Free Proposed 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. 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 COUNTY, 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 UNKNOWN OWNERS, Defendants.

FINAL PRETRIAL ORDER

1. DATE AND APPEARANCES Date: December 15, 2006 For Plaintiff United States: Stephen D. Taylor Assistant U.S. Attorney Timothy J. Monahan, Esq. Assistant Attorney General John Barlow Spear, Esq.

For Defendant State of Colorado: For Defendant La Plata Electric

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Association, Inc.: For Northwest Pipeline Corporation: Atmos Energy:

Maynes, Bradford, Shipps & Sheftel, LLP Teresa Silcox Torry, Esq.

Todd W. Miller, Esq. Holland & Hart, LLP Served December 8, 2006 Answer or Notice of Appearance pursuant to Fed. R. Civ. P. 71A(e) Due December 28, 2006 Thomas J. Dougherty, II, Esq. Rothgerber, Johnson & Lyons, LLP

For Mesa Grande Gas Company:

Tri-State Generation & Transmission Association, Inc., successors-in-Interest to Colorado-Ute Electric Association, Inc. Peoples Natural Gas Company:

Served December 8, 2006 Answer or Notice of Appearance pursuant to Fed. R. Civ. P. 71A(e) Due December 28, 2006 None 2. JURISDICTION

For Unknown Owners:

This Court has jurisdiction over the subject matter of this civil action pursuant to 40 U.S.C. § 3114 (formerly § 258a) and 28 U.S.C. § 1345. 3. CLAIMS AND DEFENSES Plaintiff United States' Claim: This civil condemnation action is 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

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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. This eminent domain action condemns 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. The perpetual easements and temporary easements are also condemned for the purpose of constructing and operating the Inlet Conduit for Ridges Basin Dam and Reservoir and its associated facilities. On November 3, 2006, pursuant to Fed. R. Civ. P. 71A(f), Plaintiff United States filed a Fourth Amended Complaint in Condemnation and a Fourth Amended Declaration of Taking. (Docket No. 98.) On November 3, 2006, the following Defendants were served with the Fourth Amended Complaint in Condemnation and the Fourth Amended Declaration of Taking: 1. State of Colorado; 2. La Plata County Treasurer, La Plata County, Colorado; 3. Colorado Telephone Company; 4. Board of County Commissioners, La Plata County, Colorado; 5. Northwest Pipeline Corporation; and 6. Atmos Energy Corporation. On November 15, 2006, Plaintiff United States filed a Fourth Amended Notice of Condemnation. (Docket No. 101.) On November 15, 2006, the following Defendants were served with the Fourth Amended

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Notice of Condemnation: 1. State of Colorado; 2. La Plata County Treasurer, La Plata County, Colorado; 3. Colorado Telephone Company; 4. Board of County Commissioners, La Plata County, Colorado; 5. Northwest Pipeline Corporation; and 6. Atmos Energy Corporation. On November 17, 2006, pursuant to Fed. R. Civ. P. 71A(d), Defendant La Plata Electric Association, Inc., was served with the Fourth Amended Notice of Condemnation and executed a Waiver of Service that was filed with the Court. (Docket No. 104.) Defendant La Plata Electric Association, Inc.'s, answer or notice of appearance is due January 16, 2007. On November 21, 2006, pursuant to Fed. R. Civ. P. 71A(d), Defendant Tri-State Generation & Transmission Association, Inc., successors-in-interest to Colorado-Ute Electric Association, Inc., was served with the Fourth Amended Notice of Condemnation and executed a Waiver of Service that was filed with the Court. (Docket No. 106.) Defendant Tri-State Generation & Transmission Association, Inc., successors-in-interest to Colorado-Ute Electric Association's answer or notice of appearance is due January 22, 2007. On December 8, 2006, pursuant to Fed. R. Civ. P. 71A(d), Defendant Peoples Natural Gas Company was served with the Fourth Amended Notice of Condemnation. The Return of Service was filed with the Court. (Docket No. 110.) Defendant Peoples Natural Gas Company's answer or notice of appearance is due December 28, 2006. On December 8, 2006, pursuant to Fed. R. Civ. P. 71A(d), Defendant Mesa Grande Gas

