Free Motion for Extension of Time - 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.

DECLARATION OF MIKE D. JOHNSON

I, Mike D. Johnson, pursuant to 28 U.S.C. § 1746, do declare and state as follows: 1. I am employed by the United States Department of Agriculture, Forest

Service ("Forest Service") as a Realty Specialist for the Boulder Ranger District, which is part of the Arapaho and Roosevelt National Forests and Pawnee National Grassland. 2. 3. My office address is 2140 Yarmouth Avenue, Boulder, Colorado 80301. I am responsible for coordinating land uses, which includes access

authorizations across National Forest System land. 4. On November 12, 2001, Plaintiff Ken Peper submitted a proposal to the

Forest Service pursuant to 36 C.F.R. § 251.54 for a special use authorization for access to

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certain non-Federal land across National Forest System lands. 5. Mr. Peper's proposal requested a formal easement for access across

federal land to his property, the May Queen Lode, United States Mineral Survey No. 18317. 6. On January 29, 2002, after the Forest Service conducted a pre-application

screening, it notified Mr. Peper that his proposal would be formally accepted as an application for special use authorization once he formed a Home or Landowners Association ("HOA") and resubmitted a modified application. 7. The Forest Service required the modification because there are numerous

landowners in the area who would require the use of the same access, or a portion of it, and in this situation, the Forest Service authorizes one easement or permit to those landowners. The Forest Service explained that the formation of the HOA has the advantages of a lower yearly fee for the permit, as well as the sharing of road maintenance costs, and the expense of the environmental analysis, which is required to process the application. 8. On April 28, 2003, Mr. Peper provided the Forest Service with a copy of his

certificate from the State of Colorado, Department of State for the formation of the Middle Boulder Creek Road Association, a nonprofit corporation. 9. On June 18, 2003, the Forest Service acknowledged receipt of Mr. Peper's

documentation indicating that the HOA had been formed, and informed him that due to staffing issues and the backlog on special use permits and easements, he could expect to

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receive the special use authorization in two to four years. 10. In September 2004, in response to a lawsuit filed by Mr. Peper, the Forest

Service represented to the Court that it expected it would require two to three more years, or until September 2006 or 2007, to complete its administrative process. 11. The Forest Service is in the process of performing the necessary environmental

analysis regarding Mr. Peper's application for a special use authorization requesting a formal easement for access to his private property (the "Proposed Action"). 12. As part of the resource analysis, on September 25, 2006, input was requested

from Wildlife, Botany, Fisheries/Hydrology, Engineering, and Heritage Resource Specialists. Wildlife, Botany and Fisheries determine the effects of the proposed action to threatened, endangered, and sensitive species in compliance with the Endangered Species Act. Hydrology examines the effects of the proposed action to flood plain, water quality, and to the stream channel. Engineering looks at the location of the proposed bridge and access road and determines the requirements for the bridge. Heritage examines the effects of the proposed action to historic properties to ensure compliance with the National Historic Preservation Act. Each of the disciplines provides input and analysis regarding the effects of the proposed action in the form of a report. 13. On September 28, 2006, the Forest Service sent out a scoping letter for the

Proposed Action. As described in the scoping letter, the proposed access route begins at the Hessie Trailhead, west of Eldora. The route, as proposed, would have a low-water crossing of North Fork of Middle Boulder Creek and a bridge crossing of South Fork of Middle Boulder Creek. 3

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14.

Also included with the scoping letter was a vicinity map and close-up map

showing the location of the proposed access route. The scoping letter was sent to the Nederland Fire Department, Boulder County Transportation, Boulder County Land Use, and one known local concerned citizen. 15. On October 1, 2006, the Forest Service web site (www.fs.fed.us) listed the

Middle Boulder Creek Road Association Access Authorization as one of the proposed actions scheduled for the fourth quarter. 16. On October 2, 2006, the Forest Service sent a letter to Mr. Peper requesting

additional information about his application. Mr. Peper responded to the Forest Service's letter on October 5, 2006. 17. On October 5, 2006, the following Forest Service resource specialists, along with

Mr. Peper and Helena Jones-Siddle from the Office of General Counsel, participated in a field visit to the area to view the proposed access route: (1) Terry Savery, Hydrology; (2) Bill Janowski, Fisheries; (3) Bev Baker, Wildlife; (4) Kathy Carsey, Botany; (5) Cheryl Kramer, Engineering; (6) Chris Ida, Forest Engineer; (7) Sue Struthers, Heritage; (8) Mike Johnson, Lands & Minerals. 18. On October 24, 2006, despite the fact there was six to ten inches of snow,

Forest Engineer, Chris Ida, flagged the proposed access route. The proposed access route generally follows an old road prism and is approximately 5,400 feet long with a recommended 12 foot travel width. Approximately 700 feet of the proposed access route will require construction of a new road. The remaining 4,700 feet of the proposed access route will require

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reconstruction, including the addition of clean, washed rock in low lying areas, particularly where water is present and the water table is high. The first low water crossing may require rock armoring to prevent sedimentation of the creek. Drainage structures will be required along the entire length of the road. Blasting of rock may be required on a portion of the road. It will also be necessary to install a bridge to cross the South Fork of Middle Boulder Creek. 19. On Oct. 25, 2006, I requested input to the environmental analysis from the

Recreation Planner, Glen Cook, because the area where the Proposed Action is taking place is a heavy recreation use area for hiking, snowshoeing, cross-country skiing, dispersed camping, and access to designated wilderness. 20. On November 1, 2006, the Heritage Resources specialist Sue Struthers completed

her review of the Proposed Action and recommended a determination of an "adverse effect" to historic properties. Subsequently, on November 3, 2006, the Forest Service sent a letter to various interested parties, informing them of the determination of "adverse effect." 21. Further, to fulfill the requirements of Section 106 of the National Historic

