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-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.

DEFENDANT'S NOTICE OF SUPPLEMENTAL AUTHORITY IN SUPPORT OF ITS RESPONSE BRIEF

Defendant, the United States Forest Service, by and through their undersigned counsel, hereby provides this Notice of Supplemental Authority in Support of its Response Brief (Docket ("Doc.") 95): 1. The Forest Service filed its Response to Plaintiff's Opening Brief on February 15,

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2006. Doc. 95. The decisions in three of the cases cited below were issued after the Forest Service submitted its Response. See Attachments A-D. 2. Attachment A to this Notice is a copy of the Tenth Circuit's recent July 24, 2006

decision in Utah Association of Counties v. Bush, __ F.3d __, 2006 WL 2045822 (10th Cir. July 24, 2006). The Tenth Circuit dismissed an appeal filed by one of the plaintiffs, the Mountain States Legal Foundation ("MSLF"), due to MSLF's lack of standing. MSLF asserted associational standing, based on injury to one member, Don Wood.1 Id. at *5. The Court reaffirmed the standing criteria, holding that the party claiming jurisdiction has the burden of proof on all standing issues and that, at the summary judgment stage, the plaintiff must produce evidence to support its standing allegations . Id. at *3 and *12-17. In the instant case (04-AP1071-MSK), the Forest Service alleges that none of the Plaintiffs have the requisite standing to challenge the challenged valuation issues. 3. Citations to the above-referenced case are appropriate in the Forest Service's

Response Brief as follows: (a) Response Brief at 39, line 1; (b) Response Brief at 39, line 8 (Doc. 95). 4. The second case, decided by the Fifth Circuit Court of Appeals, involved a

Wood claimed that his injury was the inability to re-file his mining claims after establishment of the challenged Staircase-Escalante National Monument ("the Monument"). Because the alleged injury post-dated the filing of the lawsuit, the Court concluded that the claimed injury could not serve as a basis for Wood, and thus MSLF, to establish standing. Id. The Court also noted that the voiding of Mr. Wood's mining claims could not be used to establish standing because it was not caused by the Defendants' actions in designating the monument. Id. at n. 5 2

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National Environmental Policy Act ("NEPA") challenge to a decision of the Secretary of Transportation ("the Secretary) to grant a license for the construction of a liquified natural gas facility ("LNGF") in the Gulf of Mexico. See Gulf Restoration Network v. United States Dep't of Transp., 452 F.3d 362 (5th Cir. 2006), Attachment B. On appeal, the plaintiffs claimed that: (1) the environmental impact statement ("EIS") was deficient in failing to consider the environmental impacts (e.g., by deciding that the effects of three potential future projects were too speculative); and (2) the Secretary's failure to use the "best available technology" to prevent or minimize adverse impacts on the environment violated an applicable statute. Id. at 365. The court rejected both challenges. Id. After setting out the highly deferential "arbitrary and capricious" review standard (id. at 367-68), the Court decided that the Secretary did not abuse his discretion or act arbitrarily or capriciously in concluding that three proposed ports that the plaintiffs alleged should have been considered under the cumulative impacts analysis, were not "reasonably foreseeable future actions." Id. at 371. As such, those decisions were not actions that a "person of ordinary prudence would take [ ] into account in reaching a decision." Id. The Court reaffirmed the significant deference that is owed to the agency as to the scope projects that need to be considered in a cumulative impact analysis. A rational basis was all that the court required to uphold the agency's decision. Here, the Forest Service has provided ample rationale basis for its decision. 5. Citations to the above-referenced case are appropriate in the Forest Service's

Response Brief as follows: (a) Response Brief at 17, line 4; (b) Response Brief at 35, line 4. 6. In the third case, a challenge to a Forest Service timber sale, the Ninth Circuit

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Court of Appeals affirmed the district court's judgment in favor of the Forest Service on the National Environmental Policy Act ("NEPA") claims. The plaintiffs asserted that the Forest Service violated NEPA by preparing only an environmental assessment ("EA"), not an Environmental Impact Statement ("EIS"). Id. at 1008. The Court held that the EA provided a detailed and adequate consideration of information from a wide range of sources and that the Forest Service's conclusion that adverse effects would not be "significant" under NEPA, and its decision not to conduct an EIA, was not arbitrary and capricious. Environmental Protection Information Center v. United States Forest Service, 451 F.3d 1005, 1018 (9th Cir. 2006), Attachment C. In particular, the court concluded that an agency's obligation to consider alternatives under an EA is lesser than under an EIS. Id. at 1016. In fact, the court found that the agency's consideration of only one action alternative, the proposed alternative, and a noaction alternative was adequate. Id. In the present case, the Forest Service considered three alternatives in significant detail and explained why it rejected other options.2 7. Citation to the above-referenced case is appropriate in the Forest Service's

Response Brief as follows: (a) Response Brief at 33, line 12 (Environmental Protection Info. Center v. United States Forest Service, 451 F.3d 1005, 1009 (9th Cir. 2006); and (b) Response Brief at 35, line 6 (Environmental Protection Info. Center, 451 F.3d at 1016 (holding that an agency's obligation to consider alternatives under an EA is lesser than under an EIS).

Although the Plaintiffs here do not challenge the number of alternatives the Forest Service evaluated, they do take issue with the inclusion of the N2 parcel in all the action alternatives considered. The Forest Service brief explains why N2 was part of the Exchange. However, this case reaffirms that the Forest Service fully complied with its duties under NEPA. 4

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8.

Finally, in Mt. St. Helens Mining and Recovery v. United States, 384 F.3d 721

(9th Cir. 2004) (Attachment D), the owners of certain patented mineral interests on about 604 acres of land located within the Mt. St. Helens National Volcanic Monument ("Monument"), challenged the Forest Service's valuation of their mineral interest as arbitrary and capricious. Id. at 724-27. After discussing the law that applies to valuation challenges, the court rejected the plaintiff's argument that valuation of the mineral interests should be based on their "potential value." Id. at 729. The court agreed that the valuation must be based on fair market value and the application regulations. In that case, as here, although the Plaintiffs disagreed with the value placed on the federal property, they never offered an appraisal that met the applicable federal appraisal standards, and thus had no legitimate basis for their claims. 9. Citations to the above-referenced case are appropriate in the Forest Service's

Response Brief as follows: (a) Response Brief at 45, line 16 (Mt. St. Helens Mining and Recovery v. United States, 384 F.3d at 729 (property must be valued at fair market value for land exchange purposes)). 10. The Court is further advised that the citation at page 43, line 21 to 36 C.F.R. §

264.9(b)(1)(ii) should be to 36 C.F.R. § 254.9(b)(1)(ii). Defendants apologize to the Court for the inadvertent typographical error.

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RESPECTFULLY SUBMITTED this 14th day of August, 2006. WILLIAM J. LEONE 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 14, 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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