Free Administrative Record - Plaintiffs Reply Brief - District Court of Colorado - Colorado

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

Civil Action No. 04-cv-01071-AP San Luis Valley Ecosystem Counsel, Nancy Albright, James Martin, Jerre Guthals, Antlers Rio Grande Lodge, Inc., a Colorado Corporation, and Charles C. Powers, Plaintiffs, V. United States Forest Service Defendant and ALXCHNG, LLC, a Texas Limited Liability Company CNXCHNG, LLC, a Texas Limited Liability Company RIO OXBOW RANCH, Inc., a Colorado Corporation Interveners ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )

________________________________________________________________________ PLAINTIFFS REPLY BRIEF ________________________________________________________________________

Charles C. Powers P.O. Box 1273 South Fork, Colorado 81154 719-873-1740 telephone 719-873-1742 fax [email protected] Attorney for Plaintiffs

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TABLE OF CONTENTS I. Introduction ................................................................. II. Summary of arguments ................................................... III. Weight to be assigned to DN and FONSI ............................ IV. Adequacy of NEPA analysis.............................................. 1 1 3 7

A. Alternatives not considered in the EA ........................... 7 B. The EA mischaracterizes recreational value and improperly discounts public comment....................................... 8 C. There is a "controversy" requiring an EIS.................. 11

D. Failure to consider cumulative impacts is a violation of law and procedure................................................ 11 V. The National Forest Management Act and the Forest Plan A. Exchange does not further a policy favoring acquisitions of wilderness in holdings .................................... B. No evidence of cost savings regarding elimination of boundaries ..................................................... C. FS Refuses to Recognize a Duty to consider and protect Local Economies and Economic Interest .................. D. FS Confuses Lands Suitable for Acquisition with Lands Appropriate for Disposal ....................................... 13

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E. Federal Parcels are in the Scenic Byway Management Area .20 F. Failure to do analysis of impact on management indicator Species, deer and elk, was preserved on appeal ............... 25 G. The DN fails to adequately evaluate the effects on a threatened Species, Canadian Lynx........................................ 28

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VI. Federal Land Policy and Management Act

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A. Bonafacio/Nicomodes are not part of original exchange proposal ................................................. 32 B. Addition of the Bonafacio properties did not "sweeten" the deal ............................................................... 32 C. Plaintiffs have standing on all issues including equal valuation.............................................................

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D. Plaintiffs criticisms of the appraisals are well founded and show Violation of law and regulation................................. 37 VII. Conclusion................................................................... 41

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TABLE OF AUTHORITIES FEDERAL CASES All Indian Pueblo Counsel v. United States 975 F.2d 1437, 1444 (10th Cir. 1992) Bastek v. Federal Crop 145 F.3d 90 (2d Cir. 1998) Churchill County v. Babbitt 150 F.3d 1072, 1078 (9th Cir 1998) Colorado Environmental Coalition v. Dombeck 185 F.3d 1162, 1167 (10th Cir. 1999)

City of New York v. U.S. Department of Tran C.A. 2d (NY) 1983, 715 F.2d 732 Davis v. Mineta, 302 F.3d 1104,1123 (10th Cir. 2002) Garvey v. Freeman 397 F.2d 600,611 (10th Cir, 1968) Kleissler v United States Forest Service 183 F. 3d 196 (3rd Cir. 1999) League of Wilderness Defenders etc. vs. Bosworth 383 F.Supp.2d 1285, 1302-1303 (D.C. Or, 2005) Middle Rio Grande Conservancy District v. Norton 294 F.3d 1220, 1229 (10th Cir. 2002) Muckleshoot Indian Tribe v. U.S. Forest Service 177 F.3d 800, 811 (9th Cir. 1999) New Mexico Cattle Growers Ass'n v. US Fish and Wildlife Service 248 F.3d 1277, 1284 (10th Cir. 2001) Natural Resources Defense Council, Inc. v. Energy Research and Development Administration D.C.D.C. 1978, 451 F. Supp. 1245 Olenhouse v. Commodity Credit Corporation

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42 F.3d 1560, 1583 (10th Cir. 1994) Phillips v. Calhoun 956 F.2d 949, 953-4 (10 Cir. 1992) Sierra Club v. Dombeck 161 F. Supp. 2.d 1052 (D.C. Az., 2001) Silverton Snowmobile Clue, et al. v. Unites States Forest Service e. al. 433 F.3d 772 (10th 2006)

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I. Introduction This is a Reply Brief of the Plaintiffs which does not reiterate all of Plaintiffs arguments but, rather, concentrates on rebutting specific factual allegations and arguments of the Defendant and the Proponents in their respective answer briefs. Nevertheless it is appropriate to summarize the points of the Plaintiffs appeal in general to provide context to the arguments here and in relation to the Opening Brief. II. Summary of the arguments In regard to this exchange, Forest Service must determine whether the exchange is in the public interest which includes many factors including effect on wildlife, recreational opportunities and local residents and their economies. The lands disposed of must be appropriate for disposal separate and apart from the suitability of lands for acquisition. The public interest must be determined in relation to the forest objectives in the national, regional and local forest plans. Other applicable laws must be considered including the Endangered Species Act and the Scenic Byway Act. In evaluating the action the National Environmental Policy Act guides the process. If there could be significant impact then there must be an Environmental Impact Statement. The lands conveyed are not suitable for disposal because they do not fit the description of lands for disposal under the applicable National, Regional and Local Forest Plans. Further, they have important features of lands that should be retained including critical winter range, Scenic Byway protection, recreational quality, hunting value, rivers, streams, lakes, wetlands, floodplain, threatened species habitat and value to local residents and their economy. The lands received do not have the same or as much important values as those conveyed by FS and those disposed of are in a widely different

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geographic, political and economic area than those gained, creating a significant adverse impact on the local area of the lands disposed. The RGNF and Rocky Mountain Region of FS, improperly attempted to make up some of the loss by conservation easements discouraged by National FS policy. FS failed to quantitatively evaluate the impact of the action on the MIS deer and elk when data was readily available coupled with expert opinions that there will be a significant adverse impact The disposal of more Lynx habitat for less physical quantity and less quality habitat and the authorization of development in some of the best habitat along with failure to consider actual available data on lynx habitat without an EIS is arbitrary and capricious as it lacks substantial factual support and violates law and regulation. In doing its analysis FS did not consider the cumulative effects of its decision in the context of other exchanges, its exchange policy and private development patterns that have in the past and likely will continue in the future. These factors are required to be evaluated in the EA and were not. The evidence shows that had they been considered a significant impact would have been shown that must be evaluated and considered under NEPA. In making its decision, important opinions of other experts, governmental agencies with relevant expertise and even internal FS reviewers and the weight of public comments were contradicted by the FOSI and DN. This and the fact that all technical analysis was done by independent contractors hired and directed by Proponents casts serious doubt on the correctness of the FOSNI and DN. Additionally FS had alternatives available that it failed to disclose and publicly consider in the EA. FS violated the equal valuation and appraisal rules under FLPMA.

