Free Response to Order to Show Cause - District Court of Colorado - Colorado

Case 1:02-cv-01841-MSK-MJW

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 02-cv-01841-MSK-MJW UNITED STATES OF AMERICA, Plaintiff, v. 117.54 ACRES OF LAND, MORE OR LESS, SITUATED IN LA PLATA, COUNTY, COLORADO; and STATE OF COLORADO; LA PLATA COUNTY TREASURER, LA PLATA, COLORADO; COLORADO TELEPHONE COMPANY; MESA GRANDE GAS COMPANY; COLORADO-UTE ELECTRIC ASSOCIATION, INC.; BOARD OF COUNTY COMMISSIONERS, LA PLATA COUNTY, COLORADO; PEOPLES NATURAL GAS COMPANY; NORTHWEST PIPELINE CORPORATION; ENTERPRISE PRODUCTS PARTNERS L.P.; ATMOS ENERGY CORPORATION; and LA PLATA ELECTRIC ASSOCIATION, INC.; UNKNOWN OWNERS, Defendants.

PLAINTIFF UNITED STATES OF AMERICA'S RESPONSE TO ORDER TO SHOW CAUSE WHY CLAIMS SHOULD NOT BE DISMISSED FOR FAILURE TO PROSECUTE

COMES NOW Plaintiff United States of America, by and through the United States Attorney for the District of Colorado, and, responds to the Court's Order to Show Cause Why Claims Should Not be Dismissed For Failure to Prosecute, and states as follows:

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1. This is a civil condemnation action filed in reference to the Animas-La Plata Project which is located in southwest Colorado and northwest New Mexico. The Animas-La Plata Project fulfills the federal government's trust responsibility to address the Colorado Ute Indians' water rights; respects existing water rights of non-Indians in the San Juan River Basin; furnishes, via a pipeline, the Navajo Nation with water in the Shiprock, New Mexico, area; allows for municipal and industrial water for non-Indian communities in the Four Corners area; and provides increased certainty for water managers in the San Juan River Basin. 2. This eminent domain action has condemned perpetual easements and temporary easements for the purpose of relocating certain pipeline easements, previously owned by Northwest Pipeline Corporation and Enterprise Partners L.P. that were required to be relocated in order to construct the Animas-La Plata Project. 3. This eminent domain action has also condemned perpetual easements and temporary easements for the purpose of constructing and operating the Inlet Conduit for Ridges Basin Dam and Reservoir and its associated facilities. 4. The perpetual easements and temporary easements were condemned as of the date that the Declarations of Taking were filed. 5. As of the date the Declarations of Taking were filed the ownership of the perpetual easements and temporary easements was transferred to the United States. 6. The perpetual easements and temporary easements were condemned "subject to existing rights-of-way for roads and existing rights-of-way for public

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telephone lines, transmission lines, and other public utilities over, under, on, and/or across said lands." (Third Amended Declaration of Taking, Third Amended Schedule B.) 7. Defendants Colorado Telephone Company, predecessor-in-interest to Qwest Corporation; Mesa Grande Gas Company; Tri-State Generation & Transmission Associates, Inc., successors-in-interest to Colorado-Ute Electric Associates, Inc.; Peoples Natural Gas Company; Atmos Energy Corporation; and La Plata Electric Association, Inc. ("Right-of-Way Defendants") are all entities that have or may have existing rights-of-way affected by the perpetual easements condemned in this case. 8. The perpetual easements and temporary easements condemned in this civil action are taken subject to the existing rights-of-way of the Right-of-Way Defendants. 9. During the course of this litigation, Plaintiff has had discussions with each of the Right-of-Way Defendants to ensure that each of the Right-of-Way Defendants was appraised of the nature and scope of the activities related to the Animas-La Plata Project and the condemned perpetual easements and temporary easements. 10. There are two issues before the Court in this condemnation action: A. The amount of just compensation that should be paid to Defendant State of Colorado as the owner of the real property upon which the condemned perpetual easements and temporary easement are located; and B. The amount of just compensation, if any, that should be paid to the Right-of-Way Defendants for damage, if any, caused by the condemnation of the perpetual and temporary easements. 3

