Stone et al v. High Mountain Mining Company, LLC et al

Filing 124

ORDER ON PENDING MOTIONS by Judge William J. Martinez on 1/7/2022. ORDERED Defendants' Motion to Exclude Certain Opinions of Plaintiffs' Retained Expert Witnesses Under Fed. R. Evid. 702 (ECF No. 83) is DENIED. Defendants' Moti on to Exclude Plaintiffs' Non-Retained Expert Witnesses Under Fed. R. Evid. 702 (ECF No. 84) is GRANTED IN PART and DENIED IN PART asset forth above. Plaintiffs are GRANTED LEAVE to supplement their Rule 26(a)(2)(c) disclosures to identify the facts and opinions to which Meg Parish is expected to testify for the topics already disclosed by no later than January 21, 2022. Plaintiffs' Motion to Exclude Certain Opinions of Defendants' Retained Experts Greg Lewicki and James R. Murray Under FRE 702 (ECF No. 87) is DENIED; and Defendants' Motion for Summary Judgment (ECF No. 105) is DENIED. (sphil, )

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge William J. Martínez
Civil Action No. 19-cv-1246-WJM-STV
PAMELA STONE, an individual,
TWYLA RUSAN, an individual,
M. JAMIE MORROW, an individual, and
THE SOUTH PARK COALITION, INC., a non-profit 501(c)(4) Colorado corporation,
Plaintiffs,
v.
HIGH MOUNTAIN MINING COMPANY, LLC, a Wyoming limited liability company, and
JAMES R. MURRAY, an individual,
Defendants.
ORDER ON PENDING MOTIONS
This matter is before the Court on the following motions:
•

Defendants High Mountain Mining Company, LLC (“High Mountain”), and James
R. Murray’s (jointly, “Defendants”) Motion to Exclude Certain Opinions of
Plaintiffs’ Retained Expert Witnesses Under Fed. R. Evid. 702 (“Defendants’
Motion to Exclude Retained Experts”) (ECF No. 83);

•

Defendants’ Motion to Exclude Plaintiffs’ Non-Retained Expert Witnesses Under
Fed. R. Evid. 702 (“Defendants’ Motion to Exclude Non-Retained Experts”) (ECF
No. 84);

•

Plaintiffs Pamela Stone, Twyla Rusan, M. Jamie Morrow, and the South Park
Coalition, Inc.’s (collectively, “Plaintiffs”) Motion to Exclude Certain Opinions of
Defendants’ Retained Experts Greg Lewicki and James R. Murray Under FRE

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702 (“Plaintiffs’ Motion to Exclude”) (ECF No. 87); and
•

Defendants’ Motion for Summary Judgment (ECF No. 105).
The Court presumes familiarity with the procedural and factual background of this

action, which will not be repeated here. For the reasons set forth below, the Court
grants in part and denies in part Defendants’ Motion to Exclude Non-Retained Experts
and denies Defendants’ Motion to Exclude Retained Experts, Plaintiffs’ Motion to
Exclude, and Defendants’ Motion for Summary Judgment.
I. PLAINTIFFS’ MOTION TO EXCLUDE
A.

Legal Standards
A district court must act as a “gatekeeper” in admitting or excluding expert

testimony. Bitler v. A.O. Smith Corp., 400 F.3d 1227, 1232 (10th Cir. 2005). “The goal
of a Rule 702 analysis is to make certain that an expert, whether basing testimony on
professional studies or personal experience, employs in the courtroom the same level of
intellectual rigor that characterizes the practice of an expert in the relevant field.” Clifton
v. State Farm Mut. Aut. Ins. Co., 2021 WL 1100403, at *1 (D. Colo. Mar. 23, 2021)
(quotation marks omitted).
Expert opinion testimony is admissible if it is relevant and reliable. See Daubert
v. Merrell Dow Pharm., Inc., 509 U.S. 579, 589, 594–95 (1993). The opinions are
relevant if they would “assist the trier of fact to understand the evidence or to determine
a fact in issue.” Fed. R. Evid. 702. They are reliable if (1) the expert is qualified “by
knowledge, skill, experience, training, or education,” (2) his opinions are “based upon
sufficient facts or data,” and (3) they are “the product of reliable principles and
methods.” Id. “Nothing in either Daubert or the Federal Rules of Evidence requires a

