estoppel or Issue Preclusion. The Court entered a Scheduling Order in this case on February 20, 2002. The Scheduling Order required the parties to designate expert witnesses on or before June 20, 2002. On June 19, 2002, Plaintiffs identified three expert witnesses: (1) geologist Kenneth Klco ("Mr. Klco"); (2)

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geochemist Ann Maest, PhD. ("Dr. Maest"); and (3) former EPA employee Robert Burm ("Mr. Burm."). Plaintiffs also sought to rely on the opinion testimony of Mr. Klco, Dr. Maest and Mr. Burm in Sierra Club v. Cripple Creek and Victor Gold Mining Co., Civil Action No. 00-MK2325 ("the CC&V Case"). With respect to the Roosevelt Tunnel, Mr. Klco, Dr. Maest and Mr. Burm rendered identical expert opinions in both this case and the CC&V Case. The Defendants in the CC&V Case filed a motion to exclude the opinions of Mr. Klco, Dr. Maest and Mr. Burm pursuant to Rule 702 of the Federal Rules of Evidence and Judge Krieger heard two days of testimony in connection with the motion. Ultimately, Judge Krieger ruled many of the opinions of Plaintiffs' experts inadmissible, and this Court is bound by those rulings under the doctrine of collateral estoppel. KENNETH KLCO Plaintiffs identified Mr. Klco as an expert in the field of geology. In his June 19, 2002 report, Mr. Klco opines that the El Paso "property, mine, El Paso shaft, and related underground workings are discharging water and pollutants from the Roosevelt Tunnel into Cripple Creek." See Exhibit 1 at 1. Mr. Klco further opined that "at least some of the water that is conveyed from [the El Paso] property, mine, the El Paso shaft, and related underground workings into the Roosevelt Tunnel is discharged into Cripple Creek at the portal of the Roosevelt Tunnel." Id. at 2. Plaintiffs sought to introduce almost identical opinions of Mr. Klco in the CC&V Case. See, Exhibit 2. In reversing this Court's entry of summary judgment, the Tenth Circuit noted that
CONTINGENT MOTION TO EXCLUDE PLAINTIFFS' EXPERT WITNESS OPINIONS Sierra Club, et al. v. El Paso Gold Mines, Inc. (Civil Action No. 01-PC-2163)(MEH) Page 2

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"[t]he opinions offered by Klco in the parallel litigation were essentially identical to those offered here." See, Sierra Club v. El Paso Gold Mines, Inc., 421 F.3d 1133, 1151 (10th Cir. 2005), cert. denied sub nom. Sierra Club v. El Paso Properties, Inc., 126 S. Ct. 1653 (2006). The CC&V defendants moved to exclude the opinions of Mr. Klco pursuant to Rule 702, and after briefing, Judge Krieger held a Rule 702 hearing on June 3, 2005. In the CC&V Case, Plaintiffs proffered six expert opinions of Mr. Klco, including four opinions relevant to this litigation, as identified by Judge Krieger as follows (opinions numbered 1, 2, 3 and 4): Opinion No. 1 is that the El Paso Gold Mine's property, mine, El Paso shaft, and related underground workings are a significant source of water and pollutants conveyed along the Roosevelt Tunnel and into Cripple Creek. Opinion No. 3 is that the El Paso Gold Mine's property, the El Paso mine, El Paso shaft, and related underground workings are hydrologically connected to the Roosevelt Tunnel. Opinion No. 4 is that the El Paso property, mine, El Paso shaft, and the related underground workings are hydrologically connected to Cripple Creek by means of the Roosevelt Tunnel. See, Exhibit 3 at 5-6. According to Judge Krieger, "[a]ll of these opinions are opinions of hydrological connection which are premised upon a causation theory that, indeed, water that comes through the El Paso Gold Mine's property, mine, and El Paso shaft and related underground workings, flows through the Roosevelt Tunnel and exits from that tunnel and is deposited into Cripple Creek." Id. at 6. The CC&V defendants also challenged Opinion Nos. 4, 5 & 6 rendered by Mr. Klco. Opinion No. 2 was "that the entire Roosevelt Tunnel, including areas upgradient of the El Paso shaft, is capable of conveying water to Cripple Creek." Id. at 9.
CONTINGENT MOTION TO EXCLUDE PLAINTIFFS' EXPERT WITNESS OPINIONS Sierra Club, et al. v. El Paso Gold Mines, Inc. (Civil Action No. 01-PC-2163)(MEH) Page 3

