Free Response - District Court of Colorado - Colorado

Case 1:01-cv-02163-BNB-MEH

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 01-cv-02163-BNB-MEH SIERRA CLUB and MINERAL POLICY CENTER, Plaintiffs, v. EL PASO PROPERTIES (fka EL PASO GOLD MINES, INC.) Defendant. ______________________________________________________________________________ PLAINTIFFS' RESPONSE IN OPPOSITION TO DEFENDANT'S BILL OF COSTS ______________________________________________________________________________ Plaintiffs Sierra Club and Mineral Policy Center file this Response in Opposition to El Paso Properties' Bill of Costs filed June 19, 2007 [Doc. # 257].1 El Paso should not be awarded costs because the public interest exception should be applied in this case resulting in each party bearing its own costs related to this litigation. In the event the Court assesses any costs against Plaintiffs, the amount of any such award should be significantly reduced as provided herein. I. ALL COSTS SHOULD BE DENIED UNDER THE PUBLIC INTEREST EXCEPTION. A. i. LEGAL AND FACTUAL BACKGROUND The Public Interest Exception to Rule 54

Federal Rule of Civil Procedure 54(d)(1) provides, in part, that "costs other than attorneys' fees shall be allowed as of course to the prevailing party unless the court otherwise directs." Fed. R. Civ. P. 54(d)(1). The district court has discretion to require that the parties bear their own costs. Subscription Television, Inc. v. S. Cal. Theater Owners Ass'n, 576 F.2d

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230, 234 (9th Cir. 1978); see also Sierra Club v. Colo. Ref. Co., 852 F.Supp. 1476, 1486 (D. Colo. 1994) (Judge Kane dismissing a long-running Clean Water Act citizen suit and ruling that "[e]ach party to bear its own costs"). When a court does not shift costs, it should "specify why it [is] not following the general rule of awarding costs to the prevailing party." Subscription Television, 576 F.2d at 234. When the district court in this case issued its trial ruling granting costs to El Paso, it did not consider equitable factors for denying costs to El Paso. Other courts have relied on such equitable factors to rebut the general cost rule in cases involving public interest plaintiffs. See County of Suffolk v. Sec'y of Interior, 76 F.R.D. 469, 473 (E.D.N.Y. 1977), cert. denied, 434 U.S. 1064 (1978); see also Wilderness Soc'y v. Morton, 495 F.2d 1026, 1030 (D.C. Cir. 1974) ("It is a paramount principle of equity that the court will go much further both to grant and to withhold relief in furtherance of the public interest than when only private interests are involved."); Rural Housing Alliance v. U. S. Dep't of Agric., 511 F.2d 1347, 1350 (D.C. Cir. 1974) (in determining whether to award costs the court should "exercise its discretion in a way that will not discourage representatives of divergent aspects of the public good from pursuing their claims in court"); Black Hills Alliance v. Reg'l Forester, 526 F.Supp. 257, 259-60 (D. S.D. 1981) (plaintiffs entitled to costs even though plaintiffs were not prevailing party, due to public interest and equities involved). ii. Factual History of this Litigation

Plaintiffs filed this case on November 5, 2001, claiming that El Paso Gold Mines, Inc. was violating the Clean Water Act by failing to obtain a discharge permit for the flow from a mine drainage tunnel known as the "Roosevelt Tunnel." After receiving Plaintiffs' sixty day

Paso filed two Bill of Costs. See Doc. # 256 and Doc. # 257. Both were filed on June 19, 2007. El Paso is relying on its second Bill of Costs (Doc. # 257). See Exhibit 1 hereto. . 2