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district court to admit opinion evidence that is connected to existing data only by the
ipse dixit of the expert.” Crest Exteriors, LLC v. Am. Fam. Mut. Ins. Co., 2020 WL
8181823, at *4 (D. Colo. Oct. 27, 2020). The proponent of expert testimony has the
burden to show that the testimony is admissible. United States v. Nacchio, 555 F.3d
1234, 1241 (10th Cir. 2009).
In addition to assessing whether expert opinions are reliable, the Court must also
ensure that the proffered testimony will assist a trier of fact. See Kumho Tire Co., Ltd.
v. Carmichael, 526 U.S. 137, 156 (1999). “Relevant expert testimony must logically
advance[ ] a material aspect of the case and be sufficiently tied to the facts of the case
that it will aid the jury in resolving a factual dispute.” United States v. Garcia, 635 F.3d
472, 476 (10th Cir. 2011) (internal quotation marks and citations omitted).
B.

Analysis
Defendant has endorsed two rebuttal expert witnesses: retained expert Greg

Lewicki, an engineer, and non-retained expert James R. Murray, a managing member
of High Mountain. (ECF No. 87.)
Among other things, Lewicki opines that all of High Mountain’s ponds (“Mine
Ponds”) have a clay lining which prevents infiltration and that:
[c]lay liners are used frequently to accomplish sealing of
ponds in both regular civil infrastructure and the mining
industry. In particular, such liners are used in locations
where the material for them is readily available at their
construction site (Exhibit 11). In the cases where clay liners
are to be installed all at once, compaction via mechanical
means is necessary. Compacted clay liners of this type are
built in condensed timeframes. The key to the mechanical
installation is placing the clay in limited thicknesses (lifts)
and compacting (applying downward pressure) each lift prior
to placing the next lift.

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The clay lining found in the process water ponds at the Alma
Placer Mine [the “Mine”] is installed in the same manner,
albeit using the aid of water instead of a bulldozer or
compactor. Process water enters the pond bearing
suspended silts and clays. The clays and silts, being denser
than the water, settle into the bottom and sides of the pond
in a thin lift. The layer is then compacted into place via the
pressure of the water in the pond. Each introduction of
process water contributes another lift to the clay liner of the
pond and compacts it under water pressure. Initial lifts will
be compacted into the host cemented glacial till, filling in
initial pore space. Following lifts further augment the liner,
leading to self-sealing as noted by [the Colorado Division of
Reclamation, Mining and Safety (“DRMS”)] in 2003 & 2005
(Exhibits 8 & 9). This can be seen in Ponds 3 & 4 (formerly
known as Pond “A” or even Pond “1”) which have been
continuously clay lined since at least the early 1990’s.
Further information regarding the natural cementation of the
native material and high clay content is discussed in Item 4.
(ECF No. 87-1 at 12.) Likewise, Murray plans to testify that “sufficient silt and clay is left
in the [Mine Ponds] to maintain a silt/clay lining to prevent infiltration.” (ECF No. 87-2 at
1.)
Pursuant to Rule 702, Plaintiffs seek to exclude “all testimony pertaining to
[Lewicki’s] and [Murray’s] opinions that clay in the process water creates a lining for
High Mountain’s setting ponds and prevents the seepage of water through the sides or
bottoms of these ponds.” (ECF No. 87 at 4.) Plaintiffs argue that neither Lewicki nor
Murray have produced “any measurements of the sides or bottoms of the [Mine Ponds]
. . . to confirm that clay is present in ‘[a]ll ponds’”; that they have “never tested their
theory that the alleged clay lining has prevented infiltration”; and that they “have
disclosed no photographs of the clay and on the sides or bottoms of the ponds, even
though a pond could have been temporarily drained to do so.” (Id. at 5.) Plaintiffs
further point out that Defendants’ expert witnesses do not reference any scientific

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studies to support their “application of clay through water” theory. (Id.) Defendants
respond that Lewicki’s report and Murray’s disclosures identify sufficient bases for their
opinions. (ECF No. 98 at 2, 8–10.)
After carefully reviewing the parties’ briefs and the exhibits appended thereto, the
Court concludes that Lewicki’s report and Murray’s disclosures sufficiently identify the
bases for their rebuttal expert opinions. Notwithstanding the fact that Plaintiffs can
envision ways that Lewicki and Murray could have further supported their expert
opinions—i.e., by producing measurements of the sides or bottoms of the Mine Ponds,
by engaging in modeling to determine the percentage of clay in the silt/clay process
water, or by temporarily draining a Mine Pond to photograph the clay lining—the Court
has not been presented with any evidence or case law demonstrating that the absence
of these techniques render the experts’ opinions unreliable. To the contrary, the Court
is confident that any perceived insufficiencies in Lewicki’s and Murray’s expert opinions
can be adequately explored through cross-examination at trial.
Accordingly, the Court denies Plaintiffs’ Motion to Exclude.
II. DEFENDANTS’ MOTION TO EXCLUDE RETAINED EXPERTS
In Defendants’ Motion to Exclude Retained Experts, Defendants seek to exclude
certain expert opinions of Plaintiffs’ retained expert witnesses: Alison Burchell, Weston
W. Wilson, and Carla Johnson. (ECF No. 83.)
A.

