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

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

Document 34

Filed 11/29/2006

Page 1 of 23

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' MOTION FOR AN EXTENSION OF TIME WITH RESPECT TO THE DECEMBER 1, 2006, DEADLINE SET BY THE COURT

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, move this Court for an extension of time with respect to the deadline set by the Court of December 1, 2006, for its completion of the administrative process regarding Plaintiff's application for a formal easement across National Forest System lands for access to his private property, on the following grounds.

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

Document 34

Filed 11/29/2006

Page 2 of 23

CERTIFICATION Pursuant to D.C.COLO.LCivR. 7.1A, undersigned counsel conferred with the Plaintiff, Mr. Peper. Mr. Peper objects to this motion requesting an extension of the December 1, 2006, deadline set by the Court. FACTUAL BACKGROUND I. THE PROCEDURAL BACKGROUND OF THIS ACTION 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.)

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-

1

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

Document 34

Filed 11/29/2006

Page 3 of 23

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 56). 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.

-3-

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

Document 34

Filed 11/29/2006

Page 4 of 23

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.) 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 September 18, 2006, the Forest Service filed a motion requesting the

Court reconsider its September 5, 2006, Order setting a deadline of December 1, 2006. (Doc. 29). The Forest Service argued that the Court did not have jurisdiction over Plaintiff's ANILCA claim because he has not exhausted his administrative remedies.

-4-

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

Document 34

Filed 11/29/2006

Page 5 of 23

10.

On September 20, 2006, the Court issued an order denying the Forest

Service's motion for reconsideration. (Doc. 30). II. PLAINTIFF'S APPLICATION FOR A SPECIAL USE AUTHORIZATION 11. 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 certain non-Federal land across National Forest System lands. 12. Mr. Peper's proposal requested a formal easement across federal land for

access to his private property, the May Queen Lode, United States Mineral Survey No. 18317. 13. 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. 14. 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

-5-

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

Document 34

Filed 11/29/2006

Page 6 of 23

process the application. 15. 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. 16. 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 receive the special use authorization in two to four years. 17. 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 which includes compliance with the National Environmental Policy Act. LEGAL BACKGROUND I. NATIONAL ENVIRONMENTAL POLICY ACT The National Environmental Policy Act ("NEPA"), 42 U.S.C. §§ 4321-4370d, mandates the procedures by which federal agencies must consider the environmental impacts of their actions. Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 350 (1989). However, NEPA does not in any way dictate or control the substantive agency decisions on whether or not to carry out those actions. Rather, the purpose and intent of

-6-

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

Document 34

Filed 11/29/2006

Page 7 of 23

NEPA's procedural requirements is to foster informed decision making by the federal decision maker, i.e., to make sure the decision maker has been provided with the environmental information and analysis to make an informed decision.2 42 U.S.C. § 4321; 40 C.F.R. § 1500.1(c) ("NEPA's purpose is not to generate paperwork ­ even excellent paperwork ­ but to foster excellent action."). Thus, the purpose and intent of NEPA is procedural, not substantive. A provision of NEPA created the Council on Environmental Quality ("CEQ") to provide guidance for agency compliance with NEPA. 42 U.S.C. §§ 4341-4347. The CEQ regulations recognize that agencies may conduct different environmental analysis to determine the environmental impacts of a proposed action. The regulations direct agencies to consider whether a proposed action falls within a class of actions that normally require an Environmental Impact Statement ("EIS"), and whether an action falls within a class of actions requiring no environmental evaluation and may be regarded as "categorically excluded" from further analysis ("Categorical Exclusions" or "CE"). 40 C.F.R. § 1501.4(a). If a proposed action is neither a categorical exclusion nor of the type normally requiring an EIS, or if an agency is uncertain if an EIS is required, then the agency is directed to prepare an environmental

NEPA also fosters informed public participation for actions that significantly affect the human environment. 40 C.F.R. § 1506.6. -7-

2

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

Document 34

Filed 11/29/2006

Page 8 of 23

assessment ("EA") to determine whether to prepare an EIS for the proposed action. 40 C.F.R. § 1501.4(b)(2). Thus, federal agencies are required to promulgate their own specific NEPA implementing regulations to designate classes of actions that they perform pursuant to their respective missions and/or functions that would normally require an EIS, an EA or a CE. 40 C.F.R. § 1507.3(b)(2)(ii) (requiring agencies to set `[s]pecific criteria' for what actions `normally do not require either an environmental impact statement or an environmental assessment'). A. Categorical Exclusions

