Free Motion for Extension of Time - District Court of Colorado - Colorado

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

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Forest Service
Agriculture

Boulder 'RangerDistrict

2140 Yarrnouth Avenue Boulder, CO 80301-261.5 Voice: (303) 541-2500 Web: www.s.fed.us/r2/arnf Fsr: (303) 541-2315

File Code: 2360-311 950- 112730
Date:

NOV 2 0 2006
-

Kenneth E. Peper P.O. Box 57 Hygime, CO 80533
Dear Mr. Pepcr:

CERTIFIED MAIL RETUFW RECEIPT REQUESTED

Thank you for meeting with Mike Johnson and several of our resource specialists near your property on October 5,2006. On Octobcr 24IL one of engineers flagged the proposed access.
Have you had a, chance to look at the location and do you have any comments? Heritage Resources has found that the Lost Lake Mining Camp has been determinecl eligible for the National Register of Historic Places. The Lost Lake Mining Camp was origiaa1l.yrecorded in 1980 by Man.ue1Weiss. The district includes the Revmge Mine, Lost Lake Mi,ne,the Lost Lake Cabi.n, the Bol.ton Cabin (aka May Quecn, 5BL4134),the Ralston Cabin (5BL4133), the Polacek Cabj.n.(aka Highl.and Mary, 5BL4135), the Peper Cabin., and associated mining features including adits, ditches and the historic road used to access the Lost Lake Mining Cam.p.The historic road is curtently managed as Forest Trail. 902.2 and is proposed to be rnodified to allow .. . .. . .- . .. . - -- - . . - - .ye$r..*oliiid -t-w-6'whe.=f"dii aSSen'gef.ir..hCle -acc=SS: ve:"g
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When originally recorded in 1980, the district was field evaluated as eligible for inclusioil an the National Register of I-Iistoric Places. However at that time, complete site fonns describing all elements within the site and a site map were not prepared. In 1980 the Keeper of thc National Register of Historic Placcs (NRHP) determined that the Bolton and Ralston Cabins were ~ligible for inclusion on the NRHP. Although the exact location and engineering design of the proposed access road is not yct known,it appears that the only logical locations for the road will be along the historic road and will have direct impacts on the road and other historic features within the boundaries of this historic property. In addition, the construction of a road into an area where currently access i s restricted may have indirect effects to historic features within the site that fa11 outside of the special use corridor. The Forest Archaeologist has reviewcd the proposed project and recommends a determination of an "adverse effect" to historic properties. In compliance with 36CFR800.2(~)(3), the Forest Service is seeking your commcnts on this undertaking. Letters disclosing the potential adverse effect to this site were also sent to the State Historic Preservation Officer, Boulder County Historic Presmation Advisory Board and Advisory Council on Historic Preservation inviting them to participate in developing a Memorandum of Agreement to stipulatc mitigations for this sltc, As the applicant and proponent o f this project you may also partiapate in this process if you choose. As the applicant for this road authorization you will be required to find m y mitigation for adverse effects caused by this project to the Lost Lake Mining Camp.

Caring for the Land. and Serving People

Prlnlad on Rscycled Paper

a

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I have endosed a draft copy of the Memorandum of Agreement we will have with th.e Colorado
State I3istori.c Presemation Office. If you have any questions, please contact Mike Johnson at 303-541-2534. Written com.mentsmay bc sent to me at:
Boulder Ranger District Attn: Mike Johnson 2 140 Yamouth Ave. Bonlder, CO 8030 1

Comments sh.ou1.dbe received by December 1, 2006. You are n,ot required to be a signa.tory in. this process, but if you would like to be a part of the Memorandum of Agreement, please let mc know by December 1,2006. Sincercly,

, G

'-'' CHRISTINE M. WALSH
Distxi.ct Ranger

cc:

RPD Group Leader, ELM Group Leader, Forest Archeologist, Forest Lands Program

Manager

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Draft

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MEMORANDUM OF AGREEMENT BETWEEN THE USDA FOREST SERVICE AR.APAH0 AND ROOSEVELT NATIONAL FORESTS AND THE COLORADO STA.TEHISTORIC PRESERVATION OFFICE PURSUANT TO 36 CFR 808.6 REGARDING
THE PEPER ACCESS AUTHORIZATION BOULDER COUNTY, CO%ORADO
WHEREAS, the USDA FOREST SERVICE (FS) has determined that issuing a new authorization,for access to a. private inholding, and the potential road construction on Forest System Lands associated with that authorization, will iave an adverse effcct on the Lost Lake Mining Cainp district (5BL485),which is eligible for inclusion on.the National. Register of Historic Placcs; and

