Free Response - District Court of Colorado - Colorado

Case 1:04-cv-01071-MSK

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 04-AP-1071-MSK SAN LUIS VALLEY ECOSYSTEM COUNSEL, NANCY ALBRIGHT, JAMES MARTIN, JERRE GUTHALS, STEVE LEWIS, ANTLERS RIO GRANDE LODGE, INC., a Colorado Corporation, and CHARLES C. POWERS, Plaintiffs, v. UNITED STATES FOREST SERVICE, Defendant, and ALXCHNG, LLC, a Texas limited liability company, CNXCHNG, LLC, a Texas limited liability company, and RIO OXBOW RANCH, INC., a Colorado corporation, Defendant-Intervenors.

CORRECTED DEFENDANT'S RESPONSE TO PLAINTIFFS' NOTICE OF SUPPLEMENTAL AUTHORITY

Defendant, the United States Forest Service, by and through their undersigned counsel, hereby files its Corrected Response to Plaintiffs' Notice of Supplemental Authority ("Pls. Supp. Auth.") (Docket ("Doc.") 110) replacing its prior filing (Doc. 112). The correction is needed to replace footnote 2 of the prior version and makes a corresponding correction in the response. 1. Plaintiffs filed their opening brief on December 13, 2005. See Doc. 82. The

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Forest Service filed its Response to Plaintiffs' Opening Brief on February 15, 2006. Doc. 95. Plaintiffs' Reply Brief was filed on March 2, 2006. See Doc. 98. The cases cited in Plaintiffs' Notice of Supplemental Authority (Doc. 110) were issued on the following dates: (1) January 19, 2006 [Sierra Nevada Forest Protection v. United States Forest Serv., No. 05-15921, 2006 WL 148966 (9th Cir. Jan. 19, 2006)]; (2) January 18, 2006 (Colorado Wild v. United States Forest Service, 435 F.3d 1204 (10th Cir. 2006); (3) April 6, 2006 [Utah Env't Congress v. Bosworth, 443 F.3d 732 (10th Cir. 2006)]; (4) March 24, 2006 [Earth Island Institute v. United States Forest Serv., 442 F.3d 1147 (9th Cir. 2006); and (5) February 14, 2005 (Native Ecosystems Council v. United States Forest Serv., 418 F.3d 953 (9th Cir. 2005)]. More than half of these cases issued before Plaintiffs' reply brief was filed. See Doc. 98. As such, they should have been cited in the reply if Plaintiffs wanted the Court to consider them. 2. Moreover, submission of supplemental authorities is required promptly. Here,

briefing concluded on March 2, 2006, and the parties knew of the September 1, 2006 oral argument months in advance. Cf. Fed. R. App. Proc. 28(j). Rule 28(j) requires that supplemental authorities be brought to the Court's attention "promptly" and requires counsel to cite to the portion of the brief the supplemental authorities address. See Fed. R. App. Proc. 28(j). Although neither the Local Rules nor this Court's rules appear to have a rule directly analogous to Rule 28(j), Olenhouse v. Commodity Credit Corp., 42 F.3d 1560, 1580 (10th Cir.1994), contemplates that APA cases generally be examined as appeals. 3. Addressing the substance of Plaintiffs' "additional argument" disguised as

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"Supplemental Authorities," it is evident that Plaintiffs persist in advancing claims that were not pled in their Second Amended Complaint (Doc. 43). Cognizant of the weakness of all of the five claims in the Complaint, Plaintiffs now try to buttress their Complaint by asserting that Utah Env't Congress v. Bosworth, 443 F.3d 732 (10th Cir. 2006), supports their new claim that the Forest Service's analysis of Management Indicator Species ("MIS")1 was deficient, even though: (1) Plaintiffs' Complaint and Amended Complaint (Doc. 1 and 43 ) do not include an MIS claim;2 and (2) Plaintiffs never sought leave to amend the Complaint to add a claim under the National Forest Management Act ("NFMA"),