1El

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notice of intent to sue letter on September 5, 2001, El Paso filed a discharge permit application with the State Water Quality Control Division ("WQCD") in October 2001 asking the WQCD to issue a discharge permit to a newly created entity called "Roosevelt Tunnel LLC" which was incorporated by El Paso President Dennis Schoger. Ex. 2 hereto; see also Sierra Club v. El Paso Gold Mines, Inc., 198 F.Supp.2d 1265, 1268 (D. Colo. 2002).2 El Paso then asked this district court to dismiss Plaintiffs' complaint based on the pending administrative proceedings before the WQCD. See El Paso Gold Mines, Inc., 198 F.Supp.2d at 1268. El Paso did not obtain a discharge permit during the 60 day notice period or thereafter. After this litigation was commenced, El Paso filed a motion to dismiss and opposed Plaintiffs' motion for summary judgment on the adequacy of their 60 day notice of intent to sue letter. Plaintiffs prevailed on both issues. See El Paso Gold Mines, Inc., 198 F.Supp.2d at 1266. After completion of discovery, both parties filed cross motions for summary judgment. El Paso's motion was denied. On the other hand, Magistrate Judge Coan ruled that Plaintiffs were entitled to a ruling at summary judgment that El Paso was liable for discharging water and pollutants from the El Paso shaft to the Roosevelt Tunnel portal. Ex. 3 hereto. Subsequently, Magistrate Judge Coan awarded Plaintiffs their attorneys fees and costs to Plaintiffs. Ex. 4 hereto. El Paso appealed Magistrate Judge Coan's rulings to the Tenth Circuit Court of Appeals. The Tenth Circuit postponed ruling on the appeal to give El Paso an opportunity to resolve the
2 Under the catalyst theory, a court could find that Plaintiffs are entitled to their costs and/or attorneys fees because Defendant took actions in direct response to Plaintiffs' claims, such as applying for a discharge permit and filing suit in state court demanding that the WQCD issue a discharge permit to El Paso. "[T]here is unambiguous evidence that Congress intended the 'whenever . . . appropriate' fee provisions of the Clean Air Act and the Clean Water Act to allow fee awards to plaintiffs who do not obtain court-ordered relief but whose suit has a positive catalytic effect." Loggerhead Turtle v. County Council of Volusia County, 307 F.3d 1318, 1326 (11th Cir. 2002). The Tenth Circuit has also applied the catalyst theory to "whenever. . . appropriate" statutes. See Ctr. for Biological Diversity v. Norton, 262 F.3d 1077, 1080 & n.2 (10th Cir. 2001) (catalyst theory applies to Endangered

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pending WQCD proceedings regarding its discharge permit application. Ex. 5. El Paso chose not to resolve the permitting matter through the WQCD. The Tenth Circuit then issued its ruling. Ex. 6. Plaintiffs prevailed on three of the four issues raised by El Paso on appeal. Id. The Tenth Circuit, however, remanded to the district court a single factual issue for trial regarding whether pollutants introduced into the Roosevelt Tunnel from El Paso's mine shaft were discharged at the tunnel portal. Id. El Paso filed a motion for costs in the Tenth Circuit which was denied. Ex. 7 hereto. El Paso then filed a petition for review before the U.S. Supreme Court of the Tenth Circuit decision. The parties agreed to stay the district court remand proceedings until the certiorari petition was resolved. Ex. 8. The Supreme Court denied El Paso's petition on April 4, 2006. El Paso Properties, Inc. v. Sierra Club, 547 U.S. 1065 (2006). Therefore, the district court remand proceedings did not commence until April 5, 2006. iii. Factual History of State and EPA Proceedings

Plaintiffs are not the only parties that believe El Paso must obtain a discharge permit. On July 25, 2002, the State of Colorado issued a Notice of Violation ("NOV") to El Paso stating that they were liable for the discharge from the Roosevelt Tunnel. Ex. 9 hereto. El Paso administratively appealed this NOV. After extensive administrative proceedings, Colorado Administrative Law Judge Matthew Norwood ruled that while the state failed to produce sufficient evidence that El Paso was responsible for the discharge at the portal, he nevertheless found that El Paso must obtain a permit for the discharge from the El Paso shaft into the Roosevelt Tunnel. Ex. 10 hereto at part 3, p. 15. El Paso and the WQCD agreed to stay this

