Free Motion for Summary Judgment - District Court of Federal Claims - federal

Case 1:04-cv-00786-SGB

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Defendant's Exhibit G

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS

SACRAMENTO GRAZING ASSOCIATION, INC., JAMES GOSS, FRANCES GOSS, JUSTIN GOSS AND GOSS BRENNA

)
)

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) Case No. 04-786 L

Plaintiffs,
_/)

)
) Judge Susan G. Braden
)

vs.

)

UNITED STATES OF AMRICA,
Defendant.

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) ) ) )

PLAINTIFFS' RESPONSE TO DEFENDANT'S FIRST SET OF REQUESTS FOR
ADMISSION, INTERROGATORIES, AND PRODUCTION OF DOCUMENTS.

Pursuat to Rule 34, Rules of

the United States Cour of

Federal Claims, Plaintiff

Sacramento Grazing Association, Inc., James Gass, Frances Goss, Justin Gass and Brenna Gass,
SGA'S RESPONSE TO DEFENDANT'S FIRST SET OF REQUESTS FOR ADMISSION, INTERROGATORIES, AND PRODUCTION OF DOCUMENTS

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Grazing Allotment. As to the Goss Ranch, the actions of

the Defendant have destroyed the

economic value of the ranch so that it is no longer a viable economic entity.
INTERROGATORY 3

For each propert right identified in Interrogatory 2, please state whether you are claiming
a temporar or permanent takg, the dates(s) on which your property was allegedly taken, the

period and duration of the alleged taing, and each and every relevant fact on which your takng
claims are based.

RESPONSE TO INTERROGATORY 3:

Plaintiffs object to this Interrogatory on the following grounds: This Interrogatory is

vague and compound. In addition, most, if not all of this information and evidence is already in the possession of Defendant. Notwithstanding the forgoing objections and without waiving such
objections, Plaintiffs answer as follows:

Whether a permanent takng or a temporar taking of Plaintiffs' vested rights occurred is
within the control of Defendant. If Defendant restores the cattle numbers and allows the full use
of Plaintiffs' water, forage, access, and range rights, then the taking would be temporary. If the
Defendant continues its physical obstruction of water, forage, access, and range

rights, and

continues to require reduced cattle numbers, then the taking is permanent. Actions by Defendant

that led up to the taking of Plaintiffs' propert began when Defendantallowed the elk herd to
consume forage and water belonging to Plaintiffs in quantities that Defendant has determined

require the reduction of cattle numbers, or the curtailment of penods of use for certain pastures.
Moreover, Defendant began fencing off Plaintiffs' water sources to protect endangered species

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and in 1998 declared that the exclosures were no longer part of

the allotment. In 2000,

Defendant began

reducing the number of cattle that

Plaintiffs could graze in the allotment. Over

the years, the FS has allowed significant number of elk to graze and water on the Sacramento
Grazing Allotment. Staing in 1998, the Defendant began a series of

modifications that

gradually eroded the Plaintiffs' ability to access and use the range and, as a result, their vested
water rights. These

modifications resulted in transferring plaintiffs' rights in their water and in

their forage to the Defendant, and water and range rights in the Allotment for other public

purposes, including but not limited to purorted protection of endangered and threatened species,
namely the Mexican Spotted Owl, the Sacramento Mountain Thistle, and the Sacramento

Mountain Prickly Poppy, among others. Through this history the Defendant has limited the
Plaintiffs' access to grazing, not though the quantity of

their vested water rights, but solely

through the rubric of range management.

As to the Goss Ranch, the Defendant has destroyed the economic value of said ranch by

causing the reduction of the number of cattle in 2000 that can be grazed within the allotment to
such a level that the ranch is no longer economically viable.
Taking of

Plaintiffs' property began on June 1,2000 when the Plaintiffs were forced to

reduce cattle on the summer pastures from 553 head to 428 head. The Plaintiffs were informed
prior to the amended 2000 Anual Operating Instructions (AOI) that the reduction in the number

of cattle would only be for one season. This reduction was the result of the June 1, 2000

amended 2000 Anual Operating Plan for the Sacramento Allotment. This taking affected the
following water rights on the summer range and associated rights described in Interrogatory 2:

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,..""'\

!