WHEREAS, the FS has notified, the Advisory Council on Historic Preservation (ACHP) of the adverse effect to t h . site, and.the ACHP has declined to participate pursuant .to Scctio~. ~ 800.6(a)(l)(iv) of the regulation. (36 CFR Part 800) implmenti.ng Section 106 of the Nati.onal Historic Preservation Act (16 U.S.C. 470f); and
WHEREAS, the FS bas con.sulted with the Colorado State Historic Preservation Officer (SHPO) to m.itigatethe adverse effects pursunnt to Section 800.6(b)(l.) o f th.eregulation (36 CFR Part 800) implcmcnting Section 106 of the National Hi.storic Preservation Act (1.6 U.S.C. 4700; and WHEREAS, the Northern Ute Tribe, Southern Ute Tribe, Northern Arapaho Tribe, Nurtliern Cheyenne Tribe, and Arapal~o C h e y m e Tribes of Oklahoma were informed about thc Peper and .A.ccessAuthorization project and invited to participate in consultations pursuant to Section 800.6(a)(2) o:Fthe regulation (36 CFR Part 800) implementing Scction 106 of the National 4700; and. Historic Preservation.Act ( 16 U.S.C. WHER.~AS, Boulder County Land Historic Preservation Advisory Board (HPAB) was the about the Peper Access Authorization project and invited to participate in consultations to Scction 800.6(a)(4) of the regulation (36 CFR Part 800) imp1em&ti,ng Section 106 of n.al Historic Preservati.on Act (16 U.S.C. 470f); and

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Peper Access Authorization, MOA, Arapaho and Roosevelt NF

NOW, THEREFORE, the FS and the SHPO agree that the undertaking shall be implama~ted. in
accordance with the following stipulations in order to take into account the effect of the

undntaking upon the Lost Lake Mining Camp.
STIPULATI[ONS. IT IS MUTUALLY UNDERSTOOD AND A.GREED BY AND BETWEEN THE PARTIES THAT:
1. Tdentificstion Efforts

Prior to any modification of the site the FS shall ensure that the Lost Lake Mining Camp
(5BL485) is recordcd as a district and that the cabin sitcs within thc district (ie the Bolton, Ralston, Polacek, Pcper and Lost Lake Cabin) are relocated and mapped utilizing GPS equipment and rccorded in accordance with the guidance found in the Colorado Cultural Resource Survey Manual, The ficld evaluation for this district will be coinplctccl no latcr than Scptanber 15,2007.
a. The FS will ensure that all recordation activities will be performed 01: directly supavised by professiona1.s meeting the qualification.standards in the Secretary of Interior's Professi.ona1Qualifications Standards (36 CFR
61).

b. With,in 30 d.ays of completion the PS shall submit new site forms to SHPO and I-IPAB for rcvi'ew and comments. The SI-IPO and.HPAB sha1.l have 30 days for review and.comm.ents.

2.

Continue Consultation with SHPO and Consulting Parties Pri.or to any modification of the site, and, after the proposed undertaking is Islore c1earl.y defined, the FS shall continue consultation with the SHPO, HPAB and any consulting parties identified a.fter this agrement is implemented.

a. Througl, consultation with the SHPO, HP.A,B,and Consulting Padies the FS wil.1 determine an appropriate area of potenti.al effcct, that will includ.~; direct effects to the site caused. 'by the road, construction, indirect effects caused by improved access into the site, and indirect effects to th.e cultural. landscape.
b. Through consultation wi.h the SI-IPO, HPAB, and Consulting Parties, the FS wi1.l determine which actions will a.dverse1.yimpact the site. These impacts will be mitigated by the use of standard 1n.i tigations as defined in Stipulation 3.

