Free Response to Motion - District Court of Colorado - Colorado

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 04-K-1099-JLK-DLW WOLF CREEK SKI CORPORATION, INC., Plaintiff, v. LEAVELL-McCOMBS JOINT VENTURE, d/b/a THE VILLAGE AT WOLF CREEK, Defendant.

WOLF CREEK SKI CORPORATION, INC.'S RESPONSE TO DEFENDANT'S MOTIONS IN LIMINE TO EXCLUDE EVIDENCE, TESTIMONY, OR ARGUMENT STATING OR SUGGESTING: (1) THAT THE JOINT VENTURE'S EFFORTS TO OBTAIN ACCESS TO ITS PROPERTY VIA LOBBYING EFFORTS OR LEGISLATIVE MEANS VIOLATED THE SURP AGREEMENT OR FEDERAL LAW; AND (2) THAT THE LAND EXCHANGE BETWEEN THE JOINT VENTURE AND THE FEDERAL GOVERNMENT WAS TAINTED BY CORRUPTION, ILLEGALITY OR IMPROPER INFLUENCE

Plaintiff, Wolf Creek Ski Corporation, Inc ("Wolf Creek"), through its undersigned counsel, respectfully responds as follows to Defendant Leavell-McCombs Joint Venture's ("Defendant" or "Joint Venture") motions in limine seeking to exclude (1) evidence or testimony suggesting that Joint Venture's efforts to acquire an access road to its property via lobbying or legislative efforts violate the SURP Agreement or federal environmental law, and (2) evidence or testimony suggesting that the land exchange under which the Joint Venture obtained the property at issue in this suit was tainted by corruption, illegality, or improper influence:

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I.

INTRODUCTION

The Joint Venture seeks to exclude "evidence, testimony or argument" relating to its efforts to obtain a road through lobbying efforts rather than the federally-mandated NEPA process, and to the potential impropriety of the initial land exchange through which the Joint Venture obtained the property at issue in this case. The Joint Venture ignores, however, that the Joint Venture itself has injected these issues into this case from its inception. In particular, the Joint Venture's breach of contract claim is based on the allegation that Wolf Creek CEO, Davey Pitcher opposed the Joint Venture's lobbying efforts in 2001-2003 and criticized the circumstances of the initial land exchange. Having made these allegations, the Joint Venture cannot prevent Mr. Pitcher from explaining what the Joint Venture was doing, what he perceived the Joint Venture to be doing, and the basis for his alleged reactions. II. STANDARD

A party has a right to argue "any evidence presented and all reasonable inferences from that evidence," and thus, to the extent the evidence supports reasonable arguments and inferences, a court should allow a party to present such arguments. Rebolledo v. Herr-Voss Corp., 101 F. Supp. 2d 1034, 1037 (N.D. Ill. 2000). To protect this basic principle, motions in limine are subject to a high standard. See Misener v. General Motors, 924 F. Supp. 130, 132 (D. Utah 1996) (characterizing in limine exclusion of evidence an "extraordinary remedy"). A party who seeks exclusion of evidence must show that it is irrelevant or inadmissible on all grounds. See First Savings Bank v. U.S. Bancorp, 117 F.Supp.2d 1078, 1082 (D. Kan. 2000) ("The movant has the burden of demonstrating that the evidence is inadmissible on any relevant ground."); Weiss v. La Suisse, Societe D'Assurances Sur La Vie, 293 F.Supp.2d 397, 407 (S.D.N.Y. 2003) ("[E]vidence should not be excluded on a motion in limine unless such evidence is clearly
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inadmissible on all possible grounds."). If this standard is not met, a court must allow the nonmoving party to present its case and evaluate the evidence at trial. Hawthorne Partners v. AT&T Techs., Inc., 831 F. Supp. 1398, 1400 (N.D. Ill. 1993) ("Unless evidence meets this high standard, evidentiary rulings should be deferred until trial so that questions of foundation, relevancy, and potential prejudice may be resolved in proper context."). While motions in limine may help to weed out truly irrelevant evidence, they should not be used to preclude entire arguments. See, e.g., Lewis v. Buena Vista Mut. Ins. Ass'n, 183 N.W.2d 198, 200 (Iowa 1971) ("[a] motion in limine is a useful tool, . . . care must be exercised to avoid indiscriminate application of it lest parties be prevented from even trying to prove their contentions."). This is true even where evidence may be explosive or "hyperbolic." In such cases, if the evidence is relevant, the strength or weakness of the evidence "goes to the weight it should be accorded, and not its admissibility." United States Aviation Underwriters, Inc. v. Pilatus Bus. Aircraft, Ltd., No. 01-CV-02056-JLK, 2007 WL 1521067, at *1 (D. Colo. May 21, 2007) (Kane, J.)1. Finally, a party who itself puts a matter at issue cannot seek in limine exclusion of evidence related to that matter. In White v. Ford Motor Co., for example, the defendant, Ford Motor Co., sought to exclude evidence related to products liability litigation involving a different car model. No. CV-N-95-0279-DWH, 2003 WL 23353600, at *22 (D. Nev. December 30, 2003). The court held that, while such evidence might normally not be admissible, in that case, fairness dictated that the plaintiffs be allowed to present it at trail as Ford intended to introduce its own, rebuttal evidence: "If Ford truly intends to offer its own evidence involving its responses to product defects, accident reports, and recalls not implicated in [plaintiff's] death, then fairness
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This an all other unpublished cases are attached hereto as Ex. 1. 3

