Free Pretrial Order - District Court of Colorado - Colorado

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Honorable Marcia S. Krieger

Case No. 00-cv-2325-MSK-OES SIERRA CLUB, and MINERAL POLICY CENTER, Plaintiffs, v. CRIPPLE CREEK & VICTOR GOLD MINING COMPANY, ANGLOGOLD ASHANTI (COLORADO) CORPORATION, ANGLOGOLD ASHANTI NORTH AMERICA, INC., and GOLDEN CYCLE GOLD CORPORATION, Defendants. and Civil Action No. 01-cv-2307-MSK-OES SIERRA CLUB, and MINERAL POLICY CENTER, Plaintiffs, v. CRIPPLE CREEK & VICTOR GOLD MINING COMPANY, ANGLOGOLD ASHANTI (COLORADO) CORPORATION, ANGLOGOLD ASHANTI NORTH AMERICA, INC., and GOLDEN CYCLE GOLD CORPORATION, Defendants.

AMENDED FINAL PRETRIAL ORDER

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I. Final Pretrial Conference A final pretrial conference was held on March 25, 2005. A continuation of the final pretrial conference was held on November 15, 2005. The Final Pretrial Order has been amended to reflect the Court' oral rulings. To the extent that this Amended Final Pretrial Order is s inconsistent with the Court' oral rulings, the oral rulings control. s II. Jurisdiction The Court exercises subject matter jurisdiction pursuant to 28 U.S.C. § 1331 and the Clean Water Act, 33 U.S.C. § 1365(a). The parties dispute whether the Plaintiffs have organizational or representational standing to pursue their claims. III. Claims and Defenses Claim 1: Discharge Without a Permit and Failure to Comply With Permit The Plaintiffs claim that the Defendants discharged pollutants from the Carlton Tunnel Ponds and/or Waste Rock Dump into Fourmile Creek without a permit. They also claim that the Defendants failed to comply with a permit condition prohibiting any discharge to waters of the state from a point source other than specifically authorized by the permit. Being advised in the applicable law, the Court concludes that the discharge without a permit claim has the following elements: (1) the discharge (2) of a pollutant (3) to navigable

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waters1 (4) from any point source (5) without a permit, and (6) the violation was ongoing as of November 27, 2000, or there was a continuing likelihood of a recurrence in intermittent or sporadic violations as of that date. The defenses to this claim are: (1) the claim is moot; (2) the Plaintiffs cannot meet their burden of proof on the first five elements; and (3) the Plaintiffs cannot prove that Defendant Golden Cycle Gold Corporation is liable as an owner, operator, discharger or otherwise. To the extent that the Plaintiffs allege that the Defendants failed to comply with a permit condition, the elements of this claim are: (1) a discharge permit was issued to the Defendants; (2) the permit had a condition prohibiting any discharge to waters of the state from a point source other than specifically authorized by the permit; (3) the Defendants discharged to waters of the state from a point source not specifically authorized in the permit; and (4) the violation was ongoing as of November 27, 2000, or there was a continuing likelihood of a recurrence in intermittent or sporadic violations as of that date. The defenses to this claim are: (1) the claim is moot; (2) the Plaintiffs cannot meet their burden of proof on elements 1, 2, and 3; and (3) the Plaintiffs cannot prove that Defendant Golden Cycle Gold Corporation is liable as an owner, operator, discharger or otherwise.

A waterway or other waters need not be navigable in fact in order to constitute "navigable waters" under the Clean Water Act. See United States v. Riverside Bayview Homes, Inc., 474 U.S. 121, 131-35 (1985) (waters adjacent to navigable waters); International Paper Co. v. Ouellette, 479 U.S. 481, 486 n.6 (1987); Quivira Min. Co. v. U.S. E.P.A., 765 F.2d 126, 129-30 (10th Cir. 1985) (finding an intermittent arroyo which connects with navigable waters constitutes a navigable water); United States v. Eidson, 108 F.3d 1336, 1341 (11th Cir. 1997); United States v. Phillips, 367 F.3d 846, 855-56 (9th Cir.), cert. denied, 125 S. Ct. 479 (2004); United States v. Deaton, 332 F.3d 698, 702 (4th Cir. 2003), cert. denied, 541 U.S. 972 (2004); 40 C.F.R. § 300.5; see also Sierra Club v. El Paso Gold Mines, Inc., 421 F.3d 1133 (10th Cir. 2005); but see In re Needham, 354 F.3d 340, 345 (5th Cir. 2003).