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Company was served with the Fourth Amended Notice of Condemnation. The Return of Service was filed with the Court. (Docket No. 111.) Defendant Mesa Grande Gas Company's answer or entry of appearance is due December 28, 2006. On December 13, 2006, pursuant to Fed. R. Civ. P. 71A(d), Defendant Enterprise Products Partners L.P. was served with the Fourth Amended Notice of Condemnation. The Return of Service will be filed with the Court on December 18, 2006. Defendant Enterprise Products Partner's answer or notice of appearance is due January 3, 2007. All Defendants have been served with the Fourth Amended Notice of Condemnation. Plaintiff's Claim: Condemnation of Temporary Easements and Perpetual Easements: Plaintiff seeks a determination of the just compensation to be paid for the perpetual easements and temporary easements condemned in this civil action. Elements: 1. Authority for Taking: The parties stipulate that Plaintiff United States has the legal authority to condemn the perpetual easements and temporary easements taken. 2. Owner of Property Taken: The parties stipulate that Defendant State of Colorado holds fee title to the real property that is the subject of this eminent domain action. 3. Parties Who Have an Interest Related to the Condemned Land: a. The Parties stipulate that Defendants Colorado Telephone Company, Mesa Grande Gas Company, Tri-State Generation & Transmission Association, Inc., successors-ininterest to Colorado-Ute Electric Association, Inc., Peoples Natural Gas Company,

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La Plata Electric Association, Inc., and Atmos Energy Corporation may have easements that are impacted by the perpetual easements and temporary easements condemned by Plaintiff United States. b. Plaintiff United States and Defendant Atmos Energy have entered into a Cooperative Agreement. Accordingly, Atmos Energy will file a disclaimer in the near future. d. It is anticipated that pursuant to discussion between Plaintiff United States and Defendants Mesa Grande Gas Company, Tri-State Generation & Transmission Association, Inc., successors-in-interest to Colorado-Ute Electric Association, Inc., Peoples Natural Gas Company, and La Plata Electric Association, Inc., each Defendant may file a disclaimer. e. Defendant Northwest Pipeline Corporation is an interested party for the reason that Northwest Pipeline Corporation's pipeline(s) have been relocated on some of the perpetual easements. f. Defendant Enterprise Products Partners L.P. is an interested party for the reason that Enterprise Products Partners L.P.'s pipeline(s) have been relocated on some of the perpetual easements. g. Defendants Unknown Owners have been served by publication. 4. Just Compensation: a. Defendant State of Colorado has the burden of proving the value of the condemned land. b. Plaintiff United States shall establish the just compensation for the perpetual

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easements and temporary easements condemned through the expert opinion of Mr. Edward E. Lumpee. c. The Parties stipulate that the perpetual easements and temporary easements are being condemned subject to the interest that Defendants Colorado Telephone Company, Mesa Grande Gas Company, Tri-State Generation & Transmission Association, Inc., successors-in-interest to Colorado Ute-Electric Association, Inc., Peoples Natural Gas Company, La Plata Electric Association, Inc., and Atmos Energy Corporation may have related to the property that is the subject of this eminent domain action. Defendant State of Colorado's Defense: a. Defendant State of Colorado holds fee title to the real property that is the subject of this eminent domain action. b. Defendant State of Colorado does not contest the condemnation. c. Defendant State of Colorado disputes the amount of just compensation estimated by Plaintiff United States. Defendant State of Colorado shall establish the just compensation for the perpetual easements and temporary easements condemned through the expert opinion of Mr. Michael H. Earley, MAI, SRA. d. Defendant State of Colorado asserts that the inadequate depth to which the relocated pipelines have been buried impair its ability to cross the pipeline easements and to access its remaining properties and that Defendant State of Colorado is due additional compensation for the impairment of its access to its remaining properties. Defendant State of Colorado shall establish the just compensation for the impairment of its