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dictates that [plaintiff's estate be] entitled to rebut this evidence with their own." Id.; accord Williams v. Muhammad's Holy Temple of Islam, Inc., No. CV 1251, 2006 WL 297448 (E.D.N.Y. February 8, 2006) (denying motion in limine to exclude evidence related to plaintiff's relationship with her husband because plaintiff herself put the matter at issue). III. ARGUMENT

In this case, the Joint Venture cannot meet the relevant standard. As an initial matter, the evidence and argument the Joint Venture seeks to exclude is undeniably relevant to Wolf Creek's defenses and claims. Were the Court to grant the motions, it would force Wolf Creek to stipulate to the Joint Venture's version of events ­ a result that is not consistent with the purpose of a motion in limine. Moreover, the Joint Venture itself has injected the evidence and arguments at issue in these motions into this case. Accordingly, it cannot now exclude evidence that Wolf Creek will need to rebut the allegations against it. For these reasons, and for the reasons explained below, this Court should deny the motions. A. The Joint Venture has put at issue lobbying and legislative activities associated with its attempts in 2001-2003 to obtain an access road through legislative means.

The issues the Joint Venture seeks to exclude have been at the core of this litigation since its inception. Indeed, the Joint Venture even includes allegations that Wolf Creek breached the SURP Agreement by engaging in "subversive activities" such as opposing the Joint Venture's lobbying efforts and suggesting that the land exchange was improper, in its proposed statement of the case. See Combined Stipulated, Tendered, and Competing Jury Instructions (Docket No. 267) at 8.