Species Act); see also Atl. States Legal Found. v. Eastman Kodak, 933 F.2d 124, 128 (2d Cir. 1999) (plaintiff entitled to fees when defendants settles with government on same claims). 4

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administrative proceeding pending the outcome in the federal district court. Ex. 11. This WQCD proceeding remains pending. During the State administrative proceedings, El Paso instituted litigation against the Colorado WQCD in state court seeking a ruling in mandamus directing the state to issue a discharge permit to EPGM and its newly formed corporation, Roosevelt Tunnel LLC.3 Ex. 12 hereto. EPGM did not prevail on this theory in state district court, state court of appeals, or state Supreme Court. In addition to the State, the EPA has also indicated its position that El Paso is liable for the discharge from the Roosevelt Tunnel. In a letter dated May 6, 2002, U.S. Department of Justice attorney John Moscato, representing the EPA, stated, Based on a review of documents provided by EPGM and others, we have concluded that a significant contribution to the Roosevelt Tunnel flows originates in the El Paso shaft. It follows that those parties who discharge through the El Paso shaft into the Roosevelt Tunnel may be liable under the Clean Water Act ("CWA") for unpermitted discharges to a water of the United States. Ex. 13 hereto. B. ARGUMENT Based on the public interest exception to Rule 54 and for reasons of equity, El Paso should should not be awarded any costs in this matter. i. Plaintiffs are representing the public interest.

Plaintiffs are representing the public interest by seeking a discharge permit for the currently unregulated Roosevelt Tunnel discharge. The WQCD has brought a similar discharge permit proceeding against El Paso. The Tenth Circuit was willing to defer in an attempt to allow a resolution of this matter in the State proceedings. El Paso never resolved the matter during the

3 See

supra note 2. 5

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Tenth Circuit appeal. The Tenth Circuit then remanded the case back to the district court for a resolution of a single factual issue. El Paso then elected to stay the WQCD proceeding to allow the federal district court case to reach a resolution. It is clear that Plaintiffs have stepped into the shoes of the government agencies and have been representing the public interest by litigating this matter in the district court. In fact, El Paso has conceded that Plaintiffs are serving a quasi-governmental function by choosing this forum over the State administrative forum. Thus, this Court should recognize that Plaintiffs were serving an important public interest function in this case and exercise its discretion in denying all costs to El Paso. ii. The equities do not favor an award of costs to El Paso.

Before the WQCD, El Paso has taken a position nearly identical to Plaintiffs--namely that El Paso should obtain a disharge permit at the Roosevelt Tunnel. El Paso filed a discharge permit application with the WQCD in 2001. El Paso then filed suit in state court demanding that the State issue a discharge permit. Given that El Paso's position at times has been nearly identical to Plaintiffs, the equities do not favor an award of costs to El Paso. II. IF THE COURT AWARDS COSTS, EL PASO'S BILL OF COSTS SHOULD BE GREATLY REDUCED. As shown above, El Paso should not be entitled to any costs. However, in the event the Court awards costs, the amount of costs should be greatly reduced for the reasons stated below. El Paso provided Plaintiffs with a spreadsheet attempting to categorizing their claimed costs according to the requirements of Rule 54. See, Ex. 14 hereto. Because El Paso's spreadsheet inappropriately combines alleged printing costs with alleged copy costs, it is impossible to categorize such costs as are required by Rule 54 and the requirements of this Court.

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A.

NO COSTS SHOULD BE AWARDED PRIOR TO APRIL 5, 2006.