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Claim 2: Discharge in Excess of Permit Limits The Plaintiffs claim that the Defendants exceeded the effluent limitations (2.58 MGD on a 30 day average) in the Carlton Tunnel Permit for discharges at the Carlton Tunnel Outfall 002 into Fourmile Creek on at least the following occasions: September 1995, October 1995, November 1995, December 1995, January 1996, and June 1999. Being advised in the applicable law, the Court concludes that the elements of this claim are: (1) a discharge permit was issued to the Defendants; (2) the permit had effluent limitations; (3) the discharge exceeded the limit; and (4) the violation was ongoing as of November 27, 2000, or there was a continuing likelihood of a recurrence in intermittent or sporadic violations as of that date. The defenses to this claim are: (1) the Plaintiffs cannot meet their burden of proof on elements 1 and 4; and (2) the Plaintiffs cannot prove that Defendant Golden Cycle Gold Corporation is liable as an owner, operator, discharger or otherwise. Claim 3: Discharge in Excess of Permit Limits The Plaintiffs claim that the Defendants exceeded the effluent limitations (30 mg/l on a 30 day average for Total Suspended Solids) in the Carlton Tunnel Permit for discharges at the Carlton Tunnel Outfall 002 into Fourmile Creek on at least the following occasions: December 1995, January 1996, and twice in March 1996. The elements of this claim are the same as the elements for Claim 2. The defenses to this claim are: (1) the claim is moot; (2) the Plaintiffs cannot meet their burden of proof on elements 1 and 4; and (3) the Plaintiffs cannot prove that Defendant Golden Cycle Gold Corporation is liable as an owner, operator, discharger or otherwise. 4

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Claim 4: Discharge in Excess of Permit Limits The Plaintiffs claim that the Defendants exceeded the effluent limitations (45 mg/l on a 7 day average for Total Suspended Solids) in the Carlton Tunnel Permit for discharges at the Carlton Tunnel Outfall 002 into Fourmile Creek on at least the following occasions: March 4, 1996 and May 6, 1996. The elements of this claim are the same as the elements for Claim 2. The defenses to this claim are: (1) the claim is moot; 2) the Plaintiffs cannot meet their burden of proof on elements 1 and 4; and (3) the Plaintiffs cannot prove that Defendant Golden Cycle Gold Corporation is liable as an owner, operator, discharger or otherwise. Claim 5: Discharge in Excess of Permit Limits The Plaintiffs claim that the Defendants exceeded the effluent limitations (.54 mg/l on a 30 day average for zinc) in the Carlton Tunnel Permit for discharges at the Carlton Tunnel Outfall 002 into Fourmile Creek on at least the following occasions: August 1998 and June 1999. The elements of this claim are the same as the elements for Claim 2. The defenses to this claim are: (1) the claim is moot; (2) the Plaintiffs cannot meet their burden of proof on elements 1 and 4; and (3) the Plaintiffs cannot prove that Defendant Golden Cycle Gold Corporation is liable as an owner, operator, discharger or otherwise. Claim 6: Discharge in Excess of Permit Limits The Plaintiffs claim that the Defendants exceeded the effluent limitations (.60 mg/l on a daily maximum for zinc) in the Carlton Tunnel Permit for discharges at the Carlton Tunnel Outfall 002 into Fourmile Creek on at least the following occasions: September 9, 1998, May 19, 1999, and June 1, 1999. 5

