Free Pretrial Order - 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.

PRETRIAL ORDER

1. DATE AND APPEARANCES The Pretrial Conference was held on January 23, 2008 at 9:00 a.m. Present for the parties were: For Plaintiff Wolf Creek Ski Corporation, Inc.: Andrew R. Shoemaker Cynthia A. Mitchell Andy Spielman Hogan & Hartson LLP 1470 Walnut, Suite 200 Boulder, CO 80302 Telephone: (720) 406-5360 For Defendant Leavell-McCombs Joint Venture, d/b/a The Village at Wolf Creek: George V. Berg, Jr. Berg Hill Greenleaf & Ruscitti LLP 1712 Pearl Street Boulder, CO 80302 Telephone: (303) 245-4581

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James R. Moriarty Moriarty Leyendecker PC 1123 Spruce Street, Suite 200 Boulder, CO 80302 Telephone: (303) 495-2658 Michael McLachlan McLachlan & Underell, LLC 813 Main Ave. Ste. 308 Durango, CO 81301 Telephone: (970) 947-8236

2. JURISDICTION The Court has subject matter jurisdiction over this action pursuant to 28 U.S.C. §1332. 3. CLAIMS AND DEFENSES a. Wolf Creek's statement:

This lawsuit arises out of a dispute over an agreement entered into between Wolf Creek and the Joint Venture on July 16, 1999 (the "1999 SURP Agreement" or "Agreement"), and concerns whether the 1999 SURP Agreement was breached. The Agreement is part of an ongoing effort by the Joint Venture to develop a parcel of property it owns within the Rio Grande National Forest. The Joint Venture obtained the property in a land exchange with the United States Forest Service in 1987. This property currently comprises 287.5 acres located near the summit of Wolf Creek Pass and immediately adjacent to Wolf Creek Ski Area, which is owned and operated by Wolf Creek. The Joint Venture's property is entirely surrounded by National Forest Service land. The only way to reach the Joint Venture's property is by vehicle from United States Highway 160, the nearest public road, is over a single-lane, gravel road that is maintained by

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the Forest Service and is known as FSR 391. FSR 391 is open to the public only from midJune through October due to seasonal snow accumulations and because it cuts directly across Wolf Creek ski trails. The Joint Venture plans to develop its property into a year-round resort to be known as the Village at Wolf Creek (the "Village"). The proposed Village is located in Mineral County, Colorado, a mostly rural county with a current population of less than 1,000. As envisioned by the Joint Venture, the Village would consist of more than 2,100 residential and commercial buildings and will house approximately 10,000 people. It would also include parking facilities for more than 4,500 vehicles, two on-site power plants, and a wastewater treatment plant. The 1999 SURP Agreement related to development and design of some of the infrastructure within the Village. The Joint Venture agreed to consult with Wolf Creek about the design and scope of the Village and to ensure that the Village was compatible, both practically and aesthetically, with the Ski Area. The Joint Venture also agreed to design and construct, at its sole expense, a covered road and parking area. Further, the Joint Venture agreed to abide by all environmental laws when it sought approval for any roads or other permits necessary to complete construction of the Village, and to consult with Wolf Creek about any changes to the Village plans. Wolf Creek claims the Joint Venture engaged in a pattern of conduct designed to ignore Wolf Creek and avoid both federal environmental laws and the requirements of the 1999 SURP Agreement. Accordingly, Wolf Creek is seeking orders from the Court in this case to enforce these commitments. The 1999 SURP Agreement was entered into in July 1999, immediately after the Forest Service approved an application by Wolf Creek for a new ski lift, parking lots, and a road from

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U.S. Highway 160 through the base of the ski area. The Joint Venture, through its representative, Mr. Bob Honts, and its lawyers, had a copy of the Forest Service's approval and analysis. However, an environmental group challenged the Forest Service's approval. As a result of that challenge, the Forest Service agreed with the environmental group that the approval was not for a road extending all the way to the private property ­ accordingly, the road would end 100 feet before reaching the private property boundary. After this decision was reached, the Joint Venture correctly termed the approval a "major victory" in numerous documents, and it did not, express concerns to Wolf Creek about the approval. Wolf Creek has since built the 2,100 foot road. After its approval, by its conduct and words, the Joint Venture then committed to Wolf Creek that the Joint Venture would procure approval for the final 100 feet of road to the Village through an environmental impact statement. The strategy the Joint Venture embarked on to secure the approval was marred with corruption and delay. Along the way, the Joint Venture made promises to Wolf Creek about the future density of the Village and the covered road to obtain Wolf Creek's signature on a preliminary plat to submit to Mineral County, and then the Joint Venture proceeded to renege on those commitments. For example, unbeknownst to Wolf Creek, the Joint Venture never intended to create a covered road. Rather than seek environmental approvals, it sought to avoid the entire environmental process by enlisting U.S. Representative Tom Delay and others to approve the road through last minute attachments to legislative bills. The Joint Venture also sought to use the single-track forest road that crosses the Ski Area's ski slopes as the primary access road ­ a decision that a state court judge recently called "surprising" and a complete reversal of position. The Joint Venture decided not to use electric power as planned and instead

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decided to built an on-site power plant and receive frequent shipments of liquid natural gas. It refused to employ experts with a proven track record in the ski industry ­ those that it did, it fired or they fired the Joint Venture. And perhaps most importantly, it refused to allow the Ski Area to meaningfully participate in the planning process. The Ski Area had one option in the face of the Joint Venture' breaches ­ to speak up and do in the public forum what was falling on deaf ears internally. When Wolf Creek did so, the Joint Venture threatened to sue. Wolf Creek had no choice but to file this lawsuit to avoid further bullying by the Joint Venture and to force the Joint Venture to build the covered road. In response to this lawsuit, the Joint Venture conjured up their breach of contract and fraud case and brought exorbitant damages claims that even its own experts do not agree with internally. With a Right of First Refusal on the Ski Area, and their nearly infinite resources, the Joint Venture is attempting to bankrupt the Ski Area with litigation costs with the hope that the Joint Venture can force Wolf Creek to sell the Ski Area to them. b. The Joint Venture's statement:

This case centers on a business dispute between Plaintiff Wolf Creek Ski Corporation (the "Ski Corp.") and the The Joint Venture Joint Venture (the "Joint Venture") regarding a planned 250 foot access road (the "Access Road") across government-owned land. The Ski Corp. operates the Wolf Creek Ski Area ("Ski Area") on land owned by the United States Forest Service ("USFS" or "Forest Service") pursuant to a special use permit. The Joint Venture owns about 287.5 acres of undeveloped property adjacent to the Ski Area that the Joint Venture plans to develop into a 2,172 unit ski resort and village (the "Village"). However, the Village property ("Village Property") is entirely surrounded by land owned by the Forest Service and the only

