Motion Picture Association of America v. CrystalTech Web Hosting Inc.

Filing 1861

Motion Picture Association of America v. CrystalTech Web Hosting Inc.

Doc. 1861

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Louis Denetsosie, Assistant Attorney General Navajo Nation Department of Justice Post Office Box 2010 Window Rock, Arizona 86515 Tel. [phone] Britt E. Clapham II Attorney at Law Law Offices of Britt E. Clapham II, P.C. P.O. Box 12761 Tucson, Arizona 85732 Tel. [phone] Telefax [phone] S.B.A. No. 011190 Samuel J. Buffone Ropes & Gray LLP One Metro Center 700 12th Street N.W. Washington D.C. 20005 Tel. [phone] UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA ____________________________________ THE NAVAJO NATION, Plaintiff, vs. PEABODY COAL COMPANY, a Delaware corporation, Defendant. ____________________________________ PEABODY COAL COMPANY, Counterclaimant, vs. NAVAJO NATION, Counterdefendant. ____________________________________ SALT RIVER PROJECT AGRICULTURAL IMPROVEMENT AND POWER DISTRICT, Intervenor. ____________________________________ CV 93-2342 PCT-SMM JOINT STATEMENT OF PROGRESS (Hon. Stephen M. McNamee)

Dockets.Justia.com

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This Joint Statement of Progress is submitted by all Parties to inform the Court of the status of the Parties' settlement efforts. This Court entered a stay of the above-captioned litigation on October 22, 2004, so that the Parties could pursue ADR. The Parties have submitted Joint Statements of Progress on their ADR efforts to the Court on February 17, 2006, July 21, 2006, August 23, 2006, and September 15, 2007. In the most recent report, the Parties reported that they were engaged in discussions concerning the above captioned litigation and a series of other issues relating to possible continued operation of the Mohave Generating Station ("MGS"). The operation of MGS after December 2005 depended on a negotiated resolution of a number of outstanding disputes or issues among the Parties to this case and other interested Parties including the Hopi Tribe and Southern California Edison ("SCE"), including the resolution of an alternative water supply and a continued coal supply for MGS. Moreover, a 1999 consent decree entered by the federal court in Nevada in separate litigation required MGS to cease operating after December 31, 2005, if the MGS owners did not install certain additional pollution control equipment by that date. The MGS owners concluded that they could not make the substantial investment associated with this additional pollution control equipment until the resolution of the outstanding coal and water supply issues for MGS. Accordingly pursuant to the terms of that consent decree, MGS ceased operations on December 31, 2005. Since the fall of 2004, the Parties to this litigation, along with SCE and the Hopi Tribe, have actively and consistently engaged in intense negotiations concerning resolution of a variety of disputes including this lawsuit, a lawsuit pending in the United States District Court for The District of Columbia (captioned Navajo Nation v. Peabody Coal Company, No. CA99-0469-EGS), and a broad range of business related matters, all of which were focused on continued operation of the MGS as a coal-fired power plant utilizing tribal coal. The extensive negotiations were conducted pursuant to a Mediation Agreement that included a confidentiality clause prohibiting disclosure of the substance of the negotiations. Eric Van

