PERMFILE106877

• Permit No: M2000158
• IBM Index Class Name: Permit File
• Doc Date: 5/23/2001
• Doc Name: MOTION FOR CONTINUANCE & MOTION IN LIMINE
• Media Type: D
• Archive: No

proposed activities on the Ditch. To the extent the dewatering issue is addressed in
general sense, the recommendations are so general so as to provide very little real
protection for Western or its shareholders.
Western has not appeared as a party to these proceedings because, from the earliest
contact Western had with the Applicant, the Applicant expressed a desire to work with
Western, and assured Western that its concerns regarding the hydrological and
geophysical impacts of the proposed mining activities would be addressed in the form of
an agreement between Western and the Applicant. Western proceeded in good faith
based upon the Applicant's assurances, and even signed a waiver of 20 day notice in order
to accommodate the Applicant's prosecution of the permit application. Since March, the
Applicant and Western have been exchanging drafts of the proposed agreement, and as
late as May 10, 2001 counsel forthe Applicant, Frederick Ginsberg, forwarded a proposed
agreement he represented his clientwas willing to sign. The changes thatwere discussed
in the correspondence between the parties were minor -the Applicant cultivated the
impression that the major issues had been resolved, and that only minor issues remained.
Then, on May 16`", before Western had responded to Mr. Ginsberg's latest draft, he
forwarded a letter to Western's counsel stating that the Applicant would not enter an
agreement of any kind with Western. The Applicant's establishment of a "working"
relationship with Western, followed by the abrupt withdrawal of all cooperation within 5
days of the 112 hearing lead Western to conclude that the Applicant purposefully misled
the Company until it determined that it was too late for Western to intervene in the 112
proceeding, then abandoned all pretense of cooperation. The Applicant should not be
rewarded for these tactics.
Given the gravity of the potential hydrological and structural impacts of applicant's Plan on
the Ditch, and the apparent bad faith of the Applicant in this matter, the Board should
exercise its discretion under Rule 7.2.5 to allow Western to appear at the hearing and
present its concerns.
At the hearing, Western will proposed the following limitations on the Applicant:
1. Area of dewatering less than 1 acre on the entire property at any given time;
2. Dewatering to occur as close the South Platte River and as far from the Ditch as
possible;
3. Mining depth during dewatering limited to 15 feet below the static water level;
4. No dewatering between March 15 and October 16 of any given year without
Western's express permission;
5. No water to be discharged to the Western Mutual Ditch;
6. Applicant installs two measuring weirs and clocks prior to the commencement of
dewatering to measure the effect of dewatering activities on the Ditch;
7. Applicant to pay damages, including attorneys fees and costs, in the event of any
injury to the Ditch or its shareholders;
8. No mining activity within 150' of the Ditch
F:V(IM\WESTERN.MU1lPlade Sand\010517 MLRB.wpd