Free Motion for Reconsideration - District Court of Colorado - Colorado

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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 TO RECONSIDER THE COURT'S ORDER DATED SEPTEMBER 5, 2006

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. 59(e) to alter or amend its Order dated September 5, 2006, on the following grounds. 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

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pursuant to R.S. 24771; (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 Peper's claim that the Road is a public highway under R.S. 2477, recodified at 43 U.S.C. § 932 (1938) (repealed 1976).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 5-6). 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).

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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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 clear and 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.) 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"). ARGUMENT I. THIS COURT HAS NO SUBJECT MATTER JURISDICTION TO CONSIDER PLAINTIFF'S CLAIM FOR ACCESS UNDER ANILCA Plaintiff's third claim for relief was for "legal and physical access" to his property pursuant to the Alaska National Interest Land Conservation Act, 16 U.S.C. § 3210, et seq. ("ANILCA"). (Compl. at 2, ¶ 5C, Doc. 1.) Plaintiff's claim under ANILCA fails for failure to exhaust administrative remedies.

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Plaintiff's property is located within the boundaries of the National Forest. (Compl. at 1, ¶ 3, Doc. 1.) ANILCA mandates that the Secretary of Agriculture "provide such access to nonfederally owned land within the boundaries of the National Forest System as the Secretary deems adequate to secure to the owner the reasonable use and enjoyment" of his land. See 16 U.S.C. § 3210(a).2 This access, however, is explicitly conditioned on the landowner's compliance with the "rules and regulations applicable to ingress and egress to or from the National Forest System." Id.3 The Secretary of Agriculture has promulgated extensive regulations governing activities on National Forest lands, which expressly apply to ANILCA and FLPMA. 36 C.F.R. part 251, Subparts B & D. Generally, "[a]ll uses of National Forest System lands . . . are designated `special uses.' Before conducting a special use, individuals or entities must submit a proposal to an authorized officer and must obtain a special use authorization from the authorized officer . . . ." See 36 C.F.R. § 251.50(a) (2004). A special use authorization is "a permit, term permit, lease, or easement . . . . " See 36 C.F.R. § 251.51 (2004). The regulations contained in 36 C.F.R., part 251, Subpart D provide the procedures landowners must follow when applying for special use authorization, and the terms and conditions governing any authorization the Forest Service

"Section 3210(a) of ANILCA applies to all National Forest System lands, not just those in Alaska." See United States v. Jenks, 22 F.3d 1513, 1516 n.3 (10th Cir. 1994) (citing Montana Wilderness Ass'n v. United States, 655 F.2d 951, 957 (9th Cir. 1981)). Further, "the legislative history of ANILCA contemplates that access under ANILCA is subject to the FLPMA [Federal Land Policy and Management Act] and the rules and regulations promulgated thereunder." Jenks, 22 F.3d at 1517 (citing S. Rep. No. 413, 96th Cong., 2d Sess. 310 (1980), reprinted in 1908 U.S.C.C.A.N. 5070, 5254)). -43

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issues. 36 C.F.R. § 251.110(a) (2004). Consistent with ANILCA's mandate, the regulations provide that "landowners shall be authorized such access . . . to secure them the reasonable use and enjoyment of their land." See 36 C.F.R. § 251.110(c) (2004). The Secretary has authorized appeals of decisions made by the Forest Service regarding special use authorizations. 36 C.F.R. § 251.82(8) (2004); 36 C.F.R. § 215.11 (2004). The regulations also provide that a party is required to exhaust administrative remedies with respect to the agency's decision before seeking judicial review of that decision. 36 C.F.R. § 251.101 (2004). In addition, Congress has enacted legislation that requires exhaustion of all administrative decisions issued by the Department of Agriculture. 7 U.S.C. § 6912(e) ("Notwithstanding any other provision of law, a person shall exhaust all administrative appeal procedures established by the Secretary [of Agriculture] or required by law before the person may bring an action in a court of competent jurisdiction."). "[N]o one is entitled to judicial relief for a supposed or threatened injury until the prescribed administrative remedy has been exhausted." Coosewoon v. Meridian Oil Co., 25 F.3d 920, 924 (10th Cir. 1994) (quoting McKart v. United States, 395 U.S. 185, 193 (1969)). The Forest Service has accepted Plaintiff's application, submitted pursuant to 36 C.F.R. § 251.54, for a special use authorization in the form of an easement across federal land to access his property. (Mtn. to Dismiss, Ex. A-1, Johnson Decl. at ¶¶ 4-9, Ex. 1.) The Forest Service is processing Mr. Peper's application, but no final decision regarding the special use authorization has been made. (Mtn. to Dismiss, Ex. A-1, Johnson Decl. at ¶ 10.) Consequently, Plaintiff has

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not received any adverse decision from the Forest Service on his application for a special use authorization. Moreover, even if his application were denied, he must exhaust his administrative remedies under 36 C.F.R. § 251.82(8) and 36 C.F.R. § 215.11 before seeking judicial review by a federal court. Plaintiff has failed to exhaust his administrative remedies prior to filing this action, and this Court lacks subject matter jurisdiction over his claim under ANILCA. Magistrate Judge Coan correctly 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. (Recommendation at 8-9, § 2, Doc. 19). This Court, however, declined to dismiss Plaintiff's ANILCA claim finding that the Forest Service's estimated time to complete the administrative process was "an unreasonably long period of time" and ordered that Defendants "expedite their review and administrative process as to Plaintiff's application." (Court's Order at 5, Doc. 28.) The Court had no jurisdiction under ANILCA to order the Defendants to expedite their review. The statutes, regulations, and Tenth Circuit precedent are clear that there is no jurisdiction for an ANILCA claim until the Forest Service issues a decision on Plaintiff's Special Use Application and Plaintiff has exhausted his administrative remedies, neither of which has occurred. Therefore, Plaintiff's claim under ANILCA must be dismissed for lack of jurisdiction.

