07/11 11:30
00:00:02 All right, so we're back on record in the Kroenke and Treasure chest matter 3 and 20-0862 Civil Parties and Counselor present.
00:00:15 Jury is absent.
00:00:16 So right before we, well, after we broke, but as the jury was exiting, one of the jurors gave Madam Clerk a note.
00:00:24 Let me read that to you.
00:00:26 It says, there's actually two questions here.
00:00:30 To do samples excuse me to do testing slash sampling was it necessary to build roads And the second part is if roads or dykes weren't done do you feel that you would get would have got the same results I Mean I think I Guess I'll hear from counsel.
00:00:56 Mr. Martin has departed and
00:01:00 Can I just make sure I got that right?
00:01:05 So the first question was, was it necessary to build roads to do the testing and sampling?
00:01:12 Yes, a different order of the words, but yes.
00:01:15 And then the second question, just so I have it ready.
00:01:17 If Roads or Dykes weren't done, do you feel that you would have got the same results?
00:01:32 I hope Mr. Clark's not taking that question to Mr. Martin.
00:01:34 No, he's going to find it.
00:01:36 We're going to see if Mr. Martin is still in the building in case we want to recall him or deal with that issue.
00:01:48 Counsel, want to be heard?
00:01:49 I think he's been excused.
00:01:52 I don't think we should recall him.
00:01:53 That's a question ultimately for the jury to decide.
00:01:57 Mr. Brzezinski?
00:02:01 I believe we have a right to recall him if we need to.
00:02:04 I don't know if I may as well.
00:02:13 I believe this is the entire purpose of the juror questionnaire procedure is to allow them to ask questions to witnesses.
00:02:25 The fact that Mr.
00:02:27 Martin left the courthouse and is coming back in.
00:02:30 I'm not really sure how that affects the analysis here.
00:02:34 I think we should probably focus on whether the questions are objectionable or asking for admissible evidence, and I don't think they are.
00:02:43 Thank you, Mr. Pencher.
00:02:46 Thank you.
00:02:46 Mr. Campion, anything further?
00:02:47 No, Your Honor.
00:02:48 Thank you.
00:02:48 I'll leave it to the Court.
00:02:49 All right.
00:02:53 frankly I agree with Mr. Bedinger I think this is why we allow jurors to ask questions I think they're fair questions I do think they were directed specifically at Mr. Martin as the witness I think frankly either side could recall Mr. Martin and put the questions to him the fact that he's voluntarily willing to come back I think simplifies things and we can simply explain to the jury that we have a question from one of your members and we're going to ask him
00:03:20 That's my room.
00:03:54 And so procedurally, counsel, I know Mr. Brzezinski has stepped out, but Mr. Pettinger, you're here.
00:03:59 Let me explain.
00:03:59 I mean, when this situation comes up, I mean, my process when a juror asks a question is I reopen questioning for counsel to do follow-up.
00:04:08 So I'll give you each a chance to explore a little bit further if you so choose.
00:04:13 Thank you.
00:04:16 I assume the reopening should be... Limited to the questions that were asked.
00:04:20 Thank you.
00:04:23 And...
00:04:24 and exploring his answers.
00:05:24 It's gonna be good to know.
00:08:13 Mr. Martin, you're back.
00:08:14 Thank you, sir.
00:08:17 All right.
00:08:17 We'll go ahead and
00:08:44 And then I'll give the lawyers a chance to do any
00:09:12 brief follow-up and I emphasize the brief part the fine line between moving the horse forward and kicking it when it's down he's on the phone juggling things and doing whatever Travis does
00:09:44 Seth kroenke v Treasure chest LLC
00:10:22 Welcome back, everybody.
00:10:23 Please have a seat.
00:10:31 So ladies and gentlemen, I mentioned earlier on that you could ask questions and to slip a note to us if you had questions.
00:10:39 And one of your members provided a note with some questions right as you were departing after we went off record and Mr. Martin had been dismissed.
00:10:48 The questions, I've looked at the two questions that were asked.
00:10:52 They seem to be appropriate to Mr. Martin.
00:10:54 We caught him on his way out of the building and asked him to come back so that we could get a little bit more testimony from him to hopefully answer those questions.
00:11:02 So, Mr. Martin, thank you for coming back in and being willing to assist us.
00:11:08 If you'll come back forward, sir, we're going to ask you a few more questions.
00:11:15 And the headphones are still up here for your use.
00:11:28 And let me just start with this.
00:11:30 Can you hear us okay?
00:11:47 Yeah, that's fine.
00:11:48 All right, so Mr. Martin,
00:11:50 I had dismissed you and let you go, but I'm just going to say this.
00:11:54 I don't need to re-administer an oath.
00:11:55 I'm just going to remind you that your testimony needs to be under oath.
00:11:58 Do you understand that?
00:11:59 Yes.
00:11:59 All right.
00:12:00 So, two questions for you.
00:12:02 The first question is, to do testing or sampling, was it necessary to build roads?
00:12:10 Yes, because of the condition, the soil conditions to get out to those areas, yes.
00:12:17 And the second question is, if roads or Dykes were not done, do you feel that you would have got the same results?
00:12:28 The roads needed to be done to get out to that testing.
00:12:31 The Dykes didn't have to be done.
00:12:34 That was a rough thing, just in case the river was to flood, potentially.
00:12:39 Okay.
00:12:41 Mr. Brzezinski, did you have any follow-up questions you wanted to ask?
00:12:48 Frank, if you didn't build roads and the other projects, could you have conducted testing in other locations for Seth?
00:12:59 I could have done some, some testing, but not a good perspective of the area without building some of those roads.
00:13:14 But the roads was
00:13:18 mainly the first was to get the roads built so to do the dice and stuff and move some soil in order for you to do what Seth asked you to do how much infrastructure did you have to build would you have had to build
00:13:44 I'm sorry.
00:13:44 In order to do what Seth asked you to do, which is tasseling, how much of these roads would you have had to build?
00:13:52 I'm trying to remember looking at all the whole area of that.
00:14:05 We could have probably done probably 50-60% of the sampling without having to build those roads.
00:14:13 Thank you.
00:14:15 Mr. Campion, did you have follow-up questions?
00:14:17 Yes, just to clarify.
00:14:19 Mr. Martin, the trommel that you brought to Dan Creek, could you have taken that up the canyon without a road?
00:14:26 No.
00:14:27 Why not?
00:14:28 Because the landslides were blocking the roads.
00:14:35 How was that trommel transported up the canyon?
00:14:41 How was it transported?
00:14:43 We hooked onto it and pulled it up there.
00:14:46 With a truck?
00:14:48 I think we did a truck or did a I think we used an excavator some too because we could pick the front of it up and pull it.
00:14:59 Could you have done the sampling up the canyon without the trommel?
00:15:04 We couldn't get to it.
00:15:06 I mean we could only get to the slides.
00:15:10 I'm sorry.
00:15:11 If you didn't have the trommel, could you have done the sampling?
00:15:21 I mean you you you mean no the trommel needs that we needed we could have went up and got it with a truck or with a truck and load it bought it back down and done down there but you still would need the road to get the truck up there right pardon you still would have needed the road to get the truck up there yes
00:15:44 But we're just going to do all the sampling in the bottom part.
00:15:48 You said, you thought about it and you said you thought you could have done 50-60% of the sampling without building any roads, is that right?
00:15:59 If we would have done the whole lower part, because at the time it was not, when I first looked at the place it was not intended and my thoughts from Mr. Elliott of going up the canyon.
00:16:14 Was it your understanding that you were tasked with sampling just the lower part?
00:16:21 That's what it was looking like when we first went out there, yes.
00:16:28 Thank you.
00:16:30 Mr. Brzezinski, one question.
00:16:31 Did you need the roads or the dikes to continue mining?
00:16:36 Did I need... Did you need to build... Sorry, I apologize.
00:16:41 I apologize.
00:16:42 Did you need to build roads or dikes or ditches in order for you to continue mining where you were?
00:16:48 With the equipment that he was using to haul the big rocks to fill the dikes up and fill the trench and stuff in they had a lot of track issues so they were breaking all the time so yes we need to make a road for those to be able to move on to be able to do
00:17:08 The spot that you're mining in, where you and Travis had big blue and you're extracting gold, did you need to build roads to continue doing that?
00:17:28 It just made it better if we did.
00:17:31 I mean, because of the roughness and moving some piles of soil that were in the way.
00:17:39 All right.
00:17:42 Mr. Martin, this time, thank you.
00:17:44 We appreciate your question.
00:17:49 We'll let you go.
00:17:50 Ladies and gentlemen of the jury, thank you for the question.
00:17:52 That's why we provide this opportunity, hopefully to bring some clarity to something that you were wondering about.
00:17:58 With that, our next witness.
00:18:01 Mr. Brzezinski?
00:18:02 Yes, sir.
00:18:03 The plaintiff will call Travis Turnbull.
00:18:05 I'll go first.
00:18:06 All right.
00:18:34 Good morning, sir.
