Free Response to 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 aI.,
Plaintiff,
v.

No. 04-786
Judge Susan G. Braden

United States;

Defendants.

PLAINTIFFS OPPOSITION TO D.EFENDANT'S PROPOSED FINDINGS OF UNCONTROVERTED FACT IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT
Pursuant to Rule 56(h)(2) of the rules of the Court of Federal Claims, plaintiff
Sacramento Grazing Association, Inc. ("SGA") submits it's Opposition To Defendant's Proposed
Findings Of Uncontroverted Fact In Support Of Motion For Summary Judgment.

A. PLAINTIFFS' TERM GRAZING PERMIT

1. On November 27, 1989, the Forest Service issued a term grazing permit to the
Sacramento Grazing Association ("SGA") that allowed them to graze up to 553 livestock for a period of ten years, subject to the terms and conditions of the permit and all applicable laws and

regulations. See Daf. Ex. A; Daf. Ex. B
SGA's Response

SGA disagrees with the above finding. Grazing permit number 08-1105 dated
November 27, 1989 allowed grazing of 553 head of cattle, not "up to 553 livestock" as

suggested by Defendant. It contained n.o mention of exclosures designed to exclude cattle from

riparian or sensitive habitat. See Daf. Ex. B.
2. Plaintiffs' term grazing permit was renewed on November 23, 1999, and authorized

Plaintiffs to graze up to 553 cattle for a period of ten years, subject to the terms and conditions

of the permit and all applicable laws and regulations. See Daf. Ex. A; Daf. Ex. C.

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SGA's Response

SGA partially agrees with the above finding. However, permit 08'-1105 for the first time

addresses the exclosures in the USFS management practices for the allotment and the

prevention of livestock use of the exclosures and excludes them for the allotments. See Def. Ex.

c.
3. On July 28, 2004, the Forest Service issued a Record of Decision for the Final
Environmental

Impact Statement for the Sacramento, Dry Canyon and Davis Grazing

Allotments. See Oef. Ex. A.
SGA's Response

SGA partially agrees with the above finding. However, USFS offers no description of the
document. 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 Decl , 5, Exhibit A. The Record of Decision
("ROD") for the FEIS for the allotment was issued by the USFS on July 28, 2004. Van Zandt
Decl , 6, Exhibit D. 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 Decl , 6, Exhibit 0, pp. 5-7. For the three species of concern, the Mexican Spotted

Owl, Sacramento Mountainsthistle 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 (species)," based on full implementation of the project as described in

the Description of Proposed Action. Van Zandt Decl' 5, Exhibit C, pp. 65-67. The no
jeopardy opinion in the Biological Opinion for the three species is ba~ed on a finding that there

will be reduced stocking levels for livestock; for the poppy, the Alamo Pasture wil closed to

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livestock by February 1 of each year; and for the thistle: "(t)he continued construction of

exclosures wil protect isolated occurrences of the thistle. Contiued maintenance of existing

exclosures wil continue to protect some thistle occurrences from livestock impacts." Van Zandt

Decl' 5, Exhibit C, pp. 66-67.
4. In 2005, Plaintiffs were offered a new term grazing permit in order to make it consistent

with the Record of Decision. See Def. Ex. A.
SGA's Response

. SGA disagrees with the above finding. SGA was not "offered" a new term grazing

permit. Rather, SGA was instructed to sign the new permit or modify the existing permit. See

Goss Decl. , 23; Exhibit 31 (Letter of June 10, 2005 to Jimmy Goss from Harv Forsgren);

see also Goss Dee!.' 65, Exhibit 33.
5. On or about January 9, 2006, Plaintiffs declined a new ten-year term grazing permit, and
the Forest Service subsequently modified Plaintiffs' existing permit so that, among other things,
Plaintiffs could graze up to 412 cattle on the summer range and 334 cattle on the winter range.
Def. Ex. A; Def. Ex. D.

SGA's Response

SGA disagrees with the above finding, and believes it is misleading. SGA did not sign a
new ten-year term grazing permit because it had an existing permit that does not expire until
2009. See Goss Dee!. , 23. Frank Martinez modified the permit and reduced the allowed head

of cattle from 553 year long to 200 - 412 in the summer and to 200 - 335 in the winter. Goss
Dec!. , 65, Exhibit 33. The reason for the reduction is the Record of Decision ("ROD") that

selected Alternative B in the Final Environmental

Impact Statement ("FEIS") for the Allotments.

Id; see also Van Zandt Dee!. , 6, Exhibit D, p. 5. Alternative B was implemented in part to
improve riparian conditions, improve watershed conditions, improve stream bank stability and

water quality, and to maintain the viabilty of listed and rare plants and animals. Id.