Relevant Opinions of Plaintiffs’ Retained Expert Witnesses
1.

Burchell

Burchell, a field geologist and geochemist with experience in water quality
sampling, has submitted an expert report in which she opines, inter alia:

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•

“As evidenced from published geological maps [of] standing
wetlands, wetland vegetation and as confirmed during sitereconnaissance, the [Middle Fork] is a ‘gaining’ stream that
maintains well-sustained flow year-round with a water table
that is maintained at or above stream level as run-off and
regional ground water generally moves toward and into the
stream. . . . The High Mountain Site and associated settling
ponds are ‘perched’ at higher elevation than the natural
stream bed.”

•

“On November 5, 2016, I conducted water quality sampling
at four locations: [MF1: Culvert 1; MF2: West Alma
Upstream; MF3: 1,000 feet downstream of Culvert 1; and
MF4: Culvert 2]. . . . The culverts were selected for sampling
because: (i) I had observed what appeared to be water
seeping from – and ponding near the base of settling pond,
(ii) I had been denied permission to survey or sample the
site, and (iii) I observed that these two culverts conveyed
water from the High Mountain site which then flows into the
Middle Fork . . . .”

•

“[I]nstream chemistry along the reach of the Middle Fork,
which is influenced by Culverts 1 and 2, varied notably from
samples analyzed upstream and downstream. The sampling
data indicate that the High Mountain site is likely discharging
elevated levels of cations into the Middle Fork through
Culverts 1 and 2, notably magnesium (Mg), potassium (K),
and sodium (Na) which I now understand were detected in
high concentration in at least one mine settling pond. The
levels [sic] sulfur (S), carbon (C) and uranium (U) are also
higher along this reach of the Middle Fork as compared to
sample[s] taken upstream and downstream from the section
of the Middle Fork adjacent to the High Mountain site.”

•

“According to the Alma Placer Mine, 112 Permit Amendment
to Colorado Mined Land Reclamation Division and Park
County, Colorado, April 2016 [(“April 2016 Permit
Amendment”)], processing at the site includes the use of
portable trommels and sluice boxes, with water discharge
allowed to settle in the first catchment, and then directed to
ponds, including Ponds 3 and 4, which are designed to
‘allow for infiltration of water into the native gravels.’ That
water is then conveyed into the groundwater, and, thence, to
the Middle Fork adjacent to these ponds.”

•

“Based on information submitted by Defendants[,] the
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settling ponds do not have compacted synthetic liners and
rely on a thick layer of accumulating clays to impede
groundwater infiltration. To permanently seal the [Mine
Ponds], the clay fines would need to have been applied in a
uniform and methodical manner, dried and then machine
hard-compacted.”
•

“These sampling data [sic], demonstrate the presence of
pollutants in the Mine Ponds and that the Mine Ponds are
likely discharging into the Middle Fork (i) through the
alluvium below the [Mine] Ponds, and (ii) possibly through
the sides and bottom of the [Mine] Ponds resulting in
observed standing water or wetlands at the edge of the Mine
property and which subsequently discharge through the
culverts into the Middle Fork.”

(ECF No. 83-2.)
2.

Wilson

Wilson was employed by the United States Environmental Protection Agency
between 1974 and 2010 and has “analyzed surface water quality impacts associated
with mining and other resources extraction activities.” (ECF No. 83-1 at 3.) In his
expert report, he provides the following expert opinions:
•

“The Middle Fork . . . is a gaining stream where ground
water flows into [the] Middle Fork. This high mountain
stream gains water which is demonstrated by the presence
of aquatic plants such as willows at a higher elevation than
the stream bank and that water in the culverts flows clear
and from a higher elevation than the stream bank then into
the Middle Fork.”

•

“The permit applications submitted by High Mountain Mining
to [DRMS] show that the settling ponds . . . particularly Pond
#4 and South Pond #3, are more likely than not infiltrating
into the unconsolidated alluvium underlying these ponds and
[are] likely discharging into the Middle Fork through
groundwater under Pond 4 and from standing waters or
wetlands downgradient from South Pond #4 and then
through the culverts running under a road then into the
Middle Fork.”