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This position has not changed since April 2004, when the Joint Venture sent Wolf Creek a default letter stating, among other things, that Wolf Creek had violated the SURP Agreement by opposing the Joint Venture's lobbying efforts: At the direction of the Venture, efforts were pursued to obtain congressional action to secure appropriate access to the property. Kingsbury Pitcher wrote a letter to Congressman McInnis on December 5, 2001, opposing any such congressional efforts. Most importantly, Davey Pitcher, as President of the Ski Corporation, wrote a lengthy misleading and self-serving letter on July 15, 2003 to Senator Ben Nighthorse Campbell in which he chastises the efforts of the Venture to obtain approval of the access road and to clarify the restrictions on FSR 391 that were a result of the settlement agreement. There is no doubt that the Ski Corporation specifically and deliberately pursued its steady course of action to prevent the access road from being approved in any form. Letter from Arthur B. Ferguson, Jr. to Wolf Creek Ski Corporation (April 28, 2004) ("Default Letter") at 5, attached hereto as Ex. 2. The substance of this paragraph later was repeated and incorporated as paragraph 33 of the Joint Venture's Second Amended Counterclaim. At least one of the letters referenced in the Default Letter has now been marked as trial exhibit Y(10) by the Joint Venture. That letter, and several others written on the same topic, contain some of the very information that the Joint Venture seeks to exclude and provide vital information regarding Wolf Creek's position regarding its activities. See Letter from Davey Pitcher to The Honorable Ben Nighthorse Campbell (July 15, 2003) at WC 01898, attached hereto as Ex. 3. In particular, the Ski Corporation expressed its concerns that the Joint Venture was attempting to evade both its obligations under NEPA and the terms of the SURP agreement: The problem arises from Mr. Honts of The Village at Wolf Creek trying to obtain approval of this project, not through the United States Forest Service and the due process of NEPA, but through an amendment (rider) to either the Energy Bill or the Farm Bill, or who knows where else in Washington. ***
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Furthermore, we have been informed of Mr. Honts['] attempts to influence Mark Rey, Under Secretary of Agriculture for natural Resources and Environment, to allow the Village at Wolf Creek to use Forest Road 319 to access The Village at Wolf Creek property, not the road as discussed in the 1999 Environmental Assessment. Id. Contrary to the allegations in the Second Amended Counterclaim, however, Mr. Pitcher's statements were not misleading and self-serving ­ indeed, Mr. Pitcher's statements were quite accurate. Wolf Creek began communicating with its elected representatives not long after Bob Honts sent a fax to the Pitchers about Mark Ray's appointment with a cover sheet reading, "FYI ­ Pitch and Davey ­ this is the position the oversees the USFS we have been actions in the appointment as you can see." Attached to the cover sheet was a communication from Bob Honts to Red McCombs further detailing the Joint Venture member's roles in the appointment of Mark Rey, and the Department of Agriculture's official in charge of the USFS: The attached announcement of Mark Rey's appointment is especially good news. . . . It is my understanding that your effort and former Congressman Leffler's efforts had impact at exactly the right time in the process. I also had had Phil Truluck from the Heritage Foundation make some calls in support . . . and obviously, the team effort worked. Letter from Bob Honts to Mr. B. J. McCombs (June 28, 2001), attached hereto as Ex. 4. In August 2001, Mr. Honts wrote to Mr. McCombs and other members of the Joint Venture, including Kingsbury Pitcher, referencing potential leverage over legislators, but asking to keep much of the communications oral: I prefer to discuss this with anyone interested in person. We are in the hunt on several different pieces of legislation and from late September to one year from now. I would have to say that our chances on any one bill are very low percentages, but we are in search of the right leverage with one or two leaders, and I will keep all informed.

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Letter from Bob Honts to B.J. McCombs and others (August 15, 2001), at LM 216-217, attached hereto as Ex. 5, (emphasis added). After touting his and McCombs' influence, Honts then copied the Pitchers on correspondence to Mr. Rey, stating, "Thank you for taking the time to visit about The Village at Wolf Creek this past Wednesday. We are working with Deputy Undersecretary David P. Tenney in studying the applicable policies, regulations, and manual provisions and will keep you informed of our progress." Letter from Bob Honts to Mr. Mark Rey (November 30, 2001), attached hereto as Ex. 6. Additional correspondence demonstrates that the Joint Venture continued to flex its political muscle, consistent with the Joint Venture's claims and Wolf Creek's concerns. These attempted power plays by the Joint Venture were important to the deteriorating relations between the parties and triggered the very correspondence that became the subject of the default letter and Second Amended Counterclaim. The Pitchers were concerned with the Joint Venture's display of power and attempted manipulation of the local USFS officials who were in charge of the Ski Area permit. The Joint Venture even billed tenant in common Kingsbury Pitcher for a portion of this activity.2 The Joint Venture has criticized Kingsbury Pitcher for not making payments, see Amended Complaint and Jury Demand at ¶ 11, and the Joint Venture diluted Kingsbury Pitcher's interest in the tenancy in common accordingly. More importantly, Wolf Creek did not believe that the Joint Venture's legislative actions were