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11. Defendant State of Colorado is the owner of the real property upon which the perpetual easements and temporary easements are located. 12. Plaintiff United States and Defendant State Colorado have agreed upon the amount of just compensation that Plaintiff United States will pay Defendant State of Colorado for the perpetual easements and temporary easements that have been condemned. 13. Plaintiff United States and Defendant State of Colorado are currently resolving two minor issues related to this condemnation action. 14. The perpetual easements and temporary easements were condemned subject to the existing easements of the Right-of-Way Defendants; therefore, there is no damage to the easements of the Right-of-Way Defendants. 15. On November 3, 2006, pursuant to Fed. R. Civ. P. 71A(f), Plaintiff United States filed a Fourth Amended Complaint in Condemnation. (Docket No. 98.) 16. On November 3, 2006, the following Defendants were served with the Fourth Amended Complaint in Condemnation: A. State of Colorado; B. La Plata County Treasurer, La Plata County, Colorado; C. Colorado Telephone Company, predecessor-in-interest to Qwest Corporation; D. Board of County Commissioners, La Plata County, Colorado; E. Northwest Pipeline Corporation; and 4

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F. Atmos Energy Corporation. 17. On November 15, 2006, the Court held a Final Pretrial Conference. 18. At the time of the Final Pretrial Conference, Plaintiff advised the Court that Plaintiff United States and Defendant State of Colorado had reached an agreement as to the issue of just compensation, with the exception of one or two minor issues. 19. At the time of the Final Pretrial Conference, the following Defendants had not been served with the Fourth Amended Notice of Condemnation: A. Peoples Natural Gas Company; B. Mesa Grande Gas Company; C. Enterprise Products Partners; D. Tri-State Generation & Transmission Associates, Inc., successors-in-interest to Colorado-Ute Electric Association, Inc.; and E. La Plata Electric Association, Inc. 20. On November 15, 2006, Plaintiff United States filed a Fourth Amended Notice of Condemnation. (Docket No. 101.) 21. On November 15, 2006, the following Defendants were served with the Fourth Amended Notice of Condemnation: A. State of Colorado; B. La Plata County Treasurer, La Plata County, Colorado; C. Colorado Telephone Company, predecessor-in-interest to Qwest Corporation;

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D. Board of County Commissioners, La Plata County, Colorado; E. Northwest Pipeline Corporation; and F. Atmos Energy Corporation. 22. Thereafter, the following Defendants were served with the Fourth Amended Notice of Condemnation: Defendant Date Served Answer or Notice of Appearance Due January 16, 2007

La Plata Electric Association, Inc. Tri-State Generation & Transmission Association, Inc., successor-in-interest to Colorado-Ute Electric Association, Inc. Peoples Natural Gas Company Mesa Grande Gas Company Enterprise Products Partners L.P.

November 17, 2006 (Docket No. 104) November 21, 2006 (Docket No. 106)

January 22, 2007

December 8, 2006 (Docket No. 110) December 8, 2006 (Docket No. 112) December 13, 2006

December 28, 2006

December 28, 2006

January 3, 2007

23. All Defendants have been served with the Fourth Amended Notice of Condemnation. 24. At the Final Pretrial Conference, Plaintiff United States advised the Court that Plaintiff United States, Defendant State of Colorado, Defendant Northwest

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Pipeline, and Defendant Enterprise Products Partners L.P. would be filing a stipulated settlement agreement that would resolve all issues related to this condemnation action. 25. Plaintiff United States also advised the Court that it anticipated that the Right-of-Way Defendants would file disclaimers of interest. 26. Disclaimers of interest or a stipulation of dismissal have been filed by the following Defendants: Defendant La Plata County Treasurer, La Plata County, Colorado Board of County Commissioners, La Plata, County, Colorado Colorado Telephone Company, predecessor-in-interest to Qwest Corporation Document Filed Disclaimer of Interest (Docket No. 102) Date Filed November 15, 2006

Disclaimer of Interest (Docket No. 108)

December 7, 2006

Stipulation of Dismissal (Docket No. 112)

December 12, 2006

27. On January 6, 2003, Plaintiff United States and Defendant Atmos Energy Corporation entered into a Stipulation by and between Plaintiff United States and Defendant Atmos Energy Corp. in lieu of Answer. 28. It is anticipated that Defendant Atmos Energy Corporation will file a disclaimer of interest in the near future.

