Free Reply to Response to Motion - District Court of Colorado - Colorado

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

Civil Action No. 04-cv-01382-ZLW-PAC KENNETH E. PEPER; Plaintiff, v. DEPARTMENT OF AGRICULTURE OF THE UNITED STATES OF AMERICA; MIKE JOHANNS, Secretary in his official capacity; FOREST SERVICE OF THE UNITED STATES OF AMERICA; and DALE BOSWORTH, as Chief in his official capacity, Defendants.

DEFENDANTS' REPLY IN SUPPORT OF THEIR NOTIFICATION THAT THE ADMINISTRATIVE PROCESS IS COMPLETE AND REQUEST THAT PLAINTIFF'S REMAINING CLAIM BE DISMISSED

Defendants, the United States Department of Agriculture; Mike Johanns, Secretary in his official capacity; the United States Forest Service; and Dale Bosworth, as Chief in his official capacity (collectively the "Forest Service") by and through undersigned counsel, submit this reply in support of their notification to this Court that they have completed the administrative process regarding Plaintiff's application for a special use authorization, have issued two easements, and request that Plaintiff's ("Peper") remaining claim be dismissed.

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ARGUMENT I. THIS COURT HAS ALREADY CONSIDERED AND DENIED PEPER'S CLAIMS FOR A COMMON LAW EASEMENT BY NECESSITY A large portion of Peper's response repeats arguments and references to case law that have already been addressed by this Court. Pl. Resp. (Doc. 42). The Court has already considered and denied Peper's claim for a common law easement by necessity. The Court in its order dated September 5, 2006, dismissed Peper's claim for a common law easement by necessity under Fed. R. Civ. P. 12(b)(6) for failure to state a claim holding that Peper's claim is "preempted by ANILCA 1 and the Federal Land Policy Management Act (FLPMA)." Order (Doc. 28); see United States v. Jenks, 129 F.3d 1348, 1353-54 (10th Cir. 1997) (The Tenth Circuit held that defendant's claim for an easement by necessity failed because he had access to his property by public road easements, and even if those easements were terminated, he "will still have a statutory right of access under ANILCA and FLPMA, or some other federal statutory scheme, albeit subject to reasonable government regulation."); see also, Adams v. United States, 3 F.3d 1254, 1259 (9th Cir. 1993) (holding common law rules are applicable only when not preempted by statute, and plaintiffs did not have a common law easement because all common law claims are preempted by ANILCA and FLPMA when the United States

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The Alaska National Interest Land Conservation Act, 16 U.S.C. § 3210, et seq. -2-

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owns the servient estate for the benefit of the public). Finding that Peper's claim for a common law easement was preempted, the Court ordered the Forest Service to complete its administrative process regarding Peper's application for a special use authorization/easement under ANILCA. On May 15, 2007, the Forest Service filed a notice with this Court that it had completed its administrative process and issued two easements to Middle Boulder Creek Road Association ­ an association formed by Peper. Notice (Doc. 37). Peper responded by filing both an Amended Complaint and a response to the Forest Service's notice, both of which raise issues already decided by this Court. Amended Compl. (Doc. 41) and Pl. Resp. (Doc. 42). The Court on its own struck Peper's Amended Complaint (Doc. 43). Similarly, the Court should ignore the portion of Peper's Response that simply reasserts his claim to a common law easement by necessity - a claim this Court has already properly dismissed. II. THE FOREST SERVICE HAS COMPLIED WITH ITS OBLIGATIONS UNDER ANILCA AND THE COURT'S ORDER BY ISSUING THE REQUESTED EASEMENTS A. The Forest Service's Obligations Under ANILCA.

ANILCA mandates that the Secretary of Agriculture "provide such access to nonfederally owned land within the boundaries of the National Forest System as the Secretary deems adequate to secure to the owner the reasonable use and enjoyment" of his land.

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See 16 U.S.C. § 3210(a).2 This access, however, is explicitly conditioned on the landowner's compliance with the "rules and regulations applicable to ingress and egress to or from the National Forest System." Id.3 The Secretary of Agriculture has promulgated extensive regulations governing activities on National Forest lands, which expressly apply to ANILCA and FLPMA. 36 C.F.R. part 251, Subparts B & D. Generally, "[a]ll uses of National Forest System lands . . . are designated `special uses.' Before conducting a special use, individuals or entities must submit a proposal to an authorized officer and must obtain a special use authorization from the authorized officer . . . ." See 36 C.F.R. § 251.50(a) (2004). A special use authorization is "a permit, term permit, lease, or easement . . . . " See 36 C.F.R. § 251.51 (2004). The regulations contained in 36 C.F.R., part 251, Subpart D provide the procedures landowners must follow when applying for special use authorization, and the terms and conditions governing any authorization the Forest Service issues. 36 C.F.R. § 251.110(a) (2004).

