Free Proposed Findings of Uncontroverted Fact - District Court of Federal Claims - federal

Case 1:04-cv-00786-SGB

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS

Sacramento Grazing Association, Inc., et .
al. ,

No. 04-786
Plaintiff,
v.
Judge Susan G. Braden

United States,

Defendants.

PLAINTIFFS' PROPOSED FINDINGS OF UNCONTROVERTED FACT IN SUPPORT OF CROSS MOTION FOR PARTIAL SUMMARY JUDGMENT
Pursuant or RCFC 56(h)(2) Plaintiff Sacramento Grazing Association ("SGA") files the

following Proposed Findings Of Uncontroverted Fact In Support Of Cross Motion For Summary
Judgment And Opposition To Defendant's Motion For Summary Judgment.
1. The predecessors-in-interest of the Goss Family entered upon and were in possession
of the area now known as the Sacramento Grazing Allotment in the 1880s, before the

Lincoln

National Forest was reserved. See Goss Declaration in Support of Plaintiffs' Partial Cross
Motion for Summary Judgment and Opposition to Defendant's Motion for Summary
Judgment.

114 (hereafter "Goss Dee!.").

2. In 1989 SGA began purchasing property known as the Goss Ranch, and on November

27, 1989, the United States' Forest Service ("USFS") issued SGA a 1 O-year term Grazing Permit

No. 08-1105 authorizing 553 head of cattle to graze on the Sacramento Allotment. Grazing.
Permit No. 08-1105 contained no mention of exclosures designed to exclude cattle from riparian

or sensitive habitat where SGA's water rights are situated. See Goss Dee!. 11 3; Defendant's
Exhibit B.

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3. At the time the Plaintiffs acquired the Goss Ranch, SGA also acquired vested water

rights originating in or around the Sacramento Grazing Allotment. See Goss Deel. 11 5; Ex. 25

(Deelarati~ns of Ownership of Water Rights Perfected Prior to March 19, 1907 (also

attached in Appendix of Exhibits to Plaintiffs Memorandum in Opposition to Defendant's
Motion To Dismiss, Doc No. 12) setting out a chain of title in this case that includes range

rights and water rights now associated with the Sacramento Grazing Allotment).
4. The Goss Ranch, located in Otero County, New Mexico, consist of approximately 80
deeded acres owned by Plaintiffs in fee simple. It is the base property for a grazing allotment .
on lands administered by the USFS. See Goss Deel. 11 6.
5. From the original permitted amount of 553 cattle allowed on the allotment,USFS has

never allowed more then 370 head since 2000, and the number has been as low as 230 in 2003

and 2004-2005. These determinations were made primarily by District Ranger Frank Martinez.
See Goss Decl. 11 9.

6. SGA at all times since 1989 until the present has had a valid grazing permit on the
Sacramento Allotment. See Goss Deel. 1112.
7. The United States Forest Service ("USFS") has constructed, reconstructed and modified

fenced areas or exclosures designed to exclude catte at the following water sources that are
owned by SGA: Penasco Head Waters, Bluff Springs, 3 Hubble Springs, Mauldin Springs (Wills

Canyon), Bluff North Springs, Kingsbury Springs, and Sacramento Lake. SGA is the owner of
vested water rights within each of these exclosures. See Goss Deel. 11

10; see also

Declaration. of Frank Martinez 1114, Exhibit B to Defendant's Motion for Summary

Judgment.
8. The Cirsium vinaceum (Sacramento Mountain Thistle) ("cirsium" of "thistle") was
proposed for listing as a Federally Endangered Species in 1984 and was listed on June 16,

1987. Declaration of Michael J. Van Zandt in Support of Plaintiffs' Cross Motion for Partial
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Summary Judgment and Opposition to Defendant's Motion for Summary (hereafter "Van
Zandt Deel.") 114, Exhibit B, p. 1.
9. In 1989 and 1990 SGA was given permission by the USFS to access the exclosure on

the upper Penasco. See Goss Deel. 1115.
10. In 1993 the United States Fish and Wildlife Service ("USFWS") issued the Sacramento

