Free Motion for Attorney Fees - District Court of Colorado - Colorado

Case 1:00-cv-02325-MSK-MEH

Document 315

Filed 04/27/2006

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Honorable Marcia S. Krieger Civil Action No. 00-cv-02325-MSK-MEH SIERRA CLUB and MINERAL POLICY CENTER, Plaintiffs, v. CRIPPLE CREEK & VICTOR GOLD MINING COMPANY, ANGLOGOLD ASHANTI (COLORADO) CORPORATION, ANGLOGOLD ASHANTI NORTH AMERICA, INC., and GOLDEN CYCLE GOLD CORPORATION, Defendants, and Civil Action No. 01-cv-02307-MSK-MEH SIERRA CLUB and MINERAL POLICY CENTER, Plaintiffs, v. CRIPPLE CREEK & VICTOR GOLD MINING COMPANY, ANGLOGOLD ASHANTI (COLORADO) CORPORATION, ANGLOGOLD ASHANTI NORTH AMERICA INC., and GOLDEN CYCLE GOLD CORPORATION, Defendants. ___________________________________________________________________________ DEFENDANT GOLDEN CYCLE GOLD CORPORATION'S MOTION FOR ATTORNEYS' FEES WITH INCORPORATED LEGAL AUTHORITY ___________________________________________________________________________

Case 1:00-cv-02325-MSK-MEH

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Under the provisions of the Clean Water Act, 33 U.S.C. '' 1251, et seq., ("CWA"), the Defendant Golden Cycle Gold Corporation ("Golden Cycle" or "Defendant Golden Cycle"), requests an award of attorneys' fees and litigation expenses (hereinafter "legal fees") in the amount of $131,280.10, including $1,391.60 in out-of-pocket costs, pursuant to Section 1365(d) of that Act. JOINDER WITH THE ANGLOGOLD DEFENDANTS Throughout these proceedings, the defendants other than Golden Cycle, namely Cripple Creek & Victor Gold Mining Company, AngloGold Ashanti (Colorado) Corporation, and AngloGold Ashanti North America Inc., (hereinafter referred to collectively as the "AngloGold Defendants"), have been represented by counsel separate from counsel to Defendant Golden Cycle. The undersigned counsel represents Golden Cycle now, as through all of these proceedings, separately from counsel to the AngloGold Defendants. The Judgment in these consolidated cases was entered April 13, 2006, "in favor of the Defendants Cripple Creek & Victor Gold Mining Company, AngloGold Ashanti (Colorado) Corporation, AngloGold Ashanti North America Inc., and Golden Cycle Gold Corporation, and against the Plaintiffs, Sierra Club and Mineral Policy Center, on all claims." The Judgment therefore applies equally to all defendants. The AngloGold Defendants are requesting an award of their attorneys' fees, expert witness fees, and litigation expenses. Defendant Golden Cycle joins in the recitation of legal authority incorporated into the AngloGold Defendants' Motion for Attorney Fees, and adopts that authority in this Motion, except insofar as applicable to expert witness fees because Golden Cycle has incurred no such fees. Although the amounts requested are necessarily different, Defendant Golden Cycle points out that both the AngloGold Defendants and Golden Cycle have Judgment on all claims made against all of the Defendants, and both have been adjudged entitled to costs pursuant to the

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Case 1:00-cv-02325-MSK-MEH

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Judgment, and also to attorneys' fees and related nontaxable expenses under Fed. R. Civ. P. 54(d) (2) and Paragraph (3) of the Order on page 42 of the Memorandum Opinion and Order of April 13, 2006, all of which is specifically authorized by the CWA, Section 1365(d). There is, however, an important difference between the separated defendants. The AngloGold Defendants collectively own and operate the mine and property from which the Plaintiffs asserted that discharges of pollutants unlawful under the CWA were occuring. If the "faucet" was leaking unlawfully, the persons controlling or owning that faucet are responsible for the "drips" under Sierra Club v. El Paso Gold Mines, Inc., 421 F.3d 1133, 1145 (10th Cir. 2005). But Golden Cycle neither owns nor controls and can neither prevent nor correct what that "leaky faucet" may or may not be doing. Thus, Golden Cycle could not be among the "persons" that may be liable under the CWA for unpermitted discharges. Court Exhibit 1 in these consolidated cases set out the elements of unlawful conduct under CWA Section 1342. The Plaintiffs attempted to prove the AngloGold Defendants liabile under that section, but they never made the slightest connection between Golden Cycle and the various "faucets" about which they complained. The Memorandum Opinion and Order ["MO&O"] in this case makes clear the following with respect to Golden Cycle: 1. Cripple Creek & Victor Gold Mining Company is a joint venture between AngloGold and Golden Cycle. MO&O at 4. 2. Pursuant to the Joint Venture Agreement, AngloGold is the manager of the joint venture. MO&O at 4. 3. Golden Cycle is the joint venture's minority shareholder and has not participated in its management. MO&O at 5.