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Implementation of the protection of endangered species and their riparian habitat includes the
following:
. The reduction in the amount of head allowed on the allotment.

. The prevention of all livestock from all exclosures.
. The exclusion of livestock from drainage above Sacramento Lake.
. The installation of an enclosure at Penasco trap to protect the Sacramento Mountain

thistle.
. The installation at Wills Canyon to protect Sacramento Mountain thistle.

. The installation of new fence on the Upper Penasco exclosure to prevent incidental use

during cattle trailng.
. The removal of livestock from the Alamo Pasture by February 1 for two years to protect
the Sacramento Mountains prickly poppy.
Id.

6. Adjustments to the number of cattle and period of use of the grazing allotment are
decided on an annual basis by the District Ranger after full discussions with the permittee and
are described in detail in the Annual Operating Plan, now known as the Annual Operating

Instructions ("AOI"). See Def. Ex. A; Def. Ex. E.
SGA's Response

SGA disagrees with the above finding. The Recovery Plan for the endangered species,

the Biological Opinion, and the Record of Decision have limited the number of cattle allowed on
the allotments to protect endangered species.

The exclosures on the allotment were constructed to exclude cattle for the protection.of

the Sacramento Mountain thistle, which requires all the water in the riparian habitat. See Goss

Dee!. , 35, Ex. 3 (Final Rule Listing Cirsium, 52 FR 22935, June 16, 1987)("This plant is
dependent on springs or streams. Reduction or removal of this water supply would

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reduce or eliminate the populations."). The Biological Opinion states that there is a "direct
relationship between water availability in suitable habitat and numbers and extent of plants in

occurrences." See Van Zandt Decl. , 5, Exhibit C, p. 63 (February 4, 2004 Biological
Opinion). The United States Fish and Wildlife Recovery Plan for the Sacramento Mountains
thistle, lists as an important recovery objective the acquisition of water rights in areas were the

Sacramento Mountains thistle is found. See Van Zandt Oecl. , 4, Exhibit B, pp. 9, 10, 11, 17,
22, 23 (Recovery Plan). This caused a conflict between SGA's vested right to utilize the water
for raising livestock and the requirement to protect the Sacramento Mountains thistle, reducing

the head of cattle allowed on the allotment. See Goss Dee!. , 62 Exhibit 30 (February 11,
1983 letter from James R. Abbott, Forest Supervisor to USFWS) (indicating the conflict

with grazing is that "(I)ivestock and wildlife roam at wil and utilze habitat for watering.").
The ROD also specifically requires the removal of "livestock from the Alamo Pasture by

February 1 for two years to protect Sacramento Mountains prickly poppy." Van Zandt Dee!. ,

6, Exhibit 0, p. 5.
7. For the 2008 grazing season, the AOI authorizes Plaintiffs to graze up to 370 cattle

year-round on the Allotment. See Def. Ex. A; Def. Ex. E.
SGA's Response
SGA agrees with the above finding. However, as

with all AOI's, it is subject to a

discretionary modification in the number of cattle by the USFS. See Def. Ex. A; Def. Ex. C

(Permit No. 08-1250 p. 3, ("The number, kind, and class of livestock, period of use, and grazing
allotment specified in the permit may be modified when determined by the Forest Officer in

charge to be needed for resource protection.")); Def. Ex. E.

8. Plaintiffs' permit has never been cancelled. See Oef. Ex. A.
SGA's Response

SGA agrees with the above finding. However, from the original 553 cattle allowed on the
allotment, SGA has never been allowed more then 370 head since 2000, and the number has

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been as low as 230 in 2003 and 2004-2005 for the reasons discussed above. See Goss Dee!. ,
9.

B. EXCLOSURES
9. Plaintiffs' permit contains a provision for the protection of wetlands and endangered or

threatened species located on the Al1otment. The permit states: "Exclosures designated on the
attached Sacramento Allotment Range Improvement ¡Allotment Map are considered special

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

exclosures and will be removed in a timely manner." Def. Ex. C; Def. Ex. A.
SGA's Response

SGA disagrees with this finding. This provision does not acknowledge SGA's vested

water rights inside the exclosures and cannot be read to deny Plaintiffs right to use and access
their vested water rights. SGA has vested water rights provided by the Mining