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The appraisals do not consider the prior sales history of properties involved in the exchange, required comparables and relevant factors affecting value of the properties involved in the exchange. III. Weight to be assigned the DN and FONSI FS argues that its decision should be accorded great weight and it is entitled to deference in its opinion. Plaintiff has not disagreed with the applicable legal standard. An agency decision can not be set aside unless it is arbitrary, capricious or not in accord with law or regulation. Factual determinations of an administrative agency are not final and conclusive unless supported by the record. Garvey v. Freeman, 397 F.2d 600,611 (10th Cir, 1968). The agency is judged on the administrative record and it must be fair and open and in conformity with basic concepts of fair play. Garvey, at 611. A court considers an agency decision arbitrary and capricious under the Administrative Procedure Act, if the agency relied on factors which Congress had not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise, Colorado Environmental Coalition v. Dombeck, 185 F. 3d 1162, 1167 (10th Cir. 1999). Plaintiffs disagree with how the standard on appeal should be applied in this case and the conclusion to be drawn by the Court. FS contradicted several authorities with pertinent expertise in several instances in this case. It discounted the opinions and recommendations of Mineral County regarding the affect of the exchange on its residents, tourism and the local economy. It contradicted the opinions of Brent Woodward, DOW specialist with expertise on wildlife

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management, big game species and impact on winter range and hunting and failed to do any quantitative study. It did not follow the directives of the National Land Adjustment Review Board that conservation easements are not adequate to achieve forest service goals regarding federal lands. (discussed Infra.). It contradicted the opinion of its own independent reviewer of the EA who opined there was not an MIS evaluation and the exchange had too many protective covenants and was not in the public interest. A reviewing court may be properly skeptical as to whether an EA's conclusions have a substantial basis in fact if the responsible agency has apparently ignored the conflicting views of other agencies having pertinent expertise. Davis v. Mineta, 302 F.3d 1104, 1123 (10th Cir. 2002) When FS subcontracts its primary responsibilities to private contractors the results should be given less weight. Even though the process may be authorized by FS regulation, the extent to which those private contractors are under the control of the proponents, and not the FS, should be relevant to the Court in evaluating the decision on the entire record and in light of many contradictory opinions of informed experts and the public comments and the policies expressed in the Forest Management Plan. Proponents admit that the FS is supposed to be in control of the primary contractor and subcontractors doing the EA and the BA and supporting analysis. (proponents brief page 39). The Agreement (AR 2478) by which the prime contractor was hired in this case, by its own terms is an "employment" agreement between the Prime Contractor and the Proponent. It is terminable at will of the Proponents. Proponents pay the bill and all expenses. Whether it states the prime contractor will comply with the MOU or not, in the common understanding, this is an employment

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agreement whereby the prime contractor was retained by the Proponents to serve at their will. The letter from Lisenby to the Forest Service shows that the prime contractor was in fact dealing with the FS through the Proponents. Lisenby describes himself as part of the evaluation group and obviously has the preliminary results he is reporting to the Forest Service, not the reverse. (RA 920-1). The letter of Patrick K. O'Brien, Senior Staff Archeologist of Metcalf Archeology is addressed to Adam Poe, of Western Land Exchange, Proponents agent to facilitate the exchange (RA 2053). This letter details the archeological findings and is a report to Poe so that he can in turn give the results to the FS. Another letter undated shows the same thing (RA 2056). These letters verify the argument in Plaintiffs' opening brief that the proponent's facilitator and the proponents were in charge and received reports from the subcontractors even before the FS. These documents show an improper delegation of authority to Proponents. 1 In the memo of Vince Spero, FS archeologist, of 9/24/01, Spero refuses to disclose information on archeological site locations to Powers who requested to be able to have an independent person review the archeological digs. This same "confidential" information, however, was given to the Proponents and their agents Poe and this information was evaluated at Proponents direction by Metcalf without the FS present. FS denies Powers or Antlers should have been given an opportunity to be involved in the process; however, the Memorandum of Understanding (MOU) between FS and the Proponents states the opposite: The parties agree that the analysis will be given a highest priority,... and will provide an opportunity for full participation by interested members of the public ..." (RA 2426).
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See Proponents brief pages 39 to 40 where they claim this would violate the MOU.

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Actually, FS and proponent did not give full opportunity to be involved and worked to prevent independent analysis of the facts. FS now claims it can not be

bothered with interested citizens being involved in the process. When the report is analyzed, it can be seen that every possible inference has been drawn in favor of the exchange where helpful. All opinions of opponents were

discounted as not supported by facts or simply dispensed with, while every statement of Proponents was given authoritativeness. For example, the statements of Proponent, Nearberg, that he will not develop or change the historical use of N2 was given credibility as if fact when there is no covenant in this regard at all and Nearberg refused to sign one. Lisenby's alleged intent to shield homes in the Silver Thread Byway view shed with trees or to not build homes on the remainder of his property is given complete faith when, in fact, there is no enforceable commitment in this regard at all and common sense dictates this is not likely the case. On the other hand, a typical and well informed public comment was submitted by Rex Shepperd (RA 976). He details the great value of each federal parcel to be lost. He concludes with the following observations regarding proponents: "Neither of the landowners involved have shown any respect for community values. They have harassed floaters, built extra high fences, and built homes in important game range lands. The esthetically hideous and biologically disastrous berms of Mr. Nearberg only accentuate the problems associated with giving them more public land." The circumstances of the primary report and evaluation upon which it relies, the EA and the BA, are relevant to how much weight should be given to this decision in light of the fact that it is otherwise opposed by most authoritative commentators. Agency action will be set aside if the administrative process employed violated basic concepts of fair play, Olenhouse v. Commodity Credit Corporation 42 F.3d 1560, 1583 (10th Cir.