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ability to access its remaining properties through the expert opinion of Mr. Gary Hanna, P.E. e. Defendant State of Colorado asserts that Plaintiff United States is responsible for and has failed to property re-vegetate the areas disturbed by the relocation of the pipelines and that Defendant State of Colorado is due additional compensation to ensure adequate re-vegetation of the disturbed areas. Defendant La Plata County Treasurer, La Plata County, Colorado: On November 15, 2006, Defendant La Plata County Treasurer, La Plata County, Colorado filed a Disclaimer of Interest. (Docket No. 102.) Defendant Colorado Telephone Company: On December 12, 2006, Defendant Colorado Telephone Company, now doing business as, Qwest Corporation, filed a Stipulation and Dismissal of Defendant Qwest Corporation. (Docket No.112). Defendant Board of County Commissioners: On December 7, 2006, Defendant Board of County Commissioners filed a Disclaimer of Interest. (Docket No. 108.) Defendant Atmos Energy Corporation: 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. It is anticipated that Defendant Atmos Energy Corporation will file a disclaimer of interest in the near future. In addition, Defendant Atmos Energy Corporation has or may have interests in the certain easements, assets, and/or equipment that were owned by

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Defendant Mesa Grande Gas Company and/or Defendant Peoples Natural Gas Company. Defendant Atmos Energy Corporation is currently researching to determine what interest, if any, it has in the easements, assets, and/or equipment previously owned by Defendant Mesa Grande Gas Company and/or Defendant Peoples Natural Gas Company. Defendant Mesa Grande Gas Company: Defendant Mesa Grande Gas Company's answer or notice of appearance is due on or before December 28, 2006. Defendant Peoples Natural Gas Company: Defendant Peoples Natural Gas Company's answer or notice of appearance is due on or before December 28, 2006. Defendant Tri-State Generation & Transmission Association, Inc., successors-in-interest to Colorado-Ute Electric Association, Inc.: Defendant Tri-State Generation & Transmission Association, Inc., successors-in-interest to Colorado-Ute Electric Association's answer or notice of appearance is due on or before January 22, 2007. Defendant La Plata Electric Association, Inc.: Defendant La Plata Electric Association's answer or notice of appearance is due on or before January 16, 2007. Defendant Enterprise Products Partners, L.P.: Defendant Enterprise Products Partners' answer or notice of appearance is due on or before January 3, 2007.

4. STIPULATIONS 9

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1. The Court has jurisdiction over the subject matter of this civil action pursuant to 40 U.S.C. § 3114 (formerly § 258a) and 28 U.S.C. § 1345. 2. Defendant State of Colorado, Colorado Division of Wildlife, holds fee title to the real property that is the subject of this eminent domain action. 3. The perpetual easements and temporary easements are on, over, under and across real property owned by Defendant State of Colorado, Colorado Division of Wildlife. 4. Defendant State of Colorado does not contest the condemnation. 5. Plaintiff United States has condemned the perpetual easements and temporary easements subject to each Defendant's existing easement(s), if any. 5. PENDING MOTIONS None. 6. WITNESSES a. List the nonexpert witnesses to be called by each party. List separately: See Plaintiff/Defendant Witness List attached hereto b. List the expert witnesses to be called by each party. List separately: (1) witnesses who will be present at trial (see Fed. R. Civ. P. 26(a)(3)(A)); See Plaintiff/Defendant Witness List attached hereto. (2) witnesses who may be present at trial (see Fed. R. Civ. P. 26(a)(3)(A)); and Plaintiff United States: None

Defendant State of Colorado: None

(3) witnesses where testimony is expected to be presented by means of a deposition and, if not taken stenographically, a transcript of the pertinent portions of the deposition testimony. See Fed. R. Civ. P. 26(a)(3)(B). 10

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Plaintiff United States:

None

Defendant State of Colorado: None 7. EXHIBITS a. b. See joint Exhibit List attached hereto. Copies of listed exhibits must be provided to opposing counsel and any pro se

party no later than five days after the final pretrial conference. The objections contemplated by Fed. R. Civ. P. 26(a)(3) shall be filed with the clerk and served by hand delivery or facsimile no later than 11 days after the exhibits are provided. 8. DISCOVERY Discovery has been completed. 9. SPECIAL ISSUES None. 10. SETTLEMENT a. Counsel for the parties and any pro se party have met in person and by telephone on numerous occasions to discuss settlement. Settlement discussions with all Defendants are continuing. The parties have only a few technical issues involving the specific terms and conditions of the perpetual easements that are the subject of this condemnation action to resolve.

b.

