Free Response to Motion - 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-1071-JLK-BNB SAN LUIS VALLEY ECOSYSTEM COUNSEL, NANCY ALBRIGHT, JAMES MARTIN, JERRE GUTHALS, STEVE LEWIS, ANTLERS RIO GRANDE LODGE, INC., a Colorado Corporation, and CHARLES C. POWERS, Plaintiffs, v. UNITED STATES FOREST SERVICE, Defendant.

DEFENDANT'S RESPONSE TO PLAINTIFFS' NOTICE OF FILING AFFIDAVITS

Defendant, the United States Forest Service (the "Forest Service"), by and through its counsel, United States Attorney, William J. Leone, and Assistant United States Attorneys, Roxane J. Perruso and Terry Fox, opposes Plaintiffs' "Notice of Filing Affidavits" (Docket No. 85) and the five attached affidavits of: (1) Charles C. Powers, Esq.; (2) Nancy Albright; (3) Jerre Guthals; (4) James Martin; and (5) Christine Canaly (for the San Luis Valley Ecosystem Council) on the following grounds. FACTUAL BACKGROUND 1. Plaintiffs filed their complaint on May 27, 2004, and a few days later, on June 1,

2004, they filed a Motion for Temporary Restraining Order and Preliminary Injunction ("TRO/PI

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Motion") to enjoin a proposed land exchange ("the Exchange") between the Forest Service and the Intervenors. See Complaint and TRO/PI Motion, Docket Nos. 1 and 4. 2. For reasons unrelated to this lawsuit, The Forest Service notified Plaintiffs that the

proposed land exchange would not be consummated until August 15, 2004. See Stipulation, Docket No. 8. As such, the parties agreed that there was no need for immediate relief and submitted an agreed upon a schedule for the PI Motion to be heard.1 Id. The Forest Service later agreed to postpone the Exchange pending a decision on the merits. 3. On June 21, 2004, the Forest Service filed 10 volumes of administrative record

("AR") totaling 3975 pages of documents. See Docket No. 6; see also Supplemental AR, Docket No. 80 (includes AR3976-86). 4. Among other items, the AR contains Plaintiffs' administrative appeals concerning

the Notice of Decision ("ND") and Finding of No Significant Impact ("FONSI") for the Exchange. See, e.g., AR Index, Exhibit ("Exh.") A at p. 5; see also AR00545-731, Docket No. 6. In their appeal, as well as in other comments submitted to the Forest Service, Plaintiffs had every opportunity to identify who they were, to explain what interests they sought to advance, and to detail what standing they had to object to the proposed Exchange. It cannot come as a surprise to Plaintiffs that the Forest Service and the Intervenors would challenge their standing, given that a

The PI Motion was scheduled to be heard on August 5, 2005. See Hearing Transcript ("Tr."), Docket No. 46. The Forest Service agreed not to move forward on the land exchange until a decision on the merits issued. Id. at 6:3-8 and 12:13-18. The Court made that agreement an Order of the Court and did not find it necessary to rule on the PI Motion. Id. at 12:13-18; 13:21-14; and 16:11-15. 2

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Motion to Dismiss arguing lack of standing was filed. See Motion to Dismiss at pp. 6-17, Docket No. 11 (filed 7/26/04); Answer to Second Amended Complaint at p. 2, ¶ 2, Docket No. 70 (challenging standing) (filed 10/12/04). Moreover, just because the Court denied the Motion to Dismiss at very preliminary stages of the case does not mean that either the Forest Service or the Intervenors cannot ask the Court to determine standing on the basis of the AR. See, Lodge Tower Condo Ass'n v. Lodge Properties, 880 F. Supp. 1370, 1380 (D. Colo. 1995), aff'd, 85 F.3d 476 (10th Cir. 1996); see also National Credit Union Administration v. First Nat'l Bank & Trust Co., 522 U.S. 479, 488, n. 4 (it was not disputed that the Plaintiffs in that case had suffered an "injury in fact," whereas here it is disputed; moreover, given the timely supplementation requested, the record is now more developed than it was at the motion to dismiss stage). 5. Plaintiffs had another opportunity to add facts concerning standing when they