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1994). This resulted in less than a fair and unbiased evaluation of the facts and the various interests involved. The Court should accord less credibility to the decision because of it. IV. Adequacy of NEPA analysis A. Alternatives not considered in the EA At page 4, footnote 3, of its Brief, FS states that properties B1 and B2 have been acquired by FS by "separate transaction" not part of this exchange. B1 and B2 were considered in the EA as part of this exchange, but were excluded at the last moment in the final Decision Notice because of excess value of the properties acquired from proponents over federal lands being disposed of in this exchange. FS now points out that these properties have since been acquired by other means outside of this exchange. This makes clear that there were alternatives to acquisition of the properties involved that were not discussed in the EA as was required by 40 C.F.R. 1508 (3). At page 34 of its Brief, FS states it considered all the alternatives and fully complied with the law in this regard. It now claims there was a distinct alternative it took advantage of in regard to at least some of the properties it included in the EA but this alternative was never disclosed or discussed in the EA. The possibility of outright purchase of properties or other methods of acquisition must be considered in the NEPA analysis of a proposed exchange. Failure to do so is reversible error, Sierra Club v. Dombeck 161 F. Supp. 2d 1052 (D.C. Az., 2001) The Forest service recognized that there was an alternative procedure for right of way and easement acquisition whereby the FS can secure rights of way across private

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properties in question. (RA 2064). The specifics of this alternative are not discussed in the EA nor is it explained why this alternative was not used in this case. As has already been discussed the main alternative to the selected action was to eliminate the river portion (2.5 acres ) of N2 and all of L3, the other river parcel from the action or eliminating all of N2 and all of L3 from the action. These alternatives were considered and rejected in the DN (RA 12). There is however no discussion as to why these alternatives were not selected or were rejected NEPA requires alternatives to the proposed action to be included in the assessment or statement. 42 USCA § 102 (2)(c)(iii). All reasonable alternatives must be considered even if they do not offer a complete solution to the problem; Natural

Resources Defense Council, Inc. v. Administrator, Energy Research and Development Administration, D.C.D.C 1978, 451 F. Supp. 1245; City of New York v. U.S. Dept. of Tran., C.A. 2d (N.Y) 1983, 715 F.2d 732, appeal dismissed, cert. den. 104 S. Ct. 1403, 465 U.S. 1055. Thorough discussion of alternatives in the environmental impact statement (EIS) is imperative. Failure to do so is reversible error. All Indian Pueblo Counsel v. United States, 975 F.2d 1437, 1444 (10th Cir. 1992). B. The EA mischaracterizes recreational value and improperly discounts public comment. FS criticizes Plaintiffs for not having cited to facts in the record. This is not true. Plaintiffs have cited to the record for support or in many cases quoted the record in the opening brief. Plaintiffs have not summarized nor can Plaintiffs summarize every comment of the public and specialists regarding this exchange in its brief. Plaintiffs have cited to summaries of comments in the record. FS cites nothing that contradicts the

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allegations and facts in the record that the overwhelming majority of commentators opposed the exchange. FS actually misquotes the law on this point at page 24, footnote 18, where it cites Phillips v. Calhoun, 956 F. 2d 949, 953-4 (10th Cir. 1992) for the proposition that "a litigant who fails to press a point by supporting it with pertinent authority forfeits the point." The case actually says at the cited passage that a litigant can make a showing why a point is sound despite a lack of supporting authority or even in the face of contrary authority if the litigant makes a logical statement of the basis of its position. In that case the litigant had made a statement with no supporting argument or authority of any kind and therefore the point was considered forfeited. The FS notes that the Plaintiff has no substantial evidence of loss of hunting value and that loss of hunting opportunity by virtue of loss of the federal parcels is supposition, FS Brief, page 59. Proponents claim that Plaintiffs have no factual support for the allegation that Lisenby seeks to acquire valuable hunting rights for himself, Proponents Brief, page 42. FS claims Plaintiffs, including Powers and Antlers, are offering an "amateur opinion" that loss of lands involved could reduce hunting in the area. Plaintiffs cited comments regarding the abundance of game species and hunting in these areas. Plaintiff Powers lives immediately next to parcel N2 and operates an ongoing successful lodge from the premises. If Plaintiff, Powers, is not informed about the uses of this property by the public then who is? Also, see comments of Rex Shepperd cited above as an example. Actually, it is FS that claims no knowledge regarding the public's usages of these properties. The EA states:

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"Due to restricted access and the inherent character of the federal parcels, overall recreation opportunities on most of these lands are very limited. Some dispersed recreational pursuits, primarily hunting, may be available on Parcels N4, N5, N6 and L5. It is not known what level of dispersed use actually occurs on these parcels. Due to private land ownership pattern access requires relatively long traverses over fairly rugged terrain to reach these areas." (R49). However, earlier when describing to the FS that Lisenby wanted to acquire property on the south side of his ranch now described in this exchange as L5 and generally including the nearby areas of N4 and N5, Proponents stated: "We agreed with Julie Howard (ed. RGNF Divide District Ranger at that time) last summer that it would be best to leave a significant buffer between the road and the selected lands because the area receives substantial hunting use" (R2926). FS and Proponents now claim plaintiffs have not supported their allegation of the hunting value of the federal parcels when obviously they know Plaintiffs comments and points on this appeal are well taken since the RGNF divide district ranger and the proponents agreed way back in the beginning the area of L5 and N4 receive substantial hunting use. Defendant and Proponents are not being candid with the Court. The facts are that there were many informed public comments of substantial recreational usage of the properties to be disposed of and opposing the exchange for that reason. FS ignored the informed public comments and claimed there was no evidence of public use as can be seen by the cited conclusion of the EA above. Thus, FS discounted the only substantially informed opinions available and based its opinion on no facts or supposition of little recreational usage. As can be seen above, FS even contradicted its own and Proponents' admissions regarding hunting usage on the federal parcels. This is

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a case of the FS coming to a conclusion without supporting facts and contrary to the weight of facts in the record. Colorado Environmental Coalition, supra. C. There is a "controversy" requiring an EIS Plaintiffs disagree with the claim there was or is no controversy regarding this proposed federal action in the NEPA context. The degree to which the effect of the action will be highly controversial, does not necessarily denote public opposition to a proposed action, but a substantial dispute as to the size, nature or effect of the action. 40 CFR 1508.14 and Middle Rio Grande Conservancy District v. Norton 294 F. 3d 1220, 1229 (10th cir. 2002). In this case there was wide disagreement among the relevant parties, CDOW, Mineral County, FS own internal reviewers, outside experts and commentators that shows this exchange this exchange was controversial and should have undergone an EIS. This is only one of the relevant factors but this factor was present and added to the list of criteria requiring an EIS.

