By Dick Ulmer – Steve Vaughan and I attended the District Court hearing last Friday morning (Friday, November 13, 2015) in the Sandoval County Court House—the Honorable Judge Cindy Mercer, presiding. The lawyer representing Mt Adams (MT, the landowner, who has not changed) was not at the hearing so the judge called him and he claimed he did not receive notice of the hearing (which the Judge shot down by stating the proof she had of delivery)—and as a result the judge had him attend and participate via speakerphone.
Before the Judge could actually begin hearing, our lawyer presented the arguments for our intervention in the suit. The Lafarge and MT Investments lawyers (MT was the holder of the operating lease who subleased to Lafarge) stood up and told the Judge essentially that they didn’t know why they were in court, since as of August 2015, neither party is any longer involved. Our lawyer argued that this issue was the result of the continuing delay, and that it should have no bearing on the question (the reason for this hearing) of whether ES-CA has standing to intervene.
The Sandoval County Attorney took the position that this change was a surprise to the County, and also went on record stating that he felt that ES-CA (represented by Steve and I) should be allowed to participate and that our involvement would be helpful to an appropriate outcome (we had communicated the change of operator to our attorney in October of 2014—however, any motion to substitute or add defendants must come from the County).
After hearing from the parties concerning their position on continuing the hearing, the Judge Mercer concluded that as the County was seeking injunctive relief (for the operator to stop doing things considered to be in violation of the Non-conformance Certificate), the current operator was key to the case and needed to be heard with regard to whether ES-CA should be permitted to intervene. She set a date (Jan 15, 2016) by which the appropriate actions need to be taken by the County to determine if MT Investments and Lafarge should be dropped from the action, and Vulcan (and/or CalMet—who I understand to be a Vulcan subsidiary) to be substituted. Further, the parties agreed to subsequent hearings at the Valencia County Courthouse, where Judge Mercer has her own courtroom and can more timely schedule hearings.
While we were extremely disappointed by no ruling on our request to intervene, through this hearing, the following became part of the record:
1) Judge Mercer noted and commented that this case had been ongoing too long and seemed genuinely interested in moving it forward
2) The County does not object (in fact, stated support for) to our request for intervention
3) The Mt Adams lawyer offered another case as precedent for why ES-CA/private individuals should not be permitted to intervene—our lawyer will be researching that before the next hearing
4) A new operating lease is now in effect between Mt Adams and Vulcan (MT Investments are no longer involved). The Lafarge lawyer was less direct and left some speculation as to the possibility that they may still have an interest in the outcome due to terms of the Vulcan acquisition of the Lafarge assets in late 2014.
That said, we would still have to conclude that this results in a 3 to 4 month delay in finding out if we have standing and any resolution of the lawsuit itself. We are already communicating with our lawyer to understand the potential implications if Lafarge were allowed to remove themselves and Steve will be obtaining a copy of the transcript so we can study it further.
Just an additional comment–based on advice from counsel, we chose not to “pack the room” at the hearing in order to show respect for the Judge and the Court. We are confident that Placitas will show community support for this action based on the prior survey done by ES-CA. We’ll let you know when we need your help!