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The elements of this claim are the same as the elements for Claim 2. The defenses to this claim are: (1) the claim is moot; (2) the Plaintiffs cannot meet their burden of proof on elements 1 and 4; and (3) the Plaintiffs cannot prove that Defendant Golden Cycle Gold Corporation is liable as an owner, operator, discharger or otherwise. Claim 7: Discharge in Excess of Permit Limits The Plaintiffs claim that the Defendants exceeded the effluent limitations (for Whole Effluent Toxicity) in the Carlton Tunnel Permit for discharges at the Carlton Tunnel Outfall 002 into Fourmile Creek on at least the following occasions: 2nd Quarter 1996, 1st and 2nd Quarters 1997, 3rd Quarter 1999, and 2nd Quarter 2004. The elements of this claim are the same as the elements for Claim 2. The defenses to this claim are: (1) the claim is moot; (2) the Plaintiffs cannot meet their burden of proof on elements 1 and 4; and (3) the Plaintiffs cannot prove that Defendant Golden Cycle Gold Corporation is liable as an owner, operator, discharger or otherwise. Claim 8: Discharge in Excess of Permit Limits and Failure to Comply with Permit The Plaintiffs claim that the Defendants exceeded the effluent limitations (for Whole Effluent Toxicity) in the Arequa Gulch Permit for discharges at Arequa Gulch Outfall 001A into Arequa Gulch during the 4th Quarter of 1996. They also claim that the Defendants failed to comply with the Whole Effluent Toxicity Testing requirements of the Arequa Gulch Permit at Arequa Gulch Outfall 001A after December 31, 1996. To the extent that the Plaintiffs allege a discharge in excess of the permit limits, the elements of this claim are the same as the elements for Claim 2. The defenses to this claim are: (1) the claim is moot; (2) the Plaintiffs cannot meet their burden of proof on elements 1 and 4; and 6

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(3) the Plaintiffs cannot prove that Defendant Golden Cycle Gold Corporation is liable as an owner, operator, discharger or otherwise. To the extent that the Plaintiffs allege that the Defendants failed to comply with the permit, the elements of this claim are: (1) a discharge permit was issued to the Defendants; (2) the permit had a toxicity testing requirement; (3) the Defendants failed to conduct the required testing; and (4) the violation was ongoing as of November 27, 2000, or there was a continuing likelihood of a recurrence in intermittent or sporadic violations as of that date. The defenses to this claim are: (1) the claim is moot; (2) the Plaintiffs cannot meet their burden of proof on all elements; and (3) the Plaintiffs cannot prove that Defendant Golden Cycle Gold Corporation is liable as an owner, operator, discharger or otherwise. Claim 9: Discharge in Excess of Permit Limits The Plaintiffs claim that the Defendants exceeded the effluent limitations (.21 mg/l on a 30 day average for Weak Acid Dissociable Cyanide) in the Arequa Gulch Permit for discharges at Arequa Gulch Outfall 001A into Arequa Gulch on at least the following occasions: September 1998, May 1999, June 1999, July 1999, and August 1999. The elements of this claim are the same as the elements for Claim 2. The defenses to this claim are: (1) the claim is moot; (2) the Plaintiffs cannot meet their burden of proof on elements 1 and 4; and (3) the Plaintiffs cannot prove that Defendant Golden Cycle Gold Corporation is liable as an owner, operator, discharger or otherwise. Claim 10: Discharge Without a Permit The Plaintiffs claim that the Defendants discharged pollutants from the Roosevelt Tunnel portal into Cripple Creek without a permit. 7

