Free Declaration - District Court of Federal Claims - federal

Case 1:04-cv-00786-SGB

Document 42-23

Filed 08/15/2008

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EXHIBIT 22

Case 1:04-cv-00786-SGB
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Email: oleroadmtS.co.olero.nm.us
. COMMISSION I ADMINISTRATION (505) 437-7427 FAX (505) 443-2904

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1000 NEW YORK AVE,. RM 101 ALAMOGORDO, NM 88310-6935

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July 26, 2006

Mr. Frank R. Martinez Sacramento District Ranger P.O. Box 288

Cloudcroft, New Mexico 88317
Dear Mr. Martinez:

July 25, 2006. In your letter, you have expressed a decision denying i am in receipt of your letter dated each and every proposed action that was discussed in our meeting on June 16, 2006. The effect of your letter is to deny access to water for SGA catte at the locations that we discussed on June 16, 2006.
I have taken the liberty of contacting Mr. Eric Heins with the U.S. Fish and Wildlife service. I questioned him concerning your assertion that you had discussed your intention to deny the proposed actions. He was in agreement with your position. He informed me that he had a conversation with you concerning the that he was not aware of any Sacramento Lake partial exclosure. He said he unequivocally advised you endangered species that would be impacted and, accordingly, the Fish and Wildlife service was not involved in that decision.
When I questioned him concerning the proposed Penasco action, he advised that he had not participated
in any discussions concerning that area other than

the historical discussions that the three of us have

had in that area. He was emphatic in insisting that he had not reviewed or been asked his opinion
concerning a proposed pipeline through the culvert to supply water to a stock watering tank.

I then questioned him about the 135 days that you cited in your letter and he assured me that he would

be available at our reque~t to participate in a discussion on that proposal whether it was formal consultation or some other informal discussion. Therefore we are formally requesting that you schedule
that consultation, whether formal or not, at your earliest convenience next week. This would allow us to resolve this issue and avoid unnecessary delay and allow the SGA to exercise their recognized water rights.
Pursuant to my conversations with you and Mr. Woltering last week, I understood from Mr. Woltering that

the proposed actions had been cleared by all interested parties prior to your exparte telephone
conversation with the Forest Guardians. Lou unequivocally informed me that it was that telephone call

that caused you to issue a denial rather than grant accomplishment of the actions. . Please understand
clearly. The County Commission does not object to the interest or involvement of any environmental group in these important issues. What we do object to is an exparte communication that completely reverses the commitments made at our site visit by all the parties present. How is it possible that a third party, not present for the review, discussion, and development of the proposed solutions, has veto power over the proposal? I certainly hope the Forest Service is not making management decisions based on law suit. exparte communications, or even worse, as a result of the simple fear of a potential
Finally, as you are aware I have conducted exhaustive research since taking an interest ,in these federal

lands management issues when I became a County Commissioner. I have conducted an exhaustive

Case 1:04-cv-00786-SGB
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PAGE TWO Frank R. Martinez July 26, 2006

review of the Forest plan, the amendments to the plan, the RASES methodology and numerous other

documents that have been provided. When I developed a concern that you might suggest that there
may be some NEPA requirements, I made two verbal information requests for all of the documents you

have concerning the riparian areas within the SGA. While you have provided several documents, no
document specifically identifies the riparian areas, no document specifically requires exclosures be constructed, and no document addresses the SGA's right to access to the waters that are being denied
by the exclosures. In addition, I have specifically looked for a NEPA compliant process that was

followed when the decision was made to create the exclosures and can find nothing. Accordingly, I Çlm

once again asking for any and all site specific studies, NEPA compliant documents, and any other
document that support the creation of these exclosures in these unique and vibrant multiple use riparian

resources.

Very truly¡yours,
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Doug Moore, Ch irman Board o(counJy Commissioners of Otero County

cc: Senator Pete Domenici
Representative Steve Pierce

Governor, Bil Richardson
State Senator Diana Duran State Representative Terry Marquardt State Representative Gloria Vaughn Mr. Lou Woltering, Forest Supervisor Dr. John Fowler, RITF Mr. Murray Feldman, Esq. Jimmy Goss SGA, Frances Goss SGA,

Spike Goss SGA