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Opinion No. 5 was that areas of mineralization in the El Paso shaft, related underground workings, and throughout the Roosevelt Tunnel have the "potential to contribute pollutants to the discharge from the Roosevelt Tunnel into Cripple Creek." Id. at 10. Opinion No. 6 was that debris, rock, and dirt from the El Paso mine, El Paso shaft, and related underground workings are also "potential sources of pollutants" being discharged from the Roosevelt Tunnel into Cripple Creek. Id. The CC&V defendants challenged Mr. Klco's qualifications to testify as an expert witness and also the methods that he used in forming his opinions. After a day of testimony, Judge Krieger all six opinions rendered by Mr. Klco inadmissible as expert testimony "because Mr. Klco lacks the qualifications to express the opinions and he has not used a sufficiently reliable methodology to formulate them." Id. at 9. Judge Krieger ruled that Mr. Klco "lacks sufficient qualifications to express opinions 1, 3, and 4, all of which pertain to an assessment of the source of water, path of transport of water, and destination of water through the Roosevelt Tunnel and into Cripple Creek." Id. at 7. Furthermore, Judge Krieger concluded "that either (1) he had no methodology that he employed other than the expression of his opinion based on his visual observations, which I conclude create simply too great an analytical gap in order to be reliable for purposes of expert testimony; or secondly, if his methodology was simply to review the documents and to visually inspect the tunnel without conducting any tracer tests or evaluating the mineral deposits or without evaluating the quality of the water he saw from point ­ alleged point of source to the alleged point of disposition at the end of the tunnel that that is not a reliable
CONTINGENT MOTION TO EXCLUDE PLAINTIFFS' EXPERT WITNESS OPINIONS Sierra Club, et al. v. El Paso Gold Mines, Inc. (Civil Action No. 01-PC-2163)(MEH) Page 4

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method customarily used by experts in the field in order to trace the flow of water in a fate and transport analysis." Id. at 8-9. Judge Krieger excluded Opinion No. 2 on the ground that Mr. Klco had not used "a sufficient methodology to determine that the entire Roosevelt Tunnel is capable of conveying water to Cripple Creek." Id. at 9. Finally, Judge Krieger concluded "there is no methodology to establish the causal connection [described in Opinions 5 and 6, and therefore that] these two opinions must be excluded in addition to the reasons stated regard to the earlier opinions, in that he is not qualified to determine the source, transportation, and destination of the water based upon his experience." Id. at 11. ANN MAEST Plaintiffs identified Dr. Ann Maest as an expert in the field of aqueous geochemistry. In her June 20, 2002 report, Dr. Maest opines that "some of the contaminants in the Roosevelt Tunnel that are discharging to Cripple Creek are coming from the El Paso mine, El Paso shaft, and related underground workings." Exhibit 4 at 1. Plaintiffs also relied on the expert opinions of Dr. Maest in the CC&V Case. See, Exhibit 5 at 10-12. The CC&V defendants moved to exclude the opinions of Dr. Maest pursuant to Rule 702, and after briefing, Judge Krieger held a Rule 702 hearing on August 24, 2005. In the CC&V Case, Plaintiffs proffered eight expert opinions of Dr. Maest, including one opinion relevant to this litigation, as identified by Judge Krieger as follows (opinion numbered 4): The fourth opinion is that at least some of the constituents in the water flowing out of the Roosevelt Tunnel and into Cripple Creek originates [sic] from the El Paso Mine, the El Paso Shaft, and/or related underground workings and thus the El Paso Mine, Shaft,
CONTINGENT MOTION TO EXCLUDE PLAINTIFFS' EXPERT WITNESS OPINIONS Sierra Club, et al. v. El Paso Gold Mines, Inc. (Civil Action No. 01-PC-2163)(MEH) Page 5