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29. It is anticipated that the following Defendants will file disclaimers or stipulations of dismissal before or shortly after each of their answers or notices of appearance are due: A. La Plata Electric Association, Inc.; B. Tri-State Generation & Transmission Association, Inc., successor-in-interest to Colorado-Ute Electric Association, Inc.; C. Peoples Natural Gas Company; D. Mesa Grande Gas Company; and E. Enterprise Products Partners L.P. 30. On November 15, 2006, the Court ordered the parties to submit a revised Proposed Final Pretrial Order. 31. A revised Proposed Final Pretrial Order was not submitted, because all Defendants had not been served on or before November 27, 2006. 32. A revised Proposed Final Pretrial Order has now been submitted to the Court. 33. On December 11, 2006, the Court entered an Order to Show Cause Why Claims Should Not be Dismissed for Failure to Prosecute. 34. This civil condemnation action should not be dismissed for failure to prosecute. 35. Pursuant to Fed. R. Civ. P. 71A(f), Plaintiff United States has amended this condemnation action four times.

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36. The amendments were required to accommodate design changes in the Animas-La Plata Project and to add additional parties as defendants. 37. During the pendency of this litigation, Plaintiff United States has worked closely with Defendant State of Colorado, Defendant Northwest Pipeline Corporation, and Defendant Enterprise Products Partners L.P. to resolve issues and to reach agreement on the issue of just compensation and issues related to the relocation of the Defendant Northwest Pipeline Corporation and Defendant Enterprise Products Partners' pipeline easements. 38. A settlement agreement is currently being drafted that will resolve all issues between and among Plaintiff United States, Defendant State of Colorado, Defendant Northwest Pipeline Corporation, and Defendant Enterprise Products Partners L.P. 39. During the pendency of this litigation, Plaintiff United States has also worked closely with the Right-of Way Defendants to resolve issues related to the various rights-of-way affected by the perpetual easements condemned in this case. 40. Based on the discussions with the Right-of-Way Defendants, Plaintiff United States anticipates that each of the Right-of-Way Defendants will file a disclaimer of interest in the near future. 41. Pursuant to those detailed discussions between Plaintiff and Defendants, this case will be amicably resolved before the trial. 42. Plaintiff United States has not failed to prosecute this civil action.

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43. Two issues are before this Court: A. The amount of just compensation that should be paid to Defendant State of Colorado as the owner of the real property upon which the condemned perpetual easements and temporary easement are located; and B. The amount of just compensation, if any, that should be paid to the Right-of-Way Defendants for damage, if any, caused by the condemnation of the perpetual and temporary easements. 44. While these two issues will be resolved prior to trial, neither has been formally resolved at this time. 45. Dismissal of this civil action will prejudice Defendant State of Colorado. 46. Dismissal of this civil action will prejudice each of the Right-of-Way Defendants. 47. The perpetual easements and temporary easements have been condemned, and title has vested in the United States; therefore, the dismissal of this case prior to the final resolution of the issue of just compensation will prejudice the United States. 48. This case is in the final stages of an amicable resolution, dismissal would serve no purpose and would affirmatively cause harm to the parties. WHEREFORE, Plaintiff United States requests the Court discharge the Order to Show Cause entered on December 11, 2006. Dated: December 15, 2006.

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Respectfully submitted, TROY A. EID United States Attorney

s/Stephen D. Taylor STEPHEN D. TAYLOR Assistant U.S. Attorney 1225 Seventeenth Street Suite 700 Denver, CO 80202 Telephone: (303) 454-0100 Fax: (303)454-0408 E-mail: [email protected]

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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO CERTIFICATE OF SERVICE (CM/ECF) I hereby certify that on December 15, 2006, l electronically filed the foregoing with the Clerk of Court using the ECF system which will send notification of such filing to the following e-mail addresses: TIMOTHY J. MONAHAN, ESQ. TODD MILLER, ESQ. KAREN LYNN BRODY THOMAS J. DOUGHERTY, ESQ. JOHN BARLOW SPEAR, ESQ. [email protected] [email protected] [email protected] [email protected] [email protected]

and I hereby certify that I have mailed or served the document or paper to the following non CM/ECF participants in the manner indicated by the nonparticipant's name: By mail, postage prepaid Teresa Silcox Torrey, Esq. 295 Chipeta Way Salt Lake City, UT 84108

s/ Stephen D. Taylor STEPHEN D. TAYLOR Assistant United States Attorney 1225 17th Street, 7th Floor Denver, CO 80202 (303) 454-0100 Fax: (303) 454-0408 [email protected] Counsel for Plaintiff United States

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