Free Motion for Reconsideration - District Court of Colorado - Colorado

Case 1:04-cv-01071-MSK

Document 89

Filed 01/16/2006

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 04-AP-1071 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 ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )

________________________________________________________________________ MOTION FOR RECONSIDERATION OF MINUTE ORDER STRIKING PLAINTIFFS AFFIDAVITS REGARDING STANDING AND MOTION FOR LEAVE TO FILE AFFIDAVITS ________________________________________________________________________ COME NOW the Plaintiffs by and through their undersigned attorney and request this Court rehear or reconsider its Minute Order of January 5, 2006 striking the Plaintiffs Notice of Filing Affidavits regarding Standing (Doc 86) and, in the alternative, Plaintiffs Move the court for leave to file the affidavits attached to the said Notice and as grounds therefore would show the Court as follows:

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1. The Court now requires electronic filing of all pleadings. The Plaintiffs have not been receiving copies of Orders of the Court or documents filed by Defendants or the Interveners by electronic filing. The undersigned Plaintiffs' counsel has inquired with the Clerk of this Court regarding non-service of pleadings and documents and has been assured that Plaintiffs counsel is on the service list and that documents are being forwarded to the appropriate e-mail address. A check with the District Court Help desk, has shown that test e-mail has been received by the undersigned. (copy attached exhibit A). Counsel for Plaintiff has been informed of Orders of the Court in this matter only because Orders have been mailed by ordinary U.S. mail addressed to Gordon Rowe Jr., Esq. at the undersigned attorney's office. As a result, Plaintiffs' counsel was not served with the Defendants Response to Plaintiffs Notice of Filing Affidavits and the undersigned counsel had no knowledge of the same until he received the Court's Minute Order by ordinary U.S. mail on January 9, 2006. 2. Neither Interveners nor the Defendant contacted the Plaintiffs counsel under Local Rule 7.1 A to discuss the Defendant's Response to Plaintiffs' Notice of Filing Affidavits. The Defendant, Forest Service filed a Response and Motion to Strike the Plaintiffs affidavits on January 4, 2006 and the Order Granting the motion was entered the next day and, therefore, Plaintiffs had no time to respond. 3. Plaintiff does not agree that the Affidavits filed by the Plaintiffs at Doc. 86 of the Court file are an effort to supplement the already supplemented "administrative record." The affidavits in question are filed under the caption "Notice of Filing Affidavits", which states: "Come Now the Plaintiffs by and through their undersigned attorney and file the attached Affidavits in support of Standing." 4. The Scheduling Order and all amendments including the most recent Second Amended Scheduling Order entered October 20, 2005, sets time limits on supplementing the "Administrative Record". It does not concern itself with the issue of Standing of the Plaintiffs nor does it set any time limit on the Plaintiffs obligation to submit proofs regarding Standing. 5. Plaintiffs served their Second Amended Complaint for Declaratory and Injunctive Relief on September 14, 2004. Paragraphs 3 through 15 allege who the Plaintiffs are and detail Plaintiffs claims to standing in this case. This put Defendant on

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notice, as a matter of law, of what Plaintiffs intended to prove in this case in regard to standing. 6. This Court denied the Defendant and Interveners' Motion to Dismiss the Complaint on the basis of standing in its Order of October 28, 2005. At that time the Court stated in its ruling that, "the Court finds there is standing." 7. The legal sufficiency of the Plaintiffs pleadings having been resolved only as recently as October 28, 2005 as a matter of law, the Plaintiffs were only then obligated to submit additional proofs that they in fact do have standing in this matter. They did this on December 21, 2005. Plaintiffs had intended to serve the affidavits with Plaintiffs Opening Brief on December 15, 2005 but were delayed by 6 days because of difficulty in scanning them into the electronic e-filing system. Plaintiffs have no objection to an extension of time to file their responsive opening brief by any reasonable time caused by that delay. 8. Since standing is not a necessary element of Plaintiffs right to participate before the agency, it is not a matter required to be proved before the agency, and therefore, Defendant can not limit Plaintiffs in this regard to the administrative record alone on the issue of standing before this Court. 9. A review of the Affidavits filed with the Notice by the Plaintiffs shows that they track the allegations of the Second Amended Complaint regarding standing with some limited addition of detail. Defendant can not claim surprise in this regard because the Second Amended Complaint was adequate notice of what Plaintiffs intended to prove regarding standing. Defendant requested no discovery regarding standing, although the Court offered Defendant and Interveners the opportunity to conduct discovery at the outset of this case. Defendant can file counter affidavits if it seriously contends the Plaintiffs' Affidavits are untrue BRIEF IN SUPPORT OF MOTION FOR REHEARING AND MOTION FOR LEAVE TO FILE AFFIDAVITS IN SUPPORT OF STANDING "Standing is a threshold requirement, determined with reference to both constitutional limitations on federal court jurisdiction in Article III and prudential limitations on the exercise of that jurisdiction Warth v Seldin, 422 U.S. 490 498, 95 S. Ct.