00:18:35 Still morning.
00:18:36 If you want to come up here, please.
00:18:44 And if you'd remain standing and raise your right hand, we'll give you an oath.
00:18:48 Do you solemnly swear or affirm that the testimony you are about to give in the matter now before this court will be the truth, the whole truth, and nothing but the truth?
00:18:54 I do.
00:18:55 Okay.
00:18:55 Go ahead and take a seat and please state and spell your first and last name.
00:18:59 State and Spell Travis Turnbull T-R-A-V-I-S-T-U-R-N-B-U-L-L T-R-A-V-I-S-T-U-R-N-B-U-L-L T-R-A-V-I-S-T-U-R-N-B-U-L-L T-R-A-V-I-S-T-U-R-N-B-U-L-L T-R-A-V-I-S-T-U-R-N-B-U-L-L T-R-A-V-I-S-T-U-R-N-B-U-L-L T-R-A-V-I-S-T-U-R-N-B-U-L-L T-R-A-V-I-S-T-U-R-N-B-U-L-L T
00:19:29 2020 I was in Dan Creek.
00:19:32 Okay.
00:19:32 And when you were still working for us, right?
00:19:34 Yeah.
00:19:35 Okay.
00:19:36 And what was your job title then?
00:19:40 At that time I was a superintendent.
00:19:41 Okay.
00:19:42 And by trade, what do you do?
00:19:44 Welder.
00:19:45 Okay.
00:19:46 What's the difference between a welder and a fabricator?
00:19:48 Say that again?
00:19:49 What is the difference between a welder and a fabricator?
00:19:55 Fabricators build things, welders
00:20:00 Which one are you?
00:20:01 Fabricator How long have you been doing that?
00:20:07 I don't really know, probably 10 years old And you're 14 now, 15?
00:20:13 45 What's your experience like with heavy equipment?
00:20:20 What do you mean?
00:20:23 How much experience do you have working with heavy equipment?
00:20:26 All my life
00:20:28 Since you were 10 or earlier?
00:20:29 10 Alright Do you have, prior to 2020, did you have any mining experience?
00:20:38 Very little Okay How did you get involved in the Dane Creek project?
00:20:44 I remember I was called into a meeting with Seth and Randy about possibly purchasing a gold mine Okay
00:21:00 What happened at that meeting?
00:21:03 We all sat down.
00:21:05 Randy talked about what he had out there, talked about what Seth needed.
00:21:14 He needed me and Frank to go out there to evaluate what was at the mine.
00:21:23 How did you feel about taking on a project like that?
00:21:30 It seemed lucrative.
00:21:33 How so?
00:21:36 There was Randy said there was a lot of gold there.
00:21:42 We made a deal with Seth on getting 2% for myself.
00:21:46 I'm not sure what Frank was going to get plus my wages.
00:21:53 So when you first went out to back up, how did you get out to the mines?
00:21:59 How did we get out there?
00:22:00 Which time?
00:22:01 First time.
00:22:02 We flew out there.
00:22:03 Okay, and then when you started moving equipment, how did you get out to the mine with the equipment?
00:22:09 We drove it across the Maizena River.
00:22:12 I'm going to have you look at the screen over your left shoulder and tell us what we're seeing right here.
00:22:20 Who's the good looking guy?
00:22:22 That's me, about ready to jump off to get to shore.
00:22:27 We're all in it.
00:22:28 How's that situation looking to you?
00:22:30 It wasn't great.
00:22:32 Explain, please.
00:22:36 We were hauling that screen back from McCarthy to the mine with this maruka that was hauling freight back and forth that the track broke.
00:22:50 It wouldn't move.
00:22:52 So tell us how deep is the river there?
00:22:55 Right there?
00:22:58 I'd say where I'm going to jump in is about three feet, where that trailer is tipping over is probably about six or eight.
00:23:09 And you're pretty confident you could walk back to shore?
00:23:13 Not from where that screen's sitting, no.
00:23:16 How did you get out of that predicament?
00:23:18 I jumped as far as I could.
00:23:20 And then what?
00:23:21 Landed in the water about three feet.
00:23:27 What did you, were you able to rescue that equipment?
00:23:29 Yeah, Randy came out with a loader and pulled it out.
00:23:33 Whose maruka was that?
00:23:34 Randy's.
00:23:36 So when you got up to the mine, what were you supposed to be doing?
00:23:41 It was agreed that I was going to go out there and fix a plant for Randy so that we could use it to mine.
00:23:50 Okay.
00:23:53 So when you arrived at the mine,
00:23:56 What condition were things in?
00:23:58 Did you have everything you needed to do your job?
00:24:02 Well, it's a mine, right?
00:24:04 You find stuff.
00:24:06 You find whatever you need to get it done.
00:24:11 How long were you expecting to work on this plant?
00:24:14 A few weeks, four.
00:24:18 How long did it take you?
00:24:20 Well beyond that.
00:24:21 Why?
00:24:23 Well,
00:24:27 I tried telling Randy in the beginning that things wouldn't work but he wanted to continue with the way it was things kept breaking and kept fixing it so paint a picture for us when you say plant and plant can mean a lot of things describe for us what it is that you're working on and what it's supposed to be doing and how are you building or repairing it so this was a screening plant that had a
00:24:57 a centrifuge which is a big cylinder that spins around Randy said he got it out of Eureka from another miner that it had a lot of stuff a lot of material run through it at a much smaller pace he wanted it on a skid so we could pull it around it needed it needed big wings that we could load it with excavators instead of skid stairs he wanted it a double deck
00:25:28 So I converted it to a double deck.
00:25:32 Yeah.
00:25:37 What did you originally understand to be your purpose at Dan Creek?
00:25:44 My purpose or our purpose?
00:25:47 The team purpose.
00:25:49 The team?
00:25:49 Yes.
00:25:51 In the beginning we were going to go evaluate to see how much gold there was.
00:25:54 And then?
00:25:56 and then it changed to we were going to mine.
00:25:58 Okay.
00:26:03 Now there's been some testimony that Mr. Elliott had some heavy equipment, excavators and so forth at the mine.
00:26:10 What condition was that equipment in?
00:26:13 Not great.
00:26:14 Very poor.
00:26:18 Describe that for us.
00:26:19 Like that?
00:26:20 Sorry?
00:26:21 Like that.
00:26:21 I don't know how many tracks we changed on Marooka's.
00:26:25 That was how we got freight and fuel in there.
00:26:27 How often are you supposed to change a track on one of those things?
00:26:31 Once every five years, maybe.
00:26:34 How many times did you wind up changing tracks on them during that season?
00:26:38 I was involved with it at least three or four times.
00:26:43 Tell me about the excavators.
00:26:45 His?
00:26:46 Please.
00:26:48 Showed up.
00:26:52 The one that I was supposed to use to work on the plant
00:26:55 had no track on it the roller carriers were bent he had said he threw a track this summer before and that's where it sat so I fixed that got it running another couple times I remember he ripped a bucket apart on one I had to go to fix that they had to swap an engine out on another one that summer so
00:27:25 Swap an engine out.
00:27:26 That sounds, to you, it sounds simple.
00:27:29 How many hours did it take to swap an engine out?
00:27:31 Well, I didn't swap it out.
00:27:32 They had to.
00:27:33 I helped a little bit, but nothing.
00:27:35 How many hours did you put into fixing the equipment at the mine?
00:27:39 A lot.
00:27:40 What's a lot, sir?
00:27:44 Oh, I don't know.
00:27:44 When I got there, I was working probably 14, 16-hour days, seven days a week for, I don't know, six or eight weeks straight.
00:27:54 And how many of those hours were towards what Seth wanted you to do?
00:28:01 Well, that's a trick question because that's what I was there to do was to get that plant running, but by that time we were hopefully mining, right?
00:28:11 So if you're asking if we were there to mine and was I mining?
00:28:19 No, I was working on Randy's equipment, but it was agreed to fix the equipment before we could run it.
00:28:25 It just took that long, because Randy kept changing things on it.
00:28:30 What did Mr. Elliott change?
00:28:34 Well, for one, we changed the way he wanted the screens.
00:28:44 I remember that.
00:28:45 And this is on, we're talking about the plant?
00:28:47 The blue plant.
00:28:48 The big blue?
00:28:49 Yeah.
00:28:50 Okay.
00:28:50 Please continue.
00:28:52 Yeah.
00:28:57 He wanted to keep the centrifuge on there and we kept battling with that.
00:29:03 Battling as in did you want to have the centrifuge or was your position the centrifuge?
00:29:09 No, I didn't want the centrifuge.
00:29:11 Why?
00:29:12 It was a waste of time.
00:29:14 Why is that?
00:29:15 Because the amount of cleanup it takes for the minimal gold you get is a waste of time.
00:29:24 And obviously you wanted to maximize production.
00:29:26 Right.
00:29:27 Okay, so tell me about the centrifuge issue.
00:29:34 Well, like I said before, Randy had said he bought this plant from a guy in Eureka who ran it with a skid steer.