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Case 1:00-cv-02325-MSK-MEH

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4. Though the Environmental Protection Agency ["EPA"] issued a notice of violation to Golden Cycle for alleged violations of permits, and through settlement agreements the EPA and the Colorado Water Quality Control Division entered into certain consent agreements with all of the Defendants, neither the settlement agreements nor the consent agreements establish liability as to any defendant, let alone the defendant Golden Cycle. MO&O at 6-7 and, particularly, n.6. Were it otherwise, all the Defendants would be liable. So the Plaintiffs can point to no evidence and, more importantly, no authority that Golden Cycle's status as a minority owner of an undivided interest in a joint venture it cannot control and has not even attempted to control is sufficient to establish liability under the CWA. In sum, to assert liability against Golden Cycle just because it exists and to continue to do so despite the total lack of any connection between Golden Cycle and the "faucets" is anything but good faith. This situation is clearly within the express rule of Christiansburg Garment Co. v. Equal Employment Opportunity Comm'n, 434 U.S. 412, 422 (1978): "[U]nless a court finds that . . . [a plaintiff's] claim was frivolous, unreasonable, or groundless, or that the plaintiff continued to litigate it after it clearly became so . . . . [there is a] basis for charging him with the attorney's fees incurred by the defense," and "there will be an even stronger basis" "if a plaintiff is found to have brought or continued such a claim in bad faith." This is not a case where the plaintiffs have merely lost their case. Whether it was "brought in subjective bad faith" or not, it was "frivolous, unreasonable, . . . [and] without foundation." Id. at 421. When the dust settled on the last day of trial, it became clear that Plaintiffs did not even try to win their case against the Defendant Golden Cycle. Golden Cycle never objected to a

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Case 1:00-cv-02325-MSK-MEH

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document offered by Plaintiffs in evidence, even if it came from Golden Cycle's files, and did not object to Plaintiffs' questions of its President and Chief Executive Officer because there is no evidence and there could be no answers that support the Plaintiffs' decision to sue Golden Cycle just because it exists. For these reasons, Golden Cycle is entitled to its attorneys' fees and the legal expenses it has paid to its counsel. GOLDEN CYCLE IS ENTITLED TO THE AMOUNT IT SEEKS There is no agreement with respect to fees to be paid for the services for which this claim is made, save for the obligation of counsel to bill reasonable amounts and the obligation of Golden Cycle to pay those amounts. Golden Cycle has paid all amounts billed by counsel to Golden Cycle. Under subsection (B) of Rule 54(d) (2), Golden Cycle can either "state the amount or provide a fair estimate of the amount sought." Golden Cycle elects to do both. Applying the rates at which Golden Cycle was billed, Golden Cycle has paid a total of $ 118,841.50. Applying the rates which in this market establish the value of the services performed in its cause, Golden Cycle would be entitled to $ 131,280.10, all as described in the Affidavit submitted herewith and executed by the undersigned counsel to the corporation. It will be apparent that Golden Cycle was treated by counsel as befits its small size and limited income (Hampton, 2/16, pp. 13-14: approximately $250,000.00 annually), and that the Plaintiffs never gave Golden Cycle any such consideration. Either sum is a significant expenditure at Golden Cycle. But as shown in the attached Affidavit, its legal expense was limited for the benefit of its many shareholders and if there is to be a windfall, it should go to the Company, not to Plaintiffs. The statements submitted to Golden Cycle also support the Company's claim. Time valued at $ 130-145 was spent to determine the basic facts and the law specifically applicable to the facts, and when that was done, those charges did not continue. Likewise, the time on each

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Case 1:00-cv-02325-MSK-MEH

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task was carefully constrained, and only when depositions began and, later, when trial commenced, did the tasks demand multi-hour attention. Unlike the Plaintiffs, which added lawyers as time passed, Golden Cycle kept but one. Except for the cost of a copy of Mr. Hampton's testimony ($110.00), law firm out-ofpocket charges ended when the research was completed. They were spent as follows: Telephone $29.32; Lexis and Westlaw research $1,203.84, and courier deliveries $ 48.44, a total of $ 1,281.60. In a case of this magnitude, these charges are minuscule. The fees actually charged by all the lawyers who ever worked for Golden Cycle in this matter are, as billed compared with as estimated currently:

Don H. Sherwood to 4/30/03 Don H. Sherwood to 4/30/04 Don H. Sherwood to 4/30/05 Don H. Sherwood from 4/30/05 Total Don H. Sherwood

48.0 75.3 71.6 140.3 335.2

@ 235 @ 255 @ 275 @ 295

11,280.00 19,201.50 19,690.00 41,388.50 91,560.00

14,400.00 @ 300 22,590.00 @ 300 21,400.00 @ 300 42,090.00 100,480.00

Craig R. Carver Bruce C. Kirchhoff Michelle C. Carmody Michelle C. Carmody

0.8 1.6 195.2 2.1

@ 265 @ 185 @ 130

212.00 296.00 25,376.00 0.00

240.00 @ 300 296.00 @ 300 28,304.00 @ 145 0.00

Total other lawyers Total all timekeepers

199.7 534.9

25,884.00 117,444.00

28,840.00 129,320.00

OTHER MATTERS

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Case 1:00-cv-02325-MSK-MEH

Document 315

Filed 04/27/2006

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Ms. Carmody is no longer practicing law, and Messrs. Carver and Kirchhoff are principals in the Denver firm of Carver, Kirchhoff, Schwartz, McNab & Bailey. They expended only 2.4 hours on this work in the absence of Mr. Sherwood. CERTIFICATION OF COMPLIANCE WITH D.C.COLO.LR 7.1(A) Don H. Sherwood, counsel for the Defendant Golden Cycle Gold Corporation, certifies that he consulted with John Barth, Esq., counsel for the Plaintiffs, concerning this Motion. The parties were unable, despite several eMails and one telephone discussion, to reach agreement. Respectfully submitted this 27th day of April, 2006. s/ Don H. Sherwood Don H. Sherwood Attorney at Law 10861 West 28th Place Denver, Colorado 80215-7114 Telephone: (303) 233-0335 E-mail: [email protected] Attorney for Defendant Golden Cycle Gold Corporation

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