El Paso claims it was the prevailing party in this entire litigation since 2001. However, as noted above, Plaintiffs were the prevailing party in virtually all proceedings prior to April 5, 2006. Plaintiffs prevailed on virtually all motions filed with the district court and prevailed on summary judgment. Plaintiffs were awarded their costs and attorneys fees for these proceedings by Magistrate Judge Coan. El Paso then appealed Judge Coan's rulings to the Tenth Circuit. Plaintiffs prevailed on three of the four issues in the Tenth Circuit. The Tenth Circuit remanded a single factual issue back to the district court for resolution. El Paso filed a motion for costs before the Tenth Circuit which was denied. Plaintiffs also successfully challenged El Paso's petition for review before the Supreme Court. In light of this factual background, Plaintiffs do not believe that Magistrate Judge Boland intended to award costs to El Paso for all proceedings dating back to the commencement of this action in 2001. Instead, Plaintiffs believe that Magistrate Judge Boland intended only to award costs to El Paso for the remand proceedings in which it prevailed. These remand proceedings did not commence in earnest until the U.S. Supreme Court's denial of El Paso's certiorari petition. Magistrate Judge Boland was assigned to this case in late 2006 as a result of an illness to Magistrate Judge Coan. El Paso should not be awarded any costs prior to April 5, 2006, because Plaintiffs were the prevailing party in those prior proceedings and the Tenth Circuit ruled that El Paso was not entitled to costs related to its appeal. The following Table 1 identifies all costs claimed by El Paso after April 4, 2006. The table lists the date of the expense, a description of the expense, the amount of the expense, whether there is a receipt for the expense, the docket number page evidencing the expense, and a comment on whether the expense is compensable in a bill of costs.

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Table 1 Date 08/06 Descrip. August photocopy charge Transcripts in CC&V case Amount $132.60 Receipt No Docket pg. Comment Not compensable. No receipt. Not compensable. Transcripts in a different case. Not compensable. Copies of pleadings in a different case. Not compensable. No receipt. Not compensable. Copies of exhibits in a different case. Not compensable. No receipt.

8/23/06

$1,764.40

Yes

#257-9, p. 53 ,

8/28/06

12/06

12/7/06

Copies of $529.27 expert witness report exhibits in CC&V case December $20.70 photocopy charge Copies of trial $1,276.03 exhibits in CC&V case

Yes

#257-9, p. 47

No

Yes

#257-9, p. 46

01/07

1/4/07 1/17/07 1/17/07

MAH January $4.50 photocopy charge Transcript $55.40 Transcript Extra copy of trial exhibits $298.40 $169.03

No

Yes Yes Yes

#257-9, p. 55 #257-9, p. 54 #257-9, p. 49 Not Compensable. Not necessary. Convenience of counsel

2/7/07 2/7/07

Copies Copies

$22.31 $1.98

Yes Yes

#257-9, p. 17 #257-9

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2/8/07 6/13/07

Copies Postage

$23.20 $5.70

Yes Yes

#257-9, p. 16 #257-9, p. 35 Not compensable. Postage is not compensable cost under Rule 54.

El Paso claims $4,303.52 in costs from April 5, 2006, to the present. As noted in the above table, $3,769.63 is not compensable because: 1) there are no receipts supporting the expense ($132.60, $20.70, and $4.50); 2) El Paso seeks transcript and copy costs for materials from different cases ($1,764.40, $529.27, $1,276.03); 3) El Paso seeks copy charges that were not necessary and instead were for convenience of counsel ($169.03); and 4) El Paso seeks recovery of postage expense which is not compenasable under Rule 54 ($5.70). Accordingly, the Court should exclude $3,769.63 from the $4,303.52 sought by El Paso for the time period from April 5, 2006, to the present. In summary, El Paso should only be awarded a total of $533.89 in costs in this case for the period from April 5, 2006, to date. B. IF AWARDED, COSTS BEFORE APRIL 4, 2006, SHOULD BE GREATY REDUCED.

If the Court awards El Paso costs before April 5, 2006, the amounts claimed for this time period should be reduced because El Paso claims improper or unsupported expenses as identified below. i. Costs for expert witness fees are inappropriate.

