Free Objections - District Court of Colorado - Colorado

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

Document 257

Filed 11/04/2005

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Case No. 00-cv-2325-MSK-OES SIERRA CLUB and MINERAL POLICY CENTER, Plaintiffs, vs. CRIPPLE CREEK AND VICTOR GOLD MINING COMPANY, ANGLOGOLD ASHANTI (COLORADO) CORP. ANGLOGOLD ASHANTI NORTH AMERICA INC. and GOLDEN CYCLE GOLD CORPORATION Defendants. and Civil Action No. 01-cv-2307-MSK-OES SIERRA CLUB and MINERAL POLICY CENTER, Plaintiffs, vs. CRIPPLE CREEK AND VICTOR GOLD MINING COMPANY, et al., ANGLOGOLD ASHANTI (COLORADO) CORP. ANGLOGOLD ASHANTI NORTH AMERICA INC. and GOLDEN CYCLE GOLD CORPORATION Defendants.

PLAINTIFFS' OBJECTIONS TO FINAL PRETRIAL ORDER

Pursuant to the Court's October 11, 2005 Final Pretrial Order, Plaintiffs hereby make the following objections to the Final Pretrial Order's designation of claims and defenses, witnesses, and exhibits, as follows:

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

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III. Claims and Defenses Claim 1: Discharge Without a Permit Plaintiffs object to the statement of Claim 1 because this claim should also include Plaintiffs' alternative claim that Defendants are violating the terms of its Carlton Tunnel Permit by discharging pollutants from a point source not specifically authorized by the Permit. The elements of this alternative claim are: (1) a discharge permit was issued to the Defendants; (2) the permit contained a condition prohibiting any discharge to waters of the State from a point source other than specifically authorized by the permit; (3) there was a discharge from a point source to waters of the State other than specifically authorized by the permit; and (4) the violation was ongoing as of November 27, 2000, or there was a continuing likelihood of a recurrence in intermittent or sporadic violations as of that date. This alternative claim was listed in the draft Final Pretrial Order that was submitted to the Court by the parties. See draft Final Pretrial Order, p. 16. Plaintiffs also referred to this alternative permit violation claim in their Complaint. See, Amended Complaint ¶¶53 & 96-98. Claim 6: Discharge in Excess of Permit Limits Plaintiffs object to the statement of Claim 6 because it incorrectly describes the effluent limit as "(.60 mg/l on a daily average for zinc)". The limit is not a daily average. Instead the limit is a daily maximum. Thus, the parenthetical should read "(.60 mg/l on a daily maximum)". In Claim 6 of the draft Final Pretrial Order submitted to the Court, the parties stipulated that "Permit CO-0024562 contains an effluent limitation for Potentially Dissolved Zinc at .60 mg/l on a daily maximum at Outfall 002." See draft Final Pretrial Order, page 63, Claim 6, element 2.

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Claim 11: Discharge Without a Permit Plaintiffs object to the statement of Claim 11 because it does not specifically state that this claim is being asserted in the alternative to Claims 8, 9, and 12. The draft Final Pretrial Order submitted to the Court by the parties states that this is an alternative claim. See draft Pretrial Order, Claim 11, page 111. Claim 12: Discharge in Excess of Permit Limits Plaintiffs object to the statement of Claim 12 because it incorrectly describes the effluent limit for Weak Acid Dissociable Cyanide as "(.005 mg/l on a daily average ...)". The effluent limit is not a daily average. Instead the effluent limit is a daily maximum. Thus, the parenthetical should read "(.005 mg/l on a daily maximum...)". In Claim 12 of the draft Final Pretrial Order submitted to the Court by the parties, the effluent limit was described as a daily maximum, not a daily average. See draft Final Pretrial Order, Claim 12, page 124, element 2. Plaintiffs also object to the statement of Claim 12 because it does not identify the pH effluent limits listed in the permit. The pH limits listed in the permit are "6.0-9.0 s.u. effective through 12/31/97 and 6.5-9.0 s.u. effective beginning 1/1/98)". In Claim 12 of the draft Final Pretrial Order submitted to the Court by the parties, the effluent limit for pH was listed as "(6.09.0 and 6.5-9.0)." See draft Final Pretrial Order, Claim 12, page 124, element 2. Defendants' defenses For all mootness defenses asserted by Defendants, Plaintiffs object because the Final Pretrial Order does not specify the elements of the mootness defense that the Defendants must prove.

