Free Reply to Response to Motion - District Court of Colorado - Colorado

Case 1:00-cv-02361-WDM-BNB

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Filed 05/15/2007

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IN THE UNITED STATES DISTRICT COURT IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO COLORADO FOR THE DISTRICT Civil Action No. OO-cv-02361-WDM-MEH (concerning related Case Nos. OO-cv-02361-WDMNo. OO-cv-02361-WDM-MEH (concerning related Case Nos. OO-cv-02361-WDMMEH through 02363-WDM-MEH; and Case Nos. OO-cv-02365-WDM-MEH through OO-cvthrough 02363-WDM-MEH; and Case Nos. OO-cv-02365-WDM-MEH through OO-cvMEH 02374-WDM-MEH; and concerning Case Nos. OO-cv-2364-MJW-MEH OO-cv-0239402374-WDM-MEH; and concerning Case Nos. OO-cv-2364-MJW-MEH and OO-cv-02394MJW-MEH) MJW -MEH)

Case OO-cv-02361-WDM-MEH Case No. OO-cv-02361-WDM-MEH

WYRICK DEANE, WYRICK G. DEANE,

Plaintiff, Plaintiff,
v.

MILTON TUCKER, et aI., MILTON TUCKER, et aI., Defendants. Defendants.

DEFENDANT PITKIN COUNTY'S REPLY MOTION REQUESTING DEFENDANT PITKIN COUNTY'S REPLY ON MOTION REQUESTING EVIDENTIARY HEARING EVIDENTIARY HEARING

Defendant Board of

Defendant Board of County Commissioners of Pitkin County (the "County") respectfully Pitkin County (the "County") respectfully County Commissioners of

submits the following Reply in support of its Motion requesting an evidentiary hearing. support of its Motion requesting an evidentiar hearing. submits the following Reply It is difficult for the County to understand why the Settling Parties so strenuously resist is diffcult for the County understand why the Settling Paries so strenuously resist having the facts in this case developed in open court. Resolving matter using Rule 56-type having the facts in this case developed in open court. Resolving this matter using Rule 56-type procedures several reasons. procedures is transparently inappropriate for several reasons. transparently inappropriate
First, if

First, if this issue were being litigated pursuant to Rule 56, the County's request for an this issue were being litigated pursuant Rule the County's request for an

opportunity to examine relevant witnesses would be entirely consistent with Rule 56(f). opportunity to examine relevant witnesses would be entirely consistent with Rule 56(f). The County had no opportunity take discovery this matter and therefore had opportunity County had no opportunity to take discovery in this matter and therefore had no opportunity to

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Case 1:00-cv-02361-WDM-BNB
IN THE UNITED STATES DISTRICT COURT THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO COLORADO FOR THE DISTRICT CASE NO. OO-CV 02361 CASE OO-CV 02361

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Filed 05/15/2007

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REPLY ON MOTION REQUESTING EVIDENTIARY HEARING MOTION REQUESTING EVIDENTIARY HEARING REPLY

develop the evidence to a point where all material issues of fact could be presented to the Court. develop the evidence to point where all material issues of fact could be presented to the Cour. It has been unable to depose either of the witnesses who submitted affidavits on behalf of the has been unable to depose either of the witnesses who submitted affdavits on behalf Settling Parties, and it has had no ability to subpoena third parties or others with knowledge ability subpoena third paries or others with knowledge Settling Paries, and it has had bearing on the Settling Parties' purose in executing the Settlement. Thus, although the Settling bearing on the Settling Paries' purpose in executing the Settlement. Thus, although the Settling Parties have not presented this controversy to the Cour in terms Rule 56, that Paries have not formally presented this controversy to the Court in terms of Rule 56, that rule certainly provides a guide here and indicates the Motion for Evidentiar Hearing should certainly provides a guide here and indicates the Motion for Evidentiary Hearing should be granted. granted. Second, the affidavits presented to the Cour make clear that there are material issues of Second, the affidavits presented to the Court make clear that there are material issues of fact that render Rule 56 procedures inappropriate. Contrar to Settling Paries' contention, fact that render Rule 56 procedures inappropriate. Contrary to the Settling Parties' contention, the Gustafson Affdavit's contentions regarding public benefits are directly challenged by the the Gustafson Affidavit's contentions regarding public benefits are directly challenged by the Houben Declaration. The Houben Declaration likewise provides facts that question Houben Declaration. The Houben Declaration likewise provides facts that call into question
Deane's motivations. Ms. Houben contends that none of

Deane's motivations.

