Free Motion to Stay - District Court of Colorado - Colorado

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

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Filed 10/02/2006

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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' MOTION FOR A STAY OF PROCEEDINGS AS TO ENFORCEMENT OF THE DEADLINE SET BY THE COURT PURSUANT TO FED. R. CIV. P. 62

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 pursuant to Fed. R. Civ. P. 62 for an order for a stay of proceedings as to enforcement of the deadline of December 1, 2006, set by the Court in its order dated September 5, 2006, on the following grounds. 1. Undersigned counsel has conferred with the Plaintiff regarding this motion and

Plaintiff opposes the requested relief. 2. On September 5, 2006, this Court issued an order dismissing two of Plaintiff's

claims for relief; however, the Court declined to dismiss Plaintiff's ANILCA claim finding that

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

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the Forest Service's estimated time to complete the administrative process was "an unreasonably long period of time" and the Court ordered that Defendants "expedite their review and administrative process as to Plaintiff's application." (Court's Order at 5, Doc. 28.) 3. Plaintiff failed to exhaust his administrative remedies as to his ANILCA claim

and there was no claim under the Administrative Procedures Act before the Court. Although the Forest Service is processing Plaintiff's application for a special use permit and will continue to process it, the Forest Service requests that enforcement of the December 1, 2006, deadline unilaterally set by the Court in its order dated September 5, 2006, be stayed pending appeal. WHEREFORE, the United States respectfully requests that this Court grant a stay of proceedings pending appeal. RESPECTFULLY SUBMITTED this 2nd day of October 2006. TROY A. EID UNITED STATES ATTORNEY s/Roxane J. Perruso Roxane J. Perruso Assistant United States Attorney 1225 17th 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 October 2, 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 Assistant United States Attorney

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