D. Failure to consider cumulative impacts is a violation of law and procedure FS argues it has considered cumulative impacts; but, at the same time, states that it has no duty to consider its exchange policy in general or other exchanges in considering cumulative affects. Plaintiffs have pointed out written evidence in the file of a prior exchange in Mineral County where the Mineral County Commissioners complained of the lopsided adverse affects on the County (AR 3499). The details of this exchange were not put in the record nor was it considered by FS in regard to "cumulative affects" as part of the NEPA analysis. FS can not ignore its duty to consider cumulative affects and consider land exchanges as isolated events separate and distinct form other

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exchanges past and future. Broad generalities regarding exchanges do not suffice for a cumulative impacts analysis with specific facts and conclusions. Muckleshoot Indian Tribe v. U.S. Forest Service, 177 F. 3d 800, 811 (9th Cir. 1999) There is a reference to a map as a supplement to Appendix E allegedly available at the FS offices referred to in the Forest Plan, Appendix E, Land Adjustment Policy (AR 1464). The map was a proposal of what FS would consider to dispose of and what FS wished to acquire. 2 There is a Land Classification Map included in the record. 3 The map shows vast

acreage in Mineral County designated for disposal and little marked for acquisition. Correlating the map to the severe winter range map at tab 3 of the same supplement shows large chunks of the elk and deer severe winter range in unit 76 slated for disposal (note: "severe" winter range does not necessarily equate to "critical" winter range). The letter of Brent Woodward discussing a long term pattern of development of private properties in conjunction with this future policy of disposal should be discussed by FS in terms of past and future cumulative effects. FS land adjustment policy is not the isolated and limited matter that it claims. This disregard of the cumulative affect on wildlife particularly threatened species, big game winter range and the Scenic Byway is unjustifiable and is a violation of law and regulation that requires reversal for evaluation of cumulative effects.

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The affect of the proposed exchange policy was not evaluated in the original Forest Plan EIS, since the map represented a wish list, yet the extent to which the policy is in fact being implemented or planned is another matter. 3 This is not the land adjustment map referred to in Appendix E to the Forest Pan, because the map in question states at the top that it is to accompany Appendix G and H to the Forest Plan. The date is also missing from the map. Nevertheless this map was produced by the FS as its map on land adjustment policy and it is in the record at Volume 11, Supplement to the Administrative Record, Tab 5.

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V. National Forest Management Act A. This exchange does not further a policy favoring acquisition of wilderness inholdings The FS cites its policy to acquire properties within wilderness areas as justification for acquisition of the Bonafacio/Nicomodes properties, citing the Lodge Tower case which states: "noting the Forest Plan that placed priority on federal acquisition of privately held realty lying within wilderness areas" (FS Brief, Page 3). This Forest Plan priority does not apply here. None of the properties being acquired in this exchange by FS is located within or even near a wilderness area. All properties being acquired by FS are miles from the nearest wilderness (See RGNF Forest Map, Record Vol. 11, Tab 4). B. No Evidence of cost Savings regarding elimination of Boundaries The FS states; "Marking boundaries and guarding against trespass are an administrative burden." and this justifies acquisition of the Bonafacio properties. (FS Brief, page 3). As the EA states, the Bonafacio properties and the Carson properties have roads through them regularly used by the public, however, no effort is made by the owners to prohibit this traffic. The Carson properties and the Long Ridge properties, being acquired by FS, are unfenced and no effort is made to prohibit the public from crossing these properties. There is no evidence of any boundary issues regarding these properties anywhere in the record nor an iota of evidence of any cost being incurred by FS regarding these issues. Similarly, the proponents are large private land holders. They have the responsibility to fence their property if they wish to prevent trespass just like anyone else.

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There is nothing about their boundaries that is unique or that requires special attention given them by the FS. The boundary issue at the Carson and elimination of in holdings issue was lost or at least seriously compromised by virtue of the fact that not all private lands are being acquired there. By definition private in holdings remain at the Carson area. New boundaries need to be established between public and remaining private holdings as a result of this exchange. The boundary issues to the extent they ever exited continue to exist. As the Carson area exchange map shows, 300 acres of private property will remain at the Carson site which includes portions of existing roads and the Continental Divide and Colorado Trails. C. FS refuses to recognize a duty to consider and protect local residents and their economies It is a theme of the FS brief to characterize Plaintiffs, Antlers and Powers, as just trying to protect its own economic interest by this action and that FS has no duty in this regard: "Plaintiffs mistakenly believe that the Forest Service `s duty is to protect the value of privately held lands...because the Forest Service has no duty to protect private property values..." page 7; and `The Forest Service has no legal duty to ensure the Antlers' guests have ready access to Forest Service lands" FS Brief, page 50-51.

First Plaintiff Powers is not the only Plaintiff. San Luis Valley Ecosystem Counsel, for example, is the largest public interest group in the local area of this exchange. It has been involved in the process from early on. Plaintiffs have never argued that these interests are overriding or that that FS must "insure" these issues. Plaintiffs argue that FS has proceeded as if it has no duty to consider these issues at all. Indeed the EA (AR 23) states: "When considering the public