3. Standard Mitigati0n.s for Direct and.Indirect Impacts Prior to m modification of the site, after direct and indirect impacts have bem d.etennined tl~e y

following standard mitigations shall be used.
a. For impacts that affect elements within the district that have archaeological potential the following mitigations shall occur prior to any modification of the site the f~11.owi.n~ rnitigati0.n~ npp1.y. will,

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Pepcr Access Authorization, MOA, Ampallo and. Roosevelt NF

1.. T11.eFS shall ensure the deve1,oprnentof a d.atarecovery plan, and find data recovery report in consultation with the SHPO and HPAB. The data recovery plan and final report will be consistent with the State Historic Presmation Offi,cs's Gui.delincs for Data Recoverv Proiccts, as well as the Secretary o f 1nteri.or2s Standards and. Guidelines for Archaeo1,ogy and Historic Preservation and t11e Advi.sory Council,on Historic Prcsmations publicati.on Treatment o f Archaeol.ogica.l PI-operties. The data recovery plan shall describe a d justify thc studics to be cam.ed out, i.ncl,udingbut not 1,imitcdto:
i.The rcsearch qu,cstionsto be addressed;

ii. Why addressing the research question is in the public interest;
i.ii. Why it is likely that thc research qu.cstions can be addressed usin.gdata from the historic property; i.v. The .methods to be u.scd.in field.work and analysis, with an explanation of their relevance to the research questi0n.s; v. The methods to be used in conservation, data mmagement, and dissminalion, of data with a justification for any unusual mcthods including a schedule; vi. Curati.on of the recovered materials and records, in accordancc with the Gu.i.delincsgencratcd by 36 CFR Part 79; and. vii. A.dh.erenceto the attached schedule, Appendix A, for completing the da.ta. recovery, including analysi.~, reparting, and disposition.

2. Within 30 days of report completion the FS shall submit the data recovery plan. and final report to SHPO for review and com.ments. The SHPO shall ha.ve 30 days fiom receipt to provide the FS with comments. Upon SHPO acceptance of the daia. recovery plan, the FS shall ensure the imp1,ernentationof the plan in accordance with the schedule aitached as Appmd.ixA. Any objection will be resolved pursuant to Stipulation 6.

b. For i.mpacts hat affect elements within the district that are architectural in rmture the
:foll.owing rnitiga,tions shall occur prior to any modification of the site thc following mitigations will apply.
I. Prior to my modification o f the site the FS shall ensum that Lost Lake Mining C,amp (5CC585) is recordcd in accordan.cewith,the guid.ancefor Level IT documentation found i.n "Historic Resource Documentation, Standards ,forLevel I, IT, and 1,ITDocumcntation" Office of .Archa.cologyand Historic Preservation, C,olorado Historical Soci.ety, October 1998 (OAMP 1595).

i. The FS will ensurc that all recordation activities will be performed or directly supervised by professionals meeting the qualification standards in the Secretary of Interior's Pro:fessional.Qualifications Standads (36 CFR 61.). The FS wil.1 ensure that an archival docurmentation report will, ho created. The fin,alrcport will consist of photo-documentation of t i e site and dl standi,ng structures, measured. drawings and. an histori,cal narrative.

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:Peper Access Authorization.,MOA, Arapaho an,dRoosevelt NF

a. Photo-documcntation will consist of the fo1.lowing: One site overview on 4x5 black and white negative. All accessible elevations of each standing structure will be photographed with a 4x5 black and white negative. Al,l,prints will be produced usi.ng wcb.i.vn1deve1.opin.gprocesses.
b. Measured drawings will consist of the followi.ng:

All accessibl~ elevations of each standing structure will bc recorded with a measured. drawing bn archival bond paper.
i.i. Within 30 days of completion the FS shall submit the archival photodocumentation report to SHPO for review and comments. The SHPO shall h.avc 30 days for review and comments. Acceptance of the photo-documentation report by the SHPO shall con.cludethe mitigation of the adverse eflcct for this

property4. Tnterim Protection.