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access to the Village Property is via a single-lane dirt road, Forest Service Road 391. Existing restrictions on FSR 391 prevent it from being expanded to accommodate the kind of traffic necessary to build the Village, or to accommodate Village residents and service vehicles once the Village is built. Years ago in the 1970's, the Ski Corp. and the Joint Venture were friendly collaborators. In fact, the Ski Corp.'s former CEO, Kingsbury Pitcher, assisted the Joint Venture with the land trade by which the Joint Venture obtained the current Village Property from the Forest Service in exchange for some 1,600 acres of disjointed land. The collaborators shared a common goal: an expanded Ski Area and a ski resort/village to house the skiers and provide shopping, dining and other services. Currently, most skiers who wish to use the Ski Area must travel from either Pagosa Springs, about 281 miles away, or South Fork, about 182 miles away. The collaborators' goals appeared mutually advantageous and reciprocal agreements were contemplated to effectuate those goals. For its part, the Ski Corp. required 40 acres of easements over the Village Property to build a new ski lift and multiple ski trails. And, since the Ski Area was on Forest Service land, the Ski Corp. also needed USFS approval for its expansion. This is where the Ski Corp. had, or claimed to have, something to offer the Joint Venture in exchange for the Joint Venture's 40 acres. As a result of its years of experience in dealing with the USFS with regard to its ski area special use permit, the Ski Corp. claimed particular expertise in dealing with the Forest Service with respect to land use approvals. Accordingly, the Ski Corp. proposed including a provision for the Access Road in its application for approval of its ski area
1 2

http://www.pagosaspringschamber.com/attractions.asp. http://www.southfork.org/activities/full/ski.php.

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expansion to the USFS. According to the Ski Corp., the Access Road would be a relatively insignificant addition to the application and would hardly even be noticed. More importantly, including it in the Ski Corp.'s application would allow the Joint Venture to avoid the more costly, and time consuming, approval process it might otherwise be forced to pursue. For reasons not pertinent here, the Ski Corp. was able to apply for an expansion of its operation by means of a relatively uncomplicated Environmental Assessment ("EA"). However, the Joint Venture, would need to prepare a lengthy and extremely expensive Environmental Impact Statement ("EIS") describing the potential impacts the Access Road could have on the environment and detailing three alternative scenarios. And so the Ski Corp. promised to include the Access Road as a `package' with its own expansion application in order to induce the Joint Venture to convey the 40 acres of easements needed by the Ski Corp. This was the essential quid pro quo or essence of the "deal," (the "Deal") between the Ski Corp. and the Joint Venture. Thus, the Access Road became incorporated into "Alternative IV" ­ the desired alternative,3 of the Ski Corp.'s 1999 application and Environmental Assessment to the USFS. After the Deal was struck, the Ski Corp. filed its application for expansion including the request for approval of the Access Road. Certain environmental groups, including Colorado Wild, opposed the Ski Corp.'s application which included the Ski Corp.'s EA. Such opposition is not unusual in the EA process. The Ski Corp., based on its years of dealing with the Forest Service, advised the Joint Venture to keep a low profile and allow the Ski Corp. to handle the EA
3

As with its EIS counterpart, all EAs must include three alternatives to the action being requested. The first alternative is designated as the "No Action Alternative." In this case, the desired action was described in Alternative 4.
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process. As the summer of 1999 approached, the Ski Corp. awaited the Forest Service's ruling knowing that denial of its EA would be financially ruinous. If the Ski Corp.'s EA were denied, the Joint Venture would not sign the agreement to convey the 40 acres of easements needed by the Ski Corp. and the Ski Corp. would lose a million dollars worth of recently purchased ski lift parts to rust under a winter of snow. And so the Ski Corp. continued to insist that the Joint Venture remain on the sidelines in ignorance while the Ski Corp. negotiated with the USFS over the EA. The Joint Venture had no reason to distrust the Ski Corp.'s advice. For one, Kingsbury Pitcher had been a long-time friend and collaborator who had assisted with the original land trade. Second, Kingsbury Pitcher had acquired an ownership interest in the Village Property and so seemingly stood to gain from the Village development. Third, Kingsbury Pitcher had demonstrated experience working with the Forest Service on his own ski area special use permit. Accordingly, the Joint Venture placed its unreserved trust in the Ski Corp. and followed its advice to stay out of the EA and approval process. As a result, the Joint Venture did not critically scrutinize the Ski Corp.'s submissions to the Forest Service or oversee the Ski Corp.s' dealings. On June 14, 1999, the USFS issued its Decision Notice and Finding of No Significant Impact aka "Decision Notice" or "FONSI" approving the Ski Corp.'s ski area expansion and EA. The approval came through subject only to a 45 day appeal period. The Ski Corp. notified the Joint Venture and the reciprocal agreements were signed in mid-July 1999. The Ski Corp. got its 40 acres of easements pursuant to an agreement entitled "Easement Grant and Agreement (Ski Trails and Lift Easements)." In exchange, the Ski Corp. agreed to "diligently pursue" all

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necessary USFS approvals and use its "good faith" efforts to bring the Access Road to completion. Those promises were set forth in a document entitled Agreement for Ski, Utilities, Road and Parking Easements (the "1999 SURP Agreement") which stated in pertinent parts: WHEREAS, [the Ski Corp.] and [the Joint Venture] have agreed upon a Preliminary Development Plan as defined below for their respective properties which contemplates the development of roads and utilities on portions of the [Ski Corp.] land4 to serve the Ski Area, and the development of portions of the USFS Permit Area with an access road, pedestrian walkways and parking areas to serve the Ski Area, the [Ski Corp.] land and the Village Land; and... (Emphasis added). 1.01 Preliminary Development Plan. ...

.5 In order to implement the Preliminary Development Plan....The parties agree to use good faith efforts to establish such additional agreements and to develop the appropriate plans, specifications and drawings to implement the Preliminary Development Plan, as may be desired and paid for solely by [the Joint Venture] (Emphasis added). 5.01 USFS Approvals. Wolf Creek has obtained from the USFS permission to construct a twenty-three foot (23') wide access road extending from U.S. Highway No. 160 and through the base of the Ski Area [as] set forth and described in the map and related documents described as "Alternative IV Project Data" prepared by Erik Potten [sic] dated July 21, 1998. No modifications or changes to this design or alignment shall be made without [the Joint Venture's] prior written consent and approval. ....the parties shall jointly apply for and diligently pursue any and all necessary USFS approvals for the creation, operation and maintenance of the access road.... (Emphasis added). Altogether, four agreements were executed in July 1999: the two described above, another entitled "Easement Grant and Agreement (Village Access Road Easement)," and a fourth entitled "Right of First Refusal Agreement as to Wolf Creek Ski Corporation Stock." The agreement regarding the Village Access Road Easement did not concern the Access Road previously described herein. Rather, it involved a continuation of that road once it reached the

4

Previously, in 1993, the Ski Corp. had purchased 12.5 acres in fee from the Joint Venture.