The CEQ's regulations contain a clear and definite provision which allows a federal action to be "categorically excluded" from having to undergo an EA or an EIS where the proposed action constitutes one as follows: "Categorical exclusion" means a category of actions which do not individually or cumulatively have a significant effect on the human environment and which have been found to have no such effect in procedures adopted by a Federal agency in implementation of these regulations (§ 1507.3) and for which, therefore, neither an environmental assessment nor an environmental impact statement is required. 40 C.F.R. § 1508.4. Thus, the CEQ's regulations specifically provide that a categorical exclusion is totally appropriate and acceptable for federal actions which do not"significantly" 3 affect the human environment and which have been found to have no

" Significantly" is a term of art in NEPA law. Under NEPA, it requires considerations of both context and intensity. " Content" means analyzing the -8-

3

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

Document 34

Filed 11/29/2006

Page 9 of 23

such effect in procedures adopted by a federal agency in implementation of the CEQ NEPA regulations. 40 C.F.R. § 1508.4. Once an agency establishes categorical exclusions, its decision to classify a proposed action as falling within a particular CE will be set aside only if a court determines that the decision was arbitrary and capricious. Citizens' Committee to Save Our Canyons v. U.S. Forest Service, 297 F.3d 1012, 1023 (10 th Cir. 2002) (citations omitted). When reviewing an agency's interpretation and application of its categorical exclusions under the arbitrary and capricious standard, courts are deferential. Federal agencies need only document their decision to rely upon a CE with a short statement demonstrating that the agency considered whether the categorical exclusion was applicable. See, e.g., Wilderness Watch & Public Employees for Environmental Responsibility v. Mainella, 375 F.3d 1085, 1095 (11 th Cir. 2004); California v. Norton, 311 F.3d 1162, 1176 (9 th Cir. 2002); Edmonds Inst. v. Babbitt, 42 F. Supp. 2d 1, 18 n.11 (D.D.C. 1999). The United States Department of Agriculture ("USDA") has promulgated a listing of categorical exclusions that are applicable to all USDA agencies within the department. 7 C.F.R. § 1b.3(a).

significance of an action in several contexts, e. g. , on the affected national, regional, and local areas, and on affected interests. " Intensity" refers to the severity of the impact of the action. 40 C. F. R. § 1508. 27. CEQ regulations list 10 factors to be considered in evaluating intensity. 40 C. F. R. § 1508. 27(b)(1)-(10). -9-

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

Document 34

Filed 11/29/2006

Page 10 of 23

B.

Environmental Assessments

If a proposed action does not require that an Environmental Impact Statement ("EIS"), but does not fall within a categorical exclusion, the Forest Service must prepare an Environmental Assessment ("EA"). 40 C.F.R. § 1501.4(a) & (b). In preparing an EA, the Forest Service must "involve environmental agencies, applicants, and the public to the extent practicable." 40 C.F.R. § 1501.4(c). An EA is a public document that aids the Forest Service's compliance with NEPA when the preparation of an EIS is not necessary. The EA must include "brief discussions of the need for the proposal, of alternatives as required by section 102(2)(E), of the environmental impacts of the proposed action and alternatives, and a listing of agencies and persons consulted." 40 C.F.R. § 1508.9(b). The Forest Service must provide legal notice of a proposed action and legal notice of the opportunity to comment on a proposed action to be analyzed and documented in an EA. 36 C.F.R. § 215.5(b)(1)(iv) & (b)(2)(ii). The legal notice must contain a statement that the opportunity to comment ends 30 days following the date of publication of the legal notice. 36 C.F.R. § 215.5(b)(1)(iv). If as a result of the EA, the Forest Service determines that the proposed action will "not have a significant effect on the human environment" and that it is not necessary to prepare an EIS, it will issue a "finding of no significant impact." 40 C.F.R. § 1508.13. The Responsible Official must publish legal notice of the Decision Notice and Finding of

- 10 -

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

Document 34

Filed 11/29/2006

Page 11 of 23

No Significant Impact in the applicable newspaper of record. 36 C.F.R. § 215.7(b). The legal notice must contain a statement that any appeal must be filed with the appropriate Appeal Deciding Officer within 45 days following the date of publication of the legal notice. 36 C.F.R. § 215.7(b)(2)(iii) & § 215.15(a). "Within 15 days of the close of the appeal-filing period, the Responsible Official shall transmit the decision documentation to the Appeal Reviewing Officer including a list of those individuals or organizations who submitted substantive comments." 36 C.F.R. § 215.15(e)(1). "Within 45 days following the end of the appeal-filing period, the Appeal Deciding Officer should render a written decision to the appellant(s) concerning their appeal." 36 C.F.R. § 215.15(e)(2). If an appeal decision is not issued within 45 days, the decision is deemed the final agency action. 36 C.F.R. § 215.15(e)(3). II. ALASKA NATIONAL INTEREST LANDS CONSERVATION ACT