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V. Witnesses Based on the Court's Rule 702 rulings, the Plaintiffs request that the Witness List be modified as follows: (a) Kenneth Klco direct examination time: 3 hours. (b) Ann Maest direct examination time: 5 hours. Plaintiffs object to any expert opinion testimony by Defendants' rebuttal expert witness Adrian Brown. Mr. Brown was only offered by Defendants as a rebuttal expert witness to rebut expert opinions offered by Plaintiffs' expert witnesses Kenneth Klco and Dr. Ann Maest. In its Rule 702 rulings, this court has deemed the expert opinions of Mr. Klco and Dr. Maest inadmissible. Given that Mr. Brown was only offered as a rebuttal expert witness to Mr. Klco and Dr. Maest--and not as a primary expert witness--Mr. Brown should not be allowed to offer any expert opinions at trial. The exhibit list does not contain a listing of all witnesses Plaintiffs intend to call in the remedial phase of this case. The draft Final Pretrial Order was submitted to the Court prior to the completion of discovery on remedies. At a minimum, Plaintiffs intend to call expert witness James Kuipers in the remedy phase of this case--who is not listed on the witness list. Plaintiffs expect Mr. Kuipers direct examination testimony to take 5 hours. Plaintiffs request that the Witness List be modified accordingly. In addition, a Motion to Compel discovery is pending with the Court. [#228 & #229]. Plaintiffs will not know whether additional witnesses will be necessary until the issues related to the Motion to Compel are resolved. Plaintiffs reserve the right to list additional witnesses related to the remedy portion of the case.

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VI. Exhibits Based on the Court's Rule 702 rulings, Plaintiffs withdraw Exhibit 364 from the primary exhibit list. The draft Final Pretrial Order was submitted to the Court prior to the completion of discovery on remedies. As noted above, there is a Motion to Compel discovery pending with the Court [#228 & #229]. It is impossible for Plaintiffs to list all exhibits they intend to offer on remedies at this time because of the pending Motion to Compel. Plaintiffs will only be able to list all remedy exhibits after the Court rules on the pending motion and Plaintiffs have received and reviewed any documents produced by Defendants. Thus, Plaintiffs reserve the right to list additional exhibits related to the remedy phase of the case.

DATED this 4th day of November 2005.

Respectfully Submitted, s/ John M. Barth ____________________ John M. Barth Attorney at Law P.O. Box 409 Hygiene, CO 80533 (303) 774-8868 [email protected] Randall M. Weiner Law Offices of Randall M. Weiner, P.C. 1942 Broadway, Suite 408 Boulder, Colorado 80302 (303) 938-3773 [email protected]

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Roger Flynn Jeff Parsons Western Mining Action Project P.O. Box 349 Lyons, CO 80540 (303) 823-5738 [email protected]

CERTIFICATE OF SERVICE I certify that on this 4th day of November 2005, I electronically filed the foregoing PLAINTIFFS' OBJECTIONS TO FINAL PRETRIAL ORDER with the Clerk of the Court using the CM/ECF system which will send notification of such filing to the following e-mail addresses: Eugene J. Riordan Vranesh and Raisch P.O. Box 871 Boulder, CO 80306-871 [email protected] Craig Carver Carver, Kirchhoff, Schwartz, McNab & Bailey, P.C. Hudson's Bay Centre 1600 Stout Street, Suite 1700 Denver, CO 80215 [email protected] Robert C. Troyer Hogan and Hartson One Tabor Center 1200 17th Street, Suite 1500 Denver, CO 80202 [email protected]

Don Sherwood 10861 West 28th Place Denver, CO 80215 [email protected]

s/ John M. Barth ____________________ John M. Barth

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