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and related workings are hydrologically connected to Cripple Creek via the Roosevelt Tunnel. See, Exhibit 6 at 3. The CC&V defendants objected to Dr. Maest's opinions because "there was no measure of the flow of water and there was no tracing of the water from a point of origin to a receptor in order to be sure that the water that was analyzed at the discharge point was the same water that originated from the claimed source." Id. at 5. With respect to all of the opinions rendered by Dr. Maset, including the fourth opinion recited above, Judge Krieger ruled that "the plaintiff has not carried its burden of proof and the opinions have to be excluded." Id. at 9. After the Plaintiffs orally moved for reconsideration, Judge Krieger affirmed her ruling and held "[w]hether we use a standard of general acceptance or we use a standard of whether this is reliable, the plaintiff has not offered evidence to exceed the preponderance or to reach the preponderance of evidence standard that the methodology used by Dr. Maest is reliable in the field." Id. at 10. ROBERT BURM Plaintiffs identified Robert Burm as an expert in the NPDES permitting requirements of the Clean Water Act and the application of these requirements to specific discharges, including historic and active mine sites." Exhibit 7 at 1-2. In his June 18, 2002 report, Mr. Burm opines that "1) EPGM owns and/or controls relevant property from which a substantial portion of the Roosevelt Tunnel flow originates; 2) EPGM discharges significant amounts of flow from the Roosevelt Tunnel into Cripple Creek; 3) EPGM's property is located within an active gold mine; and (4) pollutants are discharged into Cripple Creek from EPGM's property, mine, underground
CONTINGENT MOTION TO EXCLUDE PLAINTIFFS' EXPERT WITNESS OPINIONS Sierra Club, et al. v. El Paso Gold Mines, Inc. (Civil Action No. 01-PC-2163)(MEH) Page 6

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workings, shaft, and portions of the Roosevelt Tunnel over which it has control." Id. at 10.

Mr.

Burm also opined that "the El Paso shaft and the related underground workings serve as conduits that convey water from [El Paso's] property to the Roosevelt Tunnel. In turn, the water is then drained by the Roosevelt Tunnel and is finally discharged into Cripple Creek." Id. at 2-3. Plaintiffs also relied on the expert opinions of Mr. Burm in the CC&V Case. See, Exhibit 8 at 16-18 & 21-25. The CC&V defendants moved to exclude the opinions of Mr. Burm pursuant to Rule 702, and after briefing, Judge Krieger held a Rule 702 hearing on September 27, 2005. In the CC&V Case, Plaintiffs proffered eleven expert opinions of Mr. Burm, including one opinion relevant to this litigation, identified by Judge Krieger Opinion 4: Opinion 4 is as follows: `If the discharge from the Roosevelt Tunnel and/or portal had been presented to me during my employment at EPA, I would have treated it as being subject to regulation under the NPDES permitting program of the Clean Water Act.' See, Exhibit 9 at 8. The CC&V defendants objected to this opinion on the grounds that: (1) Mr. Burm lacked qualifications to express the opinion; (2) the opinion was based on insufficient facts or data; (3) the opinion was based on unreliable methodology; and (4) the opinion constitutes a legal opinion. Id. Judge Krieger rejected the first three challenges and observed that "[t]he method Mr. Burm used to decide whether discharges were subject to regulation during the 30 years he was employed at the EPA is useful to the Court in viewing the evidence." Id. at 6 (as adopted at page 8). However, Judge Krieger held that "to the extent that the Plaintiffs offer it to

CONTINGENT MOTION TO EXCLUDE PLAINTIFFS' EXPERT WITNESS OPINIONS Sierra Club, et al. v. El Paso Gold Mines, Inc. (Civil Action No. 01-PC-2163)(MEH) Page 7