In 1980, Congress passed Section 1323(a) of the Alaska National Interest Lands Conservations Act ("ANILCA"), 16 U.S.C. § 3210(a), in order to resolve "any lingering legal questions" concerning the right of private landowners to access their inholdings 4 on

Inholdings are private parcels which are "completely surrounded" by property owned by the United States. Jenks v. United States, 22 F.3d 1513, 1514 n.1 (1994) (quoting Rights-of-Way Across Nat'l Forests, 43 Op. Att'y Gen. No. 26, n.3 (June 23, - 11 -

4

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

Document 34

Filed 11/29/2006

Page 12 of 23

National Forest System land. Jenks v. United States, 22 F.3d 1513, 1516 (1994). Section 1323(a) guarantees the owners of inholdings a right of access to their lands subject to reasonable regulation by the Secretary of Agriculture ("Secretary"). 16 U.S.C. § 3210(a); see also Jenks, 22 F.3d at 1516. In particular, the Secretary is required, "[n]otwithstanding any other provision of law," to provide such access to the privatelyowned inholding as he deems adequate "to secure to the owner the reasonable use and enjoyment thereof," provided that the owner complies with applicable regulations. See id.5 The Secretary has promulgated regulations at 36 C.F.R. Part 251 Subpart D which govern the issuance of access rights under ANILCA. The regulations require owners of inholdings whose entrance or exit from the property would require surface disturbance, or who require access to roads not authorized for general public use, to obtain a special use authorization. See 36 C.F.R. § 251.110(d); see also Jenks, 22 F.3d at 1517-18 (describing permit system). The Tenth Circuit has upheld the Forest Service's permit procedures as a "reasonable method" of implementing ANILCA's requirements for access. See Jenks, 22 F.3d at 1518.

1980)). The Tenth Circuit has confirmed that 16 U.S.C. § 3210(a) applies to all National Forest System lands, not just those in Alaska. See Jenks, 22 F.3d at 1516 n.3; see also Montana Wilderness Ass'n v. U.S. Forest Serv., 655 F.2d 951, 952 (9th Cir. 1981). - 12 5

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

Document 34

Filed 11/29/2006

Page 13 of 23

ARGUMENT 6 The Forest Service is in the midst of its administrative process to provide Mr. Peper with access to his private property over National Forest system lands pursuant to ANILCA. In providing this access, the Forest Service must comply with its obligations under NEPA. The Forest Service has made substantial progress on the necessary environmental analysis, but will not be able to meet the December 1, 2006, deadline set by the Court. I. THE FOREST SERVICE REQUESTS AN EXTENSION OF THE DECEMBER 1, 2006 DEADLINE SET BY THE COURT FOR GOOD CAUSE On September 5, 2006, the Court ordered the Forest Service to complete the necessary environmental analysis related to Plaintiff's application for a formal easement for access to his private property over federal land on or before December 1, 2006, "unless good cause is shown for an extension of time." Court's Order dated September 5, 2006 (Doc. 28). Since that time, the Forest Service has made substantial progress on Mr. Peper's application, but requires an extension of time in which to complete the required environmental analysis.

The Forest Service maintains that the Court does not have jurisdiction over Plaintiff's ANILCA claim because he failed to exhaust administrative remedies and incorporates it previous arguments on that issue from its motion to dismiss and its motion to reconsider. (Docs. 6 and 29).

6

- 13 -

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

Document 34

Filed 11/29/2006

Page 14 of 23

A.

The progress the Forest Service has made on the environmental analysis.

As part of the resource analysis, on September 25, 2006, the project manager requested input from Wildlife, Botany, Fisheries/Hydrology, Engineering, and Heritage. 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. Ex. 1, Johnson Decl. at ¶ 12. 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. Ex. 2, Scoping Letter. Also included with the scoping letter was a vicinity map and closeup 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 - 14 -

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

Document 34

Filed 11/29/2006

Page 15 of 23

Use, and one known local concerned citizen. Id.; Ex. 1, Johnson Decl. at ¶ 14. 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. Ex. 1, Johnson Decl. at ¶ 15. On October 2, 2006, the Forest Service sent a letter to Mr. Peper requesting additional information about his application. Ex. 3, USFS Letter 10-02-06. Mr. Peper responded to the Forest Service's letter on October 5, 2006. Ex. 4, Peper Letter, 10-05-2006. 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. Ex. 1, Johnson Decl. at ¶ 17. 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 reconstruction, including the addition of clean, washed rock in low