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The elements of this claim are the same as the elements for the discharge without a permit claim in Claim 1. The defenses to this claim are: (1) the Plaintiffs cannot meet their burden of proof on elements 1, 2, and 3; and (2) the Plaintiffs cannot prove that Defendant Golden Cycle Gold Corporation is liable as an owner, operator, discharger or otherwise. Claim 11: Discharge Without a Permit The Plaintiffs claim that the Defendants discharged pollutants from the Valley Leach Facility, underdrains, pumpback system, sediment/treatment ponds, and/or Arequa Gulch Outfall 001A into Arequa Gulch without a permit. The elements of this claim are the same as the elements for the discharge without a permit claim in Claim 1. The defenses to this claim are: (1) the claim is moot; (2) the Plaintiffs cannot meet their burden of proof on elements 1, 2, 3, 5, and 6; and (3) the Plaintiffs cannot prove that Defendant Golden Cycle Gold Corporation is liable as an owner, operator, discharger or otherwise. Claim 12: Discharge in Excess of Permit Limits The Plaintiffs claim that the Defendants exceeded the effluent limitations (.005 mg/l on a daily maximum for Weak Acid Dissociable Cyanide, pH, .087 mg/l on a 30 day average and .750 mg/l daily maximum for aluminum, .0034 mg/l on a 30 day average and .019 daily maximum for cadmium, 1.0 mg/l on a 30 day average for manganese, .343 mg/l on a 30 day average and .379 mg/l daily maximum for zinc) in the Arequa Gulch Permit for discharges at Arequa Gulch Outfall 001A into Arequa Gulch on dates specified in the March 6, 2002 and January 22, 2005 notice letters. 8

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The elements of this claim are the same as the elements for Claim 2. The defenses to this claim are: (1) the claim is moot; (2) the Plaintiffs cannot meet their burden of proof on elements 1 and 4; and (3) the Plaintiffs cannot prove that Defendant Golden Cycle Gold Corporation is liable as an owner, operator, discharger or otherwise. Claim 13: Discharge Without a Permit The Plaintiffs claim that the Defendants discharged pollutants from the Moffat Tunnel Cribbing Wall into Cripple Creek without a permit. The elements of this claim are the same as the elements for the discharge without a permit claim in Claim 1. The defenses to this claim are: (1) the Plaintiffs cannot meet their burden of proof on elements 1, 2, 3, and 4; and (2) the Plaintiffs cannot prove that Defendant Golden Cycle Gold Corporation is liable as an owner, operator, discharger or otherwise. Claim 14: Discharge Without a Permit The Plaintiffs claim that the Defendants discharged pollutants from the Squaw Gulch Pond into Squaw Gulch without a permit. The elements of this claim are the same as the elements for the discharge without a permit claim in Claim 1. The defenses to this claim are: (1) the Plaintiffs cannot meet their burden of proof on elements 1, 2, 3, and 4; and (2) the Plaintiffs cannot prove that Defendant Golden Cycle Gold Corporation is liable as an owner, operator, discharger or otherwise. IV. Stipulations 1. Defendant AngloGold Ashanti North America, Inc. is a corporation incorporated 9

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under the laws of the State of Colorado and is doing business in the State of Colorado. The corporate address for AngloGold Ashanti North America Inc. is 7400 East Orchard Road, Suite 350, Greenwood Village, CO 80111. 2. Defendant AngloGold Ashanti (Colorado) Corp. is a corporation incorporated

under the laws of the State of Delaware and is doing business in the State of Colorado. The corporate address for AngloGold Ashanti (Colorado) Corp. is 7400 East Orchard Road, Suite 350, Greenwood Village, CO 80111. AngloGold Ashanti (Colorado) Corp. is a wholly owned subsidiary of AngloGold Ashanti North America Inc. AngloGold Ashanti (Colorado) Corp., as successor-in-interest to Pikes Peak Mining Company, is the manager of the joint venture known as Cripple Creek and Victor Gold Mining Company (" CC&V" AngloGold Ashanti (Colorado) ). Corp., as successor-in-interest to Pikes Peak Mining Company, has a 67% interest in CC&V. 3. Defendant Golden Cycle Gold Corporation is a corporation incorporated under the

laws of the State of Colorado and is doing business in the State of Colorado. The corporate address for Golden Cycle Gold Corporation is 1515 S. Tejon, Suite 201, Colorado Springs, CO 80906. Golden Cycle Gold Corporation has a 33% interest in CC&V. 4. Defendant CC&V is a joint venture between AngloGold Ashanti (Colorado) Corp.

