Free Motion for Hearing/Conference - District Court of Colorado - Colorado

Case 1:04-cv-01071-MSK

Document 100

Filed 03/09/2006

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

Civil Action No. 04-cv-01071-MSK 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 ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )

________________________________________________________________________ Motion for Oral Argument and Brief ________________________________________________________________________

Come Now the Plaintiffs, by and through their undersigned attorney, and move the Court for oral argument on the issues on appeal from the Forest Service decision below and as grounds therefore state: 1. This is an appeal under the Administrative Procedure Act, 5 U.S.C.A. 702, from a decision of the United States Forest Service, Rocky Mountain Region, Rio Grande National Forest regarding a land exchange.

Case 1:04-cv-01071-MSK

Document 100

Filed 03/09/2006

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2. Where questions of sufficiency of the evidence are raised on an APA appeal from an agency action, the District Court must review the agency's decision making process and conduct a plenary review of the facts underlying the challenged action. The Court must find and identify substantial evidence to support the agency's action and may affirm agency action, if at all, only on the grounds articulated by the agency itself. Olenhouse v. Commodity Credit Corporation 42 F.3d 1560, 1565 (10th Cir. 1994). 3. The administrative record is 4,000 pages in length. The record of the agency action is not a verbatim transcript of proceedings below. There is no transcript of any meeting or any other activity of the agency in regard to considering the exchange. The record is a collection of many reports, maps, e-mails, letters, comments, photographs and, in many cases, notes of conversations and meetings. It is not a continuous uninterrupted record of proceedings below with marked and cataloged exhibits. It is organized by general category of types of documents, i.e. NEPA comments, administrative appeals, Forest Plan specialist reports, scoping and appraisals. Within these general categories there is no clear organization or order. 4. The record is identified by page numbers alone. There are no line numbers, therefore, the many references in the briefs to comments in reports and letters, in most cases, cannot be any more specific than the page number, unfortunately leaving the Court to spend unnecessary time trying to find the referenced language rather than on the meaning and relationship of the cited material to other materials in the record.

Case 1:04-cv-01071-MSK

Document 100

Filed 03/09/2006

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5. This matter involves evaluation of eleven separate and distinct federal parcels of property which will be traded out of the Rio Grande National Forest located in Mineral County, Colorado ( R 5) and ten parcels of non federal property which will be acquired. One of the non federal properties, the Carson, is actually a collection of 24 separate mining claims. The non federal parcels are spread over three counties and are separated by more than fifty miles. 6. A review of the briefs shows that the parties widely disagree about what the record shows. Defendant and Proponents briefs together are in excess of 150 pages. The parties even disagree about what specific maps, photographs and the comments show. The many maps and other items in the record are difficult to interpret and correlate with each other without some informed assistance. It is almost impossible to adequately verbally describe these items and their relevance in a written brief as well as could be with the advantage of rapidly referring to them using the visual aids available in the courtroom. Wherefore the Plaintiffs respectfully request the Court grant oral argument with sufficient time to each side to discuss the evidence and the law relevant to this case which Plaintiff believes can be done in one half day (3 hours total or 1 ½ hours per side) to allow a reasonable opportunity to both sides to review the pertinent facts and the law applicable to this matter. s/ Charles C. Powers Charles C. Powers P.O. Box 1273 South Fork, Colorado 81154 Telephone: 719-873-1740 FAX: 719-873-1742 E-mail: [email protected] Attorney for Plaintiffs

Case 1:04-cv-01071-MSK

Document 100

Filed 03/09/2006

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CERTIFICATE OF COUNSEL Counsel for Plaintiffs certifies he has discussed this Motion with counsel for the Forest Service and for Proponents/Interveners and is authorized to represent that they do not oppose this Motion but do not believe oral argument is necessary.
CERTIFICATE OF SERVICE

I hereby certify that on the 9th day of March, 2006, I electronically filed the foregoing MOTION FOR ORAL ARGUMENT AND BRIEF 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] Habib Nasrullah [email protected]@usdoj.gov 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