Mountain Thistle Recovery Plan. Van Zandt Deel1l 4, Exhibit B.
11. The Sacramento Mountain Thistle Recovery Plan stated as a Recovery Priority the
acquisition of water rights from springs in areas with suitable habitat for the thistle. Van Zandt

Deel1l 4, Exhibit B, p. 9.
12. The Sacramento Mountain Thistle Recovery Plan states the following: "Another land use
that has been identified as a threat to this thistle is grazing. The Sacramento Mountians thistle

occurs on four grazing allotments in the Lincoln National forest.." Van Zandt Dee11l4, Exhibit
B, p. 5.
13. The Sacramento Mountain Thistle Recovery Plan also states the following under
Recovery Objective and Criteria: "1. Acquire water rights specifically for the maintenance of travertine spring habitats at a minimum of 30 percent of the occupied spring localities, including
at least 1 occupied spring locality in each of

the known canyons of occurrence. . . . There are 20

main canyon systems that have suitable habitat occupied by the Sacramento Mountain thistle.

The largest and best representative spring habitat in each canyon system should have the water

rights acquired for habitat maintenance by the management agency. At present, there is no
mechanism to acquire these rights without a developed point of diversion and stated beneficial

use. Therefore, until the State of New Mexico adopts instream-flow or similar legislation, the
Sacramento Mountains thistle must remain listed as threatened under the Act." Van Zandt Decl
11 4, Exhibit B, p. 9.

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14. Under Recovery Tasks, the Sacramento Mountains Thistle Recovery Plan states: "12.

Monitor and encourage legislation for a state instream-flow statute and acquire water rights.

Van Zandt Dee11l4, Exhibit B, p. 10.
15. Under Narrative Outline of Recovery Actions in the Sacramento Mountains Thistle
Recovery Plan the following is stated: "12. Monitor and eneouraae leaislation for a state

instream-flow statute and acquire water riahts. . . . The water right should encompass the
total flow from the spring source to the point where the water leaves the travertine deposit."

Van Zandt Dee11l4, Exhibit B, p. 1-1.
16. Under Narrative Outline of Recovery Actions in the Sacramento Mountains Thistle
Recovery Plan the following is also stated: Livestock Grazina Manaaement.. . . .Plants along
streams should be afforded greater protection from the impact of frequent livestock grazing and

trampling during the grazing years Or seasons. This will require dispersing livestock from

riparian areas or creating small pastures to divert catte from these areas when necessary. No
livestock facilities or holding traps should be constructed on or near occupied habitat. Van

Zandt Deel1l 4, Exhibit B, p. 12.
17. Under the recovery actions addressing monitoring and study, the Sacramento Mountains

Thistle Recovery Plan states: "23. Beain experimental arazina treatments. . . . . Grazing

intensity and duration should be controlled by either herding operations or constructing a fence

around manageable units or pasture." Van Zandt Dee11l4, Exhibit B, p. 13.
18. On May 5, 1998 the Annual Operating Plan ("AOP") for the Sacramento Allotment was
amended and the riparian exclosures on the Sacramento Allotment were officially excluded from

livestock grazing activities, and SGA was denied use of water within the exclosures. See Goss
Deel. 111113, 40 Exhibit 8.

19. SGA through Frances Goss, Jimmy Goss or Justin Goss, during annual meetings with
USFS beginning in 1998, made annual requests to access the water or transfer the water at the
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Penasco head waters and were denied by USFS employees Max Goodwin, Rick Newman and
Frank Martinez. See Goss Deel. 11

14.

20. On November 23, 1999, the USFS issued SGA Grazing Permit No. 08-1250 for an
additional 10 years. This permit for the first time included the exclosures in the USFS
management practices for the allotment, and states that "(elxclosures designated on the

attached Sacramento Allotment Range Improvement/Allotment Map are consiqered special

emphasis areas and not part of the Sacramento Allotment. Livestock use is not permitted within

the exclosures and will be removed in a timely manner." See Goss Deel. 1116; see also

Exhibit C to Defendant's Motion for Summary Judgment.
21. On October 12,2000 Justin (Spike) Goss spoke with Rick Newman and requested

permission to transfer water out of the Penasco exclosure. See Goss Decl. 1117.
22. In the 2001 AOP, SGA was instructed by the USFS to move cattle into a pasture

across

the road approximately 400 feet from the Penasco headwaters. SGA requested permission
from the USFS to pipe water at its own expense out of the Penasco exclosure across the
allotment approximately 400 feet through a culvert beneath a road to the adjoining pasture that

had no water. SGA's proposal was to pipe water into a trough with the overflow returning to the

Penasco exclosure. On September 13, 2001 Frank Martinez denied Plaintiffs' request to

transfer water from the Penasco headwaters. See Goss Deel. 1118; Exhibit 19.