- 15 -

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

Document 34

Filed 11/29/2006

Page 16 of 23

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. Ex. 1, Johnson Decl. at ¶ 18. On Oct. 25, 2006, the project manager 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 area for hiking, snowshoeing, cross-country skiing, dispersed camping, and access to designated wilderness. Ex. 1, Johnson Decl. at ¶ 19. 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." Ex. 5, Heritage Ltr 11-03-06. 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 ("MOA") with the Colorado State Historic Preservation Officer (the "SHPO"). The Forest Service has completed a draft MOA and has requested

- 16 -

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

Document 34

Filed 11/29/2006

Page 17 of 23

that the SHPO expedite its execution. Ex. 1, Johnson Decl. at ¶ 21. 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 MOA, seeking his comments, and notifying him that he may 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. Ex. 6, USFS Letter re Heritage and MOA, 11-20-06. To date, the Forest Service has completed the necessary environmental analysis in the following resource areas -- engineering, hydrology, and recreation. It has not completed the environmental analysis in the resource areas of wildlife, botany, and fisheries. The written resource analysis reports from botany and fisheries are expected to be complete by November 30, 2006. Ex. 1, Johnson Decl. at ¶ 23. 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

- 17 -

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

Document 34

Filed 11/29/2006

Page 18 of 23

timing of its response or whether it will concur with the Forest Service's determination and recommended mitigations. Ex. 1, Johnson Decl. at ¶ 24. 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. Ex. 1, Johnson Decl. at ¶ 26. B. If the Forest Service can use a Categorical Exclusion, it can issue a decision by May 8, 2007.

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 December 15, 2006, 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. Ex. 1, Johnson Decl. at ¶ 25. 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 - 18 -

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

Document 34

Filed 11/29/2006

Page 19 of 23

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. Ex. 1, Johnson Decl. at ¶ 27. C. If the Forest Service must perform and environmental assessment, the estimated date for its completion is late September 2007

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 timeframes set out by Forest Service regulations become applicable. Ex. 1, Johnson Decl. at ¶ 28. If an EA is required, the Forest Service estimates it will need until April 20, 2006, 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 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. Ex. 1, Johnson Decl. at ¶ 29.

- 19 -

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

Document 34

Filed 11/29/2006

Page 20 of 23

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. Ex. 1, Johnson Decl. at ¶ 30. 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. Ex. 1, Johnson Decl. at ¶ 31. After responding to the comments received on the EA, if appropriate, the Forest Service 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 45day appeal period will end on or about July 24, 2007. Ex. 1, Johnson Decl. at ¶ 32. Subsequently, if there are any appeals of the Decision Notice and Finding of No Significant Impact, an appeal meeting will be held and an appeal record will be submitted to the Appeal Reviewing Officer by August 8, 2007. Ex. 1, Johnson Decl. at ¶ 33. The Appeal Deciding Officer will issue a decision on any appeals within 45 days after the end of the appeal period, or by September 7, 2007. Assuming any 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. Ex. 1, Johnson Decl. at ¶ 34. After the Forest Service receives Mr. Peper's acceptance and

- 20 -

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

Document 34

Filed 11/29/2006

Page 21 of 23

signature on the road authorization and payment of his land use rent, final approval by the Forest Supervisor will take place within two days. Ex. 1, Johnson Decl. at ¶ 35. If the Decision is remanded to the Forest Service or reversed on appeal, the estimated time line set out above will be adversely impacted. However, this is the best estimate for the time frame required to complete the EA, if one is required. Ex. 1, Johnson Decl. at ¶ 36. CONCLUSION The Forest Service recognizes its obligation to provide Mr. Peper with access to his property; nevertheless, it must also comply with NEPA. If after receiving the balance of the resource effects reports, the Forest Service determines that it can issue a decision under a Categorical Exclusion, it estimates that it can issue that decision by May 8, 2007. On the other hand, if the Forest Service determines that to comply with NEPA it must perform an EA, then the Forest Service estimates that it can complete the EA in late September 2007. The Forest Service is expediting the process as much as possible and is making every effort to comply with this Court's order. The Forest Service, however, respectfully requests this Court grant it an extension of time until May 8, 2007, if it can issue a decision under a Categorical Exclusion or alternatively, if an EA is required, an extension of time until September 25, 2007. If the Court grants the relief requested, the Forest Service will also update the Court when it determines whether it can issue a

- 21 -

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

Document 34

Filed 11/29/2006

Page 22 of 23

decision under a Categorical Exclusion or whether an EA is required. RESPECTFULLY SUBMITTED this 28th day of November 2006.

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

- 22 -

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

Document 34

Filed 11/29/2006

Page 23 of 23

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO CERTIFICATE OF SERVICE (CM/ECF) I hereby certify that on November 28, 2006, 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

- 23 -