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•

“Neither clay fines nor bentonite are likely to have sealed the
[Mine] Ponds to prevent them from infiltrating pond water
into the soils beneath the [Mine] Ponds . . . In order for the
clay fines or bentonite to permanently seal the [Mine] Ponds
they would need to have been applied in a uniform and
methodical manner then compacted by machine.”

•

“I have reviewed three sets of sampling taken on and around
the Mine property. . . . These sampling sets confirm that
there are pollutants in the Mine Ponds, that pollutants are
discharged from the Mine Ponds and more likely than not
are being discharged into the Middle Fork through the
alluvium below the [Mine] Ponds. These pollutants are
discharged either through the sides or the bottoms of the
[Mine] Ponds resulting in standing water or wetlands on the
Mine property which subsequently discharge through
culverts running under South Main Street (Colorado Highway
9) then into the Middle Fork.”

3.

Johnson

(Id.)

Johnson is a hydrogeologist with over 35 years of experience in hydrology and
engineering. (ECF No. 83-3 at 3.) In her expert report, she opines, inter alia, that:
•

“It is my opinion that Ponds 3 and 4, located within 70 and
90 feet, respectively, of the [Middle Fork] and approximately
20 feet above the river, are a probable source of
contaminated groundwater into the [Middle Fork]. . . .
According to the [April 2016 Permit Amendment], processing
at the site includes the use of portable trommels and sluice
boxes designed to discharge mining water and particles into
the first catchment basin and then its directed into Ponds 3
and 4, which are specifically designed to ‘allow for infiltration
of water into the native gravels’ below the ponds. . . . It is
logical to conclude that the contaminated pond water which
migrates vertically into the groundwater table beneath the
ponds, as engineered, also contaminates the [Middle Fork]
adjacent to the ponds since they are hydrologically
connected.”

•

“Neither clay fines nor bentonite are likely to have sealed the
[Mine] Ponds to prevent pond water from infiltrating into the
alluvium beneath the [Mine] Ponds. There is no reference to
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the construction of bentonite and pond waters. . . . In order
for clay fines to adequately seal a [Mine] Pond from leakage,
the clay (bentonite) needs to be applied in a uniform and
methodical manner then compacted as per standard
engineering methodologies and practices to create an
impermeable barrier.”
•

“The natural streams that cross the Mine property are
gaining-stream tributaries that flow into the [Middle Fork].
The Mine’s overburden material mounds, roads, and
operations intersect these streambeds and, in some areas,
precipitation runoff and pond process water are channeled
towards and into these natural streams. These streams
convey this water to and through the two culverts located at
the southern end of the Mine property which empty directly
into the [Middle Fork]. This water is likely to be
contaminated by mining materials.”

(Id.)
B.

Analysis
Defendants argue that the Court should exclude Burchell, Wilson, and Johnson’s

expert opinions that: (1) the Middle Fork is a “gaining” stream, or streams that cross the
Mine are “gaining streams,” and that ground water flows into the Middle Fork; (2) the
Mine Ponds are “more likely than not . . . discharging” into the Middle Fork through
“ground water” and/or from standing water or wetlands; and (3) the clay liners in the
Mine Ponds are insufficient. (ECF No. 83 at 4–8.) They contend that Plaintiffs’ retained
experts do not sufficiently identify facts or data upon which they base their opinions or
the principles or methods they used to reach those opinions. (Id. at 4–5.) Moreover,
Defendants argue that Plaintiffs’ experts are unreliable because they do not “provide[ ]
hydrologic or physical evidence to demonstrate infiltration of water out of any pond that
exists or existed at the Mine,” or that “if water leaves any Mind [P]ond, water reaches
the [Middle Fork].” (Id. at 7.) They further contend that none of Plaintiffs’ experts