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Loon, a professional third party neutral, facilitated all stages of the mediation process. Mr. Van Loon has previously submitted letters to this Court and the District of Columbia court verifying that the Parties have expended considerable time and money, in a diligent, good-faith effort to reach settlement. During the course of the mediation, SCE was required to report to the California Public Utilities Commission ("CPUC") on a monthly basis any progress made in negotiations relating to the post-2005 operation of MGS. SCE has filed monthly reports, disclosing in these public filings the status of the ongoing coal and water supply negotiations. In June 2006, SCE first reported that it had discontinued its efforts to return MGS to operation as an asset of SCE. Two of the other MGS co-owners, Los Angeles Department of Water & Power and Nevada Power Company, made similar announcements at the same time. Following those announcements, the fourth MGS co-owner, Salt River Project ("SRP"), undertook independent efforts to assemble a new ownership group to purchase the interests of the withdrawing MGS co-owners and continue operation of MGS. These efforts were discontinued in February 2007, when SRP determined that it would not continue its efforts to purchase the interests of the other co-owners. In parallel with the SRP effort, and continuing after the February 2007 SRP announcement, SCE explored the possibility of selling MGS to completely new owners who would seek to restart the plant. As of May 15, 2007, SCE discontinued its efforts to sell MGS to a third party for operation as a coal-fired plant. In a status report, dated May 22, 2007 SCE advised the CPUC on the status of negotiations as of that date. In that submission, SCE reported that it was not able to secure a firm offer to purchase on terms and conditions that were acceptable to SCE and its co-owners. SCE further reported to the CPUC that it was not aware of any intention on the part of any other MGS co-owner to pursue any additional efforts towards a MGS restart, and that accordingly, SCE was focusing on a reuse or disposition of the MGS plant site for some use other than as a coal-fired, electric generating facility.

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Since then, other Parties within the mediation group expressed interests in alternative development proposals which could involve one or more of the current MGS co-owners. Mr. Van Loon recommended that the Parties have another mediation session to determine if alternative settlement grounds were possible. At the suggestion of the mediator, the Parties engaged in an additional mediation call for the purpose of exploring whether alternative development proposals could provide a basis for resolving this lawsuit, the District of Columbia lawsuit, and related issues. As Mr. Van Loon has reported to this Court in the past, the Parties have expended considerable time and money in a diligent, good-faith effort to reach resolution of the business related issues necessary to continue operation of MGS. Unfortunately, the Parties regret to inform the Court that those efforts have been unsuccessful and that the Parties have terminated the mediation. On November 8, 2007, the Parties filed a Joint Status Report in the District of Columbia litigation reporting on the termination of the mediation and on the Parties' views on scheduling further proceedings in that case. Respectfully submitted,

s/ Samuel J. Buffone___________ Samuel J. Buffone Ropes & Gray LLP One Metro Center 700 ­ 12th Street N.W. Washington D.C. 20005 Telephone: [phone] Telecopier: [phone] Britt E. Clapham II Law Offices of Britt E. Clapham II P.C. Post Office Box 12761 Tucson, Arizona 85732 Telephone: [phone] Telecopier: [phone] Attorneys for the Navajo Nation s/ Terrance G. Reed w/permission___ V. Thomas Lankford William F. Coffield Terrance G. Reed Lankford, Coffield & Reed, PLLC -4-

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120 North Saint Asaph Street Alexandria, VA 22313 Jeffrey B. Smith The Cavanagh Law Firm VIAD Corporate Center 1850 N. Central Avenue #2400 Phoenix, AZ 85004 Attorneys for Peabody s/ John B. Weldon w/permission John B. Weldon, Jr. Lisa M. McKnight Salmon, Lewis & Weldon, P.L.C. 2850 East Camelback Road Suite 200 Phoenix, AZ 85016 Attorneys for SRP

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CERTIFICATE OF SERVICE I hereby certify that on November 13, 2007, copies of foregoing Joint Statement of Progress were served by ECF as follows: Jeffrey B. Smith The Cavanagh Law Firm VIAD Corporate Center 1850 N. Central Avenue #2400 Phoenix, AZ 85004 V. Thomas Lankford William F. Coffield Terrance G. Reed Lankford, Coffield & Reed, PLLC 120 North Saint Asaph Street Alexandria, VA 22313 Attorneys for Peabody John B. Weldon, Jr., Esq. Lisa M. McKnight, Esq. Salmon, Lewis & Weldon, P.L.C. 2850 East Camelback Road Suite 200 Phoenix, AZ 85016 Attorneys for SRP s/ Samuel J. Buffone____________ Samuel J. Buffone