Free Motion to Vacate - District Court of Colorado - Colorado

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

Document 161

Filed 02/02/2006

Page 1 of 3

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 01-cv-2163-PAC-OES SIERRA CLUB and MINERAL POLICY CENTER Plaintiffs, vs. EL PASO GOLD MINES, INC. Defendant. ____________________________________________________________________________ PLAINTIFFS' MOTION TO VACATE AND RE-SET TRIAL DATE _____________________________________________________________________________ Plaintiffs Sierra Club and Mineral Policy Center file this Motion to Vacate and Re-Set Trial Date and in support state as follows: 1. On December 2, 2005 this Court held a status conference in this case. At that time Defendants El Paso Gold Mines, Inc. stated that it planned to file a petition for writ of certiorari to the U.S. Supreme Court related to the ruling of the Tenth Circuit Court of Appeals in this matter. [#158]. This Court entered an order staying the district court proceeding upon the filing of such petition. [#158]. On January 19, 2006 Defendant El Paso filed its petition. Accordingly, this district court proceeding is stayed. 2. On December 2, 2005 this .Court also set a trial date, depending on the timing and outcome of the petition for certiorari. [#158}. Trial is currently set to begin on July 31, 2006. (#158].

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

Document 161

Filed 02/02/2006

Page 2 of 3

3.

On December 5, 2005 Plaintiffs' counsel informed Plaintiff's expert witnesses by e-mail of the trial dates in this case. On January 11, 2006, Plaintiffs' expert witness Kenneth Klco informed Mr. Barth that he had previous plans to be in Ohio for a wedding and family reunion during the trial in this case. Mr. Klco asked Mr. Barth to request a re-scheduling of the trial date.

4.

Pursuant to Local Rule 7.1A, on January 23, 2006, Mr. Barth sent an e-mail to Defendant's counsel Steve Harris informing him of Mr. Klco's scheduling conflict and requested his position on vacating and re-scheduling the trial date. Exhibit A hereto. On January 31, 2006 Mr. Harris informed Mr. Barth that Defendant did not oppose vacating and re-scheduling the trial date. In order to avoid another scheduling conflict, Mr. Barth requested acceptable trial dates from Mr. Harris. Defendant's counsel was unable to provide Mr. Barth with acceptable trial dates and instead suggested that he first obtain a range of acceptable trial dates from the Court. Exhibit A hereto. It appears that Plaintiffs would be prepared to commence the trial anytime beginning September 11, 2006 or later. It appears that Mr. Harris has a conflict from September 16-23, 2006.

5.

Plaintiffs are prepared to comply with all other deadlines imposed by the Court.

WHEREFORE, Plaintiffs respectfully request that this Court vacate and re-schedule the trial in this case. A proposed Order is attached.

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

Document 161

Filed 02/02/2006

Page 3 of 3

Respectfully submitted by, 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

DATED: 2/2/06

CERTIFICATE OF SERVICE I do hereby certify that on this 2nd day of February 2006, I electronically filed the foregoing PLAINTIFFS' MOTION TO VACATE AND RE-SET TRIAL DATE and all exhibits thereto with the Clerk of the Court using the CM/ECF system which will send notification of such filing to the following e-mail address: [email protected] Steve Harris, Esq. Merrill, Anderson, King & Harris 20 Boulder Crescent Colorado Springs, CO 80903-3300

s/ John Barth _____________________ John Barth

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