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show that a permit was required for the alleged discharges, it is an inadmissible legal opinion." Id. at 7. CONCLUSION In the Tenth Circuit, issue preclusion requires that: (1) the issue previously decided is identical to the one presented in the action in question; (2) the prior action has been finally adjudicated on the merits; (3) the party against whom the doctrine is invoked was a party . . . to the prior adjudication; and (4) the party against whom the doctrine is raised had a full and fair opportunity to litigate the issue in the prior action. Murdock, 975 F.2d at 687 (quoting In Re Lombard, 739 F.2d 499, 502 (10th Cir. 1984)); Siemens Medical v. Nuclear Cardiology, 945 F. Supp. 1421 (D. Colo. 1996). For the reasons stated in El Paso's Motion for Judgment on the Basis of Collateral Estoppel, this Court should find that the Rule 702 rulings entered by Judge Krieger in the CC&V Case preclude Plaintiffs from offering expert opinion testimony from Mr. Klco, Dr. Maest or Mr. Burm. II. Motion to Exclude Expert Opinions & Request for Evidentiary Hearing If the Court declines to apply the doctrine of collateral estoppel based upon Judge Krieger's Rule 702 rulings, El Paso maintains that each of the opinions proffered by Mr. Klco, Dr. Maest and Mr. Burm fails to satisfy at least one of Rule 702's four predicates to admissibility and should be excluded from trial. In that event, El Paso hereby requests an evidentiary hearing and itemizes below for each of the challenged witnesses: (1) the opinions proffered, (2) El Paso's

CONTINGENT MOTION TO EXCLUDE PLAINTIFFS' EXPERT WITNESS OPINIONS Sierra Club, et al. v. El Paso Gold Mines, Inc. (Civil Action No. 01-PC-2163)(MEH) Page 8

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grounds of challenge to each opinion; and (3) the time El Paso anticipates for cross-examining each witness and presenting rebuttal testimony (if necessary) at that hearing. KENNETH KLCO Opinion No. 1: The El Paso property, mine, El Paso Shaft, and related underground workings are discharging water and pollutants from the Roosevelt Tunnel into Cripple Creek. Challenges to Opinion No. 1 1. Mr. Klco lacks the knowledge, skill, experience, training or education sufficient to express this opinion. He is a geologist, not a hydrologist or an aqueous chemist. 2. Mr. Klco's opinion is not based upon sufficient facts or data. Mr. Klco based his opinion on a single in-tunnel tour and a review of limited existing documents. He did not base it on any reliable physical, chemical or hydrologic characteristic of the Roosevelt Tunnel or any reliable water flow or chemistry data. 3. Mr. Klco's opinion is not the product of reliable principles and methods. Mr. Klco did not employ any chemical or hydrologic test, analysis, modeling or sampling to reach his conclusion about the alleged source of water and pollutants. Opinion No. 2: The entire Roosevelt Tunnel, including the area upgradient of the El Paso Shaft, is capable of conveying water to Cripple Creek.

CONTINGENT MOTION TO EXCLUDE PLAINTIFFS' EXPERT WITNESS OPINIONS Sierra Club, et al. v. El Paso Gold Mines, Inc. (Civil Action No. 01-PC-2163)(MEH) Page 9