The 1982 Forest Planning rule, which no longer exists, each National Forest was required to choose certain plant or animal species that it would track to determine the effects of management activities on forest health. Thus, MIS serve as a barometer for species viability at the national forest level. (AR1505.) MIS assist the Forest Service by allowing the agency to analyze the effects of management activities on biological diversity. (Id.) MIS requirements are completely independent of any legal requirements imposed by the Endangered Species Act and NEPA. Instead, MIS requirements arise under NFMA. See 16 U.S.C. § 1601 et seq, The Second Amended Complaint contains 6 counts (1) Count I is brought under the Federal Land Policy Management Act ("FLPMA") alleging that the lands exchanges were not of equivalent value (essentially challenging the appraisal) (Complaint at ¶¶ 34-36); (2) Count II alleges a procedural violation of FLMPA, asserting that the Forest Service arbitrarily limited public comment (Complaint at ¶¶37-43); (3) Count III claims that 36 C.F.R. § 215.9 (Complaint at ¶¶ 43-45); (4) Count IV (sic III) alleges a FLPMA violation because the land exchange was not consistent with the Forest Plan's provisions concerning land acquisition and disposal; (5) Count V (sic IV) alleges FLPMA because tthe exchange is claimed to be inconsistent with Forest Plan's "objectives and standards (Complaint at ¶¶ 49-55); and (5) Count VI (sic V) asserts a NEPA violation due to a failure to prepare an Environmental Impact Statement ("EIS") (Complaint at ¶¶ 56-64). See Doc. 43. Although Count III references 36 C.F.R. § 215.9, only a procedural violation is alleged. There is no effort to make substantive claims under NFMA, for MIS or otherwise. The Original Complaint contained five counts, four FLPMA and one NEPA. (Complaint at ¶¶ 33-64). See Doc. 1. None of the counts in the original complaint presents a claim under NFMA. Even with the amendment, Plaintiffs' Complaint does not request the relief Plaintiffs now ask this Court to grant. 3
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16 U.S.C. § 1601 et seq, premised an a deficient MIS analysis. Once a responsive pleading has been filed, as it has been in the present case, a complaint may be amended only with leave of Court. See FED . R. CIV . P. 15. No such leave has been sought, either at the scheduling conference or thereafter. Moreover, Plaintiffs' brief, reply brief, and "Supplemental Authority" ignore the disconnect between Plaintiffs' current argument and their Complaint. As explained in the Forest Service's response, Plaintiffs also properly failed to exhaust the MIS issue through the administrative process. See Response Br. at 60-64; see also Fed. R. Civ. P. 10(c) (incorporated here by this reference). As a result, the MIS argument is improperly before the Court and should form no basis of the Court's decision. 4. Even if Plaintiffs had properly raised a NFMA claim asserting that the MIS

analysis was faulty, Plaintiffs ignore that the record shows, in this record-review case, that the Forest Service's wildlife biologist properly evaluated MIS issues. (AR1470-1627.) The MIS selected for the Rio Grande National Forest included: (1) Rio Grande Cutthroat trout;3 (2) Rocky Mountain elk; (3) Mule deer; (4) Vesper sparrow; (5) Wilson's warbler; (6) Lincoln's sparrow; (7) Pygmy nuthatch; (8) Hermit thrush; and (9) Brown creeper. (AR1627.) The Environmental Assessment published in January 2004 documents that "for all of these species, population viability within the planning area was unlikely to be affected by the proposed land exchange

Before undertaking a project within a particular forest, the Forest Service selects certain MIS that may reflect the impact of the project on forest health. The AR sometime references 9 and sometimes 12 MIS for the Rio Grande National Forest. The additional species include the Brook Trout, Brown Trout, and Rainbow Trout. (AR 771.) The Forest Plan designated 12 proposed MIS. Later only 9 MIS were selected from the 12 proposed, but the land exchange analysis looked at all 12 MIS (AR73). See also supra fn. 1. 4

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under any of the alternatives." (AR 73-74, 418; see also AR17.) In sum, the facts do not even support the claim that Plaintiffs are seeking to advance through a back-door attempt to amend their Complaint in contravention of Federal Rule 15. Plaintiffs' confusion is underscored by their reference to lynx ­ which is not an MIS for the Rio Grande National Forest. (AR1627) Their allegation that the Forest Service made decisions with regard to deer elk and lynx on pure speculation alone is likewise contradicted by the AR.4 Compare Pls. Supp. Auth. at 4 with AR766-67, 17, 74-75.) 5. Neither does the law support Plaintiffs' arguments. In Utah Env't Congress, 443