23. In 2002 SGA requested access to exclosures for the purpose of watering cattle,
specifically notifying the USFS they did not intend to graze cattle in the exclosures. This
request was denied. See Goss Deel. 11

19, Exhibits 15-18.

24. On June 20, 2002 in a telephone conversation with Frank Martinez, SGA explained they
owned the water in the Rio Penasco enclosure and the USFS needed. to make provisions to

transfer the water to an accessible area. See Goss Deel.1I 20.

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25. On June 21,2002 Justin (Spike) Goss participated in an inspection of the allotment with
Mark Cadwallader and Cedric Selby, employees of USFS. He explained the presence of cattle
in an exclosure was because "it was the only water available" for the cows. Further, the
possible option of providing water outside the exclosure was again discussed. . See Goss Decl.
1120, Exhibit 17.

26. In the summer of 2002 Otero County Deputy John Braziel witnessed Bobby Gomez,

USFS Law Enforcement Officer, closing the gate to the Pensaco exclosure. He informed the
Mr. Gomez that closing the gate and preventing the cattle access to water is cruelty to animals.

The gate was left open; however, the USFS continued to threaten non-compliance if cattle were found within the exclosure. See Goss Decl. 1122.

27. In February 2004, the USFWS issued a Biological Opinion for the Sacramento Allotment

related to endangered species, including the Sacramento Mountain Thistle. Van Zandt Deel1l
5, Exhibit C.
28. The Biological Opinion recognizes the existence of the current exclosures within the
SGA's grazing allotments, including Sacramento Lake, Hubbell, Upper Mauldin, Lower Mauldin,

Western Riparian, Upper Penasco, and Bluff Springs, as part of the proposed action that must

be continued to allow a no jeopardy opinion from the USFWS. Van Zandt Deel1l 5, Exhibit C,

p.11.
29. The Biological Opinion also states that the thistle has a recovery priority of 2 out of 18,
with 1 being the highest priority and restates the Recovery Criteria in the Recovery plan as
follows "1) acquire water rights for the purpose of maintaining travertine habitats and protecting
at least 30 percent of the occupied spring localities, including a least one occupied spring in each of the 20 occupied main canyon systems, 2) ensure permanent protection for the thistle in

at least 75 percent of the known occupied habitat, both spring and riparian sites, under

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established management plans, and 3) establish a 1 O-year monitoring and research program to
demonstrate effectiveness of management plans." Van Zandt Deel 11

5, Exhibit C, p. 27.

30. The Biological Opinion also states that as to the Sacramento Mountains prickly poppy:
"Livestock grazing is currently authorized on the winter unit of the Sacramento Allotment from

November 1 to May 14. However, the lack of consistent application of previous forage/range
guidelines has likely historically, and currently continues, to adversely affected the poppy. . . .The Forest Service acknowledged that damage could occur to poppies after February 1 in

Alamo pasture from grazing activity and associated trampling. (Forest Service 2002, 2003,

2003g). Subsequently, the AOI for the current winter grazing season (i.e. November 2003 .
through May 14, 2004) included a provision that livestock would be removed from the Alamo

pa'sture prior to February 1,2004. . ." Van Zandt Dee11l5, Exhibit C, p. 35.
31. The Biological Opinion addresses the need for water by the Sacramento Mountains

thistle by stating: "The thistle is an obligate riparian species that requires surface or

immediately sub-surface water flows. Spring dessication at thistle sites has contracted
occurrence boundaries, reduced the number of individuals, and in some cases, caused a loss of
all plants at previously occupied sites (Forest Service 2003a). . . . Trampling by livestock,

wildlife, or humans can cause damage to travertine formations or out-flow creek beds in ways

that may alter water flow to sites." Van Zandt Dee11l5, Exhibit C, p. 35.