Penasco Head Waters, Charles Spring, Benson Ridge Spring, Spring #1, Water Canyon Spring,

Bluff Springs West, Bird Spring #2, West 25 Spring, West Mauldin, Bluff Springs, Spring 21 of
11, Delworth Spring, Section 9 Spring, Sacramento Head Waters, Spring #3, Atkinson Spring, Spring #14, Masterson Spring, Barrell Springs, Sand Springs, Birds Springs, South East 25

Springs, 3 Hubble Springs, Mauldin Springs, Lower Spring #22, Dark Springs #2, Round House
Springs, #33 Spring, Karr Spring, West Line Spring, East Spring #21, Spring # 22, West Spring
of21, Benson Spring #2, Bluff North Spring, Taylor Springs,

East Spring 24, Dark Springs, Two

Little Springs, Trick Tan, Little Spring, Pig Canyon Spring Tan, Sacramento Lake, Wallow St
Tk, Russia St Tk, Kerr St Tk, Fir St Tk, Bird St Tk, Brown Stock Tank, Wils Stock Tan,
Moore Stock Tan, Seed Stock Tan, Stalk Stock Tank, Hay Stock Tank, McAffee Pipeline,

Benson Spring, Dark Canyon Spring, Seep Spring, Luca Spring, Lucas Dark Ben, Dirty Drawers,
') Moore Upper, and Sacramento River.

On August 2, 2000 the USFS demanded the removal of an additional 98 cattle, reducing the maximum allowable cattle to 330. The additional cattle were eventually removed on or before
September 25,2000, resulting in a further taking of

the above described rights on the sumer

pastue.
The Plaintiffs were unable to economically operate their ranch with the fuer reduction
of

their herd. As a result, on September 8, 2000 the Forest Service suspended 40% ofthe term

permit numbers for two years allowing only 330 head on the entire Sacramento Allotment

through the 2002 sumer grazing season. This supposedly temporar suspension affected not
only the summer pasture, but was also imposed on the winter pasture. This had the effect of not

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only taking the vested water rights and appurtenant rights associated with the water rights listed

in the summer pasture above, but also resulted in the taking of the water rights in the winter
pasture as follows: Scott Able River, Caballero Spring #2, Upper Alamo #1, Mud Springs, Dog

Canyon Spring, Kar Canyon Spring, Potato Knob #1, Caballero Spring #3, San Andreas Springs,
Wood Spring #1, Wood Springs #2, Frasure Spring, Pine Springs, Pine Springs Sid West, Dry
Canyon Rucker Springs # 1, Caballero Spring # 1, Little Cherr Springs, Mineral Springs, Merrill
Springs, Dry Canyon Spring #2, Wright Springs, Goat Ranch Springs, Arcente Canyon Spring,

Potato Knob Spring #2, Rock House, Dirt Tan #20, Marble Canyon Tan, Dark Horse Tank,
#13 Spring, Moore Tan, Dripping Springs, Spring #2, All Springs, Kingsbur Spring, Ward
Squatters Rights, Upper Juniper Reservoir, Lower Juniper Reservoir, Burleson Stock Tan,
Burt Ridge St T, Turkey Roost St T, L.S. St Tk #1, L.S. St Tk #2, Gobler St Tk, Jakes St Tk,
End Ridge St Tk, Bug St Tk, Pasture Ridge Pipeline, McGregor Pipeline, Moore Ridge Pipeline,

NE Pipeline, Moore Spring Devel, Wright Spring Devel, Wright Spg Water, Grapevine Storage,

Reservoir Drinker, Moore Storage, Cab Dry Water, Chalk Hil Water, Cab Alamo Water,
Roundup Water, Alamo Water, Durleson, Lead, Holder, Culp, Cabin Water, Woods Water,
Ridge Water, Culp Driner.

Even though the 40% suspension was only to last until the 2002 summer grazing season,

Plaintiffs have never been allowed by the Defendant to graze more then 330 cattle since the

September 8,2000 suspension, thus making the taings claim permanent.
Takngs have occurred on an anual basis since 2000, as the Plaintiffs continually applied

for their full permit numbers of 553 head only to have the number drastically reduced. In

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..c.."

)

addition, Plaintiffs were required by Defendant to leave their pastures early resulting in a taking

of their vested propert rights described above. . For the 2000-2001 season, while under the 40%
suspension, there was a fuer reduction of 330 head to 250 head in the number of cattle in the

winter range (see Forest Service letter dated October 18,2000). The 2001 AOI dated Februar 6,
2001 allowed only 250 head on the Sacramento Allotment between 0310 1 and 05/0 i, and 330
head the remainder of

the year. Additionally, on Februry 18,2001, the Plaintiffs were ordered

to move cattle out of the north pasture by September 24, 2001.