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edge of the Village Property. As described previously, Kingsbury Pitcher had previously acquired 12.5 acres of the Village Property in 1993. It was that 12.5 acres that was subject to the Village Access Road Easement which provided for the construction of a covered road running from the entrance to the Village Property to the commercial center of the Village. On July 30, 1999, three days before the appeal period expired, environmentalist group Colorado Wild, Inc. challenged the FONSI. Now was the time for the Ski Corp. to make good on its part of the Deal to use its good faith efforts to resolve the request for approval of the Access Road. Instead, in a complete turn-around, the Ski Corp., in a secret meeting with the Forest Service and Colorado Wild representatives, agreed to give up the effort to obtain approval of the Access Road and agreed to delete the request that the Access Road connect the Joint Venture property to State Highway 160. In exchange, Colorado Wild dropped its challenge of the FONSI. (Even prior to the meeting with the USFS, Davey Pitcher had met quietly with the environmentalists in Aspen without informing the Joint Venture). The result of this action was to prevent the Joint Venture from obtaining sufficient access from State Highway 160 to its property to allow for its proposed development to proceed. The failure on the part of the Ski Corp. to fulfill its part of the Deal has resulted in years of delay and millions of dollars of damage to the Joint Venture. The Ski Corp. had other options available to it which would have supported approval of the Access Road and honor its obligation to the Joint Venture; but it chose not to exercise those options. The Ski Corp. could have refused to compromise the Access Road and pressed for the USFS to call the environmentalists' bluff to litigate their appeal. According to the

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environmentalists' representative, Jeff Berman, had the Ski Corp. done so, the environmentalists would have walked away from their threatened litigation. Alternatively, the Ski Corp. could have notified the Joint Venture of the situation to see if there were other solutions available. Worst case scenario, the Ski Corp. would have had to litigate the appeal in court with the risk of success on the merits. However, having already obtained what it wanted from the Joint Venture, it was far more expedient for the Ski Corp. to compromise the Joint Venture's position. And this is exactly what the Ski Corp. did, banking on popular no-growth sentiment to turn a blind eye to its deceit. In keeping with its decision not to use its best efforts to support approval of the Access Road, the Ski Corp. did not even bother to inform the Joint Venture of the fact that the Access Road had been removed from the application until two weeks later, and only then because the Joint Venture's Bob Honts wrote to the Ski Corp. asking for news of any recent developments. Only then did the Joint Venture learn that the appeal had been settled. But the Joint Venture was not told of Davey Pitcher's secret Aspen meeting with Colorado Wild or his willingness to abandon the Ski Corp.'s support for the Access Road. Rather, Kingsbury Pitcher coolly downplayed the outcome, stating, "Sometimes the Forest Service acts in various steps, and we will get you the rest of the access road in the future. We think that with the road within 250 feet, then the approval won't be as difficult as if you had to get the whole road." This reasonablesounding reassurance was in fact a cover up of Davey Pitcher's compromise of the Access Road because the Joint Venture was unused to dealing with the USFS and had no reason to distrust its long-time business partner.

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To this day, the Ski Corp. has not made even a token effort to fulfill its contractual obligation to use its good faith efforts to obtain approval of the Access Road for the benefit of the Joint Venture. To the contrary, it is currently focusing its efforts to ensure that the Access Road never comes to fruition. Not until the depositions of Kingsbury and Davey Pitcher did the Joint Venture learn about Davey Pitcher's secret dealings with the environmentalists. And Kingsbury Pitcher finally admitted that his repeated promises to deliver the Access Road were lightly made without any real basis in reality. Certainly, once the 40 acres were obtained from the Joint Venture, the Ski Corp. immediately abandoned all such efforts. In addition to the forgoing fraud and breach of contract, the Ski Corp. continues an ongoing breach with respect to its contractual agreement to use its "good faith" efforts to implement the Preliminary Development Plan described in the 1999 SURP Agreement. Thus, when Mineral County approved the Joint Venture's Final Development Plan in November 2004, the Ski Corp. immediately filed suit in Mineral County Court to overturn that approval. Eventually, the Development Plan was overturned by the court. Ironically, although the Ski Corp. challenged the approval on several different grounds, the only reason it prevailed in its legal challenge was because the planned development lacked an access road! Both sides appealed the Mineral County Court ruling. The Colorado Court of Appeals upheld the Mineral County District Court. Accordingly, the Joint Venture must re-submit a new development plan to Mineral County for approval, a process that previously took approximately four years to complete due to the aggressive opposition mounted by the Ski Corp. Meanwhile, after the Ski Corp. failed to obtain the Access Road in the summer of 1999, it assured the Joint Venture that it would continue its campaign to secure ultimate approval for that

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road. In order to aid the Ski Corp. in what the Joint Venture believed to be its effort to obtain the Access Road in June 2001, the Joint Venture undertook its own application to the Forest Service. In October, 2004, the Forest Service approved and published for comment a Draft Environmental Impact Statement ("DEIS") in which the Joint Venture outlined the Access Road aka Tranquility Road Alternative as its desired alternative. Other alternatives included the standard "No Action Alternative" as well as a "Snow Shed Road Alternative" and "Dual Access Road Alternative" (combining the Access Road Alternative with the Snow Shed Road Alternative). Rather than take no position on the DEIS, the Ski Corp. immediately hired an environmental consultant to prepare a 29-page letter of opposition criticizing the Tranquility Road Alternative ­ the very road alignment the Ski Corp. promised to further in the 1999 SURP Agreement. On March 15, 2006, Peter L. Clark, Rio Grande Supervisor for the Forest Service and decision-maker on the Joint Venture's EIS, issued a Record of Decision ("ROD") approving the Dual Access Alternative. Four parties appealed the ROD. On July 13, 2006, Deputy Regional

Forester for the Rocky Mountain Region, Greg Griffith, issued decisions with respect to each of these appeals upholding Peter Clark's March 2006 ROD and comprising the Forest Service's final decision (the "Final Decision") on the matter. On October 19, 2006, Colorado Wild and another environmental group, San Luis Valley Ecosystem Council filed suit against the USFS in United States District Court seeking to enjoin any action pursuant to the Final Decision. Choosing to continue its breach of contract, the Ski Corp. has actively supported the lawsuit launching an aggressive media campaign against the proposed Access Road and Village development both of which it was contractually obligated to foster. In October 2007, the Court granted the plaintiffs' motion to continue the preliminary