F.3d at 732, an environmental group claimed that the Forest Service violated NEPA and the National Forest Management Act ("NFMA") by proposing to combat spruce beetle infestation by thinning trees in a national forest. Id. The United States District Court for the District of Utah found in favor of the Forest Service, and the Tenth Circuit Court of Appeals affirmed. The Tenth Circuit recognized that if the agency's environmental assessment results in a "Finding of No Significant Impact" ("FONSI"), no further agency action is required. Id. at 736. Here, accordingly, once Forest Supervisor Peter Clark issued his January 2004 Decision Notice concluding that the land exchange would have no significant impact, the Forest Service was obligated to go no further with the agency's already extensive environmental analysis. (AR1.) Plaintiffs claimed, in Utah Env't Congress, 443 F.3d 732, that the 1982 planning rule applied and, under the 1982 requirements, the Forest Service's analysis was deficient in some specific

The AR rebuts any suggestion that the Forest Service's conclusions were based on speculation. See AR766-67, 17, 74-75. 5

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ways. The Court disagreed both that the 1982 regulations applied and that the Forest Service's analysis was flawed. Id. at 747-48. The Tenth Circuit observed that the Forest Service had issued its decision in May 2004, allowing the Forest Service to use a "best available science" assessment under the post-2000 regulations. Here the Forest Supervisor issued his Decision Notice in January 2004, which means the population trend monitoring for MIS that might have been called for under the 1982 rules had been supplanted by the "best available science" analysis under the 2000 rules. Plaintiffs' administrative appeal, Complaint, briefing, and Notice of Supplemental Authority fail to cite to any record evidence challenging the Forest Service's scientific analysis concerning MIS.5 See, e.g., Utah Env't Congress, 443 F.3d at 749. Thus, Utah Env't Congress, does not support Plaintiffs' untimely and unpreserved MIS challenge. 6. Next, Plaintiffs rely on Colorado Wild v. United States Forest Service, 435 F.3d

1204 (10th Cir. 2006), for the proposition that the Forest Service "failed to articulate the basis of its analysis for its conclusion of no significant cumulative impact." Pls. Supp. Auth. at p. 3. In Colorado Wild, 435 F.3d 1204, an environmental group challenged the Forest Service's promulgation of a categorical exclusion that allowed it to salvage dead or dying trees on up to 250 acres of Forest Land without preparing an EIS. Judge Matsch granted judgment in favor of the Forest Service and the Tenth Circuit affirmed that judgment in favor of the agency. Reaffirming the exceedingly narrow review standard that applies in an APA case, id. at 1212, the

A bald allegation, made for the first time in a Supplemental Authorities filing and unsupported by evidence, that the Forest Service "analyzed no data and failed to even discuss what scientific data was or was not available," contradicts the record (AR73-74, AR1504, lines 17-20, 1505-06, 771; see also AR17.), does nothing to prove a FLPMA or a NEPA violation, the only statutes invoked in Plaintiffs' Complaint. 6

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Tenth Circuit noted that "substantial evidence" required to uphold an agency's decision is "something more than a mere scintilla but something less than the weight of the evidence." Id. at 1213. The Court also reiterated that, when asked to review a technical matter, the Court's deference to the agency is the greatest. Id. at 1216 (citing to Louisiana v. Verity, 853 F.2d 322, 329 (5th Cir. 1988) (recognizing that the court is not to review an agency's decision as an expert ­ there a statistician ­ but rather adhere to the court's "narrowly defined duty of holding agencies to certain minimal standards of rationality")). Thus, the Colorado Wild decision supports the view that the Forest Service's decision of impacts from the challenged land exchange is subject to that deferential review because it encompassed technical analyses by subject-matter experts and because no contrary record proof has been submitted to undermine the agency's analysis or its conclusions. (See, e.g., AR 1-17. 20-364, 2061-63, 2068-74, 70782132, 2165-73, 1882-2006, 2036-45, 1628-1707.) 7. Nor can Plaintiffs find any support from Sierra Nevada Forest Protection v.