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conducted any tests of the Mine Ponds’ liners and failed to review DRMS’s publicly
available files. (Id. at 8.)
In response, Plaintiffs argue that their expert witnesses have identified sufficient
facts and data supporting their opinions. (ECF No. 94 at 4–10.) For example, they
argue that their experts have relied on High Mountain’s permit applications, the fact that
the settling ponds do not possess synthetic liners, and the results of water sampling, in
forming their opinions that the Mine Ponds are leaking and that the clay liners are
insufficient. (Id. at 6–10.)
The Court agrees with Plaintiffs. Notably, Plaintiffs’ retained experts rely on
Defendants’ own statements, eyewitness testimony, and three sets of sampling data to
develop their expert opinions. While Defendants may be able to point to potential flaws
in the experts’ opinions, the Court cannot conclude that Burchell, Wilson, and Johnson
should be barred from discussing their conclusions and the bases for those conclusions
at trial. Defendants’ objections to the experts’ principles and methods go more to the
weight that the Court should afford their opinions rather than their admissibility.
Accordingly, the Court denies Defendants’ Motion to Exclude Retained Experts.
****
The Court pauses to make an additional observation. As set forth above,
Burchell, Wilson, and Johnson have provided overlapping expert testimony regarding,
inter alia, whether the Middle Fork is a gaining stream, whether the Mine Ponds are
likely discharging pollutants into the Middle Fork, and the sufficiency of the clay liners in
the Mine Ponds. (Cf. ECF Nos. 83-1, 83-2, 83-3.) Under Rule 403, the marginal
probative value of allowing such duplicative testimony from three expert witnesses is

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substantially outweighed by a danger of needlessly presenting cumulative evidence at
trial. Accordingly, exercising its authority under Federal Rule of Evidence 611 to control
the introduction of evidence and avoid duplicative testimony, the Court will allow
Plaintiffs to choose only one expert to opine on each of these topics. However, the
Court will not preclude more than one of Plaintiffs’ expert witnesses from testifying
regarding other non-cumulative matters, if any.
III. DEFENDANTS’ MOTION TO EXCLUDE NON-RETAINED EXPERTS
Pursuant to Federal Rule of Civil Procedure 26(a)(2), Plaintiffs have identified the
following individuals as non-retained expert witnesses: (1) Meg Parish from the
Colorado Department of Public Health & Environment Water Quality Control Division (or
other person in the Department with comparable knowledge or experience); (2) Pete
Cadmus, an Aquatic Toxicology Research Scientist with Colorado Parks & Wildlife (or
other person with comparable knowledge or experience); and (3) “Jeff Spohn, Dawson
Swanson, or other persons in the Department with comparable knowledge or
experience” from Colorado Parks & Wildlife. (ECF No. 84-1 at 2–3.)
Under Rule 26(a)(2)(c),
Unless otherwise stipulated or ordered by the court, if the
witness is not required to provide a written report, this
disclosure must state:
(i) the subject matter on which the witness is expected to
present evidence under Federal Rule of Evidence 702, 703,
or 705; and
(ii) a summary of the facts and opinions to which the witness
is expected to testify.
Defendants request that the Court exclude Plaintiffs’ non-retained expert
witnesses: Meg Parish, Pete Cadmus, Jeff Spohn, and Dawson Swanson on the basis
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that “Plaintiffs failed to produce information for any of these witnesses sufficient to
comply with Fed. R. Evid. 702 or Fed. R. Civ. P. 26.” (ECF No. 84 at 2.) The Court will
address each witness in turn.
A.

Parish
Plaintiffs state that Parish will testify as follows:
Ms. Parish, or other person in the Department with a
comparable knowledge or experience, is expected to testify
about the factors that determine whether a person, defined
in [sic] include Defendants, is required to obtain a state
pollutant discharge permit for discharges through
groundwater into navigable waters of the United States.
Specifically, Ms. Parish is expected to testify about the
Western Sugar, Ouray Silver Mine, and Upper Blue
Sanitation District permits that were evaluated by the
Department, any studies concerning these facilities, and the
factors that determined whether these facilities qualified as
dischargers that were required to obtain water pollution
permits. She is expected to testify about the factors that the
State generally considers in evaluating whether a facility
must obtain a state pollutant discharge permit, including
those factors (i) set forth in the Clean Water Act, state law,
and related laws and regulations, (ii) addressed in County of
Maui v. Hawaii Wildlife Fund, 590 U.S. __, 140 S. Ct. 1462,
and other factors the State considers relevant to its
determination. She may be asked to opine on the
applicability of these factors to the present case. She will be
asked whether the clay or silts that allegedly line or have
been added to Defendants’ ponds have been sufficient to
obviate permitting obligations for other facilities in the State.