and Golden Cycle Gold Corporation. Since at least September 1995, CC&V has owned and operated the Cresson Project in Teller County, Colorado, which is a gold mining operation. 5. CC&V is a joint venture governed by the terms of the Joint Venture Agreement

and the laws of Colorado. 6. Defendants CC&V, Golden Cycle Gold Corporation, AngloGold Ashanti

(Colorado) Corp., and AngloGold Ashanti North America Inc. are each a " person"within the 10

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meaning of Section 502(5) of the Clean Water Act, 33 U.S.C. § 1362(5). 7. Arequa Gulch and Squaw Gulch are tributaries of Cripple Creek; Cripple Creek is

a tributary of Fourmile Creek; and Fourmile Creek is a tributary of the Arkansas River. The Arkansas River is an inter-state water. 8. The EPA has authorized CDPHE to issue NPDES permits pursuant to 33 U.S.C.

§ 1342(b) and EPA maintains federal oversight over the State of Colorado' NPDES program. s 9. The WQCD has issued NPDES equivalent permits for discharges into Arequa

Gulch, Cripple Creek, and Fourmile Creek. 10. The State of Colorado has adopted water quality standards and classifications for

Fourmile Creek, Cripple Creek, Arequa Gulch, and Squaw Gulch. 11. 12. 13. Underground drainage tunnels exist within the Cripple Creek Mining District. The Moffat Tunnel is located in or near the Cripple Creek Mining District. The Moffat Tunnel is a man-made drainage tunnel which underlies certain

properties and mineral interests of Defendant CC&V. 14. 15. The Moffat Tunnel was constructed for the purpose of draining water. CC&V currently conducts mining-related activities of the Cresson Project in the

upper reaches of the Squaw Gulch watershed in Teller County between the towns of Cripple Creek and Victor, Colorado. 16. Portions of the Squaw Gulch watershed are currently located within the permitted

boundary of Mined Land Reclamation Board (" MLRB" Permit No. M-1980-244 (as amended) ) issued by the Colorado MLRB. 17. As part of its current mining-related activities of the Cresson Project, CC&V

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places and stores overburden in the upper reaches of Squaw Gulch. 18. The Moffat Tunnel Cribbing Wall is a man-made structure located between the

Moffat Tunnel portal and Cripple Creek. 19. The Squaw Gulch Pond is a man-made pond located near the Squaw Gulch Road

approximately 1/4 mile below Highway 67 in Teller County. 20. Defendants do not have a NPDES permit, issued pursuant to the Clean Water Act,

to discharge pollutants from the Moffat Tunnel Cribbing Wall into Cripple Creek or from the Squaw Gulch Pond into Squaw Gulch. 21. Defendant CC&V has a property ownership interest in the property upon which

the Squaw Gulch Pond is located. 22. Since approximately September 8, 2000, the Moffat Tunnel Cribbing Wall has

been located within the mine permit boundary of MLRB Permit M-1980-244 for the Cresson Project. 23. Since approximately January 25, 1999, the Squaw Gulch Pond has been located

within the mine permit boundary of MLRB Permit M-1980-244 for the Cresson Project. 24. The Roosevelt Tunnel is a man-made underground structure that is approximately

5 miles long and it was constructed for the purpose of draining ground water. 25. 26. The Roosevelt Tunnel is located in or near the Cripple Creek Mining District. The Roosevelt Tunnel underlies certain properties and mineral interests of

Defendant CC&V and others. 27. 28. The base of the El Paso shaft is connected to the Roosevelt Tunnel. The surface features of the El Paso shaft are located within the current mine permit 12

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boundary of MLRB Permit M-1980-244 for the Cresson Project. 29. The portal of the Roosevelt Tunnel is located along Shelf Road, County Road 88

in Teller County, Colorado. 30. On November 27, 2000 CC&V held an unpatented lode mining claim, CMC No.