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2197, 2204 (1975); Baca v. King 92 F. 3d 1031, 1035 (10th DCA, 1996). Standing of a Plaintiff in an APA appeal is based on whether the Plaintiffs will suffer actual harm as a result of the administrative decision and if the PlaintiffS are within the zone of interest protected by the applicable statutes. "It is the Plaintiff who must establish these elements of standing in order to justify his invocation of the adjudicatory and remedial powers of the federal courts." Warth at 518, Baca at 1036. The Forest Service is an agency of the executive branch of the federal government under the Secretary of the Department of Agriculture. It is not subject to Article III of the constitution and, therefore, has no case or controversy requirement. Any member of the public is permitted to comment at the agency level. There is no requirement of standing, 36 C.F.R. 215 (a)(1) and (b)(2)(i). To participate in the comment process nothing more is required than the name and address of the commenter and his or her signature. The agency is even required to accept oral comments 36 CFR 215.6 (a)(3). The Administrative Record consists of all documents and materials directly or indirectly considered by the agency decision makers. Olenhause v Commodity Credit Corporation, 42 F. 3d 1560, 1576 (10th Cir. 1994). Plaintiff is not aware of any rule nor does the Defendant cite any case that requires the Plaintiff in an APA appeal case to have submitted all issues regarding standing in the record below before the agency. They cite no authority for their argument that Plaintiffs have no right to file factual data in support of standing in this Court. . In Sierra Club v. Dombeck, 161 F. Supp. 1052 (D.C. Ariz. 2001), the affidavits stricken were affidavits purported to clarify technical terms and information before the agency, Sierra Club at 1063. These were not affidavits on standing. Defendant argues at page 6 and 7 that the affidavits are untimely because the Plaintiffs should have known standing was an issue and should have moved to amend the complaint to add allegations. This makes no sense. Plaintiff's complaint does include allegations of standing which have withstood a Motion to Dismiss. The Court overruled the Defendant's motion to dismiss on this subject on October 28, 2005. In Presidio Golf Club v. National Park Service, 155 F 3d 1153, 1160 (DCA 9th 1998) the District Court was considering additional evidence of the impact of the decision of the agency on the Plaintiff for standing purposes offered as late as the oral argument.

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Defendant argues at paragraph 4 that Defendant does dispute the factual basis of their standing in this action and that the Plaintiff should have known the Defendant would contest the facts and filed factual support with the complaint. They cite National Credit Union Administration v. First Nat'l Bank & Trust Co., 522 U.S. 479, 488, n4, for this proposition but admit that in that case the factual basis of the Plaintiffs right to standing was admitted, and this is not the case here. The issues of whether the agency acted arbitrarily or capriciously or failed to follow the law are limited to the agency record, but factual issues related to the courts jurisdiction are properly raised by motion for summary judgment with appropriate support. Defendant has made no such motion. Plaintiff is free to file factual support for standing in this record that is appropriate and relevant and material to those issues. Since the issue of standing is a matter of federal court jurisdiction, the issue of standing is not necessarily fully addressed at the agency level. It could be argued and Plaintiffs assumed it would have been rightly argued by the Defendant that affidavits addressing the issue of standing before this court were not considered directly or indirectly by the agency and, therefore, there is no basis or reason for the Plaintiffs to have been inserting them into the administrative record earlier in this action. Plaintiffs do not deny that there is substantial evidence in the administrative record regarding the Plaintiffs standing to file this action before this Court but not all relevant material was put in the administrative record at that time, nor was it required as a matter of law. Plaintiffs did not necessarily assume when making comments at the agency level regarding an environmental assessment or a planned land exchange that they would end up in Federal Court on an APA appeal or that, if so, the Forest Service would object to their right to do so on the basis of standing. Plaintiffs had the right to assume the agency would have done the right thing in the first instance and this case would not have happened. Ecosystem Counsel, Nancy Albright, James Martin, and Jerry Guthals were pro se citizens at the agency level commenting upon a planned agency action regarding their local national forest. It is unreasonable to assume they would have submitted all relevant information to the agency regarding jurisdiction of this Court under Article III,

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of the United States Constitution when this was not required under the applicable regulation. It is anomalous that Defendant argues that the Plaintiffs at the agency level were reasonably allowed only 30 days to review the administrative record at that time, analyze all the facts without benefit of the full record, file all relevant comments and supporting evidence and address standing as well in some potential future lawsuit, (when interveners and the forest service had been analyzing the potential land trade for five years without any public scrutiny) yet Defendant complains it is prejudiced by being required to respond to the Plaintiffs' standing affidavits in 40 days. There is no requirement that the Forest Service contest Plaintiffs allegations of standing. They can move for Summary Judgment on that subject or not as they see fit. Plaintiffs have done nothing to prohibit that. The Plaintiffs agree that most factual issues in this case are limited to the facts that are contained in the Administrative Record and that this matter proceeds on that record in the manner that appeals would normally be handled in the appellate courts under the appellate rules. However, the one issue of standing is a factual issue having to do with this courts jurisdiction regarding standing. Plaintiff does not see that when the issue of standing is contested on a factual basis as the Defendant and the Plaintiffs have done here that when the case is at issue that the Plaintiff needs leave of Court to file affidavits regarding standing. Nevertheless, Plaintiff having failed to perceive this requirement, move this Court for permission to file the affidavits at this time. WHEREFORE Plaintiffs request this Court Reconsider its Minute Order of January 5, 2006 and grant leave to Plaintiffs to file Affidavits regarding standing (D.O.C. 86). CERTIFICATE OF CONFERENCE OF COUNSEL UNDER LOCAL RULE Pursuant to Local Rule 7.1A, Plaintiffs have conferred with the Defendant, Forest Service, Counsel Roxanne Puruso, regarding this Motion for Rehearing and Motion to file affidavits and has been unable to resolve the issues. Dated this 13th day of January, 2006

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s/s Charles C. Powers Original signature on file

CERTIFICATE OF SERVICE I hereby certify that on the 16th day of January, 2006, I electronically filed the foregoing with the Clerk of Court using the ECF system which will send notification of such filing to the following e-mail addresses: Roxane Perruso [email protected] Habib Nasrullah [email protected]@usdoj.gov Jennifer Lynne Soice [email protected]@petros-white.com Charles B. White [email protected]@petros-white.com Terry Fox [email protected]@usdoj.gov s/s Beverly Darrow