The FS sh.al1protect and secure the buildings at the Lost Lake Mining Camp until the mcasures agrscd. upon in this Memorandum of Agreement (MOA) are i.mplcmcnted. Protection measures shall be the random patrol of the area around the m n and restriction of ie public acccss.
5. Monit0rin.g

Tile signatories may monitor activities pursuant to this MOA, and the Ad.vis0r-yCouncil on Hist0ri.c Preservation (Council) will review such activities if requested by a,party to this so MOA.. Thc FS will cooperate with the signatories in carrying out their reviav an.d moni.toringresponsibilities.
6 . Dispute Resolution Should.the SHPO object within 30 days to any plans provided for its review pLusuant to tl3i.s agreement, the FS shall consult with tho S H P O ~ O resolve the objection. If thc FS determines

thc objection,cax~not resolved the FS shall forward all documentati.onrelevant to the be dispute to th.e Coun.ci1. Within 30 days after recei.ptof all pertinent documentation the Counci.1will: a. Advise the agen.cythat the Council concurs in the agency's proposed.response to the objection, whereupon the agency will respond, to th.e objection according1.y;

b. Provide the agency with recommendations, which the agency shall take into a,ccountin reach.ing a final decision regarding its responsc to the objection.; or
c. Notify the agency that the objection will be referred for comment pursuant to 36 CFR 800.7(a)(4), and proceed to refer the objection an.d comment. The agency shall take the resulting comment into account in accordance with 36 CFR.800.7(~)(4).

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Pcper Access Auth,orization, MO.A, Arapaho and Roosevelt NF
Amendment and Termination

Any signatory to this agreement may request that it be amended, whereupon the partics will consult to reach a consensus on the proposed amendment. Whcre no consensus can be
rcachecl, the agreement will not be amended. In the event that Congress amcnds Section 106 of the Historic Prcscrvation Act or in thc case of substantial changes to 36 CFR 800, the whether it would be appropriate to amend ~ h c parties to this agreement wlll meet to consid~r agrccmcnt. Any signatory to this agrecmcnt may terminate it by providing thirty (30) days notice to the othm parties, provided that the signatories and concumng parties will consult during the period prior to termination to scck agreement on amendments or other actions that would avoid termination.
8. Failure to Carry Out Terms

Failusc to carry out the t c m s of this MOA requires that thc FS again request the Council's co~n~nentsaccordance with 36 CFR part 800. If thc FS cannot carry out the tei-ms of the in MOA, it will not take or sanction any action, or make an irreversible coinmilament that would result in an advcrsc effect to the historic property covmd by the MOA or that would lorcclose the Council 's considcrations o f modifications or a1ternatives that could avoid or mitigate the adverse effect on the properties until the commenting process has been completed.
9. Freedom Of Information Act (Foia). Any information.furnished to the Forest Stmice under this instrumat is subject to the Freed.01~1 of 1nfonn.ationAct (5 U.S.C. 5 52). However, certain sensitive spatial and non-spatial in:fomationwill be protected per th,eNHPA (1966, with revisions).

10, Participation I n Similar Activities, This instn~ment no way restricts the Forest Service or the Cooperator(s) from partici.pating in in similar activities with other public or private agencies, organizations, and individuals.
1.1. Commencement/Expiration. Th.isMOA takes effect upon thc signature o f th.eForest Service, State Historic Preselvation Officcr, concuring parties and accepted by the Advisory Council on Historic Preservation and sha.l.1remain, j,n.effect for five (5) years from the d,ateof execution.
12. Responsibilities Of PartZes. The :ForestService, State Historic Preservation Officer, Concurring Parties m Advisory d Council on. Historic Preservation,and their respective agencies and office will hand.1.etheir own activities and utilize their own resources, j.ncluding the expenditure of their own ,Funds, in pursuing these objectives. Each party will carry out its separate activities in s coord.i.natedand. m:ulu.all beneficial manner. y

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Peper Access .Authorization, MOA, Arapaho and Roosevelt NF
13. Principal Contacts.

Forest Service Project Contact
Sue Struther-s

Forest A.rchaeolc~gi,st Arapaho and Roosevelt National Forests and Pawnee Na,tional Grass1an.d. 21 50 Centre Avc., Bujlding E Fort Colli.ns,CO 80526 .Phone: 970-295-6622 FA,X: 970-295-6799 E-Mail: sstruthers@,fs.fed.us
Forest Service Admlnislrative Contact

Cooperator Project Contact Amy Pallante Section 106 Compl.iance Coordinator Office of Archaeology and

Preservation, Col.ot-adoHistorical Society 1300 Broadway Denver,CO 80203
Phone: 303-866-4678

FAX: 303-866-2711 E-M,ail: amy.pallante@c:h,~.state.co.us
Cooperator Administrative Contact

Debra L. Jensen. USDA. Forest Service Ccntral A.dministrativeZone
240 Wcst Prospect Road.