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interest, the authorized officer shall give full consideration to...the needs of the state and local residents and their economies. In Churchill County v. Babbitt 150 F.3d 1072, 1078 (9th Cir 1998) it was held that a landowner adjacent to land subject to Federal action has a concrete interest in the matter and standing to sue in a subsequent action FS dispenses with Plaintiffs reference to the comment letter of Greg Coln, CEO of Mountain Man tours, as unimportant or irrelevant. The EA at page 26 (AR 48) acknowledges that Mountain Man tours is the largest provider of outfitter rafting days on the upper reaches of the Rio Grande River (the area in question). The statement of Gregg Coln regarding the value and uses of N2 and L3 is authoritative regarding their value to the floating public and commercial rafters. The Mineral County Commissioners repeatedly complained of loss of these public sites and directly state this loss will be damaging to the local economy. As an example, the letter of Lonnie Rogers Vice Chairman of the Mineral County Commissioners communicating the Commission's position said, "Mineral County is based upon tourism and river trips are an integral part of this. To lose public land along the Rio Grande is unacceptable." (R256 The EA concludes that commercial rafters float the Rio Grande past the sites N2 and L3 and that loss of these sites will deprive them of the right to stop at these sites. "Commercial outfitters currently float through parcels L3 and N2. The right to float through these parcels would not change following the exchange; however, the opportunity to use these parcels as rest stops would be eliminated. The potential to access the Rio Grande would be eliminated at parcel L3." (EA at R66). The allegation

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that no outfitters have the right to use these FS parcels as rest stops is not correct. The EA admits that numerous outfitters have permits to float this area. (RA 48) FS claims that there is no support for the Mineral County opinion of adverse economic impact by this exchange and, therefore, FS is free to disregard the same. This is not true. The Mineral County Commission is a public agency of the State of Colorado with inherent and obvious expertise in this area of the local economy. The FS is required to give weight to the opinions of governmental agencies with expertise and they admit here they have not done so. The argument in the FS brief that it has no duty to consider the adverse impact on local residents and the local economy and that it can ignore the opinions of local governmental agencies with expertise in this area shows that it did not give due regard to required factors. FS is required under NEPA regulations to consider alternatives to the proposal. Nowhere is the actual cost of these supposed improvements discussed or the possibility of having them paid through Scenic Byway DOT grants. FS does not deny and admits through its own analysis of public comments that the public overwhelmingly opposed this exchange. Most opposition opinions expressed the significant loss of valuable public properties and the relative inadequacy of the acquired properties to make up the difference. These public comments express personal opinions of the recreational, esthetic, wildlife, hunting and hunting values of these properties and the significance of the loss to the public that will occur if this exchange is approved. This is not just a case of one lodge complaining because they will suffer a loss. The overwhelming public opinion expressed a loss to the public at large, which opinion was discounted by FS for no particular expressed reason. FS only explanation was that there

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was no data of public use, therefore, they assume there is none contrary to the weight of public comments. Antlers Lodge is a large provider of tourist lodging in Mineral County (AR 955, 1039-1041). The fact that N2 is highly used by these guests is not a negative as FS suggests. These people come to the RGNF divide district to utilize the forests assets which is the FS mission not a use FS should be denigrating as unimportant. RGNF Forest Plan, forest wide objective 7.1 states "Cooperate with all people, including those whose livelihood is dependent on National Forest resources, in the development of plans and projects... and support recreation and tourism." This issue was raised multiple times at the agency level including in appeals (AR 598). In direct disregard of this written Forest Plan Objective (which reflects law and regulation) the appeal deciding officer stated: "While the Forest Service wishes to be a good neighbor and strives to contribute in a positive way to the opportunities for outdoor recreation and to local economies tied to these activities, there is no requirement in law, regulation or policy which prohibits actions which may have negative effect on the local economy or on recreation opportunities" (RA 768).

FLPMA, NEPA, implementing regulations and the national, regional, and local forest plans is law, regulation and policy. FS brief only confirms the point Plaintiffs have made that FS ignored and refuses to give serious or meaningful consideration to the impact of its decision on residents and particularly those who provide tourist access to the forest and are economically dependent on that relationship.

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D. FS confuses lands suitable for acquisition with lands appropriate for disposal Plaintiffs argue that there is no listed criterion of the land adjustment policy that is furthered by the Federal lands that are being divested out of the Forest. Plaintiffs have not argued that the lands being acquired do not meet at least the minimum criterion for acquisition. In this case, the FS wishes to acquire these lands because they are in holdings in the National Forest. They are not in wilderness areas, but they are in

holdings. These lands have little else to recommend them. They are wildlife habitat to be sure and they are in the forest. It is clear, however, that there is no unique value to any of these lands, other than they are private in holdings in the forest. The point the Plaintiffs make is that there are criterion for disposal as well as criterion for acquisition of lands. The properties for disposal do not meet even a single one of the listed criterion for disposal and the FS does not even argue that they do. FS falls back on the reasons the lands are being acquired, that is, elimination of the boundaries surrounding the in holdings being acquired and acquisition of the rights of way through the lands being acquired. Straightening up Mr. Lisenby's border is not mentioned as a reason to dispose of property in the regulations or policies. This border follows the natural tree line and the transition from lowland to upland. Lisenby just wants some of the forested upland he doesn't already own with substantial hunting value for development. This is not a reason for disposal. In regard to N2 this property is bordered by private property, but it reflects the geographic reality of upland terrain versus lowland ranchland (See topographical map at AR 3017). Granting this land to Nearberg does not simplify boundary, it allows intrusion of private property into an otherwise pristine upland habitat that is critical

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winter range and disenfranchisement from the public of a small corner of lowland floodplain including the Rio Grande. There is no boundary issue furthered in the public interest in disposing of any of these properties. The FS makes no case that the Proponents are having a problem with people crossing their barbed wire fences with no trespassing signs affixed or that this is an issue that needs to be remedied for any reason. (AR 1040, footnote 4, and 1047) 4 . The Land

Adjustment policy at (AR 1464) makes clear that when disposing of properties, boundary issues that make them suitable for deposal are such that they are isolated from the forest or intermingled parcels, not wholesale chunks of the forest that happen to be on the edge. There will always be an edge and the public will always be entitled to use the public land up to the edge of Proponent's lands. The examples in the land adjustment strategy, Appendix E, are included to show the types of issues that are important. FS has shown nothing regarding these parcels that make them suitable for disposal. FS sites in its brief, 42 USC Sec. 1716(b), which authorizes exchange only if federal land "is suitable for transfer out of Federal ownership..." and 36 C.F.R. Sec. 254.3 (a)(1)(iv) the parcel must be "suitable for elimination from the NFS" (FS Brief page 18). Plaintiffs could not agree more. The lands do not meet a single one of the criterion for disposal in the listed examples in the Forest Plan. Plaintiffs have shown how lands being dispose of have many of the special favored and unique characteristics that under the Forest Plan require special protection
There is no barbed wire or any fence on Antlers boundary with the forest service parcel N2 as alleged by FS in its brief. The comment letter of May 24, 2001 with supporting photographs 1044 through 1046 show there are no fences on the boundary between Antlers and N2 or any of the upland FS property to the West of Antlers. The public has free access across the upland portion of Antlers property. FS incorrectly characterizes Antlers as prohibiting traffic of the public to the southern boundary of N2. All Broadacres property, on the other hand, is fenced with four strand barb wire and no trespassing signs. ( see referenced Photographs). FS includes as a condition of the exchange that this 4x4 road will be moved after the exchange attesting to the fact that Nearberg will not allow this use when the property is acquired.
4