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injunction hearing through to the decision on the merits effectively preventing the Joint Venture from moving forward with its plans to design and construct access roads to the Village Property. And so, some 9-plus years after contracting to use its good faith efforts to obtain USFS approvals for the Access Road and further the Joint Venture's planned development, the Ski Corp. has not only failed to fulfill its contractual obligation, it has actively prevented the Joint Venture from realizing the benefit of its bargain. The forgoing actions by the Ski Corp. constitute fraud in the inducement, breach of contract, unjust enrichment, promissory estoppel and breach of the implied duty of good faith and fair dealing. The Ski Corp. has asserted a counterclaim against the Joint Venture with respect to the Village Access Road Easement Agreement. That agreement conveys an easement to the Joint Venture over, under and across Ski Corp. land for the purpose of building a covered road and parking area and installing underground utilities. The Ski Corp. maintains that the Joint Venture has breached the Village Access Road Easement Agreement by not designing or constructing a tunneled road on the site of the easement. Disregarding the fact that the Ski Corp. itself is the reason the Joint Venture is unable to build anything on the Village Property, the Ski Corp. claims it is entitled to specific performance, i.e., that the Joint Venture should be judicially compelled to build what the Ski Corp. has estimated will cost over $32,000,000.00 to build a tunnel in the middle of the undeveloped Village Property. The Joint Venture has asserted the following claims and defenses: Claims: 1. Breach of Contract ­ that the Joint Venture has fully performed its

obligations under all four agreements executed in July 1999: (1) Agreement for

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Ski, Utilities, Road and Parking Easements; (2) Easement Grant and Agreement (Ski Trails and Lift Easements); (3) Easement Grant and Agreement (Village Access Road Easement); and (4) Right of First Refusal Agreement as to Wolf Creek Ski Corporation Stock, (collectively the "1999 Agreements"); 2. Declaratory Action ­ that the Joint Venture has properly declared that the

Ski Corp. is in breach of the 1999 SURP Agreement, and that the Ski Corp. has breached the 1999 Agreements; 3. Breach of Implied Covenant of Good Faith and Fair Dealing ­ that the

duty exists and was breached by the Ski Corp.; 4. Promissory Estoppel ­ that the Ski Corp. made promises to the Joint

Venture in connection with the 1999 Agreements and the parties' ongoing relationship and knew, or reasonably should have known, that its promises would induce action and forbearance by the Joint Venture, that the Joint Venture reasonably relied upon those promises to its detriment, and the Ski Corp.'s promises must be enforced to prevent injustice; 5. Unjust Enrichment ­ that the Ski Corp. has received benefits in connection

with the 1999 Agreements and the parties' ongoing relationship at the expense of the Joint Venture and that the circumstances make it unjust for the Ski Corp. to retain those benefits without payment to the Joint Venture. 6. Fraudulent Inducement ­ the Ski Corp. made false representations as to

past and present material facts in connection with the execution of the 1999 Agreements knowing them to be false or without knowledge as to whether they

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were in fact true and with the intent that the Joint Venture rely on the representations in connection with the 1999 Agreements; the Joint Venture justifiably relied on those representations resulting in damages to the Joint Venture. The Joint Venture has asserted the following defenses against the claims for declaratory action and breach of contract asserted by the Ski Corp. Defenses: 1. 2. 3. 4. 5. 6. 7. Failure to State a Claim Pre-existing Material Breach Waiver Equitable Estoppel Laches Consent and Acquiescence Failure to Mitigate

The following claims have been dismissed: Breach of Fiduciary Duty5 Negligent Misrepresentation6 c. Other parties= statement: There are no other parties.

5

Dismissed as time barred by Magistrate Recommendation dated 12.01.05 (docket no. 117) and Order Adopting dated 01.06.06 (docket no. 141). Dismissed as time barred by Magistrate Recommendation dated 11.15.06 (docket no. 233) -- on appeal to Judge Kane per Wolf Creek Objection to Magistrate's Recommendation dated 12.04.06 (docket no. 236).
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4. STIPULATIONS II. STATEMENT OF UNDISPUTED MATERIAL FACTS 1. Creek Pass. 2. 3. Wolf Creek Ski Area is known for its abundant snowfall. As there is no lodging nearby, destination skiers visiting the Wolf Creek Ski Area Wolf Creek Ski Area is located in the Rio Grande National Forest on top of Wolf

currently drive approximately 20 miles for lodging. 4. Wolf Creek Ski Area operates pursuant to a forty-year term Special Use Forest

Service Permit that is administered by the Rio Grande National Forest Divide Ranger District in Del Norte, Colorado. 5. Wolf Creek Ski Corporation, Inc. ("Wolf Creek") operates the Wolf Creek Ski

Area. Wolf Creek is owned in its entirety by the Pitcher family. 6. Leavell-McCombs Joint Venture (the "Joint Venture") is a joint venture doing

business under the name The Village at Wolf Creek. 7. As a condition of the land exchange, the Forest Service imposed a Scenic

Easement over the acquired property. The Scenic Easement was amended on December 11, 1998. Bates no. L-M01264-70 is a true and correct copy of the Amended Scenic Easement. 8. 9. In 1994, Wolf Creek purchased 12.5 acres of the 300 acres of Village Property. In 1997, Wolf Creek and the Forest Service discussed an expansion of the ski area

to include two new parking lots, an access road to the two parking lots, and a new chairlift (the "Facilities Expansion"). A diagram of the proposed Facilities Expansion--as it relates to the

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access road and parking lots--was prepared by GIS consultant Eric Potter. Trial Ex. __, Bates no. FS-LM02473-A is a true and correct copy of one such map. 10. The Forest Service conducted an environmental analysis of this expansion, as set

forth and reflected in several Environmental Assessment ("EA") documents. These EAs are referred to more specifically below. 11. The EAs were available to the public for review and comment. Comments

received were attached to subsequent versions of the EA, and the Forest Service often addressed the comments in the text of the EA. 12. In conjunction with the October 1998 EA, the Divide Ranger District for the San

Juan-Rio Grande National Forest issued a Decision Notice and Finding of No Significant Impact (at times referred to as "1998 Decision Notice" or "1998 FONSI") approving the Ski Area Facilities Expansion. Bates no. FS-LM02266-68 is a true and correct copy of that Decision Notice. 13. Carson Forest Watch, an environmental support group, appealed the 1998

Decision Notice. Following an informal disposition meeting between acting Forest Supervisor Ron Pugh and Joanie Berde of Carson Forest Watch, Ms. Berde agreed to drop her appeal if the Forest Service addressed certain appeal points. 14. 15. comment. 16. On March 12, 1999, environmental advocacy group Carson Forest Watch wrote On January 5, 1999, the Forest Service withdrew the 1998 Decision Notice. A revised EA for the Facilities Expansion dated March 1999 was issued for public

the Forest Service regarding the March 1999 EA criticizing certain "weaknesses or

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contradictions" therein. Bates nos. FS-LM00768-69 is a true and correct copy of Ms. Berde's letter. 17. Environmental advocacy group Colorado Wild also wrote to the Forest Service

with comments on the March 1999 EA. Bates nos. FS-LM00770-72 is a true and correct copy of that letter from Colorado Wild. 18. A final Facilities Expansion EA, dated June 1999, was subsequently issued for

public review and comment. Bates nos. FS-LM 545-839 is a true and correct copy of the June 1999 EA. 19. In conjunction with the June 1999 EA the Forest Service issued a Decision Notice

and Finding of No Significant Impact dated June 14, 1999 ("1999 Decision Notice" or "1999 FONSI"). Bates nos. FS-LM 1355-1360 is a true and correct copy of the June 14, 1999 Decision Notice. 20. The June Decision Notice was subject to a 45 day appeal period to run from the

date that legal notice of the decision was published in the Valley Courier newspaper. 21. Meanwhile, the Wolf Creek and the Joint Venture were involved in the

negotiation and drafting of four agreements. These agreements were: (1) the Agreement for Ski, Utilities, Road and Parking Easements for the Village at Wolf Creek (the "SURP Agreement"); (2) the Easement Grant and Agreement (Ski Trails and Lift Easements); (3) the Easement Grant and Agreement (Village Access Road Easement); and (4) a Right of First Refusal as to Wolf Creek Ski Corporation Stock ("Right of First Refusal"). 22. Trial Ex. __(L01342-1359) is a true and correct copy of the SURP Agreement.