169659 known as the El Paso mining claim on the property upon which the Roosevelt Tunnel portal is located. 31. At various times from November 2000, CC&V has intermittently possessed a key

to the locked gate at the portal of the Roosevelt Tunnel. During the time that CC&V held the unpatented El Paso mining claim, CC&V granted access, on occasion, across that claim to persons desiring to enter the Roosevelt Tunnel. 32. Representatives of CC&V have entered the Roosevelt Tunnel on at least the

following dates: in 1991; in March 1993; on July 22, 1993; on May 13, 1994; on October 4, 1994; on October 14, 1994; on May 26, 1995; on October 23, 1996; on July 23, 1998; on August 21, 2001; and on June 3, 2003. 33. Flow from the Roosevelt Tunnel portal into Cripple Creek has been observed on

occasion from September 27, 1995 to the present. 34. Since at least September 1995 to May 8, 2002, CC&V has occasionally taken

samples of water flowing at a culvert connected to the Roosevelt Tunnel portal and has had at least some of these water samples analyzed. The results of the water sample analyses are contained in analytic reports for those water samples. 35. There is documentation showing that the water exiting the culvert connected to the

Roosevelt Tunnel portal contains chemical constituents. 13

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36.

The portal of the Roosevelt Tunnel constitutes a " point source"as that term is

defined in Section 502(14) of the Clean Water Act. 37. Defendants do not operate any treatment system for the water flowing from the

Roosevelt Tunnel. 38. Defendants do not possess a valid NPDES permit for the discharge of pollutants at

the Roosevelt Tunnel. 39. 40. The Carlton Tunnel is located in or near the Cripple Creek Mining District. The Colorado Water Quality Control Division (" WQCD" has issued to Defendant )

CC&V NPDES equivalent permits including Permit CO-0024562 (a/k/a the Carlton Tunnel Permit). 41. water. 42. The Carlton Tunnel underlies properties that are located within and outside of the The Carlton Tunnel was completed in the early 1940's for the purpose of draining

current boundary of MLRB Permit M-1980-244 for the Cresson Project. 43. The Carlton Tunnel drains the regional ground water aquifier underlying the

Cripple Creek Mining District and surrounding areas. 44. Currently, flows from the Carlton Tunnel are directed through a series of settling

ponds (" Carlton Tunnel Ponds" ). 45. The Carlton Tunnel Ponds were initially installed to assist in the removal of

suspended solids. 46. CC&V owns the property upon which the portal of the Carlton Tunnel and Carlton

Tunnel Ponds are located. CC&V also possess a property interest in a portion of the area 14

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between the Carlton Tunnel Ponds and Shelf Road. 47. The Carlton Tunnel portal, the Carlton Tunnel Ponds, and a portion of the area

between the Carlton Tunnel Ponds and Shelf Road are included within the current boundary of MLRB Permit M-1980-244 for the Cresson Project. 48. From at least September 1995 to the present, water flow containing chemical

constituents has generally flowed past Outfall 002 as described in CDPS Permit No. CO-0024562 and flowed into Fourmile Creek. 49. The portal of the Carlton Tunnel constitutes a " point source"as that term is

defined in Section 502(14) of the Clean Water Act. 50. CDPS Permits Nos. CO-0024562 and CO-0043648 require the permittee - CC&V

- to submit Discharge Monitoring Reports (" DMRs" ). 51. According to DMRs, there was an initial WET test failure of Ceriodaphnia dubia

at Outfall 002A described in Permit CO-0024562 in: second quarter, 1996; first quarter, 1997; and third quarter, 1999. 52. According to DMRs, the 30-day average flow number in Permit CO-0024562 for

Outfall 002A was exceeded in July, August, September, October, November, December, 1995; January 1996; and June 1999. 53. According to DMRs, the effluent limit for the 30-day average concentration for

Total Suspended Solids (" TSS" in Permit CO-0024562 at Outfall 002A was exceeded in ) December 1995; January 1996; and March 1996. 54. According to DMRs, the effluent limit for the 7-day average concentration for TSS

in Permit CO-0024562 at Outfall 002A was exceeded on May 6, 1996. 15

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55.