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and have specific prohibitions against any action violating that overriding standard. These are the forest wide and special management area prescriptions Plaintiffs have detailed in their Opening Brief. E. Federal Parcels are in the Scenic Byway Management Area FS does not contend that it complied with its obligations to the public under the Scenic Byway Act by protecting the Silver Thread Scenic Byway view shed. FS simply denies any properties in this matter are in the Scenic Byway Management Area: "Contrary to Plaintiffs suggestion, the federal parcels have not been given Scenic byway (4.21) designation in the Forest Plan" Brief 52. This is a surprising allegation since the EA states: "The Rio Grande Valley is a central feature within the Silver Thread Scenic Byway adjacent to the N and L Parcels proposed for exchange... The proximity of the parcels to the Scenic Byway, their unaltered condition, and their high visibility, classifies the Federal parcels with a Scenic Integrity Objective of "High" (EA page 41, R63). "Many of the Federal parcels have scenic value do to their location along the Scenic Byway and Upper Rio Grande Valley. Several of these parcels are highly visible to users on Highway 149. This area is mapped as a Sensitivity Level 1 along the Silver Thread Scenic Byway (Highway 149), which means the viewing public and the District has indicated that viewers have a "high concern" for the Scenic resources along the highway. Any activities planned for this area would have to remain subordinate to the characteristics landscape, or managed for a Scenic Integrity Objective of "High." The National Scenic Byway Act states as its purpose to maintain and enhance the natural beauty of public lands, including the country side and recreation lands, along the designated byways. 23 U.S.C.A. § 138(a). Nothing should be done to interfere with this

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purpose unless there is no feasible and prudent alternative. Id. The Secretary of the Agriculture is directed to cooperate in implementing the act. Id. The reference to the Scenic Byway Special Prescription Management Area under the Forest Plan was included to carry out this obligation of the Forest Service to protect the view shed of the Silver Thread Scenic Byway. Designation of the roadway has little meaning without the obligation of other federal agencies with lands along the byway with an obligation to protect those lands from development. If FS failed to categorize the properties in question with Scenic Byway protection, then this was a violation of the intent of the Scenic Byway Act in the first instance. Once this Byway was established under 23 U.S.C.A. § 138, FS is not free to ignore the mandate to not do any act that interferes with the natural beauty of public lands traversed unless there is no alternative. The prominence of parcel N2 from Highway 149 at mile marker 25 is seen in photograph at Notice or Supplementation of the Administrative Record at 3983, 3982, 3977, and 3978. FS has no explanation why disposal and resultant development of the upland area of N2 would not cause an adverse impact on the view shed. FS admitted this area of the Byway would go from "High" scenic value to "None" in the EA. FS claims that the building it is allowing on parcel L5 is not directly in the view of highway 149 as claimed by the Plaintiffs. FS is wrong on this issue. The above quote from the EA states the L properties (including L5) are directly in the view from the Scenic Byway. The map at (R 28) graphically demonstrates this. Parcel L5 is described as: "This 214.06 acre parcel lies immediately above the floodplain of the river and includes the lower slopes of the forested hillside with extensions into the adjacent open

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pasture land. Roughly 80% is forested habitat..." (R 47). This property as viewed from the Silver Thread Scenic Byway can be seen in the record at Notice of Supplementation of the Administrative Record, filed October 25, 2005, (AR 3981, in the Court file). The property is on a slope across the Rio Grande flood pane from the byway and is clearly and prominently in view. Lisenby plans to build five residences on this parcel in or near the wooded area. The proposed covenant regarding building on L5 states only as follows: "The NonFederal Party will place a deed restriction on Parcel L5 limiting future development to no more than 5 residential dwellings subject to compliance with Mineral County, Colorado zoning and land use ordinances." (AR 2197). There is virtually no requirement that trees be used as screening as alleged at 52 of the FS brief nor is there a limitation on the number or area of tress that can be cleared. FS wrongly claims the disturbed area or yard area for these homes will be no more than three acres; while in the body of the report it admits it will be approximately one acre per cite or five acres. In reality this is fiction, as there is no specific limitation on the area of trees that can be removed to build these homes. In addition, there is no agreement of Lisenby that he will not develop the private property that he owns below this parcel. The argument that the granting of this parcel to Lisenby will prevent building in the 1600 acres of private property he owns below it is supposition. No such enforceable agreement exists. The fact is that FS is granting Lisenby prime hunting and Lynx habitat in the Silver Thread Scenic Byway view shed with the specific understanding that he can and will build homes in this habitat and

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directly in the view. His existing right to build on already private property remains in tact and unaltered FS has no excuse for its failure to abide by the mandate of the National Scenic Byway management Area persecution to protect the scenic integrity of federal lands under its control along the byway and the local residents and their economies it was designed to protect; therefore, it claims the lands involved are not in the Scenic Byway management area. Defendant argues that parcel L3 has no public value and that it can not be up graded for a public access cite. This issue is pertinent to the adverse economic impact on the area, the loss of recreational opportunities and to the National Scenic Byway Management Area so it will be treated here. The EA describes the property as: "The entire area, with the exception of the road berm and the rip-rapped river banks, is located within the floodplain of the river." (RA 47). This area of floodplain can be seen in the photograph of the property at AR 3383. The highway right of way fence can be seen in the foreground and the flat floodplain beyond the right of way can be seen in the photo at top right. The view is southwest or upstream. The parcel is described as 1.0 acre of floodplain in table 6 of Wetland and Floodplain Acreage of the Federal Lands Proposed for Exchange in the EA (AR 54). Even after the DOT opinion letter that the parcel could not be used as an input cite, Mineral County appealed the loss of this site to the agnecy appeal deciding officer. Their opinion is that the property is and can be used as a valuable public water access site. The appeal signed by all of the Mineral County Commissioners states: "The Responsible official's decision failed to adequately consider comments previously provided concerning the socio-economic cumulative effects under the