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Challenges to Opinion No. 2 1. Mr. Klco lacks the knowledge, skill, experience, training or education sufficient to express this opinion. Mr. Klco is a geologist, not a hydrologist or an aqueous chemist. 2. Mr. Klco's opinion is not based upon sufficient facts or data. Mr. Klco based his opinion on a single in-tunnel tour and a review of limited existing documents. Mr. Klco did not base his opinion on any reliable physical, chemical or hydrologic characteristic of the Roosevelt Tunnel or any reliable water flow or chemistry data. 3. Mr. Klco's opinion is not the product of reliable principles and methods. Mr. Klco did not employ any chemical or hydrologic test, analysis, modeling or sampling to reach his conclusion. Opinion No. 3: The El Paso Gold Mines property, the El Paso mine, the El Paso Shaft and related underground workings are hydrologically connected to the Roosevelt Tunnel. Challenges to Opinion No. 3 1. Mr. Klco lacks the knowledge, skill, experience, training or education sufficient to express this opinion. Mr. Klco is a geologist, not a hydrologist or an aqueous chemist. 2. Mr. Klco's opinion is not based upon sufficient facts or data. Mr. Klco based his opinion on a single in-tunnel tour and a review of limited existing documents. He
CONTINGENT MOTION TO EXCLUDE PLAINTIFFS' EXPERT WITNESS OPINIONS Sierra Club, et al. v. El Paso Gold Mines, Inc. (Civil Action No. 01-PC-2163)(MEH) Page 10

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did not base it on any reliable physical, chemical or hydrologic characteristic of the Roosevelt Tunnel or any reliable water flow or chemistry data. 3. Mr. Klco's opinion is not the product of reliable principles and methods. Mr. Klco did not employ any chemical or hydrologic test, analysis, modeling or sampling to reach his conclusion. Opinion No. 4: The El Paso Gold Mines property, the El Paso mine, the El Paso Shaft and related underground workings are hydrologically connected to Cripple Creek by means of the Roosevelt Tunnel. Challenges to Opinion No. 4 1. Mr. Klco lacks the knowledge, skill, experience, training or education sufficient to express this opinion. is a geologist, not a hydrologist or an aqueous chemist. 2. Mr. Klco's opinion is not based upon sufficient facts or data. Mr. Klco based his opinion on a single in-tunnel tour and a review of limited existing documents. He did not base it on any reliable physical, chemical or hydrologic characteristic of the Roosevelt Tunnel or any reliable water flow or chemistry data. 3. Mr. Klco's opinion is not the product of reliable principles and methods. Mr. Klco did not employ any chemical or hydrologic test, analysis, modeling or sampling to reach his conclusion. Opinion No. 5: Areas of mineralization on El Paso's property, the El Paso mine, the El Paso Shaft and related underground workings, and throughout the Roosevelt Tunnel serve as
CONTINGENT MOTION TO EXCLUDE PLAINTIFFS' EXPERT WITNESS OPINIONS Sierra Club, et al. v. El Paso Gold Mines, Inc. (Civil Action No. 01-PC-2163)(MEH) Page 11

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sources of zinc, manganese and metals pollution and have the potential to contribute pollutants to the discharge from the Roosevelt Tunnel into Cripple Creek. Challenges to Opinion No. 5 1. Mr. Klco lacks the knowledge, skill, experience, training or education sufficient to express this opinion. Mr. Klco is a geologist, not a hydrologist or an aqueous chemist. 2. Mr. Klco's opinion is not based upon sufficient facts or data. Mr. Klco based his opinion on a single in-tunnel tour and a review of limited existing documents. He did not base it on any reliable physical, chemical or hydrologic characteristic of the Roosevelt Tunnel or any reliable water flow or chemistry data. 3. Mr. Klco's opinion is not the product of reliable principles and methods. Mr. Klco did not employ any chemical or hydrologic test, analysis, modeling or sampling to reach his conclusion. Opinion No. 6: The waste rock pile and, Debris, rock and dirt from the El Paso mine, El Paso Shaft and related underground workings are also potential sources of pollutants being discharged from the Roosevelt Tunnel into Cripple Creek and serve as a means of conveying water from El Paso's property, mine, the El Paso shaft and related underground workings to the Roosevelt Tunnel.