filed their TRO/PI Motion. Indeed, Plaintiffs included an affidavit from Plaintiff, attorney Charles Powers, in support of their TRO/PI Motion. See Docket No. 3 (the affidavit is dated June 1, 2004). Of special interest is the fact that attorney Powers admits that he has been aware of the proposed Exchange since "May 2001" and that he has "commented on the exchange at all steps of the process[.]" Powers Affidavit, Ex. B (dated June 1, 2005, included at Docket No. 3). 6. Largely at Plaintiffs' request, the parties submitted a Stipulated Scheduling Order

giving the parties 15 days from the date of the Order to seek to supplement the AR. See Docket No. 34. The Order was signed on September 10, 2004, and Plaintiffs were on notice that they had until September 25, 2004, to seek to supplement the AR. Id. The Stipulated Scheduling

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Order specifically provides that it may "be altered or amended only upon motion showing good cause." Id. at p. 3. 7. At Plaintiffs' request, the parties submitted a Second Stipulated Scheduling Order.

See Docket No. 40. This Order gave the parties until October 5, 2005, to request supplements to the AR. Id. The Second Stipulated Scheduling Order specifically provides that it may "be altered or amended only upon motion showing good cause." Id. at p. 4. 8. The Second Amended Stipulated Scheduling Order set the deadlines by which the

parties would submit their substantive briefs. See Docket No. 75. Plaintiffs' Brief, pursuant to the Order, was due on December 12, 2005. Id. at ¶ 3. The negotiated Second Amended Stipulated Scheduling Order had no provision for further supplementation of the record (beyond the records identified at paragraph 1). Id. at ¶ 1. In fact, by inclusion of the stated documents in the AR (¶1), the parties expressly agreed that "the administrative record is complete and that no additional discovery is necessary." Id. at ¶ 2. Indeed, Plaintiffs withdrew their motion for leave to conduct discovery (Docket No. 48) and their amended motion for leave to conduct discovery (Docket No. 56). Id. 9. On October 5, 2005, the final date supplements were allowed, Plaintiffs submitted

a list of documents they wanted in the AR. See Docket No. 47. Significantly, Plaintiffs did not timely ask to supplement the AR with the June 1, 2004 affidavit of Charles Powers (Docket No. 3) or the five affidavits they now seek to add to the record (Docket No. 85). Id. 10. On December 16, 2004, the Forest Service filed a supplement to the AR

containing several documents that Plaintiffs requested be part of the AR. See Docket No. 62. 4

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11.

Most recently, on November 11, 2005, the Forest Service further supplemented

the record with hard-copies of certain photographs Plaintiffs wanted in the AR. See Docket No. 80; see also Docket No. 75 (noting Plaintiffs' request to supplement the AR and the Forest Service's stipulation thereto). 12. Plaintiffs had multiple opportunities to add "standing" facts to the record,

including but not limited to the following: (1) beginning in May of 2001, when Plaintiff Powers had notice of the proposed exchange and began to submit comments concerning the same (see Exh. B); (2) when Plaintiffs appealed the DN in 2004 (AR00545-714) (Exh. C contains the first page of several appeals); (3) when Plaintiffs filed their TRO/PI Motion (Docket No. 3); (4) immediately after the AR was filed (Docket No. 6); (5) when Plaintiffs filed their "List" of documents to be included in the AR (Docket No. 47) (6) when the first supplement to the AR was filed, at Plaintiffs' request (Docket No. 62); (7) when the second supplement to the AR was filed, again at Plaintiffs' request (Docket No. 80); and (8) when Plaintiffs' substantive brief was due and filed, on December 12, 2005 (Docket No. 82). 13. The December 21, 2005 "Notice of Filing Affidavits" (Docket No. 85), which

effectively seeks to supplement the AR, comes: (1) 77 days after the October 5, 2005, deadline for all parties to seek to supplement the AR; (2) 9 days after Plaintiffs' brief was due; and (3) after all the parties agreed that the "the administrative record is complete and that no additional discovery is necessary." Docket No. 75 at ¶ 2. Moreover, the December 21, 2005, "Notice" was filed: (1) without seeking leave of Court (and without filing a motion); (2) without "good cause"