(ECF No. 84-1 at 2–3.)
Defendants argue that Parish’s disclosures are deficient and that her expert
opinions are inadmissible for numerous reasons: (1) Plaintiffs have attempted to
designate unidentified individuals, which violates Rule 26; (2) Parish’s disclosures fail to
disclose the facts and opinions that she will testify to and fail to identify her specialized
knowledge and qualifications; (3) her proposed testimony is irrelevant because it is
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undisputed that High Mountain does not have a state pollutant discharge permit for the
Mine and this case concerns the Alma Placer Mine, not other mines or permits for other
mines; and (4) Parish’s disclosures contain impermissible legal opinions. (ECF No. 84
at 5–6.)
Plaintiffs respond that the disclosures are adequate because they list distinct
topics about which Parish will be asked and provide Defendants with adequate notice of
the factual basis for the opinion testimony Plaintiffs will seek to introduce at trial. (ECF
No. 92 at 4–5.) Plaintiffs further contend that the proposed testimony is relevant. (Id. at
6 (arguing that the “circumstances in which the state requires pollutant discharge
permits, what factors the state considers when determining if a permit is necessary, and
why the state has not required a discharge permit for Defendants’ operations are highly
relevant to the case”).)
After carefully reviewing the parties’ arguments, the Court concludes that
Parish’s Rule 26 disclosures are deficient and include inadmissible anticipated
testimony.
To the extent Plaintiffs attempt to endorse unidentified individuals as nonretained expert witnesses, such designations are improper and are therefore stricken.
After all, Rule 26(a)(2)(A) specifies that “a party must disclose to the other parties the
identity of any witness it may use at trial to present evidence under Federal Rule of
Evidence 702, 703, or 705.” Fed. R. Civ. P. 26(a)(2)(A) (emphasis added); see also
Green Earth Wellness Ctr. LLC v. Atain Specialty Ins. Co., 2016 WL 632051, at *2 (D.
Colo. Feb. 17, 2016) (“By its plain terms, the Rule requires that a party disclose the
identity of the witness, not simply a potential category of individuals from which a party

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can later select an expert.”).
Moreover, because Parish’s opinions regarding the sufficiency of clay or silts in
the Mine Ponds to obviate permitting requirements are based on scientific, technical, or
otherwise specialized knowledge, Rule 702 applies to her opinions. See Nagle v. Mink,
2011 WL 3861435, at *3 (D. Colo. Aug. 29, 2011) (“Rule 26(a)(2) addresses only the
sufficiency of the disclosure. Compliance with Rule 26(a)(2) does not resolve whether
witnesses are qualified under [Rule] 702 or whether their testimony is admissible at
trial.”). The Court notes that Plaintiffs do not respond to Defendants’ argument that they
have failed to identify any specialized knowledge or qualifications that [Parish] may
have on this topic pursuant to Rule 702. (See ECF No. 84 at 5–6; see generally ECF
No. 92.) Plaintiffs have therefore conceded the argument, and Parish is precluded from
testifying regarding “whether the clay or silts that allegedly line or have been added to
Defendants’ ponds have been sufficient to obviate permitting obligations for other
facilities in the State.”
The Court further finds that to the extent Parish’s opinions reach ultimate
conclusions regarding Plaintiffs’ Clean Water Act claim, those opinions are properly
excluded. See United States v. Jensen, 608 F.2d 1349, 1356 (10th Cir. 1979) (“[A]n
expert witness cannot state legal conclusions by applying law to the facts, passing upon
weight or credibility of the evidence, or usurping the province of the jury by telling it what
result should be reached.”). Of course, state permitting requirements are, to some
extent, formed by case law and applicable statutes, and “[a]n opinion is not
objectionable just because it embraces an ultimate issue.” Fed. R. Evid. 704(a).
Insofar as Parish has studied these cases and statutes, they may inform her opinions.