El Paso inappropriately seek $1,327.16 in expert witness fees under the category "Costs incident to taking of depositions" in its bill of costs. Doc. # 257. This expense relates to an expert witness fee charged by Plaintiffs' expert witness Ken Klco for a deposition requested by El Paso. See Doc. # 257-9, p. 3. Expert witness fees are not a "cost" compensable under Rule
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54. See CleveRock Energy Corp. v. Trepel, 609 F.2d 1358, 1363 (10th Cir. 1979) (noting that absent specific agreement, expert witness fees are not recoverable as costs); Ramos v. Lamm, 713 F.2d 546, 559 (10th Cir. 1983) ("[E]xpert fees are not allowed under [28 U.S.C. § 1920(d), the cost-shifting statute], and this seems to be the rule in the majority of jurisdictions that have decided the issue."); Jones v. Diamond, 636 F.2d 1364, 1382 (5th Cir. 1981) ("The usual rule in civil litigation in federal courts is [fees paid for expert witnesses] are not recoverable as costs."). Thus, $1,327.16 should be deducted from El Paso's bill of costs. It also appears that El Paso included a duplicate invoice for this expense in its receipts supporting its bill of costs. See Doc. # 257-9 at p. 3 and p. 56. In the event El Paso is seeking duplicative reimbursement for this expert witness fee, a total of $2,654.32 should be deducted from El Paso's bill of costs ($1,327.16 x 2 = $2,654.32). ii. Costs for fees and disbursements for printing should be disallowed

El Paso claims $3,947.32 in its bill of costs under the category of "Fees and disbursements for printing." Doc. # 257. However, El Paso's receipts fail to identify a single expense associated with "printing" of any briefs filed in the district court. Instead, all of El Paso's alleged "printing" charges are actually photocopy costs, which should be seperately itemized under the "fees for exemplification and copies of papers necessarily obtained for use in the case." 28 U.S.C. 1920(d) (2007). Because El Paso has failed to identify a single "printing" expense, the entire amount of $3,947.32 should be disallowed by the Court. iii. Costs for copies of documents in different cases are inappropriate.

El Paso inappropriately seeks recovery of copy costs prior to April 5, 2006, for material in different cases. The following table identifies $62.00 claimed expenses for materials in different cases prior to April 5, 2006, that should be disallowed.

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Charges for materials from other cases Date 04/02 Descript. Cassette tape copy of 9/4/01 hrg Photocopy of Crown Butte Consent Decree Photocopies of Froebel v. Meyer briefs Photocopies of new cardinal pleadings Amount $20.00 Docket Page #257-9, p. 38.

10/02

$31.00

#257-9, p. 6

05/03

$27.00

#257-9, p. 15

05/03

$4.00

#257-9, p. 43

Since this case was not commenced until November 5, 2001, the first listing in the table above must be for material in a different case. The final three listings in the table above clearly relate to other cases. These expenses should be excluded from the bill of costs. iv. Costs for videotapes are inappropriate.

El Paso also seeks to inappropriately charge Plaintiffs for video transfer, dubbing, and duplication services. The following table identifies $168.77 in inappropriate video charges: Inappropriate Video Expenses Date 08/02 Descript. Charge for 2 VHS copies of RT tour video "dub" Cost of transferring RT video to DVD and 5 copies of DVD Charge for video Amount $14.89 Docket Page #257-9, p. 30

09/02

$124.90

#257-9, p. 29

12/02

$8.60
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#257-9, p. 20

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12/02

duplication Charge for three video dubs of RT tour

$21.00

#257-9, p. 19

Plaintiffs believe that the cost of video services and duplication is not a recoverable expense under Rule 54. See, e.g., Kohus v. Toys R Us, Inc., 282 F.3d 1355, 1360-61 (Fed. Cir. 2002). However, even if the Court allows costs for video services, multiple copies (10 copies) of the same video should not be charged to Plaintiffs under Rule 54. See Stearns Airport Equip. Co., Inc. v. FMC Corp., 170 F.3d 518, 536 (5th Cir. 1999). Finally, the costs of converting a video from VHS to DVD is a voluntary expense for the convenience of El Paso and should not be borne by Plaintiffs in a bill of costs. Accordingly, $169.39 should be reduced from El Paso's bill of costs for the period prior to April 5, 2006. v. No receipts provided for photocopying expenses.