00:29:42 And we're going to now try and put 200 yards an hour through it.
00:29:46 And I told him that the trunnions wouldn't work.
00:29:48 They're not big enough.
00:29:49 The shafts won't work on the screen.
00:29:51 They're not big enough.
00:29:52 The bearing housings aren't big enough.
00:29:54 The hydraulic motors don't spin fast enough to screen that much material, which in fact they did end up dying.
00:30:04 He did have everything there to convert it to electric, so that's what I did under his direction.
00:30:13 That's when it started running a lot better.
00:30:14 Then his centrifuge broke because of all the trunnion issues I was warning him about.
00:30:25 Without Mr. Elliott's input and suggestions, how long do you think it would have taken you to fix, not fix, but to get Big Blue functioning, build Big Blue?
00:30:37 From the beginning?
00:30:38 Yes, sir.
00:30:39 Four weeks.
00:30:40 And how long did you actually spend on it?
00:30:43 I'm not 100% sure, but it was much longer than that.
00:30:48 Six to eight weeks, something like that.
00:30:52 Did there come a time where you actually got to buying?
00:30:55 a little bit tell me about that so we're running the plants we're mining we're finding gold let me back up what it's all second nature to you but we're all new here so tell us where you are what plants being used and who's doing what after Frank stripped where they him and Randy were talking about we wanted to start mining
00:31:25 We pulled the blue plant over and set it up and now pulled Frank's little plant out of the way, got done with that, so now we're going to start using the big plant, the blue plant.
00:31:40 We started running some tailings through it.
00:31:44 We started going down farther and then we got into, I would say, I don't know,
00:31:54 50 yards away from where his other crew was working, out of the same cut, and was doing really good.
00:32:01 What do you mean, really good?
00:32:03 Tell us, what does that mean to you?
00:32:05 We were finding gold.
00:32:07 How much were you finding?
00:32:09 I believe it was 3, 4, 6.
00:32:12 I mean, it was different every day, but, yeah, it was up to 10 ounces a day.
00:32:19 Which way was the curve going?
00:32:21 Was it decreasing or was it increasing during the time you were there?
00:32:23 Increasing.
00:32:24 Okay.
00:32:27 How did you feel at that point?
00:32:29 I felt good.
00:32:30 We were finding gold.
00:32:32 And were you entitled to a percentage of that gold?
00:32:36 Yes, I was.
00:32:37 So, if you had it your way, what would you do for the rest of that season?
00:32:45 I would have stuck right there and go faster.
00:32:48 and could you have gone faster?
00:32:50 rip that centrifuge off of there and if you could if you were able to make all the decisions and build the thing according to your desires how much more efficient would it be?
00:33:06 over fifty percent so if it if you could get that plant big blue working fifty percent better
00:33:17 How much gold do you think you'd pull out of that ground?
00:33:19 How much gold do you think you'd pull out of that ground?
00:33:30 How much gold do you think you'd pull out of that ground?
00:33:34 How much gold do you think you'd pull out of that ground?
00:33:44 You haven't established a foundation that he knows what the percentage of gold would have been out of any of the rock that he was pulling out of there.
00:33:52 So, I'm going to sustain the objection.
00:34:15 So, Mr. Turnbull, you think you could get that machine to operate faster and better?
00:34:19 Uh-huh.
00:34:20 Is that a yes?
00:34:20 Yes.
00:34:21 Okay.
00:34:23 How many days were you able to mine at that site?
00:34:30 After it was running up to standards?
00:34:32 Yes.
00:34:35 Huh.
00:34:35 One or two, if that.
00:34:37 I can't remember exactly.
00:34:38 It wasn't long.
00:34:38 What was the total time that you were able to mine that location that Frank stripped?
00:34:46 We were there mining it, but the plant kept breaking.
00:34:53 So are you asking the whole time we were there or the whole time that we were actually mining with the plant not breaking?
00:35:00 The whole time that you and Frank were mining the location that you just discussed.
00:35:09 You'd have to go back through the notes.
00:35:10 It's probably three weeks, something like that.
00:35:25 In relation to where you're mining, where was Big Blue?
00:35:30 Right in front of the big cut so that the overburden can fall in the big hole.
00:35:37 And you and Frank were on that particular site?
00:35:40 Mm-hmm.
00:35:42 Say yes?
00:35:43 Yeah.
00:35:43 Okay.
00:35:45 And Mr. Elliott was still involved in this process?
00:35:53 Oh, yeah.
00:35:53 He's the one that directs us to go there.
00:35:55 Okay.
00:35:56 And was he directing you to make changes to Big Blue?
00:36:01 Yeah.
00:36:01 Okay.
00:36:02 So, at some point, did you... Let me rephrase that.
00:36:14 How were you able to get the machine to do what you needed to do?
00:36:17 By getting rid of the centrifuge.
00:36:19 Okay.
00:36:20 So, when you got rid of the centrifuge...
00:36:22 How many days did you get to mine that location for?
00:36:27 I think two, two or three, wasn't much.
00:36:30 Okay.
00:36:31 And why did you leave that location?
00:36:33 Because Randy told us to go up the river, up the creek.
00:36:36 Okay.
00:36:38 He said that his crew was going to come run that plant.
00:36:42 How did you feel about that?
00:36:44 Not happy.
00:36:45 Why?
00:36:46 I put a lot of time in that plant and we just started finding gold.
00:36:52 So why did you leave that location?
00:36:54 Because it's Randy's property.
00:36:56 We're listening to what Randy wanted us to do.
00:36:59 So where did you go?
00:37:01 We went up the creek where Frank had been working on building him a road.
00:37:05 Okay.
00:37:07 And what did you do up there?
00:37:09 Once we went up there?
00:37:10 Yes, sir.
00:37:12 We mined with the little yellow plant which Randy had purchased from Frank at this time.
00:37:19 It now belonged to Randy.
00:37:22 And we went up there and potholed around.
00:37:26 Randy wanted us to move here, we moved there.
00:37:28 We went there, we went there.
00:37:29 Were you able to mine and extract where you wanted to?
00:37:34 No, he kept moving us.
00:37:36 How often did Mr. Elliott instruct you what to do?
00:37:42 Well, what do you mean?
00:37:42 Okay.
00:37:44 How often did Mr. Elliott give you instructions on where to go, what to do, and how to do it?
00:37:51 almost every day how often were you moved from site to site
00:38:20 Up the creek?
00:38:21 Yes.
00:38:22 I think we moved four times.
00:38:28 Were you able to set up shop and reestablish your mining operation?
00:38:34 Yeah, for a little bit and then he'd move us again.
00:38:41 How many days do you think you're able to actually get some mining done and see what's there?
00:38:51 The whole time we were up the creek, actual mining, two weeks, less than two weeks.
00:39:04 Did you ever express to Mr. Elliott the desire to stay in one place and continue what you were doing?
00:39:09 Yeah.
00:39:09 How often did you do that?
00:39:13 Not every day, a couple times.
00:39:15 And what was his response?
00:39:17 He wanted to see what was in all these different places.
00:39:22 What was your understanding that Seth wanted you to do?
00:39:25 Mine.
00:39:26 Stay in one place and mine.
00:39:29 And who was mining at the location where Big Blue was?
00:39:33 FUBAR crew.
00:39:34 And who was using Big Blue that you built?
00:39:37 FUBAR crew.
00:39:47 You said that if you had at your
00:39:52 Your way, you would stay there for the rest of the season, is that right?
00:39:55 Yeah.
00:39:58 And then remind me again, how much gold were you seeing?
00:40:04 Several ounces a day.
00:40:06 Give me a number of several.
00:40:09 I think when we left the big blue plant, six ounces.
00:40:19 and at that point were you down to where you said there's bigger bigger gold deeper oh yeah sorry oh yeah the farther you went the more we got and how far did you get going down I believe it was somewhere in the 40 feet was there more room to go no that's bedrock but once you're down there and you start scraping it linear right you're getting all of it okay were you able to do any of that very little
00:41:01 Now, Mr. Clark testified that you were responsible for daily logs.
00:41:06 Is that right?
00:41:06 Yeah.
00:41:07 Okay.
00:41:08 And correct me if I'm wrong, but daily logs are to be done every day?
00:41:12 Yeah.
00:41:13 All right.
00:41:14 So I'm going to turn your attention to that screen.
00:41:18 And can you tell me what we're looking at?
00:41:22 That's a daily log on the Procore app that we use.
00:41:26 Okay.
00:41:28 And how often did you fill out these logs?
00:41:34 probably not every day but several times a week okay any reason why you didn't do it every day I got to the point where I was getting pretty frustrated with not having to mine and there was no mining going on anyway that's one reason another is the hours we worked
00:41:59 Now from all of your hours that you worked at the mine, how long did you spend at the mine?
00:42:03 All summer.
00:42:05 I think I left there in late August, something like that.
00:42:12 I can't, I don't know for sure.
00:42:15 Out of all the hours you put in at the mine, what percentage of those hours were directly related to things that benefited Seth that you were supposed to be doing?
