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

Case 1:04-cv-00786-SGB

Document 35-2

Filed 04/29/2008

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Defendant's Exhibit A

!:

Case 1:04-cv-00786-SGB

Document 35-2

Filed 04/29/2008

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IN THE

UNITED STATES COURT OF FEDERAL CLAIMS

SACRAENTO GRAING
ASSOCIATION, INC., et aL,

Plaintiffs
v.

)
) ) )

) ) )

No. 04-786 L
Judge Susan G. Braden

UNED STATES OF AMRICA,
Defendant.

)
)

)
)

DECLARATION

OF FRKR.MATlNEZ
follows:
States Deparent of Agrculture,

I, FrankR. Marinez, hereby declare as

1. I am curently eniployedby the United

Forest Service,

as the Public Servces Staff Offcer on the Lincoln National Forest. Prior to this position

. I was the Distrct Ranger on the Sacramento Ranger Distrct. I submit this declaration in
support of

Defendant's Motion for Suiar Judgment.
Sacramento Distrct

2. I held the position of

Ranger for approximately seven years, from

2000 to 2008. In ths capacity, I was responsible for the administration of

the Distrct

which included the Sacramento Allotment, at issue in ths lawsuit. As par of my

responsibilties I am familar with the Forest Service efforts to assess livestock grazing on

the Allotment

and

the associated procedures under federal

law .

3. The Sacramento Allotment encompasses approximately ILL ,000 acres

of the Lincoln

National Forest in southeastern New Mexico.

,).

Case 1:04-cv-00786-SGB

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4. On

November 27, 1989, the Forest Serce

issued a tenn grazing perittothe

Sacramento Grazing Association ("SOA") that

allowed them to graze up to 553 cattle for

a period of ten year, subject to the terms and conditions of the penit, and all applicable
laws.and regulations.
5. SOA's ter grazing peritwas renewed on November 23, 1999, and authorized SOA to

graze up to 553 cattle for aperod often

years, subject to the ters and conditons of

the

permit and all applicable laws and regulations.
6. SOA's tenn grazing perit has never been cancelled.

7. On July 28,2004, the Forest Serice issued a Record of

Decision for the Final

Envionmental hnpact Statement for the Sacr~ento, Dry Canyon and Davis Grazing
"

Allotment, which implemented management actions on the Allotment to make livestock
management on the Allotment consistent with the Lincoln National Forest Land and
Resource Management Plan.
8. In 2005, in order to make SOA's term grazing pennit consistent with the Record

of

Decision, I gave SOA the

choice to either sign a new ten-year ter grazing permit 'or have

their existig permit modified. SOA declined ~ new ten-year tergrazng pennt.
9. In a letter dated January 17, 2006, I mÒdified SGA's ter grazing pert to pe1lit SGA
." to graze up to 412 cattle on the

sumer range on the Allotment aId 335 cattle onthe

winter range on the Allotment.

10. The Anua Operating Plan ("AOP"), now known as the Anual Operatig Instructions

("AOl') is the administerg documentforSOA's tenngrazing permit. The AOI is
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required for the

proper administration of

grazing under the provisions of

the term

grazing

perit. The term

grazg pennt provides broad discretion in issuinginstrctionstb
resource

perittees,as needed, for

protection. TheAOI sets fort, among otherthgs,

the number of cattle, lengt of grazing season, and al10wable utilzation levels on forage
species for cattlegrazgoÌl the Sacramento Allotment. The AOLis required for the
properadIInstrationof grazing under the provisions of

the term grazing pennit,since.

conditions

on

the alotmentvarfromseascìn to season, dependirigorifactors such 'as

weather.
11. Prior to the issuance of the AOI, the Distrct Ranger consults with

the perittee and
"

reviews the pennttee' sanualgrazing application for any requested adjustments to the
previous year'sAOI. The Distnct Ranger's decision is reflected in the Bil for

. .

12. For the

2008 grazing

season, March 1,2008 to Februar

28, 2009,

the AOI authorizes

SGAtograze up to 370 cattle on the Allotment.
13. SGA's perteontains a

.', . "

, - ,'-. ' ,

provision for the protection of wetlands,and eridangered or

. threátenedspecies locatedontleAllotnient.SGA's perit states: "Exclosures are
designåt~d on the attachedSaètanento Allotment

Range Improvement! Allotment Map

Livestock use is not pennitted within exêlosuresand wil be removed in a timely

14. There are sevenmainexc10sures located

withn the Allotment. These include:
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Sacr~entoLake, Hubbell, Upper

Mauldin, Lower Mauldin, Upper Peñåsco, Bluff

Sprigs,

and Wester Riparian

( otherwse known as Kingsbur Springs). The exclosures

èncoinpass approxiniate1y264 acres öf N ationalFcìrest. System lands.
15. Depending on weather

conditions, water often flows out from underneath theexclösuìes

natually. In addition, at Sa.cramento Lake i:mediately below the dRIand

outsidethe
that ru down canyon. About anile

exClosure, is a tap (faucet head)

on the pipeline

below, SOA is using another

tap to this same pipeline tofill a water trough.
National Forest System

16.

The Peñasco exclosure ericompasses approxímately 96 acres of

lands

'on

the Allotment. The Peñasco exclosure was established prior

to the issuance of

SGA's tenn grazing permit, to

protect the Cirsium vinaceum.(Sacramento Mountais

thstle).
17. Beging

in or aro;ud 200 1, the Allotment began to experience drought conditions.

SOA made a request to pipe water out of the Peñasco exclosure (a designated wetlands
area), across

tlough 'a

'.' . . '"
culver undereath the because congregatíng cattle that SdA had presented ¡to me - piping water from the adjacent private land.

a scenic hyWay, into the neighboring pastue.SGA wanted to ru a pipeline
highway and let water run out on the ground next to the..

highway. ;
18. I dened SOA's request

in themeadow bottom adjacet to the

~cenic byway would nqt be the best managenient practice~ When I informed SOA of my
êie~ision, I suggestedan option of

extending the pipeline up the draw away from the

scenic byWay, allowing for improved distrbûtion and I also agreed to consider another
option

In

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addition,SGA was also giVel the

option of installing a trck tan in Atkson

Pastue.

Durig ameeting, CouÍty Commissioner Doug Moore told nie, my Forest Supersor,

ånd SdKtlatJhe.Cotity would pay for the cost to installtbetrcktan in Atkinson
Pastue. Moore also stated that if

the County was not amenable to payig for ths

improvement, he would wrte a personal check to cover

the cost. This trck tank was

identified in the 2004 Record of Decision for the Final Environmental Impact Statement.

As far a~ lam aware, 8GA did not pursue any of these options.
19. With the exception of the PeñaSco exclosUre, SOA has never sought permission

to move

water from Withn an exclosure to another location on or off the Allotment.
Pursuantto .28 U .S.C. . § 1746, I cerify under penalty of perjur that the foregoing is tre and
~

correct.
Executed ths :/8.

.... ~l r¿ llad FRAKR.MAmz .. ~
Public Services Staff

Offcer

USDA Forest Serice
Lincoln National Forest

1101 New York Avenue , Alamogordo, NM 88310
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