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

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS ) ) ) Plaintiffs, ) v. ) ) UNITED STATES OF AMERICA, ) ) Defendant. ) ____________________________________) SACRAMENTO GRAZING ASSOCIATION, INC., et al.,

No. 04-786 L Judge Susan G. Braden

DEFENDANT'S PROPOSED FINDINGS OF UNCONTROVERTED FACT IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT ___________________________________________________ Pursuant to Rule 56(h)(1) of the Rules of the Court of Federal Claims, defendant United States of America submits the following proposed findings of uncontroverted fact in support of its separately filed Motion For Summary Judgment. A. 1. PLAINTIFFS' TERM GRAZING PERMIT 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 Def. Ex. A; Def. 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 Def. Ex. A; 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 1

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Allotments. See Def. Ex. A. 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. 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. 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 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. 8. B. 9. Plaintiffs' permit has never been cancelled. See Def. Ex. A. EXCLOSURES Plaintiffs' permit contains a provision for the protection of wetlands and endangered or

threatened species located on the Allotment. 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; see Def. Ex. A. 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

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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. 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. 12. Beginning in or around 2001, Plaintiffs requested permission from the Forest Service to

pipe water out of the Peñasco exclosure (a designated wetlands area), across a scenic byway, into a neighboring pasture on the Allotment. See Def. Ex. A. 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 Def. Ex. A. 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. 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.

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April 29, 2008

Respectfully Submitted, RONALD J. TENPAS Assistant Attorney General Environment & Natural Resources Division

/s Kathleen Doster KATHLEEN DOSTER United States Department of Justice Environment & Natural Resources Division Natural Resources Section P.O. Box 663 Washington, DC 20044-0663 Telephone No.: (202) 305-0481 Facsimile No.: (202) 305-0506 E-mail: [email protected] KRISTINE S. TARDIFF United States Department of Justice Environment & Natural Resources Division Natural Resources Section 53 Pleasant Street, 4th Floor Concord, NH 03301 Telephone No.: (603) 230-2583 Facsimile No.: (603) 225-1577 OF COUNSEL: MARY ANN JOCA Assistant Regional Attorney Office of the General Counsel United States Dept. of Agriculture P.O. Box 586 Albuquerque, N.M. 87103-0586

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