32. Concerning the Sacramento Mountains thistle, the Biological Opinion states: "Monitoring
of the thistle has shown a simple and direct relationship between water availability in the

suitable habitat and numbers and extent of plants in occurrences (Forest Service 2003a). As
water flow has been observed to decline at springs, decreases in plant numbers and the size of

the sites have occurred. The situation reverses when increased water is available. Van Zandt

Deel1l 5, Exhibit C, p. 63.

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33. For the three species of concern, the Mexican Spotted Owl, Sacramento Mountains

thistle and Sacramento Mountains prickly poppy, the Biological Opinion determined that the
proposed action to graze by SGA "is not likely to jeopardize the continued existence of the

(speciesl," based on full implementation of the project as described in the Description of
Proposed Action. Van Zandt Deel 11

5, Exhibit C, pp. 65-67.

34. The no jeopardy opinion in the Biological Opinion for the three species is based on a
finding that there will be reduced stocking levels for livestock; for the poppy, the Alamo Pasture
will be closed to livestock by February 1 of each year; and for the thistle: "(tlhe continued

construction of exclosures will protect isolated occurrences of the thistle. Continued.
maintenance of existing exclosures will continue to protect some thistle occurrences from
livestock impacts." Van Zandt Deel 11

5, Exhibit C, pp. 66-67.

35. The Biological Opinion then imposes Reasonable and Prudent Measures and Terms and

Conditions that include limitations on activities by the livestock permittee near Mexican Spotted
Owl protected activity centers. Van Zandt Deel 11

5, Exhibit C, pp. 69.

36. The Final Environmental

Impact Statement for Sacramento, Dry Canyon and Davis

Grazing Allotments ("FEIS") was issued in July 2004 and adopted the determinations of the

USFWS in the Biological Opinion. Van Zandt Dee11l5, Exhibit A.

37. The Record of Decision ("ROD") for the FEIS for the allotment was issued by the USFS
on July 28, 2004. Van Zandt Deel 11

6, Exhibit D.

38. The Record of Decision for the FEIS determined that reduced stocking levels on the
allotments was necessary in order to protect endangered species, determined that livestock

must be removed from Alamo Pasture before February 1 of each year, continued exclusion of
livestock from the exclosure areas, and added several new exclosure areas: Van Zandt Deel. 11
6, Exhibit D, pp. 5-7.

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39. The 2004 AOI for the Sacramento Allotment states that the "Forest service does not
recognize any 'easement' associated with water rights upon which you have recently filed

declarations. As a result, no clearing of trees or excavation associated with said easements are
authorized without approval by the District Ranger." See Goss Dee1.1I17, Exhibit 23.

40. On June 10,' 2005 SGA was instructed to sign a new term grazing permit or modify the
existing permit, which limit the allowed head of cattle from 553 year long to 412 maximum in the
summer and 335 in

the winter. See Goss DeCl. 11 23.

41. In 2005 or 2006 in the spring when cattle were being moved into the summer pasture the

east end gates on the Sacramento Lake exclosure were locked. Otero County Commissioner

Doug Moore was notified. He removed the locks and informed USFS not to close the gates.
The gates remained open until May of 2008 when a lane was put in the Sacramento Lake

exclosure on the west end to allow cattle to access the water (see below). The USFS then
closed both gates on the Sacramento exclosure. This forces the cattle to move approximately 1
1/2 miles along a highway up the Sacramento Lake to access the lane on west end of the lake.
This causes undue stress on the cattle. Once there, the cattle tend to graze that area making

it

difficult for SGA to manage grazing impacts on the Allotment. Even when the east end gate is
open, SGA faces the threat of non-compliance if cattle are found inside the exclosure. Goss
Deel. 1124.