Billing the tenants in common, rather than Wolf Creek, also demonstrates that the Joint Venture did not believe or represent to Wolf Creek at the time that it was Wolf Creek's responsibility to obtain approval for the road.
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consistent with agreements made by the Joint Venture,3 and the evidence will show that Wolf Creek was at a loss how even to determine what was going on behind closed doors in Washington, D.C. These legislative attempts also contributed to the costs of the now-withdrawn EIS approval process ­ costs the Joint Venture has put at issue and seeks to recover from Wolf Creek. A jury could determine that some or all of that cost is attributable to the Joint Venture's repeated attempts to evade the requirements of NEPA, in some cases against the advice of its own experts. For example, Tom Glass, of the Western Land Group, had recommended that the Joint Venture use Congress merely to confirm an EA or EIS pursued by the Joint Venture, rather than to circumvent NEPA altogether. However, Mr. Honts chose to ignore that advice, and instead devoted considerable time and resources to attempting to obtain a "straight rider" ­ a much more difficult, risky, and politically explosive process. Deposition of Tom Glass, attached hereto as Ex. 8, at 106:14-111:5. The parties conducted extensive document and deposition discovery on lobbying related to obtaining the access road, and in discovery disputes over such issues the Joint Venture failed to object on the grounds of relevance. See, e.g., Joint Venture's Response Regarding Documents Produced by Tom Glass and Ex. 8 thereto (Filed April 26, 2005). The Joint Venturer's 20012003 attempts to circumvent NEPA through lobbying for legislation and favorable administrative treatment ­ always at issue in this case ­ is in stark contrast to the Joint Venture's new attempt to
3

For example, section 5.01 of the SURP Agreement requires the parties jointly to pursue "any and all necessary USFS approvals for the creation, operation and maintenance of the access road and parking lots" described in the Agreement. SURP Agreement, at 11, attached hereto as Ex. 7. The Joint Venture's lobbying efforts circumvented this provision by avoiding the USFS and NEPA process and by excluding Wolf Creek. The Joint Venture's attempt to obtain summary judgment on this issue in this forum is improper.
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place at issue public disclosures made by Hogan & Hartson (relating to Hogan & Hartson work after the filing of the lawsuit) that have never been at issue or the subject of discovery in this case. See Defendant's Motion In Limine To Exclude Evidence, Testimony or Argument Stating or Suggesting that the Joint Venture Is Attempting To Force Plaintiff into Selling the Ski Area at 9. The Joint Venture has identified no evidence that the alleged Hogan & Hartson lobbying disclosures had anything to do with the Joint Venture or road access4 (ski areas have numerous regulatory issues), the Hogan & Hartson lobbying disclosures have not been marked by either side as exhibits in this case, and the Joint Venture's selective disclosure of the Joint Venture's lobbying expenses at Crowell & Moring does not include lobbying by McCombs Enterprises, Red McCombs, Bob Honts Properties, and the massive political donations made by Mr. McCombs and all of the individuals and entities he controls. Put differently, the Joint Venture has never gone down that road for good reason, and Hogan & Hartson's lobbying disclosures are an irrelevant red-herring that have no relevance to the upcoming trial or the Joint Venture's current motion. B. The Joint Venture Cannot Meet Its Burden of Establishing that the Evidence It Seeks to Exclude Is Irrelevant or Inadmissible on All Possible Grounds.

In light of the facts outlined above, the Joint Venture cannot possibly meet its burden of demonstrating that evidence5 and testimony related to the Joint Venture's lobbying efforts and the initial land exchange is irrelevant or inadmissible on all possible grounds. First Savings

Of course, even if the Hogan & Hartson lobbying disclosures did relate to the Joint Venture, such figures would demonstrate how harmful the Joint Venture's several legislative attempts have been to Wolf Creek, to the extent Wolf Creek had to constantly scour legislation for potential midnight riders.
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4

Notably, the Joint Venture's motion spends little if any time on what specific evidence it is concerned about, and instead seeks a sweeping order. 9