00:42:26 In a percentage?
00:42:27 Sure, best as you can.
00:42:30 20%?
00:42:31 And the rest of the time went to what?
00:42:33 Doing what Randy needed or wanted.
00:42:37 And did that benefit Seth?
00:42:39 I thought it was going to, but I didn't know.
00:42:45 Did Seth ever ask you to leave a gold-rich mining area?
00:42:51 Nope.
00:42:53 But Mr. Elliott did?
00:42:55 Yep.
00:42:56 Nothing further.
00:42:58 Mr. Campion?
00:42:58 Thank you.
00:43:09 Mr. Turnbull, good afternoon.
00:43:11 We haven't met before, have we?
00:43:12 No, sir.
00:43:13 Okay.
00:43:17 Who's John Weldon?
00:43:19 John Weldon?
00:43:19 Yes.
00:43:20 He was a mechanic.
00:43:22 He was or is?
00:43:23 Was.
00:43:23 Has he passed away?
00:43:25 no well I guess he is a mechanic I don't know what he does now he he was an employee of RAS when did he leave employment of RAS if you know over a year ago was he a good mechanic hmm yeah he's all right did he spend any time at Dan Creek in the summer of 2020 at Dan Creek yes I know he was with me when we brought the dump truck to McCarthy
00:43:54 He might have come to Dan Creek once, but I'm not positive.
00:43:58 Were there any other mechanics that were employed by RAS that came out to Dan Creek in the summer of 2020?
00:44:04 Mechanics?
00:44:04 Yes.
00:44:07 Just me?
00:44:08 Mr. Kroenke said that you can fix stuff.
00:44:10 Would you agree?
00:44:11 Yeah.
00:44:12 Do you consider yourself a mechanic?
00:44:14 No.
00:44:15 What's the difference between a mechanic like John Weldon and your skill set when it comes to that type of work?
00:44:22 He's got the
00:44:24 experience of working on engines and mechanic experience.
00:44:31 I change parts.
00:44:36 Do you think it would have helped to have someone like John Weldon out with you as part of your crew in the summer of 2020?
00:44:42 No.
00:44:43 Why not?
00:44:45 I took care of everything that needed to be done.
00:44:49 You were able to get Mr. Elliott's equipment running?
00:44:52 From what he needed from me, yeah.
00:44:57 Your testimony is that you expected it would take four weeks to fix the blue plant, is that right?
00:45:04 I'm sorry, you've got to say yes or no.
00:45:06 Why did you think it would take four weeks?
00:45:09 Because of what the initial plan was.
00:45:14 The initial plan, I'm not sure the jury or I understand what you mean by that.
00:45:17 Of what Randy wanted when I got there.
00:45:20 Meaning the way that you were going to fabricate the blue plant, you thought it would take four weeks?
00:45:25 Yeah.
00:45:27 And when you're telling the jury that that's four weeks, does that mean four weeks full time?
00:45:33 What do you mean full time?
00:45:34 Like you're working on it all day every day for four full weeks?
00:45:36 Yeah.
00:45:37 All right.
00:45:39 How much time do you think it took you to assist Mr. Elliott in mobilizing the equipment and material across the Nizina River?
00:45:48 I was probably involved with I'd say four, maybe five at the most trips.
00:45:58 4 or 5 trips from the McCarthy staging area to Dan Creek yeah how long did each trip take I believe it was a little over half a day so one way or both ways there and back so you could get equipment across the Nisantan River to Dan Creek and back in half a day over half a day over half a day ok when you bring
00:46:22 The equipment and materials across the Nizina River to Dan Creek, what would you do once you got it there?
00:46:26 Would you just dump it or would you set it up?
00:46:28 Say that one more time.
00:46:29 Yeah, fair enough.
00:46:30 Once you got the equipment and materials across the Nizina River, what would you do with it once you got it there?
00:46:36 To Dan Creek?
00:46:37 Yes, sir.
00:46:39 Unload it, use it.
00:46:42 His people, if it was fuel, they would take care of the fuel.
00:46:46 If it was something like that, we unloaded it.
00:46:50 Seth Kroenke v Treasure Chest LLC Seth Kroenke v Treasure Chest LLC
00:47:19 the records show that you started the mobilization on or about May 10th.
00:47:23 Would that sound right to you?
00:47:24 Oh, the very first time I went to Dan Creek?
00:47:26 Yes, sir.
00:47:26 Oh, yeah.
00:47:27 May 10th.
00:47:27 That sounds right.
00:47:28 Before that, you hadn't been out to Dan Creek?
00:47:31 I had.
00:47:32 Had you flown in?
00:47:33 Correct.
00:47:34 How many times?
00:47:34 I think just once.
00:47:40 Who flew you out that time?
00:47:41 Seth.
00:47:42 All right.
00:47:42 And what did you do when you were there?
00:47:44 We walked the mine with Randy.
00:47:46 Who else was with you that day?
00:47:48 me, Seth, frank, kevin and randy and how many hours do you think you were on site that day i'm gonna say six i don't know those guys took a walk up the canyon those guys not you no me and frank stayed down below and looked at everything that we needed to do down in the bottom did that include looking at mr elliott's equipment yeah
00:48:16 How much time do you think you spent looking at Mr. Elliott's equipment with Mr. Martin?
00:48:21 Oh, I don't know, three, four hours.
00:48:24 Did you feel like that was enough time to look at his equipment?
00:48:28 Enough for what?
00:48:30 Well, what was the purpose for which you spent three or four hours looking at it?
00:48:35 We all took a trip to the mine to go look at the mine.
00:48:37 Hey, this is where you're going to go.
00:48:39 So why did you spend three or four hours looking at his equipment?
00:48:42 Because they were up the river, taking a walk up the river.
00:48:49 What else am I going to do?
00:48:51 Okay, so you had three or four hours.
00:48:52 Did you make an assessment of the condition of Mr. Elliott's equipment on that trip?
00:48:57 Yeah.
00:48:57 What did you think?
00:48:58 It looked like some old equipment.
00:49:03 Okay, it's been described as junk.
00:49:05 Okay.
00:49:06 You think it was junk?
00:49:07 Some of it.
00:49:09 Okay.
00:49:10 Did you tell Mr. Kroenke about your observations of the equipment?
00:49:14 I don't believe he ever asked me my observations.
00:49:16 He made his own.
00:49:18 He had his own opportunity to look at the equipment?
00:49:20 Sure.
00:49:24 We walked in, you know, we walked in thinking that we're going to make this happen, we're going to make it work, doesn't matter what the equipment was.
00:49:34 Okay.
00:49:35 And it's your testimony that you didn't think a mechanic was necessary?
00:49:39 Not for our equipment.
00:49:40 What about for Mr. Elliott's equipment?
00:49:42 Sure, he had a mechanic.
00:49:43 Oh, who was there?
00:49:46 Charlie, I don't know his last name.
00:49:48 Charlie Armstrong?
00:49:49 Yeah.
00:49:49 Charlie Armstrong is a mechanic?
00:49:51 Yeah, he's Randy's mechanic.
00:49:53 Is he a good mechanic?
00:49:54 I believe so.
00:49:55 Did he work on Mr. Elliott's equipment while you were out there in 2020?
00:49:57 Yeah.
00:49:58 Did he work on any of the RAS equipment?
00:50:02 I would borrow tools or parts from him.
00:50:06 To help with what?
00:50:09 Airline leaks on trucks, you know, simple stuff like that.
00:50:13 none of our stuff broke down except for the Sani okay and that takes a tech so just to get this right we what right now we think that your testimony is you think you started about May 10th with the mobilization correct okay yeah and you believe that you spent four or five days with the mobilization with mr. Elliott no I'm sorry four or five trips right but that wasn't in the beginning
00:50:44 Like I said, that's spread out over time.
00:50:46 I went to the mine once.
00:50:49 I got started working right away on his blue plant.
00:50:52 He stayed back with our equipment and fixed the road on the other side of the River.
00:50:59 Our equipment showed up days later after he was done doing what he had to do.
00:51:06 It was probably
00:51:09 Two or three weeks before I went back across that river.
00:51:11 Okay, so you had two or three weeks to start working on the blue plant.
00:51:14 I'm sorry.
00:51:15 Yes.
00:51:16 Okay, and Mr. Elliott was on the other side of the river.
00:51:20 Not for that entire time, but yeah.
00:51:21 For a period of time.
00:51:22 Yeah.
00:51:23 And he had to rebuild a road so that your equipment could get across the river.
00:51:27 No.
00:51:27 Okay, what is it that you're trying to tell us?
00:51:31 Well, you're asking my mobilization in there.
00:51:34 I thought you said Mr. Elliott had to fix a road.
00:51:37 He did.
00:51:37 Where was that road?
00:51:39 On the other side of the Nizina River.
00:51:41 Okay, why was... In between the Nizina River and McCarthy.
00:51:44 Why was it necessary to fix that road?
00:51:46 To continue hauling freight in there.
00:51:48 Okay, including your equipment?
