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

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

Document 113

Filed 12/15/2006

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Case No. 02-cv-01841-MSK-MJW UNITED STATES OF AMERICA, Plaintiff, v. 117.54 ACRES OF LAND, MORE OR LESS, SITUATED IN LA PLATA, COLORADO; and STATE OF COLORADO; ATMOS ENERGY CORP., a Texas Corporation; LA PLATA COUNTY TREASURER, LA PLATA, COLORADO; and UNKNOWN OWNERS, Defendants. DEFENDANT STATE OF COLORADO'S RESPONSE TO ORDER TO SHOW CAUSE WHY CLAIMS SHOULD NOT BE DISMISSED FOR FAILURE TO PROSECUTE Comes now DEFENDANT STATE OF COLORADO (hereinafter "Colorado"), by and through its attorneys, the Colorado Attorney General and the undersigned counsel, and responds to the Court's December 11, 2006 Order to Show Cause Why Claims Should not be Dismissed as follows: 1. The above matter involves an action in condemnation brought by the United

States against Colorado seeking easements for third party pipelines displaced by the construction, and the inlet conduit required for operation, of the Ridges Basin Dam and Reservoir, Animas La Plata Project in LaPlata County, Colorado. The easements at issue cross and bisect portions of the Bodo State Wildlife Area owned by Colorado. The Bodo State Wildlife Area is located adjacent to the Ridges Basin Dam and Reservoir.

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2.

The pipeline easements condemned by the United States from Colorado were

taken for the purpose of relocating pipeline easements previously held by Defendant Northwest Pipeline Corporation and Defendant Enterprise Partners L.P. to replace their original pipelines displaced by the construction of the Ridges Basin Dam and Reservoir. Such replacement pipelines have now been constructed on land owned in fee by Colorado. The inlet conduit easement is required for operation of the Ridges Basin Dam and Reservoir by the U.S. Bureau of Reclamation, but the inlet conduit has not yet been constructed. 3. The above matter is actually the third in a series of condemnations by the

United States of property owned by Colorado. In fact, most of the land taken in fee for construction of the Ridges Basin Dam and Reservoir in the initial condemnation action filed by the United States was previously owned by Colorado and also part of the Bodo State Wildlife Area. Colorado has not contested any of the condemnations, other than to seek just compensation, and throughout the proceedings Colorado has sought to cooperate with the United States regarding its efforts to construct the Ridges Basin Dam and Reservoir. 4. Colorado recognizes that more time than desired has past since the initial

filings in this third condemnation action without a final resolution or trial. However, Colorado understands that engineering necessities have warranted the filing of amended pleadings and have caused resolution of the matter to take more time than otherwise anticipated or desired by any of the parties. Throughout, Colorado has continued to work with the United States to resolve the matter in an amicable manner and the parties are presently working on resolving two minor issues remaining between them, having already 2

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agreed upon the manner to determine the amount of just compensation to be paid to Colorado for the condemned easements in this action. 5. Dismissal of the pending condemnation action now for failure to prosecute

would greatly prejudice Colorado. Upon the filing of this condemnation action the United States was granted immediate possession of the easements sought and the replacement pipelines have already been constructed on lands held in fee by Colorado. Dismissal of the action would then require Colorado to incur the significant costs of prosecuting a trespass and takings action against the United States and the defendant pipeline companies. 6. Colorado believes that the matter can and will be amicably resolved in

accordance with the timeline previously established by the Court and, if not, understands that the matter will be tried on February 13 and 14, 2007. 7. Colorado believes that a discharge of the Court's Order to show Cause will

preserve both state and judicial resources.

WHEREFORE Colorado requests that the Court discharge it's December 11, 2006 Order to Show Cause. DATED this 15th day of December, 2006.

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JOHN W. SUTHERS Attorney General /s/ Timothy J. Monahan TIMOTHY J. MONAHAN Assistant Attorney General Natural Resources and Environment Section Attorneys for Defendant State of Colorado 1525 Sherman Street, 5th Floor Denver, Colorado 80203 Telephone: (303) 866-5861 Fax: (303) 866-3558 E-mail: [email protected]

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

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CERTIFICATE OF SERVICE

This is to certify that I have duly served the within RESPONSE TO ORDER TO SHOW CAUSE upon all parties herein by electronically filing the same with the Clerk of the Court using the ECF system which will send notification of such filing to the following e-mail addresses this 15th day of December 2006 addressed as follows: Michael A. Goldman Stephen Taylor [email protected]

[email protected] [email protected], [email protected] [email protected], [email protected]

Karen Lynn Brody

Thomas J. Dougherty, II

Todd W. Miller [email protected], [email protected], [email protected], [email protected] Thomas R. O'Donnell [email protected] John Barlow Spear Copy mailed to: Teresa Silcox Torrey 295 Chipeta Way Salt Lake City, UT 84108 /s/ David Canaday [email protected], [email protected]

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