The 2002 AOI again only allowed 330 head of cattle on the Sacramento Allotment. Then

on October 18,2002, the date that the 40% suspension was supposed to expire, the Plaintiffs
were notified that the number of cattle would remain at 330 head.

In 2003 despite the Plaintiffs' application requesting the permitted amount of 553 head of

cattle, the 2003 AOI allowed only 330 head on the Sacramento Allotment. Then, on April 21,

2003, the USFS ordered the removal of cattle off the Alamo Pasture. Further, on August 15,
2003 the USFS ordered the removal of all cattle from the summer range by September 8, 2003.

This order was amended to require the removal of 150 head by September 12, 2003 and

remaining 180 head by September 26, 2003. These dates are still prior to the permitted time to
move cattle off the summer pasture and resulted in a taing of

propert. Finally, a reduction to

230 head was ordered for the 2003-2004 winter season (see Forest Service letter dated October

28,2003).
The Annual Operating Instructions for 2004, dated April 23,2004, reduced the number of
cattle in both the summer and the winter, allowing for only 30 head in the Dry Allotment from

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.;¡~~

03/01 to 05/15, 230 head in the Sacramento Allotment from 03/01 to 05/15,275 head in the
Sacramento Allotment

from 05/16 to 10/31, and 275 head in the Sacramento Allotment from

11/01 to 02/28. Again, the AOI was amended to further reduce the number of cattle on the

Sacramento Allotment winter pasture to 230 head on October 13, 2004. The AOI for Grazing
Year 2005 providing 230 head on Sacramento Allotment from 03/01 to 05/15, and 330 head the
remainder of the year.
Finally, this long procession of

takings was formalized when, on January 17,2005, the

Defendant unilaterally modified the Plaintiffs' grazing permit. This modification evidences the
following reduction in the number of cattle from the 553 originally permitted: 200-412 cattle on the summer range, 200-335 cattle on the winter range from 11/01-05/14, up to 75 cattle on the
Dry Canyon from 11/01 - 02/28, and up to 75 cattle on the Dry Canyon from 03/01 - 05/14.
Since 05/05/98 there has been a takng of

water nghts, grazing access, and rights-of-way

due to exclosures on the Sacramento Grazing Allotment, including the following water sources:
Penasco Head Waters, Bluff Springs, 3 Hubble Springs, Mauldin Springs, Bluff

North Springs,

Kingsbury Springs, and Sacramento Lake. Moreover, Defendant has prevented use of

the Davis

Allotment, and, until recently, the Dry Canyon Allotment every year from 1998 to 2005. INTERROGATORY 4

Please describe in detail each instance where plaintiffs have requested access to water sources on the Sacramento Allotment, to which plaintiffs believe they have a water right, and

have been denied, other than instances where the access involved placing livestock on public

lands in violation of plaintiffs' term gring permit. In your answer, please identify the water

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source, whether the request was oral or written, the person who made the request, the person who
received the request, the date of the denial, and the circumstances surrounding the request.

RESPONSE TO INTERROGATORY 4:
Plaintiffs object to this Interrogatory on the following grounds: This Interrogatory is

vague and unduly burdensome. In addition, most, if not all of this information and evidence is
already in the possession of Defendant. Moreover, Plaintiffs have no grazing operations on

"public lands." Finally, the interrogatory has multiple parts. Notwithstanding the forgoing
objections and without waiving such objections, Plaintiffs answer as follows:
Defendant is in possession of correspondence between Plaintiff and Defendant requesting

access to pasturage in the LNF and associated water rights beginning in 1998 and continuing
until the present. Additionally, these documents were disclosed as par of

the Rule 26(a)(I)

Intial Disclosure of

Plaintiffs' . Specifically, beginnng in 1998 Plaintiffs made anual requests
and

in writing to use the Penasco head waters and were denied by Max Goodwin, Rick Newman

Fran Martinez. On September 13,200 i Fran Marinez orally denied Plaintiffs' request to pipe

water at the Penasco headwaters.
On October 12,2000, Plaintiff requested the use of

the Penasco Trap and were denied on

October 25, 2000. In a letter dated October 16, 2000, Assistant Regional Attorney, Mar Ann
Joca, informed the Plaintiffs that the Upper Penasco enclosure is no longer available for use by

cattle. On June 20, 2002 in a telephone conversation with Fran Marinez, Plaintiffs explained
they owned the water in the Rio Penasco enclosure and there needed to be provisions made to get
the water out.