00:51:50 No, our equipment was already across it.
00:51:51 All right.
00:51:56 How much time did you spend building your camp?
00:51:58 I don't know, a couple days.
00:52:05 What was involved in that?
00:52:10 um we borrowed a couple sheets of plywood from him with some pallets so that we had somewhere to stand outside of our connex um then later there was a i'm not sure what it was it was some steel structure that we plopped up on top of the connex to overhang to stay out of the rain um he had a
00:52:38 He had a 40-foot pull-behind trailer so that we could put our stuff in so it wouldn't get rained on.
00:52:48 It was a very wet summer.
00:52:49 A lot of it we did after hours.
00:52:57 Okay, so I think what you just told us is that you were borrowing parts or pieces from Mr. Elliott to build your camp.
00:53:06 Yeah, he said to use what we needed.
00:53:08 Was he generous with that?
00:53:10 Yeah.
00:53:12 And you think it took a couple days to get that set up?
00:53:15 In between your other work?
00:53:17 Yeah.
00:53:18 Okay.
00:53:21 And you believe it took ultimately six to eight weeks to get the blue plant running?
00:53:27 Six to eight weeks.
00:53:31 It didn't take six to eight weeks to put it in place.
00:53:35 But once we turned it on, different things would break, right?
00:53:40 And so, all in all, to get it to where it wasn't breaking down, six to eight weeks.
00:53:48 Why were things breaking?
00:53:50 Because it wasn't what he thought it was, like I told him in the beginning.
00:53:56 The bearing housings and the shaft for the screen were not adequate.
00:54:00 The trunnions for the centrifuge were not adequate.
00:54:04 There was only three.
00:54:05 Any drum needs four.
00:54:07 Any drum.
00:54:09 And the centrifuge just did not work.
00:54:13 It didn't collect what he wanted it to.
00:54:18 He was the one that told us to get rid of it.
00:54:21 Finally.
00:54:22 Told you to get rid of the centrifuge.
00:54:23 Correct.
00:54:26 Had you reviewed the agreement that Mr. Kroenke and Mr. Elliott had entered into?
00:54:31 Reviewed, yeah.
00:54:32 And in the second agreement on June 6th, do you recall whether or not they agreed that the centrifuge would be used as part of the plant?
00:54:40 Do you recall whether that was part of it or not?
00:54:43 In writing?
00:54:44 Yes.
00:54:46 I think, I don't know if it said centrifuge, I might have said blue plant.
00:54:50 It might have said the blue, I don't know.
00:54:51 That's fair.
00:54:51 Word for word, I don't know.
00:54:52 I don't know, that's fair.
00:54:56 Who were you working for that summer?
00:54:59 Who was I working for?
00:55:00 Yeah.
00:55:00 Seth who is your supervisor Randy why because his property did Mr. Kroenke ever tell you that you were working at Mr. Elliott's direction yes he did when and how did he tell you that he said that we're on Randy's property do we need to do what Randy wants to do that was Mr. Kroenke that told you that correct is that before or while you were working out at Dan Creek both
00:55:29 So how many times do you think Mr. Kroenke told you that you're working at Mr. Elliott's direction?
00:55:36 At least a handful.
00:55:38 There was some pretty high-tension days out there, right?
00:55:44 So I'd get frustrated.
00:55:46 Randy was frustrated.
00:55:48 He was frustrated.
00:55:49 I was directed to listen to Randy.
00:55:51 That's what I did.
00:55:55 While you're working on the blue plant, setting up your camp and those things, what's Mr. Elliott doing?
00:56:02 While I was doing what?
00:56:03 While you were getting the blue plant running at sort of the beginning of the season, what did you see Mr. Elliott doing, if you saw him doing anything?
00:56:10 Dealing with the other stuff that he had to deal with at his mind, you know.
00:56:17 I remember the tent at the shop, right?
00:56:21 He needed some help with that.
00:56:23 He was doing that, so I came up and helped on that for a little bit.
00:56:27 He was doing his own stripping and moving of boulders and equipment.
00:56:33 Dan Creek has a lot of boulders that you need to move, right?
00:56:38 Just doing whatever he needs to do to run his mine.
00:56:41 Do you know if he was actually mining during that time period at the beginning?
00:56:44 Him himself?
00:56:45 Yes.
00:56:45 No.
00:56:46 Why?
00:56:46 Why do you say that so confidently?
00:56:49 Randy left the mining up to his crew, the FUBAR crew.
00:56:53 okay he he did the cleanup he would go out in the system I believe with with technical issues in equipment because they're not exactly equipment operator but there was the mechanic was out there Charlie Armstrong yeah I think you testified that at the location where Frank had stripped the overburden that you were able to mine for about three weeks is that right
00:57:22 um we were running for three weeks but that plan was breaking constantly so I wouldn't call it mining and then in the four other locations up the creek I think you just testified that you thought that was about two weeks or less or so mining is that right something like that okay did you leave from the from May 10th from when you arrived
00:57:46 other than to go back across the river did you leave Dan Creek for any period of time I think I left twice each time was a week you remember approximately when you left the first time I I don't know it was I know I was there for a long time I was there for eight weeks before I left so it might have been eight weeks after I got there or after that and the second time I left was right before we had we had left for the end
00:58:15 I remember I had a migraine for about a week and then I left to go to a doctor.
00:58:21 There's been discussion about your son Blake.
00:58:23 Okay.
00:58:24 Was Blake with you for all or part of the summer that you were out there?
00:58:28 He was there for longer.
00:58:30 Longer?
00:58:31 Yeah.
00:58:31 Why's that?
00:58:32 When I left, when I got a migraine, he stayed and worked for his crew.
00:58:38 Didn't get paid.
00:58:42 How old was Blake in the summer of 2020?
00:58:46 16 was he an employee of remote Alaska solutions.
00:58:49 Mm-hmm.
00:58:49 I'm sorry he was I Think so, okay and The time period that the three weeks at the one site and then the two weeks at the other four sites the total five weeks Who was who is there mining with you during those those those weeks?
00:59:12 Let's say that one more time.
00:59:13 Yeah, I put a lot in on that question
00:59:16 In the time that you were actually mining, whether it be down lower or up in the canyon in those different locations, who was mining with you as part of your crew?
00:59:25 So Frank was there.
00:59:26 Blake was there, my son.
00:59:31 Jacob DeCray came in for a little bit to run a dump truck.
00:59:37 Sean Kinerson came to relieve Frank to run an excavator.
00:59:44 And then when I left,
00:59:46 Brandon came to relieve me for that week that I was gone.
00:59:49 The first time you were gone?
00:59:50 Yeah.
00:59:51 Okay.
00:59:55 What do you recall about the blue plant sort of being given over to the other crew, to Randy's crew?
01:00:03 What do I recall?
01:00:04 Yeah.
01:00:06 Randy said he's going to give the blue plant to the FUBAR crew and that whatever they find
01:00:15 is going to satisfy the contract.
01:00:21 So it's your testimony that Randy directed you to give that blue plan over to let the other crew have the blue plan?
01:00:29 Absolutely.
01:00:33 You were asked about the daily reports that you submitted?
01:00:36 Yeah.
01:00:37 Do you think you left information out of your daily reports?
01:00:43 I might have by not doing one.
01:00:48 Other than the daily reports you submitted, did you keep any notes or log or diary or anything in writing regarding your activities at Dan Creek?
01:00:57 Just what I put on the notes.
01:01:05 What date was it that you think you left because of your migraines?
01:01:10 Sometime in August.
01:01:11 I don't know the date.
01:01:13 Do you recall Frank leaving for a period of time before you left in mid-August?
01:01:19 What do you recall about that?
01:01:22 He wanted a break.
01:01:24 He took off for a week.
01:01:26 Do you know if he left to go do a job in Valdez?
01:01:29 I have no idea where he went.
01:01:31 How many times do you think Frank left Dan Creek in the time that you were there?
01:01:39 Maybe two.
01:01:41 When you left in mid-August because of your migraines, did you come back?
01:01:46 Yeah.
01:01:47 When you got back, was Frank there?
01:01:48 No.
01:01:49 Was Blake still there, your son?
01:01:50 Yeah.
01:01:51 Was there anyone else from RAS that was there when you got back?
01:01:53 No.
01:01:55 When you got back, what were you doing?
01:01:57 We went up the canyon.
01:02:00 I'm sorry, when you got back after you had the migraine treatment?
01:02:03 Yeah.
01:02:04 It was just you and Blake?
01:02:05 Yeah.
01:02:06 And you went back up the canyon just with Blake?
01:02:09 Yeah.
01:02:09 And what were you doing up the canyon?
01:02:12 We were running the yellow plant.
01:02:14 How many days do you think you ran the yellow plant after you got back?
01:02:17 It wasn't long.
01:02:18 I don't know.
01:02:20 It wasn't long.
01:02:23 What happened to make you stop running that yellow plant?
01:02:27 Seth said we're going to start mining.
01:02:30 It's getting really late in the season and he wanted to go run the blue plant.
