Free Notice (Other) - 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-cv-01071-AP (JLK) San Luis Valley Ecosystem Counsel, Nancy Albright, James Martin, Jerre Guthals, 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 RIO OXBOW RANCH, Inc., a Colorado Corporation Interveners ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )

________________________________________________________________________ PLAINITFFS' NOTICE OF SUPPLEMENTAL AUTHORITY ________________________________________________________________________ COMES NOW the Plaintiff and files this Notice of Supplemental Authority as follows: 1. Plaintiffs refer the Court to Sierra Nevada Forest Protection v. United States Forest Service 166 Fed Appx. 923, 92, 2006 WL 148966 (9th Cir., 2006). The case shows that in evaluating the past, present and future impacts of actions on wildlife, considering designated wildlife analysis areas is a legitimate technique utilized by the Forest Service in other cases. In this case FS ignored the wildlife management units established by the

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expert to whom it was to defer on such matters, the DOW, and balanced the impacts of the exchange on two separate wildlife management units. Further, the case shows that the proper cumulative impact analysis in an EA requires identification of past, present and future actions and quantification of their cumulative impact. Sierra Nevada Forest Protection at page 925: "A. Cumulative Impacts of Future Actions," and at page 926, "B. Cumulative Impacts of Past and Present Projects." This kind of analysis is completely lacking in the EA in this case. 2. Plaintiffs refer the Court to the recent case of Colorado Wild: Heartwood v. United States Forest Service, 435 F.3d 1204 (10th Cir. 2006). The Tenth Circuit considered the standard of review under the Administrative Procedure Act. The agency action must be upheld, if at all, only on the basis articulated by the agency itself. Thus, the grounds upon which the agency acted must be clearly disclosed in, and sustained by, the record. The agency must make plain its course of inquiry, its analysis and its reasoning; Colorado Wild at 1213. The record must include such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. This is something more than a mere scintilla but something less than the weight of the evidence. Evidence is generally substantial under the APA if it is enough to justify, if the trial were to a jury, refusal to direct a verdict on a factual conclusion" Colorado Wild at 1213. The Colorado Wild Court found that the FS documented, quantified and analyzed hundreds of past, present and planned small tract logging contracts and their specific individual and cumulative impacts in coming to its conclusion in that case.

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Using this standard it can be seen that the FS failed to include evidence in the record and failed to articulate the basis of its analysis for its conclusion of no significant cumulative impact. A jury verdict on this subject could not be sustained since there are no facts in the record of past, present or future actions that were identified and quantified. There is evidence that such other actions have occurred, are occurring and are likely to occur and that there have been complaints regarding those actions impact. The agency's action can not be sustained upon a conclusion regarding facts outside the record. 3. Utah Environmental Congress v. Bosworth, 443 F.3d 732 (10th Cir. 2006) provides guidance on the applicable MIS regulations and the extent of monitoring required. The case involved a decision of the FS to approve a timber sale that fell within a categorical exclusion from the NEPA regulations. Thus the sale did not require an EA or an EIS. Actions with a categorical exclusion have been determined to be insignificant as a matter of regulation and excluded unless there are exceptional circumstances. The Rio Oxbow exchange is not categorically excluded; however, the issue of what regulations apply to MIS monitoring discussed in the Utah Environmental Congress Case is relevant to this case. The 1982 regulations require the Forest Service to monitor the population trends of the management indicator species and determine relationships to habitat changes. 36 C.F.R. §219.19(a)(6). These regulations apply to project level as well as plan level management actions. Conversely, the 2000 transition provisions contain no such explicit language governing monitoring but merely require the responsible official to consider the best available science in evaluating a project level decision, 36 C.F.R. 219.35(a)(d) (2001); Utah Eviro. Cong. at 737 and 744.

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The Court acknowledges confusion in the cases as to when the 1982 or the 2000 transition regulations apply. The Court concludes that there is little doubt that the Forest Service is limited to consideration of the best available science when approving a project during the transition period, at page 747. As noted in the initial brief specific data on MIS deer and elk were available from the DOW which was not consulted by FS in anyway. Also, FS had considerable specific data collected in the field on the presence of lynx activity on the properties involved in this exchange but did not even mention the existence of this data and still seeks to keep the Court from being advised of this wealth of unused scientific data. FS made its decision in regard to deer elk and lynx on pure speculation alone. Although the court found that the agency action was categorically excluded from NEPA analysis and that therefore the agency relieved of the duty to perform an MIS analysis, the Court nevertheless examined the MIS population trend data that was collected and analyzed in the case by the agency. This shows the kind of analysis that should be present in an EA in a non-excluded project level action such as the Rio Oxbow Exchange before the Court. Utah at 751-752. Review of these examples in comparison to the case sub judis shows FS failed to follow law and regulation in this case in analyzing impact of the decision on management indicator species and the forest as a whole. Here FS analyzed no data and failed to even discuss what scientific data was or was not available. 4. Earth Island Institute v. United States Forest Service 442 F.3d 1147 (9th Cir. 2006) reversed the denial of a Preliminary Injunction regarding a Forest Service action to allow logging of burned trees where there was inadequate MIS habitat evaluation and

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inadequate MIS population trend date analysis. Earth Island, at 1173 to 1176. The case makes clear that FS complete failure to make any quantitative habitat or population trend analysis when data was available was reversible error in this case. The case notes a disturbing recent trend in Forest Service actions regarding timber harvesting to disregard environmental regulations in favor or financial concerns. Earth Island at 1177, "Conclusion". 5. The forest plan is carried out by cite specific projects. Final agency action on a project is reviewable. An agency's position that is contrary to the clear language of a forest plan is not entitled to deference. Native Ecosystem Council v. United States Forest Service 418 F.3d 953 (9th Cir. 2005) . Wherefore Plaintiffs respectfully request the Court grant relief according to Plaintiffs' Amended Complaint. Dated this 28th day of August, 2006

s/ Charles C. Powers Charles C. Powers 0020 Lodge Drive P.O. Box 1273 South Fork, Colorado 81154 Telephone: 719-873-1740 FAX: 719-873-1742 E-mail: [email protected] Attorney for Plaintiffs

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CERTIFICATE OF SERVICE

I hereby certify that on the 28th day of August, 2006, I electronically filed the foregoing with the Clerk of Court using the ECF system which will send notification of such filing to the following e-mail addresses: Roxane Perruso [email protected] Jennifer Lynn Soice [email protected]@petros-white.com Charles B. White [email protected]@petros-white.com Terry Fox [email protected],[email protected]

s/ Beverly Darrow