Free Motion to Continue - District Court of Colorado - Colorado

Case 1:00-cv-02394-WDM-BNB

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

Civil Action No. 00-cv-02394-MJW-OES NANCY OLIPHANT, formerly NANCY DEANE; and WYRICK G. DEANE, Plaintiffs, v. THE FRANCO MINING COMPANY, et al., Defendants.

JOINT MOTION TO CONTINUE ADMINISTRATIVE CLOSURE

Plaintiff Wyrick G. Deane, and Defendant, the United States of America, through their respective counsel, hereby jointly request that an Order issue continuing the administrative closure in this action up to and including June 1, 2007. 1. The only remaining Plaintiff in this action is Mr. Deane and the only defendants

appearing herein are the United States of America, Secretary of Agriculture, and the United States Forest Service (the "United States"). On September 4, 2002, Plaintiffs filed a motion to dismiss Nancy Oliphant, formerly Nancy Deane, as a Plaintiff in this action. (Doc. 25.) On October 3, 2002, the Court issued an order granting the motion to dismiss. (Doc. 30.) 2. This case is one of 51 related quiet title actions that were individually filed on or

about November 30, 2000. Of the 51 related cases, 43 were administratively closed to avoid the burden of litigating 51 cases, and on the presumption that litigating eight representative cases

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instead could obviate the need for litigating the other 43.1 3. The instant case is subject to an order of administrative closure that will expire on

December 1, 2006. The administrative closure of this case was continued to December 1, 2006 because the Parties had negotiated an agreement in principle to settle 15 of the 43 remaining federal quiet title actions and were in the process of obtaining approval of the terms of the settlement from the appropriate government agencies. The 15 actions that are the subject of the settlement are as follows: A. Deane is the sole plaintiff and the United States of America, Secretary of

Agriculture, and the United States Forest Service are the only defendants appearing in thirteen (13) civil actions, Case Nos. 00-cv-02361- through 00-cv-02363-WDM-OES, and Case Nos. 00cv-02365- through 00-cv-02374-WDM-OES, all pending in district court before the honorable United States District Judge Walker D. Miller. B. The United States and Deane are also the only parties appearing in Case No.

00-cv-02364-MJW-OES; and, the United States, Deane, and Plaintiff Nancy Oliphant are the only parties who have appeared in the instant Case No. 00-cv-02394-MJW-OES. As stated above, Plaintiff Nancy Oliphant has been dismissed from the case. Pursuant to D.C.COLO.LCivR 72.2, these two (2) cases are pending in this Court before the honorable United States Magistrate Judge Michael J. Watanabe.

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Although the 51 original cases were not formally consolidated, pleadings that applied to all related cases were generally filed under Case No. 00-cv-2658-WDM-OES, Colin Chapman v. Ashel A. Denman, et al. 2

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4.

A proposed Settlement Agreement and Release was prepared and submitted to the

affected federal government agencies for approval. Generally, the terms of the proposed Settlement include the following conveyances of land: A. Conveyance of over 300 acres to the United States (the "Federal Land").

Plaintiff Deane would convey over 300 acres (including all surface and mineral rights) to the U.S. Forest Service, Department of Agriculture. The acreage would include the twenty-five (25) patented mining claims2 that are at issue in the above-identified actions,3 plus ten (10) patented mining claims that are owned by Deane and not involved in the litigation.4 Seven (7) of Deane's patented mining claims are located in wilderness and critical trail head locations in the White River National Forest. B. Conveyance of 2.26 surface acres to Deane. Deane would simultaneously

reserve, and the U.S. Forest Service would concurrently cross-convey to Deane, a small 2.26-