01:02:35 So I told Randy I'm bringing this equipment down here to run the blue plant and he said if you're bringing it down just keep going.
01:02:41 Get off my property.
01:02:43 What date do you think that was Mr. Turnbull?
01:02:46 I couldn't say what date.
01:02:48 Did you put that in your daily report?
01:02:51 I'm not sure if I did or not.
01:02:56 I'm sure that I did.
01:02:58 That's a pretty important thing that was going on.
01:03:03 You said you're sure or you're pretty sure you put it in your daily report?
01:03:05 Pretty sure I would have, yeah.
01:03:06 Okay.
01:03:08 And then, so you came back in mid-August, you were there for a few days, and then what happened?
01:03:16 We...
01:03:17 Randy said okay if you're not if you're not gonna mind up there you can't come down here and mine get off my property so we started taking all the equipment off of his property in Van Creek and putting it on Ron Whittem's property which was down the runway a little ways why did you do that because he didn't want any of our stuff on his property he told me to do it mr. Elliott told you to move your equipment on to mr. Whittem's property no he said to get it off of his property
01:03:46 So that was the only other place that I felt secure to leave our equipment.
01:03:52 I asked Ron Whittem and he agreed, yes, you can leave your stuff here, come back and get it when you can.
01:03:57 Was Ron Whittem the person who flew you out with your migraines?
01:04:01 Correct.
01:04:05 Okay.
01:04:06 Did you come back to Dan Creek at any time after that?
01:04:09 To come get the equipment.
01:04:11 When was that?
01:04:12 I don't know the date.
01:04:13 Was it the same...
01:04:15 Let me just talk at the end here now about a few things.
01:04:29 How are you compensated?
01:04:30 How are you paid during the summer of 2020?
01:04:34 From a wage?
01:04:35 Do you get a salary?
01:04:36 Yeah.
01:04:37 Did you receive overtime payment of any kind?
01:04:40 Yeah.
01:04:40 Okay.
01:04:41 And do you recall when... Do you recall...
01:04:45 Well, let me ask it this way.
01:04:47 Do you know what you get paid or what you were getting paid then?
01:04:51 It was a salary.
01:04:52 I think it was $120 a year, I think.
01:04:54 $120, okay.
01:04:54 I can't remember exactly what it was then.
01:04:56 Gross or net?
01:04:57 Gross.
01:04:58 Okay.
01:04:59 So we're talking about $6,000.
01:05:02 I'm not doing the math right.
01:05:05 $10,000 a month.
01:05:06 Pretty close.
01:05:06 So you're probably netting about $4,000 every pay period?
01:05:10 Yeah.
01:05:11 And do you know how Mr.
01:05:19 Do you remember having a conversation with Ron Whittem about Mr. Elliott and what was going on?
01:05:36 Do you remember having any conversations with Mr. Whittem about the mining that summer?
01:05:40 Yeah, I had several conversations with Ron Whittem.
01:05:43 Were you friendly with Mr. Whittem?
01:05:44 Yeah.
01:05:45 Do you think Mr. Whittam is trustworthy?
01:05:48 Yeah.
01:05:51 Do you recall telling Mr. Whittam that you guys are going to make more money mining the miner than actually mining?
01:05:58 I never said that.
01:05:59 You deny saying that?
01:06:00 I never said that.
01:06:01 Okay.
01:06:01 Was that ever a discussion with Mr. Kroenke or Mr. Clark?
01:06:04 I've never heard that.
01:06:07 Those are my questions.
01:06:07 Thank you.
01:06:09 Thank you, Mr. Kroenke.
01:06:09 Mr. Brzezinski?
01:06:20 What were Seth's instructions for you when you went out to the mine?
01:06:27 When we first went out there?
01:06:32 After the initial sightseeing process, what were we supposed to be doing at the mine?
01:06:37 I was supposed to be getting the blue plant running for Randy so that we could use it to prospect for gold.
01:06:47 Did you need daily instructions from Seth to do that?
01:06:51 No.
01:06:55 Did you need daily instructions from Australia?
01:07:00 No.
01:07:02 How often did you get instruction from Australia?
01:07:04 A few times a week.
01:07:09 You had a phone out there, didn't you?
01:07:13 I did.
01:07:14 It worked most of the time?
01:07:15 Most of the time.
01:07:17 And do you remember calling Mr. Clark on the phone?
01:07:22 Yes.
01:07:23 And did you also have the occasion to speak with Seth on the phone?
01:07:28 Very little.
01:07:30 My correspondence was with Kevin mostly.
01:07:34 So your information to Kevin was either on the phone or in the daily reports?
01:07:39 Yes.
01:07:39 Okay.
01:07:46 How much more productive would you have been without Mr. Elliott's input?
01:07:54 Quite a bit.
01:07:55 Thank you.
01:08:01 I take it that concludes your questioning, Mr. Brzezinski.
01:08:03 I'm sorry?
01:08:05 You were done.
01:08:06 Oh, I'm sorry.
01:08:06 You sat down, so I inferred that.
01:08:09 No, I'm sorry.
01:08:10 I'm through.
01:08:11 Yes, you are.
01:08:11 Nothing further?
01:08:12 I fully apologize.
01:08:13 Thank you, sir.
01:08:13 You can step down.
01:08:14 That's it?
01:08:16 Council, you want to approach for just a minute?
01:08:29 I would normally give the jury a break.
01:08:32 We've got a witness lined up and ready to go.
01:08:35 The other expert is out in the hallway.
01:08:37 He's on the clock.
01:08:38 I think I can be with the rest in about half an hour, maybe less.
01:08:43 How's your talk?
01:08:46 I'm willing to power through, but I want to make sure that we're okay with our journey.
01:08:55 Can we give at least a minute of a stretch?
01:08:58 If somebody asks, we'll take a break.
01:09:00 If not, we'll go through.
01:09:01 Okay, fine.
01:09:05 All right, so ladies and gentlemen, we've got another witness standing by who's out in the hall.
01:09:10 I'm looking at the clock and want to make sure everybody's comfortable.
01:09:14 Anybody need a restroom break, raise your hand.
01:09:17 I see everybody shaking your heads going, okay, well then I think we're going to power through.
01:09:23 While we're waiting to get our next witness, why don't you stand up and stretch for a moment at least.
01:09:27 Get some oxygen flowing.
01:10:02 Good afternoon, sir.
01:10:03 Come on forward.
01:10:18 And if you stand and remain standing and raise your right hand, sir, we're going to give you an oath.
01:10:36 Robert Rutherford, first name R-O-B-E-E-R-T, last name R-E-T-H-E-R-F-O-R-D.
01:10:47 Thank you, sir.
01:10:48 Mr. Bedinger, are you questioning?
01:10:53 I'm here.
01:10:54 Okay, when you're ready.
01:11:03 Good afternoon.
01:11:04 Thank you for your patience as we got to you this morning.
01:11:08 I believe you just stated your name.
01:11:09 Would you take a moment to introduce yourself to our jury?
01:11:13 Yeah, I'm a geologist that's been running a small consulting company for about 40 years plus.
01:11:21 I've been involved in mining throughout Alaska primarily.
01:11:27 We have traveled into other countries as well, but Alaska is our home.
01:11:34 My, should I go ahead with some of my experience?
01:11:37 Is that appropriate here?
01:11:39 Sure, let's say that.
01:11:40 What have you done professionally in your career?
01:11:44 So I initially started after I graduated in 1972 with a master's degree in geology working for consulting and mining groups
01:11:56 eventually became two partners and I formed a company called Alaska Air Science in 1985 and since that time I've remained the president of the company but we've had numerous different expertise involved anyway most of our work is involved working with mining companies both large and small
01:12:23 Thank you.
01:12:26 So you're talking about mining.
01:12:33 Mining for what in particular?
01:12:35 Yeah, in Alaska a lot of the mines are focused on gold, but our company has focused on the other precious metals such as platinum, silver, and gold, but also base metals, copper, Lead, Zinc,
01:12:51 and occasionally we've been involved with energy resources as well so we've spent time looking for coal bed methane and other resources of that nature and also work with engineering groups just to identify the bedrock features of a hydroelectric project for instance and Mr. Rutherford I would assume that this type of employment requires a certain type of education can you walk us through some of your education history
01:13:20 Yeah, so as an undergraduate student at the University of Colorado, I took a lot of the standard courses for geology, which requires an appreciation for rocks, of course, minerals, structure, stratigraphy, all of those primary things.
01:13:39 My graduate degree was actually focused in what we call quaternary geology, which is kind of a soft rock side.
01:13:48 focused on how glaciers form various deposits and so forth.
01:13:53 And then I also focused on geochemistry and then what we refer to as economic geology, which focuses on how we go about exploring for hard rock deposits, whether they be gold or other metals.
01:14:13 Thank you.
01:14:14 And jumping to today, you're here as an expert witness.
01:14:18 Who hired you to be here today?
01:14:21 Mr. Kroenke.
01:14:23 And what were you asked to do in this case?