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Bank, 117 F.Supp.2d at 1082. As explained above, this evidence is essential both for Wolf Creek to rebut the Joint Venture's charges that Wolf Creek itself breached the SURP Agreement by opposing the Joint Venture's lobbying efforts, and it is relevant to Wolf Creek's mitigation defense. At base, the Joint Venture seeks to have its cake and eat it too. It is undisputed that the Joint Venture intends to introduce evidence that Wolf Creek, through letters to its representatives and other means, attempted to interfere with the Joint Venture's efforts to secure access to its property. Accordingly, as in Ford Motor Co., fundamental fairness dictates that Wolf Creek be allowed to rebut these allegations. Even if, as the Joint Venture alleges, this evidence might be prejudicial to the Joint Venture, that prejudice is not so substantial as to justify depriving Wolf Creek of its ability to defend itself, particularly in the context of a motion in limine. See Deters v. Equifax Credit Info Servs., Inc., 202 F.3d 1262, 1274 (10th Cir. 2000) ("In performing the 403 balancing, the court should give the evidence its maximum reasonable probative force and its minimum reasonable prejudicial value.") (internal quotation marks and citation omitted). The Joint Venture was proud of its lobbying activities and influence when dealing with the Pitchers behind closed doors. The fact that it is now concerned about how others will view that is not proof of unfair prejudice. In this case, there can be no doubt that evidence of the Joint Venture's lobbying activities are highly probative of Wolf Creek's conduct and reactions, as well as the Joint Venture's compliance with the terms of the SURP Agreement. Likewise, evidence related to the propriety of the land exchange is relevant to Wolf Creek's defenses. As explained above, Wolf Creek intends to rely on such evidence not to establish whether the land exchange actually was, in fact, proper or improper ­ and neither party has designated experts on the legal issue of illegality ­ but to explain the Pitchers' belief, the
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relationship between the parties, and bases for the concerns relating to the EIS for which the Joint Venture seeks damages. That such evidence may be "hotly disputed" does not, on its own, create a basis for its exclusion, particularly under the standards applicable here. C. The Joint Venture also has put at issue Wolf Creek's views over the initial land exchange.

Davey and Kingsbury Pitcher's actions were also driven in part by their understanding of what actually occurred in the land exchange though which the Joint Venture obtained the village property. It is undisputed that the initial land exchange was denied by the USFS; yet only weeks later, the USFS changed its position. The Joint Venture itself has designated both of these USFS decisions as relevant trial exhibits. Further, as noted above, the Joint Venture has attacked Mr. Pitcher for his views on this very issue, even as recently as in the Joint Venture's statement of its case. Combined Stipulated, Tendered, and Competing Jury Instructions (Docket No. 267). This history provides vital context to the Pitcher's reaction to the Joint Venture's conduct. This evidence is relevant not only to the Pitcher's understanding of what the SURP Agreement meant, but also as to their perception of the power and influence of Red McCombs and the Joint Venture, and why the Pitchers believed that the Joint Venture's reliance upon Congress would result in a major compromise of their interests under the Agreement. As such, it is relevant to the Pitchers' state of mind in this case, and, thus, any evidence related to the land exchange should, at least, be evaluated for admissibility at trial rather than in the context of a motion in limine. Put simply, the Joint Venture has not shown that in limine exclusion is warranted. The evidence the Joint Venture seeks to exclude is relevant to Wolf Creek's defenses, and, in any

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case, has been inserted into this case by the Joint Venture itself. As such, the Joint Venture's motions should, respectfully, be denied. Dated this 7th day of April, 2008. HOGAN & HARTSON LLP

By:

s/Andrew R. Shoemaker Andrew R. Shoemaker Cynthia A. Mitchell Jacqueline S. Cooper 1470 Walnut Street, Suite 200 Boulder, Colorado 80302 [email protected] [email protected] [email protected] (720) 406-5300 telephone (720) 406-5301 facsimile Attorneys for Wolf Creek Ski Corporation, Inc.

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CERTIFICATE OF SERVICE I hereby certify that on this 7th day of April, 2008, I electronically filed the foregoing WOLF CREEK SKI CORPORATION, INC.'S RESPONSE TO DEFENDANT'S MOTIONS IN LIMINE TO EXCLUDE EVIDENCE, TESTIMONY, OR ARGUMENT STATING OR SUGGESTING (1) THAT THE JOINT VENTURE'S EFFORTS TO OBTAIN ACCESS TO ITS PROPERTY VIA LOBBYING EFFORTS OR LEGISLATIVE MEANS VIOLATED THE SURP AGREEMENT OR FEDERAL LAW; AND (2) THAT THE LAND EXCHANGE BETWEEN THE JOINT VENTURE AND THE FEDERAL GOVERNMENT WAS TAINTED BY CORRUPTION, ILLEGALITY OR IMPROPER INFLUENCE with the Clerk of Court using the CM/ECF system which will send notification of such filing to the following e-mail addresses: George Vernon Berg, Jr. [email protected] Robert D. Erben [email protected] Melissa M. Heidman [email protected] David W. Krivit [email protected] Michael Edward McLachlan [email protected] James Robert Moriarty [email protected] Kim Arquette Tomey [email protected]

s/Andrew R. Shoemaker

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