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Sheep Mountain Alliance v. PacifiCorp

United States District Court, D. Colorado

January 4, 2016

SHEEP MOUNTAIN ALLIANCE, a Colorado non-profit corporation, Plaintiff,
PACIFICORP, an Oregon corporation, Defendant.



WHEREAS, the Plaintiff, Sheep Mountain Alliance ("Plaintiff' or "SMA"), initiated the above-captioned action (the "Lawsuit") by filing a Complaint (ECF No. 1) on December 12, 2011, against PacifiCorp ("Defendant" or "PacifiCorp"), alleging violations of the Federal Water Pollution Control Act, 33 U.S.C. § 1251 etseq. (hereinafter, the "Clean Water Act"), and seeking declaratory and injunctive relief, civil penalties, and attorneys' and expert-witness fees and costs; WHEREAS, SMA's claims and this Amended Consent Decree relate to the Silver Bell Tailings Impoundment (the "Impoundment"), a former mill tailings disposal site located south of Telluride, Colorado, on the west side of the Ophir Loop on Colorado State Highway 145, about one-quarter mile west of the turnoff to the town of Ophir, Colorado;

WHEREAS, PacifiCorp denies SMA's claims, allegations, and any liability for the alleged violations;

WHEREAS, SMA and PacifiCorp, after consultation with their respective counsel and without trial or final adjudication of the issues of fact or law with respect to SMA's claims or allegations, consented to the entry of a Consent Decree in order to avoid the risks of litigation and to resolve the controversy between them;

WHEREAS, the Court approved and entered the Consent Decree on May 24, 2013 (ECF No. 42); WHEREAS, the Parties have implemented the terms of that Consent Decree, including Tasks One-Three of the "Adaptive Management Plan, " Paras. 10-13 of the Decree;

WHEREAS, PacifiCorp has represented to SMA that it intends to place a "Cover System, " including a geosynthetic clay liner, over the top of the Impoundment during the summer and fall of 2015;

WHEREAS, SMA agrees with PacifiCorp that installation of the Cover System negates further implementation of the original Consent Decree's Adaptive Management Plan;

WHEREAS, based on the foregoing, the Parties have jointly filed a motion requesting the Court to set aside the original Consent Decree (ECF No. 42) and replace it with this Amended Consent Decree;

NOW, THEREFORE, upon the consent of the Parties, and upon consideration of the mutual promises herein contained, it is hereby ORDERED, ADJUDGED, AND DECREED as follows:

General Provisions

1. This Court has jurisdiction over the Parties and the subject matter of this Lawsuit pursuant to 33 U.S.C. § 1365(a) and 28 U.S.C. § 1331. Venue is proper in this Court pursuant to 33 U.S.C. § 1365(c), and 28 U.S.C. §§ 1391(b) and 1395(a). This Court shall have continuing jurisdiction over this Lawsuit for the purposes of interpretation, enforcement, and, if necessary, modification of this Amended Consent Decree.

2. The undersigned representative for each Party certifies that he/she is fully authorized by the Party whom he/she represents to enter into the terms and conditions of this Amended Consent Decree and to legally bind the Party to it.

3. This Amended Consent Decree shall apply to and be binding upon the Parties to this Lawsuit, and upon all successors and assigns of the Parties. Any entity that purchases the Impoundment shall be subject to the terms of this Amended Consent Decree, unless otherwise agreed by the Parties through a modification to this Amended Consent Decree under Paragraph 24. PacifiCorp, and any of its successors or assigns, may sell the Impoundment without SMA's consent and without approval by the Court. Until this Amended Consent Decree is terminated, notice of any sale must be provided to SMA.

Site Inspections & Record Keeping

4. For the duration of this Amended Consent Decree, representatives of SMA shall be allowed to inspect the Impoundment up to twice per year, unless otherwise agreed by the Parties. SMA shall be allowed to designate up to three individuals to take part in any inspection of the Impoundment. Prior to conducting any inspection of the Impoundment, SMA representatives shall sign any reasonable waiver or release document presented by PacifiCorp, which releases PacifiCorp from all liability for any injury, loss, or damage SMA's representatives may cause or incur during any inspection that is not the result of negligence by PacifiCorp. Unless expressly waived by PacifiCorp in writing, SMA's representatives shall be accompanied by representatives of PacifiCorp during any site inspection.

5. SMA shall provide at least fourteen (14) days' prior written notice to PacifiCorp of its desire to inspect the Impoundment under Paragraph 4, unless otherwise agreed by the Parties. Any inspection shall be scheduled for a date and time that PacifiCorp and SMA determine is mutually agreeable.

6. PacifiCorp hereby agrees to provide to SMA, at SMA's request and at no cost to SMA, either hard or electronic copies of any reports, correspondence, or other documents related to this Amended Consent Decree, the Impoundment, and the Cover System. PacifiCorp may withhold from production to SMA any document that is protected under any evidentiary privilege or production immunity, including but not limited to the attorney-client privilege and work-product doctrine. If PacifiCorp asserts that a document is immune from production to SMA, PacifiCorp shall provide to SMA, in the form of a privilege log, a description of the nature of the documents withheld in a manner that, without revealing privileged or protected information, will enable SMA to assess for itself whether the privilege is being properly asserted. The requirements of this Paragraph shall continue until December 31, 2020, ...

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