As shown in the table below, a total of $3,331.80 in "in-house" photocopy and other alleged copy expenses claimed by El Paso before April 5, 2006, should be disallowed because there are no receipts supporting the expense. Nor is there a supporting affidavit stating how the number of photocopiescopies was determined and that the photocopies were necessarily incurred for purposes of this case. The photocopy expenses that should be deducted are listed in the table below. No Receipts or Affidavit Supporting In-House Photocopies Date 03/05 Description MAH March photocopy charge 06/05 MAH June photocopy $6.75 Amount $9.00

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charge 08/05 MAH August photocopy charge 09/05 MAH September photocopy charge 10/05 MAH October photocopy charge ¾ MAH March photocopy charge 04/04 MAH April photocopy charge 03/03 MAH March photocopy charge 04/03 MAH April photocopy charge 05/03 MAH May photocopy charge 06/03 MAH June photocopy charge 07/03 09/03 MAH July photocopy charge $321.00 MAH September photocopy charge 10/03 MAH October photocopy $254.70 $371.40 $448.65 $85.50 $3.60 $16.65 $87.75 $4.80 $56.70 $15.90 $6.30

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charge ½ MAH January photocopy charge 02/02 MAH February photocopy charge 03/02 MAH March photocopy charge 04/02 04/02 05/02 06/02 06/02 07/02 08/02 09/02 10/02 11/02` 12/02 12/02 12/01 MAH Photocopy charge Cassette tape copy of 9/4/01 hearing MAH Photocopy charge MAH Photocopy charge Copies of cases at law library MAH Photocopy charge MAH Photocopy charge MAH Photocopy charge MAH Photocopy charge MAH Photocopy charge MAH Photocopy charge Photocopies from CDPHE MAH Photocopy charge $9.75 $20.00 $242.40 $82.20 $35.10 $129.15 $56.85 $363.60 $60.75 $58.65 $270.00 $128.50 $44.10 $86.85 $44.25 $10.95

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VI. CONCLUSION El Paso's bill of costs should be entirely denied because the public interest exception to Rule 54 and the equities of this case do not favor an award of costs to El Paso. In the event the Court awards costs, the recoverable costs should be limited to the time period from April 5, 2006, to the present--which represents the final remand proceedings in the district court. The amount of recoverable costs over this time period is $533.89. In the event the Court awards costs for the entire time period of this litigation, the following claimed costs should be deducted from El Paso's bill of costs: Amount Claimed Fees of the court reporter: Fees for printing/copies4: $ 4,020.55 $ 7,064.66 Amount Deducted $1,764.00 $3,995.82 (copies) $3068.84 (print) Costs of depositions $ 1,327.16 __________ Total to be awarded: $1,327.16 _____________ Amount Remaining $ 2,256.55 $ $ $ 0.00 0.00 0.00

__________________ $ 2,256.55

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Respectfully submitted this 12th day of July, 2007.

Respectfully Submitted, s/ John Barth John M. Barth Attorney at Law P.O. Box 409 Hygiene, CO 80533 (303) 774-8868 [email protected]

Jeffrey C. Parsons Western Mining Action Project 2260 Baseline Road, Suite 101A Boulder, CO 80302 303) 473-9618 [email protected] Lori Potter Kaplan Kirsch & Rockwell, LLP 1675 Broadway, Suite 2300 Denver, CO 80202 (303) 825-7000 [email protected]

spreadsheet does not adequately distinguish between costs for printing and costs for copying. See, Exhibit 14 hereto. Instead, the spreadsheet combines the two--"print & copy chages". See, p. 1 of Ex. 14. Thus, these categories are combined here as well. 16

4 Defendant's

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CERTIFICATE OF SERVICE I, the undersigned, hereby certify that a copy of the foregoing and all exhibits was filed electronically with the Clerk of the Court on July 12, 2007 and was then forwarded electronically to the following persons via the ECF system: Steve Harris Merrill Anderson & Harris 20 Boulder Crescent Colorado Springs, CO 80903-3300 (719) 633-4421 [email protected]

s/ John Barth ____________________ John Barth

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