The participants in the settlement conference, included counsel, party representatives, and any pro se party.

c.

The parties were promptly informed of all offers of settlement. 11

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d.

Counsel for the parties and any pro se party are currently and will continue to discuss the resolution of the remaining issues. It is anticipated that a final resolution of all outstanding issues will be completed within 45 days.

e.

It appears from the discussion by all counsel and any pro se party that there will be a settlement finalized within 45 days.

f.

The date of the next settlement conference before the magistrate judge or other alternative dispute resolution method. No settlement conference has been scheduled before the magistrate judge for the reason that no settlement conference is needed. The parties are resolving the issues amicably.

g.

Counsel for the parties and any pro se party considered ADR in accordance with D.C.COLO.LCivR.16.6. ADR is not required. The parties are resolving the issues amicably. 11. OFFER OF JUDGMENT

Counsel and any pro se party acknowledge familiarity with the provision of rule 68 (Offer of Judgment) of the Federal Rules of Civil Procedure. Counsel have discussed it with the clients against whom claims are made in this case.

12. EFFECT OF FINAL PRETRIAL ORDER Hereafter, this Final Pretrial Order will control the subsequent course of this action and the trial, and may not be amended except by consent of the parties and approval by the court or

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by order of the court to prevent manifest injustice. The pleadings will be deemed merged herein. This Final Pretrial Order supersedes the Scheduling Order. In the event of ambiguity in any provision of this Final Pretrial Order, reference may be made to the record of the pretrial conference to the extent reported by stenographic notes and to the pleadings. 13. TRIAL AND ESTIMATED TRIAL TIME; FURTHER TRIAL PREPARATION PROCEEDINGS 1. 2. Trial is to the court. Estimated trial time -- Trial is scheduled for 2 days, beginning February 13, 2007. 3. 4. Situs of trial -- Denver, Colorado. Any other orders pertinent to the trial proceedings. None.

DATED this _____ day of _____________ 200__. BY THE COURT:

____________________________________ Marcia S. Krieger United States District Judge APPROVED:

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TROY A. EID United States Attorney s/Stephen D. Taylor Stephen D. Taylor, Esq. Assistant U.S. Attorney 1225 Seventeenth Street Suite 700 Denver, CO 80292 (303) 454-0100 Attorney for Plaintiff United States of America

JOHN W. SUTHERS Attorney General State of Colorado s/Timothy J. Monahan Timothy J. Monahan, Esq. Assistant Attorney General Natural Resources 1525 Sherman Street 5th Floor Denver, CO 80203 (303) 866-5861 Attorney for Defendant State of Colorado

ROTHGERGER, JOHNSON & LYONS LLP s/Thomas J. Dougherty Thomas J. Dougherty, II, Esq. 1200 Seventeenth Street Suite 3000 Denver, CO 80202 (303) 623-9222 Attorneys for Tri-State Generation & Transmission Association, Inc., successorin-interest to Colorado-Ute Electric Association, Inc. MAYNES, BRADFORD, SHIPPS & SHEFTEL, LLP

HOLLAND & HART LLP

Todd W. Miller, Esq. Holland & Hart LLP 8390 E. Crescent Parkway Suite 400 Greenwood Village, CO 80111 (303) 290-1600 Attorneys for Defendant Atmos Energy Corporation

John Barlow Spear, Esq. 835 East 2nd Avenue Suite 123 Durango, CO 81302 (970) 247-1755 Attorneys for La Plata Electric Association, Inc.

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