Free Notice (Other) - District Court of Colorado - Colorado

Case 1:04-cv-01382-ZLW-KLM

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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' 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 ("Forest Service"); and Dale Bosworth, as Chief in his official capacity (collectively the "United States") by and through undersigned counsel, notify this Court that they have completed the administrative process regarding Plaintiff's application for a special use authorization and request that Plaintiff's remaining claim be dismissed, on the following grounds.

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PROCEDURAL BACKGROUND 1. On July 7, 2004, Plaintiff filed a Complaint alleging three claims for relief.

(Compl. Doc. 1.) The three claims for relief were: (1) that the Road at issue is a public highway pursuant to R.S. 2477 1 ; (2) for access to his property under the Alaska National Interest Land Conservation Act, 16 U.S.C. § 3210, et seq. ("ANILCA"); and (3) for a common law easement by necessity. 2. On October 7, 2004, the Defendants filed a motion to dismiss Plaintiff's

claims for lack of subject matter jurisdiction and failure to state a claim. (Mtn. to Dismiss, Doc. 6.) 3. On March 25, 2005, Magistrate Judge Coan issued her Recommendation of

United States Magistrate Judge, recommending that Plaintiff's complaint be dismissed in its entirety. (Doc. No. 19.) a. Magistrate Judge Coan concluded that the Court lacks subject matter

jurisdiction over Mr. Peper's claim that the Road is a public highway under R.S. 2477, recodified at 43 U.S.C. § 932 (1938) (repealed 1976). (Doc. 19, Recommendation at 5-

The statute was first enacted as Section 8 of the Act of July 26, 1866, entitled "An Act Granting Right of Way to Ditch and Canal Owners Over The Public Lands and For Other Purposes," ch. 262, 14 Stat. 251, 253 (commonly referred to as the Mining Act of 1866). The statute was codified in 1873 in the Revised Statutes as section 2477 upon publication of the Revised Statutes, and subsequently recodified in 1938 as 43 U.S.C. § 932. -2-

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6). b. Magistrate Judge Coan concluded that Mr. Peper's claim for

relief for statutory right of access to his property pursuant to ANILCA must be dismissed for failure to exhaust administrative remedies. (Doc. 19, Recommendation at 8-9, § 2). c. Magistrate Judge Coan concluded that Mr. Peper's claim for an

easement by necessity must be dismissed for failure to state a claim, because common law rules apply only when not preempted by a federal statute. (Doc. 19, Recommendation at 8, § 1). 4. Because Mr. Peper is pro se, Magistrate Judge Coan construed Mr. Peper's

pleadings liberally. (Doc. 19, Recommendation at 1). However, the law that applies to Mr. Peper's claims is binding precedent establishing that his claims fail as a matter of law. Therefore, Magistrate Judge Coan correctly recommended that Mr. Peper's Complaint be dismissed in its entirety. 5. On April 5, 2005, Peper filed written objections to the Recommendation of

United States Magistrate Judge. (Doc. 21.) On April 14, 2005, the United States responded to Plaintiff's Objections. (Doc. 22.) 6. On September 5, 2006, this Court issued an Order dismissing two of

Plaintiff's claims: (a) his claim under R.S. 2477; and (b) his claim for an easement by necessity. (Doc. 28 at 5.)

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7.

The Court, however, did not dismiss Plaintiff's claim for access to his

property under the Alaska National Interest Land Conservation Act, 16 U.S.C. § 3210, et seq. ("ANILCA"). 8. The Court ordered that the Forest Service "on or before December 1, 2006,

. . . shall 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, unless good cause is shown for an extension of time." Court's Order dated September 5, 2006 (Doc. 28). 9. On November 29, 2006, the Forest Service filed a motion requesting the

Court grant it an extension of time with respect to the December 1, 2006, deadline for completing the administrative process and notifying the Court that the process is completed. 10. On December 6, 2006, the Court granted the Forest Service's motion and

ordered that "the December 1, 2006 deadline to complete and conclude the administrative process concerning Plaintiff's special use authorization is continued until May 15, 2007." (Doc. 35).

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I.

THE FOREST SERVICE HAS COMPLIED WITH THIS COURT'S SEPTEMBER 5, 2006, AND DECEMBER 6, 2006, ORDERS The Forest Service has concluded its administrative process concerning Plaintiff's

special use authorization in compliance with the Court's Orders dated September 5, 2006 and December 6, 2006. On May 8, 2007, Forest Supervisor, Glenn P. Casamassa signed a Decision Memo approving the issuance of special use authorizations to the Middle Boulder Creek Road Association authorizing access to privately owned property (the "Property"). Ex. 1, Decision Memo. Access to the Property will be via two Forest Land Policy and Management Act ("FLPMA") easements: (1) a Forest Road Easement; and (2) a Private Road Easement (the "Easements"). Id. The Forest Road Easement is approximately 2,640 feet long and the Private Road Easement is approximately 2,530 feet long. The Private Road Easement proceeds approximately 1,870 feet along Forest Service trails 902 and 902.2, two non-motorized trails; then, approximately 660 feet of new construction is required to reach the May Queen Lode. Id. The easement corridor for both easements is 20 feet wide, suitable for medium clearance 4 wheel drive vehicles, with a driving surface of 12 feet. Id. The Forest Road Easement includes authorization for maintenance and reconstruction of the current road. Id. Prior to any motorized use of the Private Road Easement, construction of an armored ford across the North Fork of Middle Boulder Creek, construction of a bridge with a gate -5-

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across the South Fork of Middle Boulder Creek, and construction/reconstruction of the road. Id. All construction/reconstruction and maintenance shall be the responsibility of the holder of the Easements. Id. The Easements will allow for motorized access to the Property, except during the winter months. Id. On May 14, 2007, the Forest Service sent Mr. Peper a cover letter and two separate FLPMA easement packages for his signature. Ex. 2, Letter and Easement Packages. Once Mr. Peper has submitted the executed easement documents along with his payment of the land use fees associated with the Easements, $241.08 for 2007, the Forest Supervisor for the Arapaho and Roosevelt National Forests and Pawnee National Grassland will authorize his use of the Easements. Id. II. THE FOREST SERVICE REQUESTS THAT PLAINTIFF'S REMAINING CLAIM BE DISMISSED This Court's Order of September 5, 2006, dismissed all of Plaintiff's claims, except for his claim for access to his property under the Alaska National Interest Land Conservation Act, 16 U.S.C. § 3210, et seq. ("ANILCA"). Court's Order dated September 5, 2006 (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 notified the Court that the process is complete. -6-

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Therefore, the Forest Service requests the Court dismiss Plaintiff's remaining claim under ANILCA.2 RESPECTFULLY SUBMITTED this 15th day of May 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

The Forest Service was not able to confer with Plaintiff with respect to this request because he had previously informed undersigned counsel that he would be out-ofthe-country from May 5, 2007 to June 1, 2007.

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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO CERTIFICATE OF SERVICE (CM/ECF) I hereby certify that on May 15, 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: and I hereby certify that I have mailed or served the document or paper to the following non CM/ECF participants in the manner (mail, hand- delivery, etc.) indicated by the nonparticipant's name: Kenneth E. Peper P.O. Box 57 Hygiene, Colorado 80503

s/Roxane J. Perruso Roxane J. Perruso

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