CONTINGENT MOTION TO EXCLUDE PLAINTIFFS' EXPERT WITNESS OPINIONS Sierra Club, et al. v. El Paso Gold Mines, Inc. (Civil Action No. 01-PC-2163)(MEH) Page 12

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Challenges to Opinion No. 6 1. Mr. Klco lacks the knowledge, skill, experience, training or education sufficient to express this opinion. Mr. Klco is a geologist, not a hydrologist or an aqueous chemist. 2. Mr. Klco's opinion is not based upon sufficient facts or data. Mr. Klco based his opinion on a single in-tunnel tour and a review of limited existing documents. He did not base it on any reliable physical, chemical or hydrologic characteristic of the Roosevelt Tunnel or any reliable water flow or chemistry data. 3. Mr. Klco's opinion is not the product of reliable principles and methods. Mr. Klco did not employ any chemical or hydrologic test, analysis, modeling or sampling to reach his conclusion. Opinion No. 7: At least some of the water that is conveyed from the El Paso property, mine, the El Paso shaft, and related underground workings into the Roosevelt Tunnel is discharged into Cripple Creek at the portal of the Roosevelt Tunnel. Challenges to Opinion No. 7 1. Mr. Klco lacks the knowledge, skill, experience, training or education sufficient to express this opinion. Mr. Klco is a geologist, not a hydrologist or an aqueous chemist. 2. Mr. Klco's opinion is not based upon sufficient facts or data. Mr. Klco based his opinion on a single in-tunnel tour and a review of limited existing documents. He
CONTINGENT MOTION TO EXCLUDE PLAINTIFFS' EXPERT WITNESS OPINIONS Sierra Club, et al. v. El Paso Gold Mines, Inc. (Civil Action No. 01-PC-2163)(MEH) Page 13

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did not base it on any reliable physical, chemical or hydrologic characteristic of the Roosevelt Tunnel or any reliable water flow or chemistry data. 3. Mr. Klco's opinion is not the product of reliable principles and methods. Mr. Klco did not employ any chemical or hydrologic test, analysis, modeling or sampling to reach his conclusion. Opinion No. 8: El Paso's property, mine, El Paso shaft, and related underground workings are a significant source of the water and pollution being discharged from the Roosevelt Tunnel into Cripple Creek. Challenges to Opinion No. 8 1. Mr. Klco lacks the knowledge, skill, experience, training or education sufficient to express this opinion. Mr. Klco is a geologist, not a hydrologist or an aqueous chemist. 2. Mr. Klco's opinion is not based upon sufficient facts or data. Mr. Klco based his opinion on a single in-tunnel tour and a review of limited existing documents. He did not base it on any reliable physical, chemical or hydrologic characteristic of the Roosevelt Tunnel or any reliable water flow or chemistry data. 3. Mr. Klco's opinion is not the product of reliable principles and methods. Mr. Klco did not employ any chemical or hydrologic test, analysis, modeling or sampling to reach his conclusion.

CONTINGENT MOTION TO EXCLUDE PLAINTIFFS' EXPERT WITNESS OPINIONS Sierra Club, et al. v. El Paso Gold Mines, Inc. (Civil Action No. 01-PC-2163)(MEH) Page 14

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Time Required: El Paso estimates that it may need up to two hours to cross-examine Mr. Klco and up to two hours to present rebuttal testimony. ANN MAEST Opinion No. 1: Some of the contaminants in the Roosevelt Tunnel that are discharging to Cripple Creek are coming from the El Paso Mine, El Paso Shaft, and related underground workings, and the El Paso Mine Shaft and related workings are hydrologically connect to Cripple Creek via the Roosevelt Tunnel. Challenges to Opinion No. 1 1. Dr. Maest's opinion is not based upon sufficient facts or data. Dr. Maest bases her opinion on the flawed and superficial reports of others (Klco) and not the water chemistry data from the different points in the water flow about which she opines. Further, Dr. Maest did not base her opinion on any reliable physical, chemical or hydrologic characteristic of the Roosevelt Tunnel or any reliable water flow or chemistry data. 2. Dr. Maest's opinion is not the product of reliable principles and methods. Dr. Maset did note the existence of certain chemical constituents in the water within the Roosevelt Tunnel but did not analytically compare the water chemistry at different flow points. Nor did she test the physical, chemical or hydrologic characteristics of the Roosevelt Tunnel, perform any other chemical or hydrologic test, or prepare any models or perform any calculations to support her conclusions
CONTINGENT MOTION TO EXCLUDE PLAINTIFFS' EXPERT WITNESS OPINIONS Sierra Club, et al. v. El Paso Gold Mines, Inc. (Civil Action No. 01-PC-2163)(MEH) Page 15