Act of 1866 (See

Act of July 26, 1866, ch. 262, § 9, 14 Stat. 251, 253 (codified at R.S. § 2339, recodified at 43
U.S.C. § 661)) at water source within each exclosures. SGA has repeatedly requested access

to the water in the fenced exclosures, each was denied by the USFS. See Goss Decl. " 14,
17, 19,20, 21, 25, 27, 29, 47-51; Exhibits 15-19. SGA made clear there was no intent to allow
the cattle to graze the exclosures but USFS stil denied every request. See Goss Dee!. , 19,

47-50; Exhibits 15-18. SGAhas had many discussion with Defendant about transferring water
out of the Penasco exclosure, and specifically requested such a transfer on or about October

12,2000 (Goss Decl '17), September 13,2001 (See Goss Dee!.' 18,51; Exhibit 19), June

16,2006 (See Goss Decl.' 25,52; Exhibit 20), and on February 19, 2007 (See Goss Decl.'

29, 53; Exhibit 2).
10. Although Plaintiffs are prohibited from grazing cattle within the exclosures, Plaintiffs may
access water located within these exclosures through means other than grazing. For example,
water may flow out of the exclosures naturally, or in the case of Sacramento Lake, may be

accessed through a tap (faucet head) on a pipeline. See Def. Ex. A.

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SGA's Response

SGA disagrees with the above finding. Plaintiffs have been denied in every year
requests to access water located within these exclosures through means other than grazing.

(See response above) Further, the flow out of the exclosures is dependent on the weather and

not a consistent and dependable source of water. Goss Dee!. , 31. For the Penasco exclosure,
the water is completely inaccessible to SGA and SGA has repeatedly requested permission to

move this water. October 12,2000 (Goss Decl '17), September 13, 2001 (Goss Oec!.' 18,
51; Exhibit 19), June 16, 2006 (Goss Oec!. , 25, 52; Exhibit 20), and on February 19, 2007.

(Goss Dee!. , 29,53; Exhibit 2). SGA does periodically use the tap on the pipeline at the
Sacramento Lake to fill a water trough about a mile below Sacramento exclosure. HoWever,
that trough is on private property and filed from the

Sacramento Lake within the exclosure.

Further, Sacramento Lake is a jointly owned water sources shared with 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. Goss Oecl. , 32. SGA has requested access to the exclosures for use of the water only
and not for grazing and has been denied by the USFS. Goss Dee!. , 19.
11. There are seven main exclosures (fences) located within the Sacramento Allotment.

These include: Sacramento Lake, Hubbell, Upper Mauldin, Lower Mauldin, Upper Peñasco ,

Bluff Springs, and Western Riparian (otherwise known as Kingsbury Springs). See Def. Ex. A.
SGA's Response

SGA partially agrees with the above finding. However, the statement fails to

acknowledge SGA's vested water rights in these exclosures. Goss Dee!. , 10.

12. Beginning in or around 2001, Plaintiffs requested permission from the Forest Service to
pipe water out of the Peñasco exclosure (a designated wetlands àrea), across a scenic byway,

into a neighboring pasture on the Allotment. See Def. Ex. A.

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SGA's Response

SGA disagrees with the above finding, and believes it needs clarification. SGA has had
many discussion with Defendant about transferring water out of the Penasco exclosure (see

discusion above), and specifically requested such a transfer on or about October 12,2000 (See
Goss Dee!. '17), September

13, 2001 (see Goss Decl.' 18,51; Exhibit 19), June 16, 2006

(See Goss Dee!.' 25,52; Exhibit 20), and on February 19, 2007 (See Goss Dee!.' 29,53;

Exhibit 21). Moreover, the statement fails to acknowledge that the USFS would not be able to
allow movement of the water from the exclosure due to the restrictions in the Biological Opinion

for the Sacramento Mountains thistle. Van Zandt Decl , 5, Exhibit C, p. 35.
13. The District Ranger, Frank Martinez, denied Plaintiffs' request because congregating
cattle in the meadow bottom adjacent to a scenic byway would not be consistent with best

management practices. See Oef. Ex. A.
SGA's Response

SGAdisagrees with the above finding. Mr. Martinez denied the request to transfer water
out of the Penasco exclosure; however, SGA disagrees that the scenic byway is the actual
basis for such deniaL. SGA believes the denial is based on the United States Fish and Wildlife

requirement that all water remain in the exclosure for the protection if endangered species. See
Goss Decl. , 35, Exhibit 3 (Final Rule Listing Cirsium, 52 FR 22935, June 16, 1987)("This

plant is dependent on springs or streams. Reduction or removal of this water supply would

reduce or eliminate the populations."); Van Zandt Decl, 5, Exhibit C, p. 35.. The United
States Fish and Wildlife Recovery Plan for the Sacramento Mountain thistle, lists as an important recovery objective the acquisition of water rights in areas were the Sacramento