01:14:26 I was asked to simply state my opinion about whether the expenses that were incurred were normal to the mining industry.
01:14:37 Were you provided materials to assist you in forming this opinion?
01:14:42 Yeah, there were several documents that were given to me to review that showed how the expenses were suffered, including personnel costs as well as other kinds of expenses.
01:14:59 Did you author a report with your opinion and your conclusions?
01:15:04 I did.
01:15:04 May we approve?
01:15:10 You may.
01:15:16 Let's take it separately so there's a question of whether I mean technically you got a if you want him qualified as an expert if there's an agreement on that I'll qualify him as an expert I have little doubt based on what you've said but I
01:15:41 You're entitled to voir dire if you want.
01:15:44 I just want to make sure that's covered before he offers his opinion.
01:15:50 Do you want to do that in front of the jury?
01:15:54 So you can do that on cross?
01:15:57 If you all are stipulating that he's qualified as an expert, I'll recognize him as an expert.
01:16:02 What's the topic?
01:16:03 Geology?
01:16:05 The topic is geology, gold mines, and in particular his experience with the costs involved.
01:16:13 Any objection?
01:16:14 He's an expert in geology.
01:16:15 He may be an expert in gold mines.
01:16:17 I'm not sure he's an economic expert.
01:16:21 He's not an expert in economics, certainly, but he's an expert in the costs that are expected and reasonable in mining, which he is an expert in.
01:16:27 This is all in the report.
01:16:29 I'm surprised it's coming up right now, to be honest.
01:16:32 Well, you all haven't agreed on whether or not you're going to invent the reports.
01:16:36 So is the jury going to look at the report?
01:16:38 I think so.
01:16:39 And is this true for both experts?
01:16:42 There's only one expert.
01:16:44 Only one expert?
01:16:45 Yes, sir.
01:16:47 Okay.
01:16:48 If it's all contained within this report, I'll recognize him as a report.
01:16:51 You can certainly take it up on cross.
01:16:52 I'll recognize him as an expert in geology, gold mining, and the cost of mining.
01:17:17 Thank you, Mr. Rutherford.
01:17:17 As I was saying, or as you said, you authored a report and we're going to put it up on the screen behind you.
01:17:41 Mr. Rutherford, if it would help you, I have a hard copy of what's on the screen behind you.
01:17:45 If you'd like me to hand that to you so you don't have to crane your neck.
01:17:47 I actually have a copy here as well.
01:17:50 Fantastic.
01:17:50 Let me know if there's anything I can do to help.
01:17:52 When you look at your copy and confirm that it matches what's on the screen behind you, could you tell us what this is?
01:18:01 Yes, it matches the document that I put together and stamped on February 1, 23 Based on the information that was provided to you, which you mentioned, did you feel comfortable reaching an opinion on the subject of whether Mr. Kroenke's expenses at the mine were reasonable?
01:18:23 Yes, I came to the conclusion that they were reasonable
01:18:27 for us and for the jury the process that you used to formulate your expert opinion right well basically our company has done similar types of work for many many years so I was familiar with the cost of personnel and how they get charged out under a typical subcontractor contractor arrangement I'm also familiar with equipment
01:18:58 and and and some of the items that are necessary to mine efficiently in a remote area including the expenses so to follow up I did contact some of our people that we normally contract with to see whether they're
01:19:20 rates were in line with those that are shown on Mr. Kroenke's documents so I did some additional checking with rental groups with equipment rental groups with the cost of some of the more expensive items at the time a lot of steel was involved so I checked on those rates and I compared the cost of
01:19:49 Thank you.
01:19:50 If you look behind you on your screen, I put a document up there.
01:19:54 Have you seen this document before?
01:20:16 Yeah, I believe that's the same one I attached to my report.
01:20:19 I guess the bottom line in that, if I could refresh my memory by looking at the bottom, I think it's the same.
01:20:34 Here it is, 548, 546.
01:20:37 This one's 548, so it's a very slight difference in the copy that I attached originally.
01:20:43 Thank you.
01:20:44 These line items that are titled material fabrication, food and living expenses, labor costs, are these the line items that you're testifying that you're checking?
01:20:55 Correct.
01:20:55 It looks like if you look at the top, you know, I looked at material fabrication, food, living expenses, yeah, labor.
01:21:05 Those are some of the main equipment rental.
01:21:10 Yeah.
01:21:11 Thank you.
01:21:12 And I guess on this particular list you show Kevin and Seth Thyme as separate line items, so that just wasn't on the original document that I reviewed, but I did review their rates.
01:21:26 Looking at the top line here, material and fabrication, did you review that item?
01:21:32 I did.
01:21:37 I'll take you to the fourth paragraph of your report.
01:21:48 Is this the paragraph where you gave your opinion on the material and fabrication line item?
01:21:58 Right, right.
01:21:59 Just in a quick review of what I said there, and I've looked at it more recently, I still agree with that.
01:22:06 Thank you.
01:22:12 You read my mind with my next question.
01:22:16 So what is your opinion, just to be clear, on the total amount that Seth is asking for or that he says he spent on material and fabrication?
01:22:26 Once again, I agree that it's a reasonable cost given without me knowing a lot more about how the operation worked
01:22:36 It's a very reasonable cost for a standard subcontractor agreement.
01:22:43 How did you arrive at that conclusion?
01:22:46 Well, the cost of many of the items, there's some very specific stuff if we're talking about the equipment.
01:23:00 I'm sorry, the material and fabrication.
01:23:04 The materials all look to be within plus or minus 10% of the kind of cost that we would bear in picking up such items.
01:23:14 And I focused on some of the more expensive items like the steel at the time, this was a year ago, and looked at the costs and they too were in line with what we would pay.
01:23:29 Fabrication costs, of course, overlap somewhat with the cost of the personnel that's doing the fabricating.
01:23:35 But just in looking at some of the smaller fabrications that we've done within our group, those are reasonable costs.
01:23:44 Thank you.
01:23:44 The next line item and your next paragraph is the food and living expense category.
01:23:51 Were you able to evaluate that line item and reach an opinion?
01:23:56 Right.
01:23:57 And as I said there, we've been in a lot of different remote sites, and we often subcontract out the board and room for our personnel in the bush.
01:24:09 And quite commonly, they're closer to $150 to $200.
01:24:14 Even at the time of this, we would pay those kinds of rates per person.
01:24:20 So these rates that they quoted here seem reasonable.
01:24:26 under the circumstances, a remote site providing board and room for personnel.
01:24:31 Do you have an opinion on whether providing food and living in a remote site is more or less expensive than a on-the-road site?
01:24:39 Oh yes, quite commonly since you have all the freighting of the food in and then whether the team is large or small, you still have to have a cook and perhaps an assistant.
01:24:50 So all those things go together to make it more expensive in the remote push.
01:24:56 moving along to our next expense item the personal labor costs that you mentioned were you able to review that line item with its supporting materials and reach an opinion I did and I think as I stated there it was a melded rate which seemed very reasonable considering the fact that there were numerous
01:25:23 highly skilled positions involved as well as some of the more labor oriented rates but considering the fact and I double checked on this at the time that this was a normal 7 days a week 12 hours a day type shift with the normal kind of over the time and a half pay that you would normally pay under state regs this is quite a reasonable rate
01:25:54 Thank you moving right along your next line item is the equipment rates are we able to review documents relevant to this line item yes I was at the time and while I don't have those in front of me I did check with numerous different equipment rental groups and knew from our own experience about where we were
01:26:20 and those once again those rental rates are reasonable on basically on monthly basis and these rental rates don't normally include they normally have a limit on how many hours you can accrue on the equipment per month and so sometimes there's an overrun there also they don't include the fuel cost or the operator cost
01:26:48 So did you reach a final opinion on whether you believe based on your experience and expertise whether Kroenke's line item for equipment rental rates is reasonable or not?
01:26:58 Yeah, I think it's reasonable.
01:26:59 Those rates were within a very reasonable rate.
01:27:05 Our next line item, I believe, is the support flights, which are listed at 12 support flights, $24,000.
01:27:14 Did you review that line item?
01:27:15 I did.
01:27:18 And I made some comment there in my report that the hourly rate reduced from assuming flight times from Kroenke's home base to Dan Creek and assuming an hourly rate
01:27:40 were within reason of what you would pay for a charter and I did not go into any great detail about well let me back up there was a limited amount of detail about each of the flights that were taken where they began where they ended and so forth so based on the assumption that they'd
01:28:09 they ran from Kroenke's base near Palmer to Dan Creek the hourly rate was reasonable at the end of that paragraph about support flights you stated more details about the type of aircraft where the flights originated and the total flying hours would have been useful to know did you ever discover that information no I mean not the data about the specific
01:28:38 And lastly, you have a paragraph
01:29:07 discussing the costs of mobilization and demobilization.
01:29:12 Were you able to access documents in order to form an opinion on this subject?
01:29:16 Right.
01:29:17 From what I could tell, the cost of mobilization and demobilization was very reasonable.