Preservation Act, 16 U.S.C. §470(f), Heritage Resources is attempting to complete a Memorandum of Agreement with the Colorado State Historic Preservation Officer (the "SHPO"). The Forest Service has completed a draft MOA and has requested that the SHPO expedite its execution. 22. On November 20, 2006, the Forest Service wrote Mr. Peper informing him of the

determination of an "adverse effect" of the Proposed Action to historic properties, enclosing the draft Memorandum of Agreement, seeking his comments and notifying him that he may

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participate in the process and be a signatory to the MOA. The letter also notified Mr. Peper that as the applicant for the road authorization, he will be required to fund any mitigation for adverse effects caused by the Proposed Action to the historic property - the Lost Lake Mining Camp. 23. To date, the necessary resource analysis from engineering, hydrology, and

recreation have been completed. The written resource analysis reports from botany and fisheries are expected to be complete by November 30, 2006. 24. The Wildlife Resource Specialist has made an initial determination that the

Proposed Action may have an adverse effect on the Canada Lynx. If the final wildlife report reflects this initial determination, then the Forest Service is required to enter into consultation with the Fish and Wildlife Service regarding the determination and recommended mitigations. The Forest Service can request the Fish and Wildlife Service review the report on an expedited basis, however, the Forest Service cannot control the timing of its response or whether it will concur with the Forest Service's determination and recommended mitigations. 25. The Forest Service is proceeding with the environmental analysis

as if the decision regarding the Proposed Action can be documented as a Categorical Exclusion under Forest Service Handbook 1909.15, Chapter 30, Section 31.2 (3). By January 12, 2007, the Forest Service will have collected enough data regarding the Proposed Action to determine whether the Proposed Action will fit within a Categorical Exclusion to the National Environmental Policy Act ("NEPA") or whether the Forest Service will be required to do an environmental assessment ("EA") to comply with its obligations under the statute.

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26.

The time lines below regarding compliance with the National Environmental

Policy Act set out dates that include a ninety (90) day formal consultation period with the Fish and Wildlife Service ("FWS"), and an additional forty-five (45) days, granted to the FWS under the terms of the Endangered Species Act, for issuance of a formal Biological Opinion. If a formal consultation is not required, the Forest Service will provide this Court with a revised declaration reflecting the shorter time line. 27. If a Categorical Exclusion can be used, the decision on the Proposed Action can

be submitted to the Forest Supervisor's Office for review and signature when: (1) the remaining resource reports from wildlife, botany and fisheries are received; (2) any required consultation with the Fish and Wildlife Service is complete; and (3) the Memorandum of Agreement regarding the Heritage Survey has been executed. Although the Forest Service cannot control the timeframe for the completion of any required consultation with the Fish and Wildlife Service and the execution of the MOA, it believes that if a Categorical Exclusion is appropriate, a reasonable timeframe for review and signature by the Forest Supervisor's Office on a decision as to the Proposed Action is May 8, 2007. 28. However, if the Forest Service determines that an Environmental Assessment is

required, the work required to reach a decision on the Proposed Action is increased and certain time frames set out by Forest Service regulations become applicable. 29. If an EA is required, the Forest Service estimates it will need until April 20,

2007, to draft the EA. In the EA, the Forest Service must address the environmental effects of the Proposed Action, and of reasonable alternatives, thereby providing the decision-maker with a

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clear basis for informed decision-making. The EA is also the vehicle for disclosure of these same effects to the public, and for consideration by the decision-maker of the public's comments. 30. After the EA is issued, there is a 30-day comment period. If the 30-day

comment period begins on or about April 20, 2007, then it will end on or about May 20, 2007. 31. Once the comment period ends, the Forest Service must address and respond to

the comments received on the EA. The time needed to respond to the comments is dependent upon the number and type of comments received, however, the Forest Service believes that approximately two weeks will be necessary or up to and including June 3, 2007. 32. Then, the Forest Service, if appropriate, will issue Decision Notice and Finding of

No Significant Impact. It will then publish the legal notice and a mandatory 45-day appeal period will commence. The 45-day appeal period will end on or about July 24, 2007. 33. Subsequently, if there are any appeals of the Decision Notice and Finding of No

Significant Impact, an appeal meeting will be offered to attempt to reach resolution and an appeal record will be submitted to the Appeal Reviewing Officer by August 8, 2007. 34. The Appeal Deciding Officer must issue a decision on any appeals by September

7, 2007. If the Decision Notice and FONSI is upheld, after a mandatory 15-day stay, the road authorization will be submitted to Mr. Peper for acceptance and signature on September 25, 2007. 35. After the Forest Service receives Mr. Peper's acceptance and signature on the

road authorization and payment of his land use rent, final approval by the Forest Supervisor will

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take place within two days. 36. If the Decision is remanded to the Forest Service or reversed on appeal, the

estimated timeline set out above will be adversely impacted. However, this is the best estimate for the timeframe required to complete the EA, if one is required. 37. If either a Decision is issued under a Categorical Exclusion or if a Decision

Notice and Finding of No Significant Impact is issued in September 2007, the Forest Service will be within the timeframe originally estimated for completion of the administrative process of September 2006 to September 2007. I declare under penalty of perjury, pursuant to 28 U.S.C. ' 1746, that the foregoing is true and correct to the best of my knowledge, information, and belief. Executed on this 28th day of November, 2006.

s/Mike D. Johnson Mike D. Johnson

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