According to DMRs, the effluent limit for the 30-day average value for potentially

dissolved zinc in Permit CO-0024562 at Outfall 002A was exceeded in August 1998 and June 1999. 56. According to DMRs, the effluent limit for the daily maximum value for potentially

dissolved zinc in Permit CO-0024562 at Outfall 002A was exceeded on September 9, 1998; May 19, 1999; and June 1, 1999. 57. The WQCD has issued to Defendant CC&V NPDES equivalent permits including

Permit CO-0043648 (1996) (a/k/a the Cresson Project (1996) Permit). Outfall 001A as described in CDPS Permit No. CO-0043648 (1996) issued in October 1996 and CDPS Permit No. CO0043648 (2002) issued in December 2002 is located within the current boundary of MLRB Permit M-1980-244 for the Cresson Project. At times, water has flowed at Outfall 001A and the water flowing at that point has flowed into Arequa Gulch. Outfall 001A as described in the Cresson Project (1996) Permit and the Cresson Project (2002) Permit is a point source as that term is defined in § 502(14) of the CWA. 58. According to DMRs, the effluent limit for the 30-day average concentration for

weak acid dissociable cyanide in Permit CO-0043648 (1996) at Outfall 001A was exceeded in September 1998; and May, June, July and August, 1999. 59. According to DMRs, there was an initial WET test failure of Ceriodaphnia dubia

at Outfall 001A described in Permit CO-0043648 (1996) on fourth quarter 1996. 60. Defendant CC&V stopped conducting any further WET tests at Outfall 001A

described in Permit CO-0043648 (1996) on or before July 1997. 61. Samples of water in the vicinity of and lower in elevation than the Carlton Tunnel 16

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Ponds were taken on February 20, 1996, November 16, 2000, and March 22, 2001. 62. On at least September 12, 2001, water in the vicinity of and lower in elevation than

the Carlton Tunnel Ponds flowed into the roadside ditch along Shelf Road. V. Exhibits See Exhibits A and B hereto. VI. Witnesses See Exhibit C hereto. The admissibility of testimony is subject to the Court' rulings under Fed. R. Evid. 702. s VII. Effect of Amended Final Pretrial Order Hereafter, this Amended 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 by order of the Court to prevent manifest injustice. The pleadings are deemed merged herein. This Amended Final Pretrial Order supercedes the Scheduling Order. In the event of ambiguity in any provision of this Amended 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. VIII. Trial 1. 2. Trial of this matter will be to the Court. A two week Bench Trial is set for February 13, 2006 at 1:00 p.m..

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Approved as to form: By s/ John Barth Attorney at Law P.O. Box 409 Hygiene, CO 80533 (303) 774-8868 [email protected] ATTORNEY FOR PLAINTIFFS

Approved as to form: By s/ Robert C. Troyer Robert C. Troyer, Esq. HOGAN & HARTSON, LLP 1200 17th St., Ste. 1500 Denver, CO 80202 Telephone: (303)899-7300 Fax: (303)899-7333 E-mail: [email protected] Eugene J. Riordan VRANESH & RAISCH, LLP 1720 14th Street, Suite 200 Boulder, CO 80306-0871 (303) 443-6151 [email protected] ATTORNEYS FOR DEFENDANTS CRIPPLE CREEK & VICTOR GOLD MINING COMPANY, ANGLOGOLD ASHANTI (COLORADO) CORP., and ANGLOGOLD ASHANTI NORTH AMERICA INC.

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Approved as to form: By: s/ Don H. Sherwood Don H. Sherwood (#004474) 10861 West 28th Place Denver, CO 80215 [email protected] ATTORNEY FOR DEFENDANT GOLDEN CYCLE GOLD CORPORATION Dated this 1st day of December, 2005 BY THE COURT:

Marcia S. Krieger United States District Judge

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