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However, the Court sees a difference between, on the one hand, Parish testifying about
the holding in a particular case and applying the rule of that case to the facts at issue
here and, on the other hand, Parish testifying about her understanding of the law and
how it impacts her understanding of how the State determines whether a facility must
obtain a state pollutant discharge permit. The Court will permit testimony which
constitutes the latter; the former is impermissible.
Finally, the Court finds that although Parish’s disclosures list the topics upon
which she will be questioned, her disclosures are deficient under Rule 26(a)(2)(c)
because they do not summarize the “facts and opinions to which the witness is
expected to testify.” Rule 26(a)(2)(C) disclosures are meant to define the scope of
expert testimony so that an opposing party can be prepared to address the opinions
proffered. See Green Earth Wellness Center, 2016 WL 632051, at *3. Plaintiffs’
disclosures fall short because they fail to identify any of Parish’s anticipated expert
opinions.
Violations of Rule 26(a)(2) are addressed by courts pursuant to Federal Rule of
Civil Procedure Rule 37(c):
If a party fails to provide information or identify a witness as
required by Rule 26(a) or (e), the party is not allowed to use
that information or witness to supply evidence on a motion,
at hearing, or at a trial, unless the failure was substantially
justified or is harmless. In addition to or instead of this
sanction, the court, on motion and after giving an opportunity
to be heard:
(A) may order payment of the reasonable expenses,
including attorney’s fees, caused by the failure;
(B) may inform the jury of the party’s failure; and
(C) may impose other appropriate sanctions, including
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any of the orders listed in Rule 37(b)(2)(A)(i)–(iv).
Fed. R. Civ. P. 37(c)(1). The determination as to whether a Rule 26(a) violation is
justified or harmless is entrusted to the broad discretion of the court. Woodworker’s
Supply, Inc. v. Principal Mt. Life Ins. Co., 170 F.3d 985, 993 (10th Cir. 1999). In
exercising its discretion, a court’s consideration is guided by the following four factors:
(1) the prejudice or surprise to the impacted party; (2) the erring party’s ability to cure
the prejudice; (3) the potential for trial disruption; and (4) the erring party’s bad faith or
willfulness. Id.
Inexplicably, Plaintiffs do not advance an argument under Rule 37 that any
alleged deficiencies in Parish’s disclosures were substantially justified or are harmless.
Based on this failure, the Court could exclude Parish’s trial testimony. Nonetheless,
solely in the interest of justice, the Court will permit Plaintiffs to supplement their Rule
26(a)(2)(c) disclosures for Parish to identify the facts and opinions to which the witness
is expected to testify for the topics already disclosed by no later than January 21, 2022.
Provided that Parish’s disclosures meet the requirements of Rules 26 and 702, she will
be permitted to testify as a non-retained expert witness at trial. 1
Accordingly, this portion of the Defendants’ Motion to Exclude Non-Retained
Experts is granted in part and denied in part as set forth herein.
B.

Cadmus, Spohn, and Swanson
Plaintiffs represent that Cadmus will testify as follows:
Mr. Cadmus, or other person with comparable knowledge or
experience, is expected to present evidence concerning the
results of sampling conducted, and subsequent testing, of
the water in at least one settling pond at the Alma Placer
Mine, presumably Pond 4, on or around October 3, 2014.
1

The Court will address objections to the relevancy of Parish’s testimony, if any, at trial.

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This witness is also expected to identify the pollutants
determined to exist in Pond 4, their values, and the
significance thereof with respect to government standards in
effect.
(ECF No. 84-1 at 3.)
Plaintiffs further state that Spohn or Swanson will testify as follows:
Mr. Spohn, Mr. Swanson, or another person with
comparable knowledge or experience, is expected to present
evidence concerning the results of sampling conducted, and
subsequent testing, of the water in at least one settling pond
at the Alma Placer Mine on or around October 3, 2014. This
witness is also expected to identify Pond 4 as the
Defendants’ settling pond that was sampled at the Alma
Placer Mine. This witness is also expected to identify the
pollutants determined to exist in Pond 4, their values, and
the significance thereof with respect to government
standards in effect.
(Id.)
Defendants argue that any testimony from Cadmus, Spohn, or Swanson is
irrelevant because Plaintiffs have failed to explain how any October 3, 2014 testing
supports an ongoing Clean Water Act violation. (ECF No. 84 at 7–8.) In response,
Plaintiffs do not explicitly address the relevance of testimony regarding the October 3,
2014 testing to the present case. (See generally ECF No. 92.) Indeed, Plaintiffs admit
in their response to Defendants’ Motion for Summary Judgment that they “are not
seeking a permit or penalties” for Defendants’ October 3, 2014 discharge of pollutants
into the Middle Fork. (ECF No. 109 at 27.)
In light of Plaintiffs’ admissions that the October 3, 2014 discharge was a “onetime” discharge for which they are not seeking penalties, the Court finds that testimony
regarding the results of water sampling on October 3, 2014 is not relevant to the
determination of whether Defendants are engaging in an ongoing violation of the Clean
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Water Act. 2 In making this relevancy determination, the Court notes that a different
judge within the District of Colorado has already dismissed a separate case relating to
the 2014 discharge on the basis that “the October 2014 discharge has ceased, making
it a wholly past violation.” See Order, Stone et al. v. High Mountain Mining Co., LLC,
Civil Action No. 17-cv-1295-RM-KMT (July 25, 2018), ECF No. 28; see also Gwaltney of
Smithfield, Ltd. v. Chesapeake Bay Found., Inc., 484 U.S. 49, 64 (1987) (recognizing
that the Clean Water Act “does not permit citizen suits for wholly past violations”).
Accordingly, the Court excludes the non-retained expert testimony from Cadmus,
Spohn, and Swanson.
IV. MOTION FOR SUMMARY JUDGMENT
Summary judgment is warranted under Federal Rule of Civil Procedure 56 “if the
movant shows that there is no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a); see also Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248–50 (1986). A fact is “material” if, under the
relevant substantive law, it is essential to proper disposition of the claim. Wright v.
Abbott Labs., Inc., 259 F.3d 1226, 1231–32 (10th Cir. 2001). An issue is “genuine” if
the evidence is such that it might lead a reasonable trier of fact to return a verdict for the
nonmoving party. Allen v. Muskogee, 119 F.3d 837, 839 (10th Cir. 1997).
In analyzing a motion for summary judgment, a court must view the evidence and
all reasonable inferences therefrom in the light most favorable to the nonmoving party.