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II.

THIS COURT ADDRESSED A CLAIM UNDER THE APA FOR UNREASONABLE DELAY WHICH WAS NEVER PLEAD BY THE PLAINTIFF OR BRIEFED BY THE PARTIES A. There is no APA claim properly before the Court.

Presumably, based on the Court's finding that Forest Service's estimated time to complete the administrative process was "an unreasonably long period of time," the Court read a claim for unreasonable delay under the Administrative Procedure Act, 5 U.S.C. § 706(1) (the "APA"), into Plaintiff's Complaint. (Court's Order at 5 Doc. 28.) The APA does provide jurisdiction for federal courts to review agency action and to "compel agency action unlawfully withheld or unreasonably delayed. " 5 U.S.C. § 706(1). However, Plaintiff never asserted a claim under the APA, the Defendants never had an opportunity to respond to such a claim, and the Court never had the opportunity to consider the evidence relating to whether there has been an unreasonable delay in processing Mr. Peper's special use authorization application. Mr. Peper was on notice that he could bring an APA claim because the United States' reply brief in support of its motion to dismiss contained the following paragraph. In his response to the United States' motion to dismiss his Complaint, Plaintiff cites to the Administrative Procedure Act, 5 U.S.C. § 706(1) (the "APA"), for the first time in this action. Pl. Resp. at 7, ¶ 1. To the extent Plaintiff is attempting to amend his Complaint to bring a claim under the Administrative Procedure Act, the United States requests this Court direct Plaintiff to request leave to formally amend his Complaint, so that the claim will be properly before this Court and the United States may properly respond to it. Moreover, if Plaintiff's Complaint were amended to add a claim under the APA, then the United States would need to -7-

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submit an administrative record to the Court, and a briefing schedule would need to be set as to that claim. (Reply Brief at 6, Doc. 11.) Mr. Peper, however, never amended his complaint to bring a claim under the APA. Therefore, that claim has never been properly plead or briefed. This is critical because when determining whether agency delay is unreasonable, the "source of the delay" and the "the extent to which the defendant participated in delaying the proceeding" are primary factors courts must consider. See Reddy v. Commodity Futures Trading Com'n, 191 F.3d 109 (2nd Cir. 1999) (citing Pub. Citizen Health Research Group v. Comm'r, 740 F.2d 21, 35 (D.C. Cir.1984)) (finding that agency action involved a complex analysis that "naturally took time" and that petitioners contributed to delay by requesting extensions). For instance, the Tenth Circuit has declined to find "unreasonable delay" when the alleged delay is a result of proper procedure, the issues are complex, other parties affect the delay, or uncertain circumstances affect the agency's decision. See Coal. for Sustainable Res. v. U.S. Forest Serv., 259 F.3d 1244, 1252 (2001) (Forest Service delayed by necessity of considering issue "in tandem with the Cooperative Agreement parties" and "enormous complexity of the issues involved"). Because there is no APA claim properly before the Court, the Court lacks the evidence and the jurisdiction to determine whether there has been an unreasonable delay.

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B.

The remedy imposed by the Court is extraordinary and unwarranted.

Even assuming that Mr. Peper were to amend his Complaint, Defendants were to submit an administrative record, the issues were briefed, and the Court were to determine there has been undue delay, the extraordinary remedy imposed by the Court, ordering that Defendants "complete and conclude the administrative process concerning Plaintiff's proposal for a special use authorization," is an extraordinary remedy that is unfounded. Although a court may impose deadlines for the performance of agency action unlawfully withheld or unreasonably delayed, the Tenth Circuit recently held that "it is clear that a court imposed deadline for agency action constitutes an extraordinary remedy." Qwest Comm'ns Int'l v. FCC, 398 F.3d 1222, 1238-39 (10th Cir. 2005). The Tenth Circuit then held that the following factors should guide the court in determining whether to grant the extraordinary relief of mandating a deadline: "(1) the extent of the delay, (2) the reasonableness of the delay in the context of the legislation authorizing agency action, (3) the consequences of the delay, and (4) administrative difficulties bearing on the agency's ability to resolve an issue." Id. (citing In re Int'l Chem. Workers Union, 958 F.2d 1144, 1149 (D.C. Cir. 1992)). In this case, the Court does not have the evidence before it that is necessary to apply the factors laid out by the Tenth Circuit in Qwest. There is no adequate basis upon which the Court could have determined that a deadline of December 1, 2006 is appropriate. Even in The Fund for Animals v. Jones, 151 F. Supp. 2d 1 at *8 (D.D.C. 2001), where the court noted that the federal defendants had been on notice of certain NEPA violations for two and one-half years based on a

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previous order of the court, the court did not impose a time line for the agency to comply with NEPA, but rather ordered the agency to submit a proposed plan to comply with NEPA within six months. CONCLUSION Defendants respectfully request that this Court dismiss Plaintiff's claim under ANILCA for failure to exhaust and vacate that portion of its order, which directs Defendants to complete and conclude the administrative process concerning Plaintiff's proposal for a special use authorization on or before December 1, 2006. Upon dismissal of Plaintiff's claim under ANILCA, the Court could provide Mr. Peper the opportunity to amend his complaint to bring a claim under the APA for undue delay. The Defendants would then submit an Administrative Record and the parties would agree on a briefing schedule. Upon Mr. Peper's amendment of his complaint and the conclusion of the briefing, this Court will have not only jurisdiction, but also the necessary evidence to determine whether there has been unreasonable delay and if so, to determine the proper remedy.

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RESPECTFULLY SUBMITTED this 18th day of September 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 September 18, 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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