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23.

Trial Ex. __(L01373-1389) is a true and correct copy of the Ski Trails and Lift

Easement Agreement. 24. Trial Ex. __(L01360-1372) is a true and correct copy of the Village Access Road

Easement Agreement. 25. 26. Trial Ex __(L01333-1341) is a true and correct copy of the Right of First Refusal. On or about July 13-16, 1999, the respective signatories for the Joint Venture and

Wolf Creek executed the SURP Agreement, the Village Access Road Easement Agreement, the Ski Trials and Lift Easement Agreement, and the Right of First Refusal. 27. 28. On August 3, 1999, Colorado Wild appealed the June 1999 Decision Notice. On August 24, 2000, the Mineral County Board of County Commissioners passed

Resolution 2000-13 conveying preliminary approval of the Joint Venture's Preliminary Draft of the Final Development Plan and Final Plat. WC16750-87 is a true and correct copy of Resolution 2000-13. Trial Ex. __ is a true and correct copy of the Land Use Map approved by Resolution 2000-13. 29. Resolution 2000-13 imposed specific requirements on the Joint Venture before its

Final Draft of its Final Development Plan would be fully and finally approved. 30. On October 2004, the Forest Service published the Draft Environmental Impact

Statement for the Joint Venture's road application. FS-LM 2503-3067 is a true and correct copy of that DEIS. 31. In November 2004, the Mineral County Board of County Commissioners voted to

approve the Joint Venture's Final Development Plan by Resolution 2004-21. Trial Ex. __ is a true and correct copy of Resolution 2004-21.

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32.

On November 24, 2004, Wolf Creek filed a lawsuit in Mineral County District

Court seeking to overturn Resolution 2004-21. 33. On October 13, 2005, the Mineral County District Court overturned Mineral

County's approval of Resolution 2004-21. Trial Ex. __ is a true and correct copy of the Mineral County District Court's Order. 34. 35. The Colorado Court of Appeals upheld the Mineral County District Court's Order. In March 2006, the Forest Service issued an Environmental Impact Statement and

Record of Decision approving the Application for Transportation and Utility Systems and Facilities on Federal Lands and permitting dual access to the Village Property via the Access Road (the Tranquility Road extension) as well as a second "Snow Shed Road" access to the Village Property. Trial Ex. __ is a true and correct copy of the USFS Record of Decision. 36. In October 2006, Colorado Wild filed an injunctive action in federal court seeking

to bar any activity in furtherance of either road. The Court granted a temporary restraining order pursuant to Colorado Wild's request. 37. The Joint Venture agreed to abide by the terms of the temporary restraining order

until November 2007, at which time the Court extended the injunction. Trial Ex. ___ is a true and correct copy of the Court's Order. 38. The Forest Service and the Joint Venture settled with Colorado Wild. The Joint

Venture has agreed to the withdraw its permit application for the access road and start the application process over. 5. PENDING MOTIONS

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1.

Plaintiff's Objection to Recommendation of Magistrate Judge on Plaintiff's

motion for Summary Judgment Regarding Fraudulent Inducement and Negligent Misrepresentation Claims, filed December 5, 2006 (Docket No. 238). 2. Defendant's Motion for Bifurcation, filed January 17, 2008 (Docket No. 260). 6. WITNESSES a. Nonexpert Witnesses (1) Witnesses who will be present at trial; (a) Plaintiff: Wolf Creek Ski Corporation, P.O. Box 2800, Pagosa Springs, Colorado 81147. Phone: (970) 264-5826 Mr. Pitcher will testify about the negotiation and performance of the agreements at issue, communications with the U.S. Forest Service and Defendant's representatives and any matter discussed in his deposition. Mr. Pitcher will testify in person. Mr. Honts will testify about the negotiation and performance of the agreements at issue, the Village development plans, the Colorado Wild and Mineral County litigation, the Village EIS process, communications with the U.S. Forest Service, the Joint Venture members and Plaintiff's representatives and any matter discussed in his deposition. Mr. Honts will testify in person. Mr. Leavell will testify about the purchase and sale of the property at issue, the Village development plans, the negotiation and performance of the agreements at issue, communications with the U.S. Forest Service, Plaintiff's and Defendant's representatives and any matter discussed in his

Davey Pitcher

Bob Honts

1402 San Antonio, Suite 102, Austin, Texas 78701. Phone: 512-263-3606

Pete Leavell

Renaissance Entertainment Corporation, 275 Century Circle, Ste. 102, Louisville, CO 80027. Phone: 303664-0300

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Gary Woods, President and COO

McCombs Enterprises, Inc., 8333 IH10, San Antonio, TX, 78201. Phone: 210-349-4949

Sam Brown

Sam Brown & Co., 7744 Valmont Road, Boulder, Colorado 80301, Phone: (303) 666-0065

Jim Rubin

Rubin Katz Law Firm, 123 East Marcy Street Suite 200, Santa Fe, NM 87501. Phone: (505) 982-3610

deposition. Mr. Leavell will testify in person. Mr. Wood will testify about the negotiation and performance of the agreements at issue, communications with the U.S. Forest Service, Plaintiff's and Defendant's representatives, the Colorado Wild and Mineral County litigation and any matter discussed in his deposition. Mr. Wood will testify in person. Mr. Brown will testify about the performance of the agreements at issue, the EIS process, the Village development plans, communications with the U.S. Forest Service, Plaintiff's and Defendant's representatives, and any matter discussed in his deposition. Mr. Brown will testify in person. Mr. Rubin will testify about the negotiation of the agreements at issue, communications with the Plaintiff's and Defendant's representatives and any matter discussed in his deposition. Mr. Rubin will testify in person.