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as required by the governing Scheduling Order and by the Federal Rules of Civil Procedure; and (3) without conferring with the Forest Service or the Intervenors. LEGAL ARGUMENT I. Pursuant to the Terms of the Second Amended Scheduling Order and Consistent with the Federal Rules of Civil Procedure, Amendment is Allowed Only With Leave of Court and Upon a Showing of "Good Cause." Federal Rule of Civil Procedure 16(b) provides as follows: "A schedule shall not be modified except upon a showing of good cause and by leave of the district judge or, when authorized by local rule, by a magistrate judge." Fed. R. Civ. P. 16(b); Docket No. 40 at p. 4; see also Fed. R. Civ. P. 16(e); Davey v. Lockheed Martin Corp., 301 F.3d 1204 (10th Cir. 2002); Canales v. Principi, 220 F.R.D. 627, 628 (D. Colo. 2004). The Court is justified in refusing leave to amend for multiple reasons, including but not limited to: (1) undue delay; (2) failure to cure deficiencies by amendments previously allowed; and (3) futility of the proposed amendment. Frank v. U.S. West, Inc., 3 F.3d 1357, 1365 (10th Cir. 1993) (citations omitted). Plaintiffs' request is untimely. It is "well settled in this circuit that untimeliness alone is a sufficient reason to deny leave to amend." Frank, 3 F.3d at 1365 (citing Woolsey v. Marion Lab., Inc., 934 F.2d 1452, 1462 (10th Cir. 1991)). This is especially true where, as here, Plaintiffs had "no adequate explanation for the delay." Frank, 3 F.3d at 1365-66. Plaintiffs have offered no such explanation. Indeed, Plaintiffs have not even sought leave of Court to supplement the AR with the proffered affidavits. Plaintiffs knew or should have known on June 21, 2004, when the AR was filed, the "facts" upon which a request to amend the Scheduling Order (if the request had been timely 6

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made) and should have known at that time that they should seek leave to add "standing" facts to the record. See Docket No. 6 (AR). Where "the party seeking amendment knows or should have known of the facts upon which the proposed amendment is based but fails to include them in the original [pleading], the motion to amend is subject to denial." Frank, 3 F.3d at 1366; Coors, 907 F. Supp. at 1460. Although Plaintiffs do not argue otherwise in their "notice," and there is no question that the Forest Service would be prejudiced if Plaintiffs are allowed to continually supplement the AR. Plaintiffs actions create an ever-moving target and it is unfair to subject the other parties to a constantly changing "record" ­ especially when the proposed supplementation comes: (1) without conferring; (2) after the operative deadlines; and (3) after the parties agreed that the "administrative record is complete[.]" (Docket No. 74, p. 2, ¶ 2). The Forest Service is already prejudiced by having to respond to a "Notice" that has no merit, that is untimely, and that diverts attention from the merits of the case to side issues that have no bearing on the ultimate question before that Court ­ whether the Forest Service's "Notice of Decision" authorizing the Exchange to go forward was arbitrary and capricious. See Second Amended Complaint, Docket No. 42. The Forest Service welcomes the opportunity to address the merits and urges Plaintiffs to move forward and address the substance of this case. The delays in this case have been largely caused by Plaintiffs. Good cause requires a showing, among other things, that Plaintiffs, the party seeking the extension, was diligent in the efforts to offer the referenced supplements and that Plaintiffs were without constructive notice of the court-ordered deadline to supplement the AR. See SIL-FLO, 7