These 25 disputed mining claims exceed 200 acres and are named the (1) Ophir, (2) Reveille, (3) Centennial #2, (4) Surprise, (5) Paystone, (6) Chicago Times, (7) St. Elmo, (8) Kitty Bowen, (9) Leona, (10) Great Expectations, (11) Ellis, (12) Silver Glance, (13) Spar, (14) Imperial, (15) Silver Chief, (16) Helena, (17) Pride of the West, (18) AJP, (19) Colorado, (20) Little Jessie, (21) Little Giant, (22) Extenuate, (23) Occident, (24) Little Grace, and (25) Terra. Plaintiff Oliphant's sole interest herein is in the Reveille (Case No. 00-cv-02394-MJW-OES). In the 15 Civil Actions, the United States disputed the plaintiffs' ownership and asserted that it had superior title in and to the 25 mining claims based, in part, on conveyances from Pitkin County pursuant to the Exchange Act. Public Law No. 103-255 § 6(a), 108 Stat. 684, 687 (1994). Deane's 10 mining claims not subject to any pending litigation include just under 100 acres and are named the (1) Champion, (2) Great Western, (3) Expectation, (4) Central Terror Lode, (5) Parallel, (6) Granite, (7) Robert Bonner, (8) Diamond, (9) Marion, and (10) Grand Union. The first 7 of these are located in wilderness and key trail-head areas. 3
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surface-acre parcel ("Parcel A") carved from the Ophir Lode Mining Claim (Case No. 00-cv02373-WDM-OES) and from the adjacent Diamond Lode Mining Claim owned by Deane, together with rights of ingress and egress and rights in and to the historic Ophir mining cabin,5 burdened by restrictive covenants requiring that the "footprint" of the Ophir mining cabin not be altered substantially. 5. The Settlement further provides that after the execution of the Settlement and the

recording of conveyance documents, the Parties would seek dismissal of the 15 Civil Actions under F.R.C.P. 41(a)(1)(ii). 6. In approximately April 2006 the United States obtained final federal approval of

the proposed Settlement from the United States Department of Justice and from the United States Forest Service in Washington D.C. 7. In the interests of comity, on March 21, 2006, and June 13 and 29, 2006, the

United States also sought approval of the Settlement from the Board of County Commissioners of Pitkin County. In seeking Board approval, the United States relied on, without conceding the applicability of Colo. Rev. Stat. § 30-28-101, which concerns county authority over the subdivision of county lands in Colorado. On August 14, 2006, the United States was informed by Pitkin County Attorney John Ely, without elaboration, that the Board would not approve the proposed 2.26 acre conveyance to Deane, a critical component of the Settlement.

All other right, title and interest in the Ophir and Diamond are to be conveyed by Deane to the United States. 4

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8.

Therefore, on or before December 1, 2006, the Parties will file a joint motion

requesting that the district court, where Case No. 00-cv-02373-WDM-OES involving the Ophir Lode Mining Claim is pending, issue statutory notice to Pitkin County pursuant to Colo. Rev. Stat. § 30-28-101-(10)(c)(II) of the proposed conveyances, providing Pitkin County with twenty days in which to file an appropriate pleading to join as a party in interest. If Pitkin County does not file an appropriate pleading within the time set by the statute, the Parties will request entry of an order approving the proposed settlement and the property conveyances described therein. Alternatively, if Pitkin County joins the litigation as a party in interest, the Parties will request the district court enter an order approving the proposed settlement over Pitkin County's objection. WHEREFORE, the Parties jointly request that an Order issue continuing the administrative closure in this action up to and including June 1, 2007. Respectfully submitted this 15th day of November, 2006. WELBORN SULLIVAN MECK & TOOLEY PC s/Kathryn Haight Kathryn Haight 821 17th Street, #500 Denver, CO 80202 Tel. 303-830-2500 Fax 303-832-2366 [email protected] for Plaintiffs TROY A . EID UNITED STATES ATTORNEY s/Roxane J. Perruso Roxane J. Perruso Assistant U.S. Attorney 1225 17th Street, Suite 700 Denver, CO 80202 Tel. 303-454-0127 / Fax 303-454-0404 [email protected] for United States of America

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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO CERTIFICATE OF SERVICE (CM/ECF) I hereby certify that on November 15, 2006, I electronically filed the foregoing with the Clerk of Court using the CM/ECF system which will send notification of such filing to the following e-mail addresses: Kathryn Haight [email protected] and I hereby certify that I have mailed or served the document or paper to the following non CM/ECF participants in the manner (mail, hand- delivery, etc.) indicated above the nonparticipant's name: Helena Jones-Siddle, Esq. Office of the General Counsel USFS-USDA 740 Simms Street, Room 309 Golden, CO 80401 [email protected] Via E-mail

s/Roxane J. Perruso Roxane J. Perruso

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