Even if the Court did not exclude the testimony on this basis, the Court would still find
that this testimony must be excluded because Plaintiffs have not attempted to demonstrate that
Cadmus, Spohn, and Swanson meet Rule 702 requirements, namely that they have specialized
knowledge or have utilized reliable principles and methods analyzing the October 3, 2014 water
sampling.
2

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Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670 (10th Cir. 1998) (citing Matsushita
Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)). In addition, the
Court must resolve factual ambiguities against the moving party, thus favoring the right
to a trial. See Houston v. Nat’l Gen. Ins. Co., 817 F.2d 83, 85 (10th Cir. 1987).
To prove a violation of the Clean Water Act, Plaintiffs must prove that
Defendants: (1) discharged (2) a pollutant (3) into navigable waters (4) from a point
source (5) without a permit. Sierra Club v. El Paso Gold Mines, Inc., 421 F.3d 1133,
1142 (10th Cir. 2005); 33 U.S.C. §§ 1311(a), 1342(a)(1).
The Court has fully reviewed the parties’ arguments regarding summary
judgment. Viewing the evidence and drawing all reasonable inferences in the light most
favorable to the nonmoving party, the Court concludes that there are genuine disputes
of material fact regarding whether Defendants are discharging pollutants into the Middle
Fork. For example, notwithstanding Defendants’ arguments that Plaintiffs have failed to
provide any evidence of discharge of pollutants into the Middle Fork, the Court notes
that Plaintiffs cite, inter alia: (1) affidavits from witnesses averring that they have seen
culverts convey water from Defendants’ property into the Middle Fork (see ECF No. 203 ¶ 6; ECF No. 20-7 ¶¶ 3, 6; ECF No. 59-1 ¶¶ 5–7); (2) reports from expert witnesses
opining that the Middle Fork contains elevated levels of pollutants in the areas
surrounding the Mine (see, e.g., ECF No. 105-18); and (3) and a report from Collier
Geophysics—which conducted geophysical investigations at Mine Ponds 3 and 4 and
detected “subsurface [ ] anomalies [ ] related to seepage conditions from the upgradient
pond” and “appreciable signal penetration”—opining that “it can be inferred that the subbottom materials are not composed of highly attenuating materials, such as clay-

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dominated sediments” (ECF No. 105-23). The parties’ factual disputes must be
resolved at trial.
Accordingly, the Court denies the Motion for Summary Judgment.
V. CONCLUSION
For the reasons set forth above, the Court ORDERS as follows:
1.

Defendants’ Motion to Exclude Certain Opinions of Plaintiffs’ Retained Expert
Witnesses Under Fed. R. Evid. 702 (ECF No. 83) is DENIED;

2.

Defendants’ Motion to Exclude Plaintiffs’ Non-Retained Expert Witnesses Under
Fed. R. Evid. 702 (ECF No. 84) is GRANTED IN PART and DENIED IN PART as
set forth above;

3.

Plaintiffs are GRANTED LEAVE to supplement their Rule 26(a)(2)(c) disclosures
to identify the facts and opinions to which Meg Parish is expected to testify for
the topics already disclosed by no later than January 21, 2022;

4.

Plaintiffs’ Motion to Exclude Certain Opinions of Defendants’ Retained Experts
Greg Lewicki and James R. Murray Under FRE 702 (ECF No. 87) is DENIED;
and

5.

Defendants’ Motion for Summary Judgment (ECF No. 105) is DENIED.
Dated this 7th day of January, 2022.
BY THE COURT:

______________________
William J. Martínez
United States District Judge

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