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In 2001, Plaintiffs requested to pipe water at their expense out of

the enclosure Penasco

through a culvert that would prevent the Plaintiffs from having to haul water to the cattle. On

September 13,2001 Fran Marinez orally denied Plaintiffs' request to pipe water at the Penasco
headwaters.
In addition, as described in interrogatory 3, the Plaintiff

have repeatedly requested that the

number of cattle allowed on the Allotment be returned to the full permitted number of 553.
However, as described above, beginning in 2000, the Defendant has continually reduced the

number of cattle, and as of Januar 17,2005 modifiedthe Plaintiffs' grazing permit to lower the
number of cattle. This reduction in cattle below the permitted mimbers amounts to a denial of
access to Plaintiffs water rights, forage rights, range rights, and access rights.
INTERROGATORY 5

Please describe all methods employed by plaintiffs, other than placing livestock on public

lands in compliance with their term grazing permit, to access water sources to which plaintiffs
believe they have a claim of water right.

RESPONSE TO INTERROGATORY 5:

Plaintiffs' water rights are exclusively for stockwatering under New Mexico law. Plaintiffs may only place their water rights to beneficial use for the watering of livestock.
INTERROGATORY 6

Please describe the entire factual basis for your statement in paragraph 10 of the

Amended Compliant that "(aJt the time which plaintiffs acquired the Ranch, it also acquired
rights to water in New Mexico, which rights are appurenant to said ranch." Please include in

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and the value of access rights, not including any water rights. The value of the access rights is based upon both the income approach and the sales comparison approach. The value of cattle is

based upon comparable sales. The methods and precise calculations will be disclosed when
expert disclosures are made.

INTERROGATORY 12

Please describe in detail the entire factual basis for your statements in paragraph 24(C)
that actions by defendant have "aquire(ed) and detroy(ed) the value of

the Ranch."

RESPONSE TO INTERROGATORY 12:
Defendant suspended use of

Plaintiffs' Allotment, resulting in a reduction from 553 head

of cattle to 230 head of cattle. Defendant transferred Plaintiffs' rights in their water, as listed in

Exhibit "A" to this First Amended Complaint, as well as forage rights, for the protection of
endangered species and for non-indigenous elk. Ths transfer includes their use of

water, forage,

and range rights in the Allotment for other public puroses, including but not limited to
purported protection of endangered and threatened species, namely the Mexican Spotted Owl, the
Sacramento Mountain Thistle, and the Sacramento Mountain

Prickly Poppy, among others.

Defendant has also allowed non-indigenous elk to consume water and forage owned by Plaintiffs.

Management practices of the USFS with regard to the Allotment did cause the inability of

Plaintiffs' cattle to reach the water and forage to which Plaintiffs are entitled. Further, the USFS
has arificially reduced the capacity of

the Ranch and allotment.

All of these actions have destroyed the economic viability of the Goss Ranch.

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See response to Interrogatory No.2 and 3 above.
,1

INTERROGATORY 13
Please describe in detail the entire factual basis for your statements in paragraph 24(1) that

actions by defendant have "destroy( edJ plaintiffs' reasonable, investment-backed expectations."

RESPONSE TO INTERROGATORY 13:
To maintain economic viability of

the Ranch Plaintiffs must be able to plan for the

number of seasonal employees they must hire, the times at which such employees will be needed,

capital expenditures, consumables expenditures, needs for leasing additional pastuage,
acquisitions of stock, and other expenses with a reasonable degree of certainty. Any contracts,
licenses, permits, or other agreements entered into between Plaintiffs and Defendant or between
plaintiffs and any other paries which contemplate movement of cattle on to and off

the

Allotment, other cattle control measures, and repai, maintenance, or installation of

facilities and

improvements, must, therefore, be sufficiently definite to permit such planing in accordance
with norial industry practices and professional standards.

Defendant is aware of the needs of Plaintiffs for reasonable certainty and predictability in

managing its cattle operations. Actions by Defendant which are intended to or otherwse do
interfere with or otherwise make it diffcult or impossible to carr out such normal planing and
implementation defeat the purpose of said agreements, contracts, permits or other commitments.