(b) Robert G. "Bob" Honts, President of the Village at Wolf Creek Development Corporation, the managing joint venturer for the Leavell-McCombs Joint Venture; former Pre-Development Coordinator for the Joint Venture
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Defendant: 1402 San Antonio, Suite 102, Austin, TX 78701. Phone: 512263-3606 Mr. Honts will testify regarding all aspects of the proposed Village development, the events leading up to the execution of the contracts at the heart of this dispute, the Ski Corp.'s breach of those contracts, the fraudulent representations made by the Ski Corp.'s agents, communications from Kingsbury Pitcher and Davey Pitcher to the Joint Venture regarding the Access

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B.J. "Red" McCombs, Chairman and CEO

McCombs Enterprises, Inc., 8333 IH10, San Antonio, TX, 78201. Phone: 210-349-4949

Gary Woods, President and COO

McCombs Enterprises, Inc., 8333 IH10, San Antonio, TX, 78201. Phone: 210-349-4949

Kingsbury Pitcher, former CEO of Wolf Creek Ski Corporation

P.O. Box 2287, Santa Fe, NM 87504. Phone: 505-984-8737

Road and USFS approval therefore, the EA and EIS approval processes, the development plans (including the Preliminary Development Plan and the Final Development Plan), the lawsuit filed by the Ski Corp. to reverse approval of the Final Development Plan, the costs incurred by the Joint Venture, any matters discussed in his deposition, and all other major facts and issues in dispute herein. Mr. McCombs will testify regarding the formation of the Joint Venture, the land trade with the Forest Service by which the Village Property was acquired, the Ski Corp.'s collaboration with the Joint Venture in pursuit of the proposed development and the parties' intent with respect to the meaning of the contract documents at issue herein, and any matters discussed in his deposition. Mr. McCombs will also offer testimony regarding costs incurred by the Joint Venture. Mr. Woods will offer testimony regarding the drafting and execution of the contract documents at issue herein. Mr. Woods will also offer testimony regarding finances and costs of the Village development and any matters discussed in his deposition. Mr. Pitcher will testify regarding the Ski Corp.'s application for expansion to the Forest Service, the original land exchange whereby the Joint Venture acquired the Village Property, his

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Randall "Davey" Pitcher, President and current CEO

Wolf Creek Ski Corporation, P.O. Box 2287, Santa Fe, NM 87504. Phone: 505984-8737

purchase of 12 acres of Village Property, the sale of the Leavell's interest in the Joint Venture, historical dealings with the Forest Service, the Mineral County PUD approval process, the operation and administration of the Wolf Creek Ski Area, correspondence and communication between the Ski Corp. and the Joint Venture, the Ski Corp. and the USFS, and other entities, representations he made to the Joint Venture regarding the Forest Service and the approval processes, the Ski Corp.'s breach of contract and outright opposition to the proposed development of the Village at Wolf Creek and any matters discussed in his deposition. Mr. Pitcher will testify regarding his involvement in the preparation of the various EAs submitted to the Forest Service for approval of the Ski Area expansion, the operation and administration of the Ski Area, his private meetings with Colorado Wild in the aftermath of the execution of the contracts at issue herein, communications with the Joint Venture, communications with the Forest Service, communications with the news media, communications with environmentalist opponents of the Village development and Access Road, his decision to cut short the Access Road, the Ski Corp.'s betrayal of the Joint Venture and its ongoing opposition to the development of

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Jeff Berman

2401 Thomas Ave Durango, CO 81301 (970) 259-3248

the Village at Wolf Creek, and any matters discussed in his deposition. Mr. Berman will testify regarding the settlement among Colorado Wild, the Forest Service and the Ski Corp. that took place in August 1999 and about conversations and meetings with Davey Pitcher that took place during the summer of 1999 and after. He will also testify regarding the Mineral County Court lawsuit in which Colorado Wild and the Ski Corp. challenged Mineral County approval of the Joint Venture's development plans for the Village, and any matters discussed in his deposition. Finally, Mr. Berman will testify regarding the federal lawsuit by Colorado Wild to enjoin construction of the Access Road.

(2)

Witnesses who may be present at trial if the need arises; and (a) Plaintiff: Wolf Creek Ski Corporation, #3 Calle Medico, Santa Fe, New Mexico 87501. Phone: (505) 984-8738 Mr. Pitcher may testify about the negotiation and performance of the agreements at issue, communications with the U.S. Forest Service and Defendant's representatives and any matter discussed in his deposition. Mr. Pitcher may testify in person. Wolf Creek Ski Ms. Meyers may testify about Corporation, P.O. Box communications with the U.S. 2800, Pagosa Springs, Forest Service and Defendant's Colorado 81147. representatives. Ms. Meyers will Phone: (970) 264-5818 testify in person. McCombs Enterprises, Mr. McCombs may testify about Inc., 8333 IH10, San the purchase and sale of the 26

Kingsbury Pitcher

Natasha Meyers

Red McCombs

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Antonio, TX, 78201. Phone: 210-349-4949

Jeff Berman

2401 Thomas Ave Durango, CO 81301 (970) 259-3248

Joanie Berde

Carson Forest Watch, Box 15, Llano, New Mexico 87543.

Shelly Burgan

Tom Glass

Western Land Exchange Company, 507 S. Sherman, Denver, CO 80209. Phone: unknown

Randy Schroeder

Greystone Environmental 27

property at issue, negotiation and performance of the agreements at issue, the Colorado Wild and Mineral County litigation, the Village EIS process, communications with the U.S. Forest Service, Plaintiff's and Defendant's representatives, the Village development plans and any matter discussed in his deposition. Mr. McCombs will testify in person. Mr. Berman may testify about Colorado Wild's appeal of the U.S. Forest Service Decision Notice, the Colorado Wild and Mineral County litigation, communications with the U.S. Forest Service, Defendant's and Plaintiff's representatives and any matter discussed in his deposition. Mr. Berman will testify in person. Ms. Berde may testify about communications with the U.S. Forest Service and Defendant's representatives and any matter discussed in her deposition. Ms. Berde may testify in person. Ms. Burgan may testify about communications with the U.S. Forest Service and Defendant's representatives and any matter discussed in her deposition. Ms. Burgan may testify in person. Mr. Glass may testify about the Village development plans, communications with the U.S. Forest Service and Defendant's representatives and any matters discussed in his deposition. Mr. Glass will testify in person. Mr. Schroeder may testify in about the matters contained in his

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Carol McGiffen

Tom Todd

Consultants, Inc., 5231 S. Quebec Street, Greenwood Village, CO 80111. Phone: 303-850-0930 Wolf Creek Ski Corporation, #3 Calle Medico, Santa Fe, New Mexico 87501. Phone: (505) 984-8738 Holland & Hart, LLP, 600 East Main Street, Suite 104, Aspen, Colorado 81611. Phone: (970) 925-3476

report and testified to in his deposition. Mr. Schroeder will testify in person.

Ms. McGiffen may testify about the execution and content of the Agreements. Mr. McGiffen will testify in person.

Boots Ferguson

Adam Newman

Rick Thompson

John Lynch

Mr. Todd may testify about the negotiation of the agreements at issue, communications with the Plaintiff's and Defendant's representatives and any matter discussed in his deposition. Mr. Todd will testify in person. Holland & Hart, LLP, Mr. Ferguson may testify about 600 East Main Street, the negotiation and performance Suite 104, Aspen, of the agreements at issue, Colorado 81611. communications with the U.S. Phone: (970) 925-3476 Forest Service, Plaintiff's and Defendant's representatives and any matter discussed in his deposition. Mr. Ferguson will testify in person. GHP Horwath, P.C., Mr. Newman may testify about 1670 Broadway, Suite communications with 3000, Denver, Defendant's representatives, Ms. Colorado 80202. Meer and persons he interviewed Phone: (303) 831-5000 regarding Ms. Meer's report. Mr. Newman will testify in person. Western Ecosystems, Mr. Thompson may testify about Inc., 905 West Coach wildlife issues associated with Road, Boulder, the Village EIS and Colorado 80302. communications with Phone: (303) 442-6144 Defendant's representatives. Mr. Thompson will testify in person. Wolf Creek Ski Mr. Lynch may testify about the Corporation, P.O. Box performance of the agreements at 2800, Pagosa Springs, issue, communications with the Colorado 81147. U.S. Forest Service and Phone: (970) 264 Defendant's representatives and any matters discussed in his 28

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Todd Pitcher

Kent Sharp

Wolf Creek Ski Corporation, P.O. Box 2800, Pagosa Springs, Colorado 81147. Phone: (970) 264 SE Group 301 W Main Street Frisco Colorado, 80443

deposition. Mr. Lynch will testify in person. Mr. Pitcher may testify regarding the matters discussed in his deposition.