Fort Collins, CO 80526 Ph.onc: 970-498-1 177 FAX: 970-498-1396 E-Mail: [email protected]

Lori Borcesky Admi.nistmtiveAssistant Office of the State [email protected] 1300 Broad.way D m v q CO 80203 Phone: 303-866-3392 FAX: 303-866-271 1 E-Mail: [email protected]:ai'eeco.us

14. Non-Fund Obligating Docrrment. Nothing in this MOA shall obl.igate the Forest Service, State Historic Preservation Officer, Concurring Parties or tb,e Advisory Coun.ci1on Historic Preservati.on to obligatc or transfer any funds. Specific work projects or activities that involve the transfer of funds, services, or property among the variou.s agencies and offices of the Forest Servicc, State Hist0ri.c

Prescrvalion Officer, Coucumng Parties or the Advisory Council,on I-Iistoric Preservati.on will. require execution of separate agreements and.be contingent upon the avai1abi.li.t~ of aypropriated fi~nds.Such activities m s be independently authorized by appropriate ut statu.toryauthority. T11i.sMOA does not provide such authority. Negotiation., execution, and administration of each sucl~ agreement rnu.st comply with all applicable statutes and regulations.

15. Establishment Of ~esponsihi1,ity.

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This MOA is not intended to, and does not create. any right, benefit, or trust responsibility, substantive or procedural, enforceablc at law or equity, by a party against the Unlled States, its agencies, its officers, or any person. This MOA is intended as the complete integration of J1, understandings among the parties, lhcir successors and assigns with respect to the subject of the matter set out hcrein. No prior or contanporancous additions, delction, or other amendment hereto shall have any force or affect whatsoever, unless embodied in a written amendatory or other MOA executed by the parties and signed by thc party of the original MOA. This MOA and any amendments shall be binding upon the paqics, their successors and assigns.
16. Authorized Representatives.

By signature below, the coopixator certifies that the individuals listed in this document as
reprcsentntives of the cooperator are authorized to act in their respectivc areas ,for matters

related to this agreement. Execution of this Memorandum of Agreement by the FS and SHPO and it's subsequent acceptance by the C40unciland implementation of its terms evidence that thc FS has afforded the Council an opportunity to comment on the Pcpcx Access Authorization project and its affects upon historic properties and the FS has taken into account the effects of the undertaking on historic properties.

THE PARTIES 1-IER.ET0have executed this instrument.

USDA Forest Service - Arapaho and Roosevelt National Forests

By:
Howard Sargent, Acting Forest Supervisor

Date:

Col.oradoState Historic Preservation Offxcer

By:

Date:
Georgianna Contiguglia, State Historic Preservation Officer

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CONCURRING PARTIES

Applicant

By:
Mr. Ken Peper, Applicant for Road Auth.orization

Date:_

Boulder County Commissioners

Date

Ben Pearlman, Commissioner
The authority and fonnat of this

instrument has bcen, reviewed and
approved for signature.
DATE

FS Agreements Coordinator

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Appendix A

Schedule o f Progress and Submission of Reports

AAer concluding the consultation on the APE and impacts of actions as defined in. Sti.pulatian 2'b, the Forest wi.11have one calendar year to &her .prepare a contract for photo-docum.cntation or to prepme the archival documentation,wi.thForest Service Staff. The FS shall,en.suretha.t the drtifl archival report i.sprovided.to SHPO for their comments, within 30 day's oGi.ts completion.
Data Recovery
After concludi.ngthe consultation on the APE and impacts of actions as defined in Stipulation.2b, the Forest will have 0n.e calendar year to provide the SI-IPO with a research design, testing and d.ata, recovery plans. After acceptance of the researcl~. design and data recovery plans by SHPO, the FS sl~all, have onc ca1end.wyear to complete th.e data recovcry and submit the find report l o SHPO for their comments.

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cabins

b Forest Trail 902.2
Peper

Peper Access Authorization Boulder Ranger District Arapaho and Roosevelt National Forests Boulder County, Colorado Nederland 7'5 U.S.G.S. Quadrangle T. 1 S., R. 73 W., Sections 18 and 19

Property

1

0.5

0

1 Miles