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alternative selected. The Responsible Official underestimates and understates the significant importance of these two parcels to Mineral county residents and to the tourist that come to Mineral County. The Responsible Official concludes that these two parcels are not used much and fails to consider the future increased use in rafting and float fishing on the Rio Grande. Much of the river bottom in Mineral County is presently in private ownership. Places to access the river for fishing, such as L3, and to stop to rest while floating, such as N2, are important to tourism of the area To lose even a small amount of public area on the river is detrimental to the County. A proposed boat ramp in another location on National Forest does not remedy or compensate for this loss." (RA 555). The EA states: "The L3 parcel currently offers river users a stopover opportunity to a small area of Federal land (1.11 acres) in a stretch of the river dominated by private lands. Since this parcel lies adjacent to Highway 149 it also offers an opportunity to access or leave the river from Federal lands. A turnout on the highway, at this location provides some limited vehicle parking, Due to safety issues concerning the limited sight distance created by curves in the highway, the Colorado Department of Transportation has indicated this area not appropriate for a developed river access point." (RA 68).

This last statement confirms Plaintiffs' point that the issue prohibiting development of this parcel as a more formal rafting and water access cite is not the size of the property but line of sight issues, i.e. automobile pull off and pull out safety issues. As Plaintiffs pointed out in the opening brief, there is evidence in the file that these issues can be resolved by acceleration and deceleration lanes, but the problem is cost or funding for these improvements. Federal DOT funding and expertise on this subject under the Scenic Byway Act has not been consulted. By disposal of this property this possibility is lost. It is arbitrary and capricious to dispose of this property against the strong and substantial recommendations of local governmental authorities and the Federal policies in the National Scenic Byway Act, especially when this includes a portion of the Rio Grande, the namesake of the forest. The FS proposes to require the proponents to improve the parking lot and the input ramp at the park corrals site. This is hardly a reason to alienate important segments

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of publicly owned river and is specifically referenced as irrelevant to the loss of the other sites by the Mineral County Commissioners. Improvement of public access facilities to FS property is a primary responsibility of the FS. FS cites no authority to dispose of valuable properties to gain improvements elsewhere that are its primary responsibility in the first instance. There are public funds available from the DOT on a priority basis for improvement of Scenic Byway water access sites. Mineral County should not have to give up other valuable sites to Proponents in return for their payment of parking lot improvements when public funding and expertise is available for this purpose? F. Failure do an analysis of the impact on management indicator species, deer and elk, was preserved on appeal The issue of the effect of this exchange on deer and elk winter range, the resulting affect on the deer and elk populations and the loss of hunting value as a result of the exchange was a frequent complaint from much of the public from the very outset of the scoping continuing through the comment periods and the appeals process. Deer and elk are management indicator species under the Forest Plan. FS claims that, because the public didn't refer the FS to the appropriate regulations, FS was not on notice that it should have been evaluating the affects of the proposed exchange on the species involved. Surprisingly, in the same brief FS claims a presumption of correctness because of its inherent expert status on these matters. According to FS logic it has no duty to comply with its own regulations unless the public quotes page and line from the regulations. Just pointing out that the decision will adversely affect the wildlife they have a duty to manage isn't enough to put them on notice to check the regulations. Defendant sites Bastek v. Federal Crop, 145 F. 3d 90 (2d Cir. 1998) for the proposition that Plaintiffs failed to preserve this claim by failing to mention it in the

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administrative appeal. The case holds that exhaustion is required by statute in cases against the Department of Agriculture and its sub-agencies. Failure to exhaust administrative remedies is not alleged here, rather, that the specific point was not adequately raised. FS also cites Kleissler v United States Forest Service 183 F. 3d 196 ( 3rd Cir. 1999) for the proposition that Plaintiffs did not adequately preserve the issues regarding deer and elk management indicator species. In Kleissler, there was a complete disconnect between the issues raised in the agency appeal and the District Court Action. The Court listed the points below and the points in the circuit court action and they were not even similar. The Court noted: "At most the claims raised in federal court were only vaguely and cryptically referred to, if at all, during the administrative appeal. Therefore, the required correlation is sorely lacking." Kleissler at 203. In Plaintiff's Opening Brief, Plaintiff failed to note that the regulations on management indicator species have been amended as of 2004 such that 26 C.F.R. 219.35 as amended was in effect after January 9, 2000. The amendment allows the responsible official to monitor the effects of its actions on management indicator species by using the best available science. This does not change the outcome in this case since CDOW is the recognized expert authority on deer and elk and does have very thorough complete data on deer and elk which data was not consulted or analyzed. When a private party raises the issue of adverse effects on management indicator species to the agencies, use of the words "management indicator species" or references to the regulations is not required to preserve the point on appeal. League of Wilderness Defenders etc. vs. Bosworth 383 F.Supp.2d 1285, 1302-1303 (D.C. Or. 2005).

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The Appeal of Plaintiffs, Jim Martin and Jerre Guthals, referenced the potential negative impact of the decision on "indicator species" in their timely filed administrative appeal of March 3, 2004(RA 545). Powers and Antlers Jointly appealed to the Appeal Deciding Officer within the designated time for appeal (AR 592-665). Pages 596-598 detail the issues relative to loss of deer and elk winter range and the resulting damage to the species that utilize these areas. Specifically at page seven (AR 598) Plaintiffs stated: "3. There is no substantive analysis in the entire record of the forest service of this trade of the potential loss of critical winter range (sic) in spite of the comments submitted by responsible state officials and knowledgeable citizens regarding the serious potential adverse impacts and the clear forest plan prohibitions regarding this type of action."