Mr. Sharp may testify about his communications with the Joint Venture's representatives and the work he performed for the Joint Venture. Mr. Sharp will testify in person.

Any witness identified by any other party. Any witness identified by any other party. Any witness identified by any other party. (b) Defendant:

Pete Leavell

Renaissance Entertainment Corporation, 275 Century Circle, Ste. 102, Louisville, CO 80027. Phone: 303-664-0300

Erik Potter, President

GeoNav Group, 1099 Main Ave, Ste 321 Durango, CO 81301. Phone: 877-943-6628

Daryl Coster, Professional Licensed Surveyor

Coster Surveys, LLC, P.O. Box 4130, Pagosa Springs, CO 81157. Phone: 970-264-1120 29

Mr. Leavell may testify regarding the original formation of the Joint Venture and the eventual sale of the Leavell's interest therein, the land trade by which the Joint Venture acquired the Village Property, and any matters discussed in his deposition. Mr. Potter may testify regarding his involvement in the surveying and/or mapping of the Alternative IV map used in connection with the Ski Corp.'s ski area expansion application and EA. Mr. Coster may testify regarding the Joint Venture's development plans for the Village, the Mineral County

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Robert M. Takeda, P.E., and/or Charles R. Keim, P.E

TST of Denver Consulting Engineers, 102 Inverness Terr. E., Ste. 105, Englewood, CO 80112. Phone: 303792-0557

Roseanne Pitcher, Spokesperson & Public Relations Director

Sam Brown, M.A., Architect and Principal

Wolf Creek Ski Corporation, P.O. Box 2287, Santa Fe, NM 87504. Phone: 505-9848737 SB&Co., 7744 Valmont Road, Boulder, CO 80301. Phone: 303-6660064

approval process, and communications and events that took place during that process. Mr. Takeda may testify regarding the Preliminary Development Plan, facilities, drainage and service plans and other proposed plans for the Village at Wolf Creek as well as the Mineral County PUD approval process. Ms. Pitcher may testify regarding communications between the Ski Corp. and the news media. Mr. Brown has been designated as an expert witness under FRCP 26(a)(2) to rebut the opinion testimony of Plaintiff's experts. Mr. Brown may also offer fact testimony regarding the "Alternative IV Project Data" and map prepared by Erik Potter dated July 21, 1998 setting out the agreed alignment for the Access Road as contemplated by § 5.01 of the Agreement for Ski, Utilities, Road and Parking Easements, the Preliminary Development Plan and Final Development Plan for the development of the Village Property, the Mineral County PUD approval process, communications between the parties, his observations while on the site of the proposed Village development and access roads, the EIS prepared for the Forest Service in connection with the Joint Venture's application for approval of the Access Road, and any matters

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Agents and employees of Mineral County including individual County Commissioners for the Mineral County Board of County Commissioners and administrative employees thereof including Administrator Leslie Cahill, Chairman Wintz, Commissioners Kolish, Rogers, and Wardell, Attorney Wilder, and Secretary Curry Employees of the United States Forest Service including potentially Calvin Joyner, Steve Hartvigsen, Rick Cables, Ed Ryberg, Julie Howard, Kim Vogel, Jim Jaminet, Johnnie Flaget, Jim Webb, Ron Pugh, Greg Griffith, Thomas Malacek, Steve Brigham, Karl L. Tameler, Tom Quinn, James F. Torrence, Tom Malechek, and Peter Clark Mike McGowan, Rocky Smith, John Whitney, and other employees or representatives

P.O. Box 580 Creede, CO 81130. Phone: 719658-2374

discussed in his deposition. Such persons may testify regarding the Joint Venture's Application for Planned Unit Development ("PUD"), Board meetings regarding same and final approval of same by Mineral County.

United States Forest Service, Rio Grande National Forest, District Office, 1803 West Highway 160, Monte Vista, CO 81144 and 13308 West Highway 160, Del Norte, CO 81132. Phone: 719-8525941

These individuals may testify regarding the initial land exchange between the USFS and the Joint Venture, the Ski Corp.'s application for facilities expansion, the Joint Venture's Draft EIS, and the approval processes for both applications, they may also testify regarding the settlement among the Ski Corp., the Forest Service and Colorado Wild that cut short the proposed Access Road 250 feet short of the Village Property line.

Colorado Wild, Inc., P.O. Box 926, San Luis, CO 81152. Phone: 719672-0817

These individuals may testify regarding the settlement among Colorado Wild, the Forest Service and the Ski Corp. that cut the proposed Access Road 250 feet short of the Village Property line. They may also testify regarding the complaint

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Ron Jameson, and other representatives or agents of Chaparral Construction Todd Pitcher

13311 State Highway 12, Laveta, CO 81055. Phone: 719-742-3851 Santa Fe, N.M.

Joanie Berde

Carson Forest Watch

Chris Paul, Esq.

John Lynch, Professional Land Surveyor

221 N. Kansas, Suite 1700, El Paso, TX 79901. Phone: 915-5334424 P.O. Box 2800, Pagosa Springs, CO 81147. Phone: 970-731-5743

for injunctive relief filed in this Court seeking to enjoin the design and construction of any access roads to the Village Property. They may also testify regarding the Mineral County Court lawsuit in which Colorado Wild and the Ski Corp. challenged Mineral County approval of the Joint Venture's development plans for the Village. Mr. Jameson may testify regarding portions of the proposed development for The Village at Wolf Creek. Mr. Pitcher may testify regarding the matters discussed in his deposition. Ms. Berde may testify regarding her involvement in the Ski Corp.s' facilities expansion application as well as any matters discussed in her deposition. Mr. Paul may testify regarding the drafting of the contract documents at issue herein. Mr. Lynch may testify regarding surveys of portions of the Ski Area and/or the Village Property, the alignment of the Tranquility Road, the work he did with Eric Potter in the summer of 1997 and thereafter, his work preparing legal descriptions for ski and lift easements to be used in the contracts at issue herein, his understanding of certain engineering maps and the parties' performance under the contracts at issue herein, the

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Tom Glass

Nash Johnson

Thomas J. Todd, Esq.

Arthur "Boots" Ferguson, Esq.

James S. Rubin, Esq.