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or to reliably establish a link between flow points within the Roosevelt Tunnel. analysis, modeling or sampling to reach his conclusion about the alleged source of water and pollutants. Opinion No. 2: Areas upgradient from the El Paso Shaft also contribute water and contaminants to the Roosevelt Tunnel. Challenges to Opinion No. 2 1. Dr. Maest's opinion is not based upon sufficient facts or data. Dr. Maest provides no facts or data to support this conclusion other than the limited and untested observations of others and an incomplete comparison of water chemistry data. 2. Dr. Maest again uses only one "method" to support her conclusion and this method is not reliable: she compared the existence of chemical constituents but not their concentrations. She also failed to note significant differences in those constituent concentrations. In addition, she failed to prepare any models or perform any calculations to support her conclusions, or to describe or predict where the constituents in the water came from. As a result of those failures, and the lack of any hydrologic testing, no reliable conclusion can be reached linking the areas described. Time Required: El Paso estimates that it may need up to two hours to cross-examine Dr. Maest and up to two hours to present rebuttal testimony.

CONTINGENT MOTION TO EXCLUDE PLAINTIFFS' EXPERT WITNESS OPINIONS Sierra Club, et al. v. El Paso Gold Mines, Inc. (Civil Action No. 01-PC-2163)(MEH) Page 16

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ROBERT BURM Opinion No. 1: Water flowing from the Roosevelt Tunnel is subject to the NPDES permitting requirements of the Clean Water Act because it is a "discharge" "of pollutants" "from a point source" "to navigable waters;" therefore, El Paso is required to obtain a NPDES permit for it. Challenges to Opinion No. 1 1. Mr. Burm lacks the knowledge, skill, experience, training or education sufficient to express this opinion. This "opinion" is nothing more than a direct legal conclusion purporting to resolve Plaintiffs' claim in their favor. To reach this conclusion requires legal training, evidentiary review, statutory interpretation and legal analysis. Yet, Mr. Burm has no legal training or experience whatsoever. This opinion is also improper under Rule 702 because it is a legal conclusion that purports to resolve these issues for the Court ­ rather than assisting the Court in resolving them by explaining the evidence. See, F.R.E. 702 (an opinion must "assist the trier of fact to understand the evidence or to determine a fact in issue"); see also U.S. v. Simpson, 7 F.3d 186, 188-89 (10th Cir. 1993). 2. Mr. Burm's opinion is not based upon sufficient facts or data. Mr. Burm failed to identify, collect, investigate the facts and data necessary to reach the legal conclusions that the Roosevelt Tunnel water flow is a "discharge" and that El Paso is a "discharger."
CONTINGENT MOTION TO EXCLUDE PLAINTIFFS' EXPERT WITNESS OPINIONS Sierra Club, et al. v. El Paso Gold Mines, Inc. (Civil Action No. 01-PC-2163)(MEH) Page 17

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3.

Mr. Burm's opinion is not the product of reliable principles and methods. Mr. Burm performed no legal research or legal analysis to reach his legal conclusion.

Opinion No. 2: Based on my experience, it is my opinion that from September 1995 to date, the Roosevelt Tunnel discharge was subject to regulation under the NPDES permitting program of the Clean Water Act. Challenges to Opinion No. 2 1. Mr. Burm lacks the knowledge, skill, experience, training or education sufficient to express this opinion. This "opinion" is nothing more than a direct legal conclusion. To reach this conclusion requires legal training, evidentiary review, statutory interpretation and legal analysis. Yet, Mr. Burm has no legal training or experience whatsoever. 2. Mr. Burm's opinion is not based upon sufficient facts or data. Mr. Burm failed to identify, collect, investigate the facts and data necessary to reach the legal conclusions that the Roosevelt Tunnel water flow is a "discharge." 3. Mr. Burm's opinion is not the product of reliable principles and methods. Mr. Burm performed no legal research or legal analysis to reach his legal conclusion. Opinion No. 3: El Paso owns and/or controls relevant property from which a substantial portion of the Roosevelt Tunnel flow originates.