01:29:25 Given other similar situations, I think much more might have been expended on MOB and DMOB in a different time and place.
01:29:37 You mentioned in your paragraph the challenges of crossing the Nazena River.
01:29:41 Do you have an opinion on whether that would increase or decrease the costs?
01:29:45 Sure, depending on the time of year and all of those conditions that rapidly change along a river like the Nazena, it could become very expensive or be an expensive delay.
01:29:59 So it's one of those where I think the expense of the MOB and DMOB was quite reasonable.
01:30:08 Thank you.
01:30:09 To summarize then your report and your review of that expense summary, did you reach a final opinion on whether the total amount of expenses that Seth has listed for this Dan Creek Adventure were reasonable or not?
01:30:23 Yeah, I did, and I felt that all things considered,
01:30:28 Even with some exceptions of information such as the aircraft hours, those were all very reasonable expenses for any subcontractor pulling to provide these services.
01:30:49 Thank you.
01:30:54 Thank you, Your Honor.
01:30:56 Thank you, Mr. Bradentier.
01:30:57 Mr. Campion, cross.
01:30:58 Thank you.
01:30:59 Mr. Bradentier.
01:31:02 Good afternoon.
01:31:07 In your testimony you had said, I think you said that the expenses that Mr. Kroenke is claiming are reasonable based on what you were presented with.
01:31:17 Is that fair?
01:31:19 Yes.
01:31:19 Okay.
01:31:22 Were you provided a copy of the first or second agreement between Mr. Kroenke and Mr. Elliott?
01:31:31 I can't recall specifically.
01:31:33 I think I did see an agreement at one point.
01:31:37 However, my assignment did not include determining anything about the original agreement, whether it be
01:31:52 If you had reviewed the agreement, would you have noted that in your report?
01:31:58 I probably wouldn't have.
01:31:59 I'm simply responding to the request to review the expenses only.
01:32:04 And the request that you received and accepted was to review Mr. Kroenke's expenses?
01:32:11 That's correct.
01:32:12 And I appreciate your testimony and how you cross-referenced other sources of information.
01:32:18 How much time do you think you spent in total
01:32:21 Reviewing and considering and drafting your opinion.
01:32:26 Oh, perhaps 20 hours.
01:32:28 Okay.
01:32:32 You described Mr. Kroenke as a, I think you just described him and his company as a subcontractor in this relationship.
01:32:38 Is that a fair assessment of what you said?
01:32:40 I did use that term.
01:32:42 What does that mean when you say that you believe his company was a subcontractor?
01:32:47 Well, in order for me to look at these expenses in a normal, let's call it a normal situation that our company is used to where we are a subcontractor to a mining company, it was simplest for me to start with that assumption and work from there.
01:33:11 All right.
01:33:12 Because I don't know the details of the agreement.
01:33:16 Okay.
01:33:17 Your opinion is based on the assumption that Remote Alaska solutions was a subcontractor to Mr. Elliott.
01:33:24 That's the way I reviewed the expenses, yes.
01:33:27 And inherent in considering or assuming that Mr. Kroenke's company is a subcontractor, there are costs such as profit and overhead that would be built into any type of cost.
01:33:37 Is that true?
01:33:40 In a normal subcontract situation, yes, that would be true.
01:33:45 What services do you believe Mr. Kroenke was to provide to Mr. Elliott in this arrangement?
01:33:52 I'm not sure if I should respond.
01:33:54 I really don't know the particulars of the agreement.
01:33:58 Okay.
01:33:59 So you don't know what services Mr. Kroenke and his company were supposed to provide?
01:34:04 You don't know?
01:34:05 I don't know.
01:34:08 What services was Mr. Elliott supposed to provide in this operation?
01:34:13 Once again, I don't know.
01:34:17 For example, do you know who provided fuel for all of these operations?
01:34:21 I don't know.
01:34:28 Have you been qualified as an expert before in state court or federal court?
01:34:33 Yes.
01:34:34 And was that a case out of Nome?
01:34:36 There was a case in which I was involved in Nome, yes.
01:34:39 And in the notice that the plaintiffs provided,
01:34:43 It's a case, I believe it was entitled Discover bank versus Zane Kenney, does that sound right?
01:34:49 Yeah, that's about right.
01:34:52 Were you an expert for the bank?
01:34:55 Sorry, I was trying to recall the exact, I was not representing a bank, no.
01:35:04 Who were you serving as an expert for?
01:35:06 There was a group of
01:35:12 I simply stated
01:35:42 My opinion as to how likely it was that the defendant in this party was capable of actually staking and recording the claims in a timely fashion.
01:36:01 So in that case, you didn't offer an opinion about the reasonableness of expenses?
01:36:06 That's correct.
01:36:07 I did not.
01:36:08 Okay.
01:36:08 Is this the first time you've ever offered testimony about the reasonableness of expenses as an expert?
01:36:16 Possibly.
01:36:17 That's a good question.
01:36:18 I don't know the answer to that.
01:36:20 I don't believe that I have specifically responded to questions about the expenses in a trial.
01:36:31 I'm going to kind of go a different direction.
01:36:32 So as an expert in this case, how many
01:36:39 mining claims have you been involved with evaluating for for evaluating including evaluation for for a purchase or sale well it's our business to evaluate claims and so tens of thousands of claims over these last 40 years I I don't know the total number but many many how do you in the 50 years you've been doing this how do you evaluate the value of a claim mining claim
01:37:10 Well, that's a difficult question, but it revolves around what we know about the deposit that lies within the and how confident we are with respect to say the ounces of gold in the ground or another measurement of value.
01:37:32 And we also have to be certain that the
01:37:37 The individuals hold the right to these claims.
01:37:41 Sometimes there's a question about that.
01:37:45 And then, of course, the trickiest part is the geologic question about whether what's known about the deposit has potential for increasing or perhaps decreasing in the future.
01:37:59 If I understand your answer, you said you spent basically 50 years
01:38:06 EVALUATING TENS OF THOUSANDS OF CLAIMS TO DETERMINE THOSE THREE THINGS THAT YOU JUST DESCRIBED.
01:38:12 YEAH, THOSE ARE THE PRIMARY THINGS, OF COURSE.
01:38:14 OKAY.
01:38:15 ARE YOU WELL COMPENSATED FOR THAT SERVICE THAT YOU'VE PROVIDED OVER 50 YEARS?
01:38:23 WE HAVE SURVIVED.
01:38:24 WE PAY THE RENT.
01:38:26 THERE'S BEEN GOOD AND THERE'S BEEN BAD SITUATIONS WHERE WE DON'T ALWAYS GET PAID WHAT WE'RE OWED.
01:38:34 Do you believe that you provide a valuable service when you are valuing a mining claim?
01:38:39 Yes.
01:38:57 Did that conclude your questioning?
01:38:58 I'm sorry.
01:38:59 Yes, I was distracted from it.
01:39:00 I am through.
01:39:01 Thank you.
01:39:02 Okay.
01:39:02 I apologize.
01:39:03 Mr. Bedinger, any redirect?
01:39:05 Extremely briefly.
01:39:11 Mr. Rutherford, based on your education and your practical experience that you described, do you feel comfortable and capable of evaluating the reasonableness of a minor's expenses?
01:39:25 Yes, I do.
01:39:26 I've not only been involved as a miner myself now the last few years, but also have been involved with several different placer type of operations, as well as hard rock.
01:39:38 So the expenses involved are critical for what we do in our work, in our line of work, and so I've got lots of background to support my opinion.
01:39:50 And in particular for this case, in this report that you wrote,
01:39:55 Do you feel comfortable and capable that you are able to accurately evaluate the reasonableness of the expenses for us today?
01:40:04 Yes, I do.
01:40:05 Nothing further going.
01:40:06 Thank you.
01:40:07 Thank you, Mr. Bedinger.
01:40:09 Nothing further?
01:40:10 All right.
01:40:11 Thank you, sir.
01:40:12 We'll let you step down.
01:40:12 We appreciate your time.
01:40:14 Okay.
01:40:14 Mr. Bedinger, Mr. Brzezinski, anything additional?
01:40:17 No, Your Honor.
01:40:18 The plaintiffs can rest their case.
01:40:21 One thing, let me make sure that it was clear for the record because I think we touched on it off record.
01:40:27 His report, which was up on the screen, was admitted by stipulation.
01:40:30 It's Exhibit 19.
01:40:33 So, Madam Clerk, you can mark that as well as part of the plaintiff's case.
01:40:36 So, given that the plaintiff has now rested their case, ladies and gentlemen, we're going to go ahead and end for the day today.
01:40:44 We'll pick up tomorrow morning at 8.30.
01:40:51 We'll only go until 12 tomorrow, is that correct?
01:40:53 And tomorrow is a short day until noon, so, okay.
01:40:56 And it looks like, just to give you a heads up, we're moving ahead of
01:41:01 The pace I thought we were, so we're likely to still need you back next week, but hopefully not for too long.
01:41:08 So thank you, everybody.
01:41:09 Have a good afternoon.