Free Response to Motion - District Court of Colorado - Colorado

Case 1:00-cv-02325-MSK-MEH

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Filed 06/06/2006

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Honorable Marcia S. Krieger Civil Action No. 00-cv-02325-MSK-MEH 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-02307-MSK-MEH 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. ___________________________________________________________________________ DEFENDANT GOLDEN CYCLE GOLD CORPORATION'S RESPONSE TO PLAINTIFFS' MOTION TO STRIKE DEFENDANTS' EVIDENCE UNDER FED.R.EVID. 408, FED.R.EVID. 801, AND FED.R.CIV.P. 68 ___________________________________________________________________________

Case 1:00-cv-02325-MSK-MEH

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In this phase of, and at this time in this litigation, the Plaintiffs will most likely place the parties' last written words before the Court when they reply to the Defendants' responses to the Plaintiffs' Motion to Strike [# 332 ("Motion to Strike")]. But in this phase, which began with the Judgment [# 310] on April 13, 2006, the Plaintiffs chose to file both their Response [# 333 ("Combined Response in Opposition")] to the two separate motions for attorneys' fees [#s 314 and 315 (filed on April 27, 2006)], and to that Motion to Strike, as if the defendants had filed a single motion for their attorneys' fees and legal expenses ["costs of litigation" under 33 U.S.C. ' 1365(d)]. As seen in the Defendant Golden Cycle's Reply [# 335] to the Combined Response in Opposition, save for Footnote 1 on the second page of the Motion to Strike and the sentence on pages 6-7 at the very end thereof, Golden Cycle has little left to add. That little must nonetheless be said, because the "Combined Response" and the ambiguous Motion to Strike devices confuse the different positions of the separate defendants. Plaintiffs state correctly in their last sentence in their Motion to Strike that Golden Cycle opposed their Motion to Strike. But not because Golden Cycle adopts indirectly the exhibits submitted and arguments made by the AngloGold Defendants, as suggested by the first sentence in the second paragraph of Part I of Plaintiffs' Motion to Strike, to which they appended their Footnote 1. Golden Cycle in fact joined "in the recitation of legal authority incorporated into the AngloGold Defendants' Motion for Attorney Fees, and adopt[ed] . . . that authority in" Golden Cycle's Motion for its Attorneys' Fees [# 315 at p. 2] rather than the AngloGold Defendants' exhibits and arguments. As Golden Cycle incurred no fees for expert witnesses, it did not join in the AngloGold Defendants' Motion "insofar as applicable to expert witness fees." Id. Likewise, it does not necessarily follow that "to the extent this Court excludes the evidence of settlement negotiations,

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Case 1:00-cv-02325-MSK-MEH

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the ruling should also apply to the extent applicable to Golden Cycle Gold Corporation" [# 332 at p. 2, n. 1]. To the contrary, even if the Court excludes any or all of that evidence as to the AngloGold Defendants on some ground well short of bad faith, the Plaintiffs' bad faith as to Golden Cycle remains, and its separately demonstrated basis is supported by the AngloGold Defendants' Motion [# 314]. It also does not necessarily follow, as Plaintiffs assert, that any ruling against the AngloGold Defendants on the Motion to Strike is or should be "applicable to Golden Cycle" since Golden Cycle has not disclosed "settlement negotiations that have occurred in this case." Motion to Strike, at p. 2, n. 1. A ruling for the AngloGold Defendants would of course favor Golden Cycle as well, but the importance of all of this to Golden Cycle is in the fact that while the bad faith of the Plaintiffs is apparent as to all defendants, it is most egregious as to Golden Cycle. Thus, as argued by Golden Cycle over the last five years and more, the Plaintiffs should never have made Golden Cycle a defendant in this case, and should have corrected that error years ago. See Golden Cycle's Reply to the Combined Response in Opposition [# 335, pp. 5-6]. The ruling on the Motion should apply the legal authority recited and incorporated into the AngloGold Defendant's Motion [# 315], upon which Golden Cycle did rely, which is Federal Rules of Evidence ("FRE") Rule 408, cited in that Motion at page 10, n. 3. The AngloGold Defendants did not then cite any other authority. The question here is, after all, the one put by Justice Scalia in his concurring opinion in Buckhannon Board & Care Home, Inc. v. West Virginia Dep't of Health & Human Resources, 532 U.S. 598, part II, 2nd paragraph, last sentence (2001): Whether the Plaintiffs may "cause . . . the law to be the very instrument of wrong . . ."? The statute here, 33 U.S.C. ' 1365(d), is neutral as to attorneys fees and depends on right; it cannot reward wrong, but can and should

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Case 1:00-cv-02325-MSK-MEH

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redress not only bad faith, but frivolous, unreasonable, or groundless claims so wrong as in this case. See Christiansburg Garment Co. v. Equal Employment Opportunity Comm'n, 434 U.S. 412, 422 (1978). Since the Plaintiffs have made no specific objections to Golden Cycle's paid bills, or anything else in Golden Cycle's Motion [# 315] for its attorneys fees, as corrected [# 326], Golden Cycle should be allowed the present value of its legal fees and costs, and Plaintiffs' Motion to Strike should be denied. Respectfully submitted this 1st day of June, 2006. s/ Don H. Sherwood Don H. Sherwood Attorney at Law 10861 West 28th Place Denver, Colorado 80215-7114 Telephone: (303) 233-0335 E-mail: [email protected] Attorney for Defendant Golden Cycle Gold Corporation

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CERTIFICATE OF SERVICE I hereby certify that on this 1st day of June, 2006, I electronically filed the foregoing DEFENDANT GOLDEN CYCLE GOLD CORPORATION'S RESPONSE TO PLAINTIFFS' MOTION TO STRIKE DEFENDANTS' EVIDENCE UNDER FED.R.EVID. 408, FED.R.EVID. 801, AND FED.R.CIV.P. 68 with the Clerk of the Court using the CM/ECF system which will send notification of such filing to the following e-mail addresses: John M. Barth P.O. Box 409 Hygiene, CO 80533 [email protected] Craig R. Carver Carver, Kirchhoff, Schwarz, McNab & Bailey, P.C. 1600 Stout Street, Suite 1700 Denver, CO 80202 [email protected] Eugene J. Riordan Lisa C. Ledet Vranesh & Raisch, LLP P.O. Box 871 Boulder, CO 80306-0871 [email protected] [email protected] Randall M. Weiner Law Offices of Randall M. Weiner, P.C. 1942 Broadway, Suite 408 Boulder, CO 80302 [email protected]

Roger Flynn Jeffrey C. Parsons Western Mining Action Project P.O. Box 349 Lyons, CO 80540 [email protected]

Robert C. Troyer Hogan & Hartson, L.L.P. 1200 17th Street, Suite 1500 Denver, CO 80202 [email protected]

s/ Don H. Sherwood Don H. Sherwood

GCGC:06/01/2006:DHS

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