Free Joint Status Report - District Court of Federal Claims - federal

Case 1:01-cv-00254-BAF

Document 119

Filed 04/24/2008

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS ) ) Plaintiffs, ) ) v. ) ) UNITED STATES, ) ) Defendant. ) ----------------------------------------------------- ) WELLMORE ENERGY, LLC, ) ) Plaintiff, ) ) v. ) ) UNITED STATES, ) ) Defendant. ) JOINT STATUS REPORT Pursuant to the Court's order dated March 25, 2008, the parties respectfully submit this joint status report, in which we describe progress made during the stay and the parties' positions regarding further proceedings necessary in these cases. Since this Court's order, the parties have made progress towards resolving some issues regarding remaining transactions of two of the test plaintiffs, Kingston Resources, Inc. (Kingston) and Pioneer Fuel Corp. (Pioneer). As reported earlier, auditors from the Office of Surface Mining (OSM) reviewed documents on-site related to Kingston and Pioneer sales. The auditors have completed a preliminary assessment of these new documents. The auditors must coordinate and work with Pioneer and Kingston representatives to resolve some remaining issues. OSM estimates that it will be able to complete its review within a week after meeting with Kingston and Pioneer CONSOLIDATION COAL CO., et al.,

No. 01-254 (Judge Futey)

No. 01-442 (Judge Futey)

Case 1:01-cv-00254-BAF

Document 119

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representatives. At that point, the parties may be in a position to stipulate to facts related to these transactions, which should limit the issues to be briefed regarding Kingston and Pioneer's sales. In that event, it is likely that the only issue that would have to be briefed in connection with these two companies' sales through middlemen is whether those sales took place while the coal was in the export stream of commerce. That issue is also relevant to the other two test plaintiffs, Consol of Pennsylvania Coal Company (Consol) and Eastern Associated Coal Corporation (Eastern Associated). During the pendency of the stay, the parties have also discussed additional documentation requested by OSM relating to the plaintiffs' sales of coal to Canadian customers. Plaintiffs are in the process of requesting or are awaiting letters from the Canadian customers confirming that all coal sold to them was actually exported to Canada. Finally, Consol and Eastern Associated are in the final stages of collecting documentation which they believe will establish to OSM's satisfaction the actual export of coal sold to unrelated U.S. middlemen/brokers which, in turn, contracted with foreign purchasers. The parties respectfully request that the Court schedule June 2, 2008 for the submission of the next status report, following which the parties expect that they will be in a position to request a scheduling order regarding the briefing of the remaining damages issues.

Case 1:01-cv-00254-BAF

Document 119

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Respectfully submitted, JEFFREY S. BUCHHOLTZ Acting Assistant Attorney General JEANNE E. DAVIDSON Director S/Todd M. Hughes TODD M. HUGHES Deputy Director S/Tara K. Hogan TARA K. HOGAN Trial Attorney Commercial Litigation Branch Civil Division Department of Justice Attn: Classification Unit, 8th Floor 1100 L Street, NW Washington, D.C. 20530 Telephone: (202) 616-2228 Telecopier: (202) 305-7643 Of Counsel: April 24, 2008 DANIEL W. KILDUFF Department of the Interior Counsel for Defendant

S/Steven H. Becker STEVEN H. BECKER PAUL A. HOROWITZ SUZANNE I. OFFERMAN Baker & McKenzie LLP 1114 Avenue of the Americas New York, New York 10036 Counsel for plaintiffs Consolidation Coal Co., et al.

S/John Y. Merrell, Jr. JOHN Y. MERRELL, JR. Merrell & Merrell, P.C. 1477 Chain Bridge Road, Suite 101 McLean, Virginia 22101 Counsel for plaintiff Wellmore Energy Co., LLC

Case 1:01-cv-00254-BAF

Document 119

Filed 04/24/2008

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CERTIFICATE OF ELECTRONIC FILING

I hereby certify that on this 24th day of April 2008, a copy of the foregoing "JOINT STATUS REPORT" was filed electronically. I understand that notice of this filing will be sent to all parties by operation of the Court's electronic filing system. The parties may access this filing through the Court's System.

s/ Tara K. Hogan