This statement complains that there is no actual evaluation or study of the impact of the loss of deer and elk winter range. This is exactly what the MIS regulations require, i.e. something more than mere speculation regarding the impact of the project on specific species and evaluation of data where available. Plaintiffs are aware of nothing in the cases cited by Defendant that requires an actual citation to a regulation that was violated rather than a clear reference to the substantive mistake error or omission of the FS as was the case here. Plaintiffs also noted the fact that the adverse impact on the elk and deer and the species that depend on these areas of the forest had been raised from the first written statement of the Plaintiff and in the first verbal meeting with the Divide District Ranger, Randy Burgess, regarding this matter. Plaintiffs pointed out that shortly after becoming aware of the proposed trade the Plaintiff, Powers, spoke to Randy Burgess and told him about the extensive herds of elk and other wildlife that winter on N2 and privatization and subsequent development on that parcel would be damaging to the elk and other

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wildlife: "Mr. Burgess at that time stated that development in critical big game winter range is not contrary to forest policy and does not adversely effect the wildlife as the wildlife simply transition thru these areas." (AR 598). FS never denied that Mr. Burgess made the referenced statements. While FS claims to be clothed with presumed expertise their actions and arguments belie that presumption. Lastly, the fact that FS did not do an MIS evaluation is relevant to this case on appeal whether or not the issue was specifically raised below. It was repeatedly raised that loss of critical winter range would create a significant adverse impact on not only deer and elk but also the many other species that depend on it. Further, that FS has a duty to protect these areas under the forest Plan. Having failed to do any quantitative analysis required by the MIS regulations, the only remaining reasonable criterion to go by is the designation of the habitat itself as "critical" winter range. Without any specific study or evaluation of the facts, there is nothing to rebut the definition of "critical" winter range, i.e. that the species that depend on it will not survive. This is an impact that is at least significant in light of the Management Prescription to protect these animals and their winter range and, Plaintiffs believe, the Forest Plan simply prohibits this action without any further substantive analysis that the conclusion is incorrect. Thus, FS decision is this regard is not supported by substantial facts and can not be assumed correct based on agency expertise. Colorado Environmental Coalition, supra. G. the DN fails to adequately evaluate the affects on a threatened species Canadian Lynx Lynx is a threatened species under the endangered species Act. The DN states: "There would also be a net loss of 48 acres of identified suitable lynx habitat through its conveyance of approximately 222 acres of suitable habitat on the federal lands and the

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acquisition of 174 acres on the non-federal lands. By placing an additional 174 acres of lynx habitat into public ownership and by prohibiting development on lynx habitat that is conveyed, the public is assured of more lynx habitat protection through this exchange." (RA 9). Silverton Snowmobile Club, et al. v. United States Forest Service, et al. 433 F. 3d 772 (10th 2006) was published after Plaintiffs filed their opening brief. The case involved a challenge by snowmobile and off road vehicle clubs of a decision to limit usage of trails in the forest in part to reduce disturbances in lynx habitat. The Case centers on the EA and BA findings that Lynx are creatures that live only in areas forested by late seral spruce-fur: In assessing the impact of the proposed alternatives on the lynx, the BE/BA noted that "lynx seldom venture more than 330 feet into open areas" In part the decision of FS in that case was to limit motorized recreational vehicle traffic within 330 feet of late seral spruce-fur, Id. 778. This gives further credence to Plaintiffs contention that lands were inaccurately described as Lynx habitat. 5 The non Federal parcel B4 is described as having discontinuous patches of mixed conifer and aspen on a small portion thereof and otherwise treeless; it is dominated by open shrub and grasslands interspersed with clumps of forest cover; it is mostly open shrub and grasslands interspersed with clumps of mixed conifer and aspen and aspen stands (AR 47, 117 and 191). This habitat is either not currently suitable for Lynx or of low grade compared to what is lost according to FS own criterion expressed in Silverton and as discussed in the initial Brief.

Plaintiffs Opening Brief mistakenly stated that B1 was classified as having Lynx habitat, but, rather, B4 was classified as having 50 acres of lynx habitat.

5

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In regard to the L5 property which is prime lynx denning habitat, FS claims it is protected by covenant which allows homes to be built and traffic to those homes and any other off road traffic Proponent may wish. In the Silverton case FS prohibited motorized traffic within 330 feet of the woods. The opinion of no impact in this case is at odds with the conclusions in the Silverton case. FS references the covenants put in place to protect the properties being transferred out of federal ownership as justifying the loss of habitat. In Plaintiffs opening Brief they point out that the FS reviewer of the EA did not believe these were adequate. Also, Dan Larson, PhD., professor of geology, opined that the covenant for the geological site at N2 was inadequate (R558). 6 The National Land Ownership Land Adjustment Team in Washington, DC evaluated the proposed exchange early on and forwarded its recommendations on August 6, 1999. At that time the Carson Historic site was still in the proposal and was noted as the main reason for the exchange (RA 2853). That team recognized that, under the proposal as presented, there was a net loss of wetlands/floodplain and that this net loss needed to be balanced by additional lands being added into the exchange; and that the use of restrictive covenants to make up for the loss was not adequate since such covenants are difficult to administer (R2854, Para. 4). The National FS recognized that there should be at least a balance of floodplain and wetlands loss disregarding protective covenants since these do not work well. The inadequacy of covenants to protect lands conveyed provision was dropped from the report from the regional office to the RGNF just a few days later on August 20, 1999. (R2843 Para. 4). The final exchange relies heavily on protective covenants

6

Note FS criticizes Plaintiffs for referring to the Cliffs as the "Antlers Cliffs" as if this was evidence of exaggerated self importance on the part of Plaintiffs. Plaintiffs would point out to FS that the letter of Professor Larson, refers to the area as Antlers Park and it is so designated on the map (RA 561), and the cliffs in particular as the "Antlers Cliffs" (RA 563) because this is their proper name.

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including against building in the Lynx habitat. John Murphy, the FS reviewer of the proposed EA just before it was finalized a couple of years later, noted the large number of such covenants in this exchange indicates that the exchange is not in the public interest (RA 2405). This analysis shows FS has improperly heavily relied on protective covenants policy that Covenants are not adequate. This is so in regard to the Lynx habitat as well as the several other covenants involved in the proposed exchange. FS claims the affidavit of Jake Powell (RA 695) is irrelevant because it was filed after the time for appeals. The affidavit was actually filed as a supplement to a timely filed appeal (RA 694), and then only a few days after the deadline for appeals. (RA 592). In any event, the issue of whether the FS reviewed the affidavit in coming to its conclusions in the first instance is not the reason for the affidavit. After the fact affidavits may be relevant and considered by a court reviewing an agency matter under the APA where they show the process was not in conformity with regu