Ms. Houben contends that none of the parcels being given to the United the parcels being given United

States have any development potential, and that the Parcel Deane would acquire under States have any development potential, and that the Parcel A Deane would acquire under the
Settlement likewise could not be subdivided absent this Cour's approval of

Settlement likewise could not be subdivided absent this Court's approval of the Settlement. the Settlement. Third, the nature of the statutory test-which requires determining the settling paries Third, the nature of the statutory test-which requires determining the settling parties

"purpose"-inherently requires judging the credibility ofthe witnesses involved. Our system of "purose"-inherently requires judging the credibility ofthe witnesses involved. Our system of justice more nuanced than the affdavit-driven approach the Settling Paries prefer. justice is more nuanced than the affidavit-driven approach the Settling Parties prefer. Fourth, the Settling Paries' remaining arguments-that an evidentiar hearing would Fourh, the Settling Parties' remaining arguments-that an evidentiary hearing would "severely tax" their and the Cour's resources, and that the County's desire to examine their "severely tax" their and the Court's resources, and that the County's desire to examine their witnesses in open cour is somehow improper-are incoherent. Trial practice is the default witnesses in open court is somehow improper-are incoherent. Trial practice is the default avenue for resolution of disputes in the American legal system, not some extraordinar avenue for resolution of disputes in the American legal system, not some extraordinary procedure as the Settling Paries suppose. procedure as the Settling Parties suppose.

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Case 1:00-cv-02361-WDM-BNB
IN THE UNITED STATES DISTRICT COURT THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO COLORADO FOR THE DISTRICT CASE NO. OO-CV 02361 CASE OO-CV 02361

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Filed 05/15/2007

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REPLY ON MOTION REQUESTING EVIDENTIARY HEARING MOTION REQUESTING EVIDENTIARY HEARING REPLY

Finally, as noted in the Motion, an evidentiary hearing in this matter will afford the Finally, as noted in the Motion, an evidentiar hearng in this matter wil afford County an opportunity to respond to the various arguments raised by the Settling Parties for the County an opportunity to respond to the various arguments raised by the Settling Paries first time in their Reply brief. The Settling Parties do not contest this point in their Opposition. first time in their Reply brief. The Settling Parties do not contest this point in their Opposition.
th Respectfully submitted this 15th day of May 2007. 2007. Respectfully submitted this 15 day

/s John M. Ely John JohnM Ely John M Ely /s Christopher G. Seldin Seldin /s Christopher Christopher G. Seldin G. Seldin Christopher
PITKIN COUNTY ATTORNEY'S OFFICE PITKIN COUNTY ATTORNEY'S OFFICE

530 E. Main Street, Suite 302 530 Main Street, Aspen, Colorado 81611 Aspen, Colorado 81611 Telephone: (970) 920-5190 Telephone: (970) 920-5190 E-mail: iohne(aco.pitkin.co.us E-mail: iohne(a).co.pitkin.co.us [email protected] chriss(£co. pi tkin.co.
ATTORNEYS FOR DEFENDANT PITKIN COUNTY ATTORNEYS FOR DEFENDANT PITKIN COUNTY BOARD OF COUNTY COMMISSIONERS COUNTY COMMISSIONERS BOARD

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Case 1:00-cv-02361-WDM-BNB

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Filed 05/15/2007

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UNITED STATES DISTRICT COURT UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO COLORADO FOR THE DISTRICT CERTIFICATE OF SERVICE SERVICE CERTIFICATE

I hereby certify that on Mav 15.2007, I electronically filed the foregoing DEFENDANT hereby certify that on Mav 15.2007, electronically filed the foregoing DEFENDANT PITKIN COUNTY'S REPLY ON MOTION REQUESTING EVIDENTIARY HEARING PITKIN COUNTY'S REPLY ON MOTION REQUESTING EVIDENTIARY HEARING the Clerk of the Cour using the CM/CF system, which wil send notification such filing with the Clerk of the Court using the CM/ECF system, which will send notification of such filing to the following e-mail address: following e-mail address:
Roxane J. Perrso Roxane J. Perruso Assistant U.S. Attorney Assistant U.S. Attorney 17th Street, Suite 1225 17th Street, Suite 700 Denver, CO 80202 Denver, CO 80202 Roxane.Perruso(lV,usdoi .gOY Roxane.Perruso(lVusdoi .gov Kathryn Haight Kathryn Haight Welborn Sullivan Meck Tooley, Welborn Sullivan Meck & Tooley, P.C. 821 - 17 Street, Suite 500 821 - 17th Street, Suite 500 Denver, CO 80202 Denver, CO 80202 [email protected] khai ght(£wsmtlaw .com Stephen J. Sullvan Stephen J. Sullivan Welborn Sullvan Meck Welborn Sullivan Meck & Tooley, P.c. Tooley, P.c. 821 Street, Suite 821 17th Street, Suite 500 Denver, 80202-1801 Denver, CO 80202-1801 ssull i van(lVwsmtlaw .com ssul 1ivan(lV,wsmtlaw.com
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and hereby certify that have mailed served the document and I hereby certify that I have mailed or served the document or paper to the following non paper the following non CM/ECF participants in the manner indicated by the party's name: CM/CF paricipants in the maner indicated by the pary's name:
Via e-mail e-mail Helena Jones-Siddle, Helena Jones-Siddle, Esq. Office of the General Counsel Offce of the General Counsel USFS-USDA USFS-USDA 740 Simms Street, Room 740 Simms Street, Room 309 Golden, CO 80401 Golden, CO 80401 HelenaJ ones-S iddle(qusda. gOY Helena.J ones-S [email protected]

sl Jane Achev sl Jane Achev

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