"Section 3210(a) of ANILCA applies to all National Forest System lands, not just those in Alaska." See United States v. Jenks, 22 F.3d 1513, 1516 n.3 (10th Cir. 1994) (citing Montana Wilderness Ass'n v. United States, 655 F.2d 951, 957 (9th Cir. 1981)). Further, "the legislative history of ANILCA contemplates that access under ANILCA is subject to the FLPMA [Federal Land Policy and Management Act] and the rules and regulations promulgated thereunder." Jenks, 22 F.3d at 1517 (citing S. Rep. No. 413, 96 th Cong., 2d Sess. 310 (1980), reprinted in 1908 U.S.C.C.A.N. 5070, 5254)). -43

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Peper does not deny that the Forest Service has issued the requested easements. Instead, Peper challenges the terms and conditions associated with those easements and makes certain representations that the Forest Service disputes. These misrepresentations and Peper's objections to the easements are addressed below. B. The Access Route to Peper's Property.

Peper misleads the Court in asserting that the easements granted by the Forest Service to allow him to access his property follow a previously existing road located on property acquired by the Forest Service in 1997. Peper states that, it is undisputed that the Forest Service had full knowledge at the time it took control of the subject land that the road in question had been used by Plaintiff and his predecessors in title for many years. The Forest Service knew that the subject road provides the only access to Plaintiff's land. Pl. Resp. at ¶ 1. This statement is not accurate. The attached map shows the property that was acquired by the Forest Service in 1997 (the "USFS Acquired Property") and Peper's property, the May Queen Lode. Exhibit A, Map. The USFS Acquired Property and the May Queen Lode are not contiguous and there is no existing access from the USFS Acquired Property to Peper's May Queen Lode. Access to Peper's May Queen Lode requires not only access along an existing Forest Service Road on the USFS Acquired Property, but also requires construction of a road over National Forest System land that -5-

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was reserved to the United States by Presidential Proclamation on March 2, 1907, as an addition to the Medicine Bow Forest Reserve. The two easements issued by the Forest Service include: (1) a Forest Road Easement, which follows an existing Forest Service Road; and (2) a Private Road Easement, which proceeds approximately 1,870 feet along Forest Service trails, two nonmotorized trails; then, allowing for 660 feet of new construction to reach the May Queen Lode. Exhibit B, Forest Road Easement and Private Road Easement. Thus, the Private Road Easement the Forest Service has issued contemplates and allows for new road construction to connect existing Forest Service trail 902.2 to Peper's May Queen Lode and to convert the "trails" into a usable road. Exhibit A, Map (See "Area of new road construction"); Exhibit B, Forest Road Easement and Private Road Easement. C. The Bridge.

Peper makes several misleading assertions regarding the Bridge that was located on the USFS Acquired Property and the Forest Service's actions and requirements with respect to the Bridge. First, as to the removal of the Bridge, Peper asserts that: The Bridge destruction was done without the knowledge and/or consent of the Plaintiff. The Bridge destruction was done without the aid of expert engineering assistance. The Bridge was simply dropped into the Creek where it remained for at least seven years. The Bridge destruction was a vindictive act by the Forest Service in an effort to stop Plaintiff from the use and development of his land. Answers to written interrogatories propounded in this case support the factual statements above.

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Pl. Resp. at ¶ 2. The Forest Service objects to Peper's assertion that the Forest Service destroyed or demolished the Bridge. Prior to the acquisition of the land where the Bridge was located, the Boulder Ranger District determined the Bridge was dangerous and signs were installed by the Forest Service along the road leading to the Bridge warning National Forest visitors of a "Hazardous Bridge on Private Property." Prior to acquisition of the USFS Acquired Land, the condition of the Bridge was noted as "collapsed" in a Certificate of Possession that was prepared based on an inspection of the USFS Acquired Land. At the time the Bridge was removed by the Forest Service it had already collapsed, and the Forest Service determined that it was hazardous. The remnants of the Bridge were removed to eliminate the hazard and potential liability. The Forest Service's discovery responses are consistent with these statements and do not support the statements made by Peper. Exhibit C, USFS Discovery Reponses at 5-7. Moreover, pictures of the Bridge taken in approximately 1994-1995 and 1996-1997 show the dilapidated and hazardous condition of the Bridge. Using the Bridge for vehicular access would have been dangerous, if not impossible. Exhibit D, Photos of Bridge. Second, Peper asserts that the specifications for the Bridge required by the Forest Service are "totally unreasonable" and that the new Bridge is "so complex and expensive