42. On June 16, 2006, SGA met at the Sacramento Enclosure with Frank Martinez, Lou

Woltering, Forest Supervisor, Mr. Doug Moore and Mr. Mike Nivison, Otero County Commissioners, and Dr. Redd Baker and Dr. John Fowler of the Range Improvement Task

Force ("RITF"), as well as neighboring allotment owners. SGA again discussed with the USFS
the opportunity to pipe water out of the Penasco exclosure, again requested permission from

the USFS to pipe water at its own expense out of the exclosure across the allotment

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approximately 400 feet through a culve.rt bene.ath a road to the adjoining pasture that had no

water. This request was denied by the USFS on July 25, 2006. See Goss Deel. 11 25.
43. On June 16, 2006, SAG meet at the Sacramento Enclosure with Frank Martinez, Lou

Woltering, Forest Supervisor, Mr. Doug Moore and Mr. Mike Nivison, County Commissioners,
and Dr. Redd Baker and Dr. John Fowler of the Range Improvement Task Force ("RITF"), as

well as neighboring allotment owners. There was agreement among all parties, including Frank
Martinez, to move the west fence of the Sacramento exclosure back a few hundred feet to allow

access for cattle. The fence was to be constructed the following week. However, Mr. Martinez
. contacted the Forest Guardian and changed his mind, not allowing the movement of the fence

and thus continued to deny access to the water. See Goss Deel.1I27.
44. At the June 16, 200a meeting, Forest Supervisor Lou Woltering stated that the Forest

service owns the water within the Sacramento Exclosure. See Goss Deel. 11 28.
45. On February 19, 2007, SGA again requested permission to pipe water from the Penasco

exclosure, this time requesting the ability to move the water into a drinker in Atkinson Canyon.
See Goss Deel. 11 29.
,

46. On May 13, 15, and 19 of 2008 there were a series of meeting held between SGA,
USFS, Otero County Commissioners, and the RITF regarding cattle access to water on

Sacramento Lake. SGA wanted the gates to remain open so cattle may have access to the
water. At the May 13, 2008 meeting Gary Zieh agreed to leave the gate open. However, at the
May 15, 2008 meeting Mr. Zieh stated that New Mexico Game and Fish would not allow the

gates to remain open. Initially USFS closed the gate and decided to haul water from Sunspot

Observatory to a trough near the Sacramento exclosure. This only lasted 2-3 weeks. Then,
USFS decided to implement a suggestion by Forest Supervisor Jackie Buchannan and
construct a lane to allow catte to access water at Sacramento Lake. The lane was constructed

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on the west end of the Lake and provides an approximate 40 foot access to the water without
the cattle grazing within the exclosure. See Goss Deel. 1130.

47. The United States owns no water rights within the exclosures in Lincoln National Forest.
See United States v. New Mexico, 438 U.S. 696, 718 (1978)

48. SGA has requested that the USFS ensure adequate water flow out of all exclosures.
This spring feed water flow however is not consistent, and is dependent on the weather. See
Goss Deel. 1131.

49. SGA periodically uses the tap on the pipeline at Sacramento Lake to fil a water trough
about a mile below Sacramento exclosure. However, that trough is on private property and fills

from the pipeline in the exclosure. Further, there are six other users on the pipeline. The water
that flows out of the Sacramento Lake exclosure is not reliable because there is frequently
inadequate water pressure for SGA to utilize its water trough for watering cattle due to use at

this source by other water users. The USFS was refused to allow SGA to move water from
Sacramento Lake. See Goss Deel. 11 32.

Dated:August 15, 2008

By:

Mic ael J.' andt HANSON BRIDGE 425 Market Street, 26th Floor San Francisco, CA 94105 Telephone: (415) 777-3200

Facsimile: (415)995-3566
Attorneys for Plaintiff Sacramento Grazing Association

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CERTIFICATE OF SERVICE
I hereby certify that on this 15th day of August, 2008, a true and accurate copy of the

PLAINTIFFS' PROPOSED FINDINGS OF UNCONTROVERTED FACT IN SUPPORT OF

CROSS MOTION FOR PARTIAL SUMMARY JUDGMENT was served upon counsel by firstclass mail, by placing the same in the United States mail, postage prepaid, addressed to:

Kathleen Lennon Doster U.S. Department of Justice
Environment & Natural Resources Division P.O. Box 663 Washington, DC 20044-663

Tel: (202) 305-0481 Fax: (202) 305-0506
Kath leen. dosteraìusdoi. QOV

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