CONTINGENT MOTION TO EXCLUDE PLAINTIFFS' EXPERT WITNESS OPINIONS Sierra Club, et al. v. El Paso Gold Mines, Inc. (Civil Action No. 01-PC-2163)(MEH) Page 18

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Challenges to Opinion No. 3 1. Mr. Burm lacks the knowledge, skill, experience, training or education sufficient to express this opinion. Mr. Burm is not a hydrologist or an aqueous chemist. 2. Mr. Burm's opinion is not based upon sufficient facts or data. Mr. Burm failed to identify, collect, investigate the facts and data necessary to reach his conclusions. 3. Mr. Burm's opinion is not the product of reliable principles and methods. Mr. Burm performed no research or analysis to reach his conclusions. Opinion No. 4: El Paso discharges significant amounts of flow from the Roosevelt Tunnel into Cripple Creek. Challenges to Opinion No. 4 1. Mr. Burm lacks the knowledge, skill, experience, training or education sufficient to express this opinion. Mr. Burm is not a hydrologist or an aqueous chemist or a geologist. 2. Mr. Burm's opinion is not based upon sufficient facts or data. Mr. Burm failed to identify, collect, investigate the facts and data necessary to reach his conclusions. 3. Mr. Burm's opinion is not the product of reliable principles and methods. Mr. Burm performed no research or analysis to reach his conclusions. Opinion No. 5: Pollutants are discharged into Cripple Creek from El Paso's property, mine, underground workings, shaft, and portions of the Roosevelt Tunnel over which it has control.
CONTINGENT MOTION TO EXCLUDE PLAINTIFFS' EXPERT WITNESS OPINIONS Sierra Club, et al. v. El Paso Gold Mines, Inc. (Civil Action No. 01-PC-2163)(MEH) Page 19

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Challenges to Opinion No. 5 1. Mr. Burm lacks the knowledge, skill, experience, training or education sufficient to express this opinion. Mr. Burm is not a hydrologist or an aqueous chemist or a geologist. 2. Mr. Burm's opinion is not based upon sufficient facts or data. Mr. Burm failed to identify, collect, investigate the facts and data necessary to reach his conclusions. 3. Mr. Burm's opinion is not the product of reliable principles and methods. Mr. Burm performed no research or analysis to reach his conclusions. Time Required: El Paso estimates that it may need up to two hours to cross-examine Mr. Burm. CONCLUSION WHEREFORE, all of the opinions proffered by Plaintiffs' purported experts are either unreliable or irrelevant as defined by the four strictures of Rule 702; therefore, the Court should enter an Order excluding them from evidence at trial. COMPLIANCE WITH D.COLO.LCivR 7.1(A) Undersigned counsel for El Paso conferred with Plaintiffs' counsel on June 28, 2006 about the relief requested in this Motion. Plaintiffs oppose this Motion.

CONTINGENT MOTION TO EXCLUDE PLAINTIFFS' EXPERT WITNESS OPINIONS Sierra Club, et al. v. El Paso Gold Mines, Inc. (Civil Action No. 01-PC-2163)(MEH) Page 20

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

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Respectfully submitted this 30th day of June, 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 El Paso Properties, Inc. CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing CONTINGENT MOTION TO EXCLUDE PLAINTIFFS' EXPERT WITNESS OPINIONS AND REQUEST FOR EVIDENTIARY HEARING was sent with 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/ Sarah D. White Sarah D. White, Staff Assistant

CONTINGENT MOTION TO EXCLUDE PLAINTIFFS' EXPERT WITNESS OPINIONS Sierra Club, et al. v. El Paso Gold Mines, Inc. (Civil Action No. 01-PC-2163)(MEH) Page 21