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that the requirements render the use of Plaintiff's land impossible." Pl. Resp. at ¶¶ 3 & 5. The Bridge Design Standards and Criteria set out in the easements issued by the Forest Service are the standard requirements for bridges built on Forest System Lands. The Bridge specifications were taken from the Forest Service Manual and Forest Service Handbook. See Exhibit B, Easements Package, Road and Bridge Design Standards and Criteria. The Forest Service is not requiring more of Peper than it requires in other similar situations. Peper's objection to the complexity and expense is puzzling because the Forest Service is not aware of any plans or cost estimates for the Bridge which support that statement. Moreover, in October 2006, the Forest Service requested information from Peper "documenting your ability to hire someone with the technical ability to design and maintain the road and bridge." Exhibit E, 10-02-06 USFS Letter. Instead of responding that road maintenance and bridge construction would be a financial burden, Peper responded, "I have no idea the type of document you are requesting. My ability to hire someone to maintain the road - little maintenance as there will be - perhaps my own services, is considerable - I have zero debt and am a multimillionaire." Exhibit F, 10-0506, Peper Letter.

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D.

The Middle Boulder Creek Road Association.

Peper asserts that the Middle Boulder Creek Road Association a Colorado Non Profit Corporation "is not the Applicant for the easement. The Plaintiff sought a private road easement in this case. Any easement granted must be in the name of the Plaintiff." Pl. Resp. at ¶ 8. In April 28, 2003, Peper sent the Forest Service a recorded copy of the "Middle Boulder Creek Road Association" document. Peper's letter stated that he was "doing this in order to have our 'priority' improved on the list of those who have applied for access declarations." Exhibit G, Letter with Department of State Certificate. The application, therefore, proceeded under and the easements were issued to Middle Boulder Creek Road Association. E. Snow Removal.

Peper has also orally challenged the lack of authorization in the easements for snow removal. In the Forest Service's letter to Peper dated October 2, 2006, the Forest Service included the following question and caution: Are you applying for year round access? What times of the year do you expect access to the property? Please take into consideration a portion of the access is across a road currently managed as a county road and does not receive snow removal. If you plan to plow snow from the county road, we will need a copy of your authorization from Boulder County prior to being authorized to remove snow on National Forest System land. Exhibit E, USFS Letter 10-02-06. -9-

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Peper responded to this question as follows: "Yes, year around access. I do not plan to seek special snow removal." Exhibit F, Peper Letter 10-05-06 (emphasis added). The Forest Service should not be faulted for responding to Peper's request for easements with easements that do not authorize snow removal in light of his response to the Forest Service's inquiries on that issue and the fact that Peper did not obtain authorization from Boulder County for snow removal on the portion of the easement managed as a county road. CONCLUSION This Court's Order of September 5, 2006, dismissed all of Peper's claims, except for his claim for access to his property under ANILCA. Order (Doc. 28). As to that claim, the Court ordered that the Forest Service "complete and conclude the administrative process concerning Plaintiff's proposal for a special use authorization and provide notice to the Court that the process is completed." Id. The Forest Service has now fully complied with the Court's order because it has completed its administrative process and has issued Peper easements that allow reasonable access to the May Queen Lode. In addition, the Forest Service has responded to Peper's objections regarding the easements and has established its actions are reasonable and neither arbitrary nor

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capricious. Therefore, the Forest Service requests the Court dismiss Peper's remaining claim under ANILCA. RESPECTFULLY SUBMITTED this 25th day of June 2007. TROY A. EID UNITED STATES ATTORNEY s/Roxane J. Perruso Roxane J. Perruso Assistant United States Attorney 1225 17 th Street, Suite 700 Denver, CO 80202 Telephone: 303-454-0127 FAX: 303-454-0404 [email protected] Counsel for the United States

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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO CERTIFICATE OF SERVICE (CM/ECF) I hereby certify that on June 25, 2007, I electronically filed the foregoing with the Clerk of Court using the CM/ECF system which will send notification of such filing to the following e-mail addresses: [email protected] and I hereby certify that on June 25, 2007, in a telephone conversation with Mr. Peper, I represented that on June 26, 2007, I will hand-deliver the document or paper to the following non CM/ECF participants at the settlement conference scheduled with Magistrate Judge Hegarty at 2:00 p.m.: Kenneth E. Peper P.O. Box 57 Hygiene, Colorado 80503

s/Roxane J. Perruso Roxane J. Perruso

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