Management practices of the USFS with regard to the Allotment did cause the inability of
Plaintiffs' cattle to reach the water and forage to which Plaintiffs are entitled, forcing Plaintiffs to

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remove their cattle from said allotment much earlier than they would otherwise have been

required to do. Defendant has also caused a reduction in the number of cattle that can be grazed,
thus forcing Plaintiffs to sell some cattle at a loss, and to lease other pasture areas at considerable
expense. Plaintiffs purchased the ranch and their interest in the SGA with the expectation that

the Defendant would allow Plaintiffs full access to their water rights, forage, range rights, access

rights, and improvements.

See response to Interrogatory No.2, 3, and 12 above.

INTERROGATORY 14

Please describe in detail the entire factul basis for your statements in paragraph 24(Q)
that "Defendant has prevented plaintiff from using certain water sources, as listed in Exhibit "A"
to this First Amended Complaint, and from making lawful improvements necessar to transport
water from a lawfl point of diversion to a lawfl point of

use," including:

(a) For each water source, please describe the specific action allegedly taen by Defendant,

the date the action occurred, and any witnesses to the alleged action.

(b) For each lawfl improvement necessar to transport water that defendant allegedly
prevented plaintiffs from making, please describe the lawfl improvement, whether plaintiffs
made an oral or written request to build the improvement, the date the oral or wrtten request was

made by plaintiffs, whether plaintiffs fied an application for a permit to build the improvement,
and the action allegedly taken by defendant in response to the oral or written request.

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RESPONSE TO INTERROGATORY 14 :
Plaintiffs object to this Interrogatory on the following grounds: This Interrogatory

is
not all of

vague, unduly burdensome and contais subpars. In addition, most, if

this information

and evidence is already in the possession of Defendat. Notwithstanding the forgoing objections
and without waiving such objections, Plaintiffs answer as follows:

(a) The Plaintiffs have been prevented by Defendant from using the following water
sources: East Spring, Lower Spring, North Davis, West Spring, Middle Spring, Fleming Spring,

Penasco Stream, Davis Spring, Round House Spring, Kar Spring, Dry Canyon Rucker Springs
#1, MineraI Springs, Pig Canyon Spring Tan, Rock House, Dirt Tan #20, Marble Canyon
Tank, Dark Horse Tank, and Burleson Stock Tan.

The following water sources have been fenced by Defendant, preventing their use by
Springs, 3
. ) Plaintiffs and have been excluded from the Allotment: Penasco Head Waters, Bluff

Hubble Springs, Mauldin Springs, Bluff

North Springs, Kingsbur Springs, and Sacramento

Lake.
The remainder of

the water sources listed in Exhibit "A" to the First Amended Complaint
to fully stock

have been interfered with by Defendant since June 2000 by not allowing Plaintiff

the range and arificially reducing the number of cattle to 330 head and lower. On May 8, 2000,
the FS amended the 2000 AOP for the Allotment to reduce livestock numbers from the previous

553 cattle to 428. Then on Al.gust 2,2000 the FS ordered an additional reduction of98 cattle.
Plaintiffs' term permit was parially suspended on September 8, 2000 for two years, reducing the

number of cattle that could graze by 40%. On October 28, 2003 cattle numbers were reduced

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from 330 to 230 head. Plaintiffs ten year grazing permit was unilaterally modified by Defendant
in Januar 2006 to permanently reflect lowered numbers of

between 200 to 412 in the Summer

Range and 200 to 335 in the Winter Range, with an additional 75 head in the Dry Allotment.
Taking of Plaintiffs' vested rights has been effected by allowing

the non-indigenous herd

of elk to consume Plaintiffs water and forage to the point where, according to the Defendant,

there is insufficient forage to support cattle activity. At times this occurs before any cattle have
entered the allotment. There has been a gradual erosion of

the Plaintiffs ability to access and use

the range and, as a result, their vested water rights, culminating in the exclosure of water sources,

purportedly to protect endangered and threatened species, and the drastic reduction in the
authorized number of cattle.
(b) Plaintiffs object to this Interrogatory on the following grounds: Most, if not all of this
information and evidence is already in the possession of

Defendant and the interrogatory is in

subpars. Notwithstanding the forgoing objections and without waiving such objections,

Plaintiffs answer as follows:
On September 13,2001 Fran Marinez orally denied Plaintiffs' request to pipe water at
the Penasco headwaters. See Answers to Interrogatories 2, 3,4, 12, and 13.

INTERROGATORY 15

Have plaintiffs' attempted to sell the Goss Ranch or any alleged appurenant water rights

at any time from 1989 to the present? If so, please describe in detail whether an appraisal was

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