Mountain thistle is found. See Van Zandt Decl.' 4 Exhibit B, pp. 9, 10, 11, 17,22 and 23
(Recovery Plan). The Biological Opinion recognizes the existence of the current exclosures

within the SGA's grazing allotments, including Sacramento lake, Hubbell, Upper Mauldin, Lower

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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 Decl , 5,

Exhibit C, p. 11.
Further, Under the National Scenic Byways Program (23 U.S.C. § 162) roads are
designated that have outstanding scenic, historic, cultural, natural, recreational, and

archaeological qualities. Cattle ranching has been part of the history and culture of the
Sacramento Mountains since the 1880's, long before the establishment of the Lincoln National

Forest or the introduction of non-native elk. See Goss Dec. " 4 and 5. It not clear how the
appearance of cattle would conflict with a scenic byway designation.

14. The Forest Service discussed other options with Plaintiffs such as extending a pipeline
away from the scenic byway, piping water to another pasture owned by a private landowner, and installing a trick tank in Atkinson Pasture. Plaintiffs did not pursue any of these options.

See Def. Ex. A.
SGA's Response

SGA disagrees with the above finding. The discussion of these supposed "options" is
merely a ruse by the USFS who has no intention, and indeed cannot, transfer water out of the

exclosures under any circumstances due to protections offered by the Endangered Species Act

(see discusion above). Van Zandt Decl , 5, Exhibit C, p. 35. Further, these "options," which
were not discussed until 2006 are unreasonable and would negatively impact SGA's operation.

See Goss Decl , 28. The first option was to extend the pipeline away from the scenic byway.
The would require the use of a pump to get the water uphill, whereas SGA's request would

allow water to flow by gravity. There is no electricity on Forest Service land. The use of a pump
would require an electrical generator, a constant supply of fuel, maintenance, and continual
observation to ensure continued operation and to ensure that it does cause a fire hazard. Further, the maintenance and operation of the generator and pump would be a considerable

expense to SGA's operation. Id. The second option, to pipe water from adjacent private land is

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unreasonable because SGA does not own the water right on the adjacent privately owned land.

The third option was to install a trick tank in Atkinson pasture. Id. This option does not provide a

reliable source of water. A trick tank depends on rainfall as a water source and would not be a
reliable or permanent source of water. Id.
15. With the exception of the Peñasco exclosure, Plaintiffs have not sought permission from

the Forest Service to move water from within an exclosure to another area on or off the

Allotment. See Def. Ex. A.
SGA's Response
SGA disagrees with

this statement. SGA has asked repeatedly for accommodations to

access water in the Sacramento Lake exclosure. On June 16, 2006, SGA met 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. See Goss

Dee!.' 27. 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.
Goss Dee!.' 27,52; Exhibit 20. The fence was to be constructed the following week.

However, Mr. Martinez inexplicably contacted the Forest Guardian, an environmental group that

had filed a 60 day citizen suit notice against the USFS. Mr. Martinez then changed his mind,
not allowing the movement of the fence, and thus continuing to deny access to the water.

Goss Dee!. , 54, Exhibit 22.
As discussed above SGA has been denied in every year requests to access water

located within these exclosures through means other than grazing. What becomes clear is that
at the time SGA could not under any reasonable circumstance gain access to the water within

any of the exclosures and repeated requests would have been futile. Van Zandt Decl. , 5,
Exhibit C, p. 35. See Estate of Hage v. United States, 82 Fed. CI. at 212-213 (where the court

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determined that based on the history between the Forest Service and Plaintiffs, application for a

special use permit would clearly have been futile.)
Moreover, the USFS cannot allow the transfer of any water from within the exclosures

because the water is necessary to protect the thistle, The Biological Opinion 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 established management plans, and 3)

establish a 10-year monitoring and research program to demonstrate effectiveness of

management plans." Van Zandt Dee!. , 5, Exhibit C, p. 27. The same rationale applies to the
poppy and the restrictions on the use of Alamo Pasture. Van Zandt Dee!. , 5, Exhibit C, p. 35.
With the restriction placed of on utilization of the water under the Endangered Species Act it

would be futile to continue to ask to for access to the water or for permission to transfer water

out of any exclosure.

Dated: August 14, 2008

. By:

Mic ael J. V HANSON B ID IT
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 OPPOSITION TO DEFENDANT'S PROPOSED FINDINGS OF
UNCONTROVERTED FACT IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT was
served upon counsel by first-class 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
Kathleen. doster(âusdoi .QOV

'~,

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