Joint Venture's plat submissions to Mineral County, a potential land trade, the Ski Corp.'s involvement in the Mineral County PUD approval process, and any matters discussed in his deposition. Western Land Exchange Mr. Glass may testify regarding Company, 507 S. the initial land exchange Sherman, Denver, CO between the Joint Venture and 80209. Phone: unknown the USFS, the Village's development plans, communications with the U.S. Forest Service and Defendant's representatives. and any matters discussed in his deposition. Nash Johnson Mr. Johnson may testify Associates, 4045 S. regarding the value of the land Broadway, Suite 204 acquired by the Joint Venture Englewood, CO 80110. from the USFS pursuant to the Phone: 303-761-6103 initial land exchange at the time of the exchange and again in April 1998. Holland & Hart, LLP, Mr. Todd may testify regarding 600 E. Main Street, contract negotiations and Suite 104, Aspen, CO drafting of the contract 81611. Phone: 970-925- documents at issue herein, and 3476 any matters discussed in his deposition. Holland & Hart, LLP, Mr. Ferguson may testify 600 E. Main Street, regarding the Mineral County Suite 104, Aspen, CO approval process for the Joint 81611. Phone: 970-925- Venture's PUD, including 3476 communications that took place during the process and documents that were part of that process, and any matters discussed in his deposition. Rubin, Katz, Salazar, Mr. Rubin may testify regarding Alley & Rouse, contract negotiations and Attorneys at Law, 123 drafting of the contract East Marcy, Suite 200, documents at issue herein, and Santa Fe, NM 87501. any matters discussed in his Phone: 505-982-3610 deposition. 33

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Shelly Burgan, Administrative Assistant

Wolf Creek Ski Corporation, P.O. Box 2287, Santa Fe, NM 87504. Phone: 505-9848737

Marie JordanMcGowan

14523 57 Road, Collbran, CO 81624. Phone: 970-487-3265

Jan. W. Leonard, P.E., President

Garaventa CTEC, Inc., 3160 West 500 South, Salt Lake City, UT 84104. Phone: 801-9737977 5205 Leesburg Pike, Suite 1400, Falls Church, Virginia 22041. Phone: 703-931-9301

Agents and employees of Tetra Tech, Inc., including Chuck Pergler

Randy Schroeder, M.S., Certified Environmental Professional

Charles B. White, Esq.

Greystone Environmental Consultants, Inc., 5231 S. Quebec Street, Greenwood Village, CO 80111. Phone: 303-8500930 Petros & White, LLC, 730 Seventeenth Street, Suite 820, Denver, CO 80202. Phone: 303-82534

Ms. Burgan may testify regarding communications between representatives of the Joint Venture and representatives of the Ski Corp. and any matters discussed in his deposition. Ms. McGowan may testify regarding the actions taken by Colorado Wild with respect to the Ski Corp.'s Ski Area Expansion permit and related EAs. In addition, she may also testify regarding the settlement between Colorado Wild, the Forest Service and the Ski Corp. in August 1999, and all efforts by Colorado Wild in opposition to the development of The Village at Wolf Creek. Mr. Leonard may testify regarding the Ski Corp.'s commitment to purchase ski lift materials to build its new ski lift as part of its planned ski are expansion. These individuals may testify regarding facts observed by them and communications received by them in the course of Tetra Tech's work in preparing the EIS for the access road(s). Mr. Schroeder, in addition to testifying as an expert under Rule 26(a)(2), may offer fact testimony regarding the initial land exchange between the Joint Venture and the USFS. Mr. White may testify regarding the negotiation and drafting of the Option and Tenancy in Common Agreement whereby

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Kingsbury Pitcher acquired an option to purchase an undivided 20% interest in the land acquired by the Joint Venture from the USFS pursuant to the initial land exchange. Mr. White may also testify regarding the Ski Corp.'s knowledge of the Joint Venture's plans to develop the Village Property. Carol McGiffin Santa Fe, New Mexico Ms. McGiffin may testify regarding her knowledge of the operations of Mr. Kingsbury Pitcher's Santa Fe office as well as communications that were sent therefrom or received thereat during the time period from 1996 to 2004 involving the Joint Venture, the Village at Wolf Creek Agents or employees of 1280 Ute Ave., Aspen, These individuals may testify Sutherland Fallen, Inc. CO 81611 regarding the development planning for the Joint Venture's Preliminary Development Plan and communications and events related thereto. Agents or employees of 748 Whalers Way, These individuals may testify Taranto Stanton & Building D, Fort Collins, regarding the engineering work Tagge CO 80525 that went into the preparation of the Joint Venture's Preliminary Development Plan and communications and events relevant thereto. Agents and employees 950 Seventeenth Street, These employees and agents of Kimley-Horn and Denver, CO 80202. may testify regarding events and Associates, Inc., Phone: 303-228-2300 facts observed and including Randall J. communications received by Phelps, P.E. them during Kimley-Horn's work on the Village development. Agents and employees 1101 Capital of Texas These individuals may testify of Murfee Engineering Highway South, Bldg. regarding events and facts Company, Inc., D, Suite 110, Austin, TX observed and communications
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including George Murphy and David Malish, P.E. Agents and employees of Iris Environmental Systems, Inc., including Nick Roe and Kim Poole, Senior Consultants Writers, reporters, agents and employees of the Pagosa Springs Sun, including Karl Isberg and John Motter Writers, reporters, agents and employees of the South Fork Tines, including Susan Baxter and Thomas Phillips Writers, reporters, agents and employees of the Denver Post, including Mark Hunter and Jason Blevins Writers, reporters, agents and employees of the Rocky Mountain News, including Ron Rueteman and Gil Rudawsky Writers, reporters, agents and employees of the Durango Herald, Inc. including Megan Graham and Dan D'Ambrosio Writers, reporters, agents and employees of the Mineral County Miner, including Samsay Advani and
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78746. Phone: 512-2379204 , 635-36 Avenue NE, Calgary Alberta, T2E 2L8, Canada. Phone: 403-543-4455

P.O. Box 9, Pagosa Springs, CO 81147. Phone: 970-264-2101

Valley Publishing, P.O. Box 607, Monte Vista, CO 81144. Phone: 719852-3531

101 W. Colfax Ave., Denver, CO 802025177. Phone: 800-3367678

101 W. Colfax Ave., Denver, 80202. Phone: 303-954-5000

1275 Main Ave., Durango, CO 81301. Phone: 970-247-3504

P.O Box 607, Monte Vista, CO 81144. Phone: 719-852-3531

received by them during the course of their work on the Village project. These individuals may testify regarding events and facts observed and communications received by them during the course of their work on the Village project. These individuals will testify regarding interviews with and communications from agents and employees for the Ski Corp. and others involved in this dispute. These individuals will testify regarding interviews with and communications from agents and employees for the Ski Corp. and others involved in this dispute. These individuals will testify regarding interviews with and communications from agents and employees for the Ski Corp. and others involved in this dispute. These individuals will testify regarding interviews with and communications from agents and employees for the Ski Corp. and others involved in this dispute. These indi