United States Forest Serv., No. 05-15921, 2006 WL 148966 (9th Cir. Jan. 19, 2006). In that case, the Ninth Circuit Court of Appeals affirmed a judgment in favor of the Forest Service on NEPA claims related to a timber harvest project. Plaintiffs cite to pages 925 and 927 of that decision in support of their claim that the Forest Service did not conduct a cumulative impacts analysis of "past, present, and future actions." Pls. Supp. Auth. at 2. The plaintiff in Nevada Forest Protection pointed to several proposed timber projects near the area at issue and argued that the Forest Service's failure to consider those in its "cumulative impacts" analysis violated NEPA. Id. at 926. Plaintiffs in this case ignore that the Court rejected that challenge, finding

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that the Forest Service "did not arbitrarily or capriciously restrict the scope of its cumulative impacts review." Id. In fact, the EA devotes an entire chapter to examining cumulative impacts, (AR80-86; see also AR15, concluding that "this exchange will not lead to significant cumulative impacts; see also AR84, recognizing that there is "likely to be a beneficial cumulative impact to sensitive wildlife species currently or potentially occurring on the non-Federal lands, as these areas will become part of the National Forest System; AR83, finding that there are no adverse cumulative impacts on vegetation, and that "there is likely to be a net beneficial effect to vegetation through implementation of the exchange proposal"). In addition, Plaintiffs fail to point to other proposed land exchanges anywhere near the properties that the Forest Service evaluated for disposal. In the cumulative impacts analysis, the Forest Service is not required to analyze speculative exchanges that are not reasonably foreseeable. Plaintiffs speculate that future and concurrent land exchanges should have been considered, but fail to point to any specific exchanges that the Forest Service failed to consider. They simply were not considered because there were no reasonably foreseeable land exchanges in the area of the federal land considered for this exchange to be evaluated. 8. Earth Island Institute v. United States Forest Serv., 442 F.3d 1147 (9th Cir.

2006), does not help Plaintiffs. That case involved a preliminary injunction and applied standards totally different than those applied in an APA-review case. The facts are readily distinguishable from this case. First, the projects at issue were post-fire restoration involving logging in national forests. Second, there were several projects that were taking place at the same time in neighboring locations. Moreover, the stage of that proceeding (a preliminary

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injunction) was also different. The case was remanded for further proceedings, largely because the court found that the plaintiffs showed a reasonable likelihood of showing that the Forest Service used faulty methodology in its analysis. There is no such allegation here. What Plaintiffs allege is not that the Forest Service chose a faulty methodology, but that it failed to analyze certain items. As Defendant's Response Brief shows, each claimed deficiency was in fact analyzed, and the record contradicts any such deficiency. See Doc. 95. 9. Finally, in Native Ecosystems Council v. United States Forest Serv., 418 F.3d 953

(9th Cir. 2005), the plaintiffs challenged the Forest Service's approval of a timber sale. The Forest Service prepared an EIS, presumably following a finding of significant impact, where the Court found that the EIS did not comply with NEPA. Here, there was no EIS: the deciding official concluded that there was no significant impact and thus an EA sufficed for the analysis. In this case Plaintiffs have failed to show how the Forest Service's Decision Notice, FONSI, and accompanying analyses were contrary to the Forest Plan. That Plaintiffs disagree with the ultimate decisions is simply not a sufficient basis to conclude that the agency was arbitrary and capricious. NEPA requires the agency to comply with the statute's procedural requirements. Native Ecosystems Council, 418 F.3d at 958, n. 4. NEPA does not, however, mandate a particular substantive result. Id. In sum, Plaintiffs' newly cited authority is both late and distinguishable.

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RESPECTFULLY SUBMITTED this 31st day of August, 2006. TROY A. EID UNITED STATES ATTORNEY s/Terry Fox Terry Fox Assistant United States Attorney 1225 17th Street, Suite 700 Denver, CO 80202 Telephone: 303-454-0158 FAX: 303-454-0404 E-mail: [email protected] Attorney for Defendant s/Roxane Perruso Roxane J. Perruso Assistant United States Attorney 1225 17th Street, Suite 700 Denver, CO 80202 Telephone: 303-454-0127 E-mail: [email protected] Attorney for Defendant

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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO CERTIFICATE OF SERVICE (CM/ECF) I hereby certify that on August 31, 2006, I electronically filed the foregoing with the Clerk of Court using the CM/ECF system. Charles C. Powers Charles C. Powers, Attorney at Law P.O. Box 1273 South Fork, CO 81154 [email protected] Charles B. White Jennifer L. Soice Petros & White LLC 730 17th Street #820 Denver, CO 80202-3518 [email protected] [email protected] The following non-ECF individual has received notice as follows: Diane M. Connolly, Esq.: [email protected] s/ Terry Fox Office of the United States Attorney

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