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Inc. v. SFHC, Inc., 917 F.2d 1507, 1514 (10th Cir. 1990); Pumpco, Inc. v. Schenker Intern., Inc., 204 F.R.D. 667, 668-69 (D. Colo. 2001). "Carelessness is not compatible with a finding of diligence and offers no reason for a grant of relief." Id. (quotation omitted); Hannah v. Roadway Exp., Inc., 200 F.R.D. 651, 653 (D. Colo. 2001). Here, Plaintiffs were simply careless. Plaintiffs knew about the operative deadlines. Indeed, Plaintiffs stipulated to those deadlines. See Docket Nos. 40 and 74. If Plaintiffs did not feel they could execute the affidavits by the October 5, 2005, deadline to supplement the AR, they should have asked for more time well in advance of the deadline. Indeed, they could have asked for more time when they asked to amend the Scheduling Order on September 21, 2004, and on October 21, 2005. See Docket Nos. 40 and 74. Plaintiffs' failure to timely bring the issue concerning the affidavits to the Court's attention is solely the fault of Plaintiffs. As such, Plaintiffs cannot meet the "good cause" standard. See, e.g., Gray v. Town of Darien, 927 F.2d 69, 74 (2nd Cir. 1991) (no good cause to re-open or extend scheduling order when plaintiffs failed to request relief during the time-frames provided by the order). II. Plaintiffs Cannot Show a Need to Supplement the AR with the Affidavits of Individual Plaintiffs ­ All of Whom Could Have Timely Executed Each Affidavit. Plaintiffs' actions show neglect. In addition to Plaintiffs' failure to satisfy the "good faith" standard to amend the Scheduling Order, their motion is futile because Plaintiffs cannot supplement the AR with the referenced affidavits of the Plaintiffs themselves. Plaintiffs have not shown, and cannot show, that these affidavits could not have been timely secured and timely offered to the Court. Each affiant is a named Plaintiff. Each affiant purports to give facts

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concerning his or her interest in the Exchange and how the Exchange would "injure" him or her. This is not a situation where facts unknown to Plaintiffs later became known and "good cause" can be show to allow the late and unjustified supplementation Plaintiffs now seek. If "good cause" was shown in the first instance, a Court might be tempted to allow an amendment where the Plaintiffs could show that the document central to the decision-maker's decision that was not timely available in any form. That is not the case here. The underlying documents are not statements of non-parties over whom Plaintiffs have no control. Moreover, the AR already contains multiple statements by Plaintiffs of their asserted "interests" in the challenged Exchange. Indeed, an administrative appeal of the Notice of Decision was a prerequisite to Plaintiffs filing the present lawsuit. See AR00545-712 (Exh. C contains the first pages of the appeal submissions). In addition, Plaintiffs proffered affidavits improperly purport to introduce non-standing speculative opinions (some of which appear to consist of hearsay or conclusory statements) to the AR by unqualified persons seeking to be given "expert" status. See, e.g, Albright Affidavit (opining that "The incorrect market values assigned to the Rio Oxbow Land Exchange could adversely affect land values and sales in the County as well as my own property values and the values of my business as a real estate broker"); Powers Affidavit ("The value of Antlers property will decrease as a result of valuable border and access to forest service lands to be exchanged and Antlers will loose [sic] revenue from decrease in attendance cause by loss of access"); Guthals Affidavit ("FS is trading known high quality trophy big game hunting grounds and irreplaceable critical big game winter range in Game Management Unit 76 (GMU 76) contrary to Forest Plan 9

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policy and objectives"); Martin Affidavit (claims that the "FS is trading known high quality trophy big game hunting grounds and irreplaceable critical big game winter range in Game Management Unit 76 (GMU 76) contrary to Forest Plan policy and objectives"); Canaly Affidavit (for San Luis Valley Ecosystem Council) (claiming that loss of "two Upper Rio Grande river frontage parcels and other important forest properties in this exchange to possible private development in return for less valuable lands is a severe loss to the recreational use and aesthetic appreciation of RGNF by SLVEC members"). See Portfolio Disposition Management Group LLC v. United States, 64 Fed. Cl.1 (Ct. Cl. 2005) (§F, ¶ 4) (rejecting invitation to supplement the record with information based on "sheer speculation"). The information Plaintiffs offer, even if it had been timely and procedurally correct, is not properly part of the AR in this type of case, where judicial review under the Administrative Procedures Act ("APA"), 5 U.S.C. §§ 701-06, is limited to the administrative record that was before the agency decision maker. Florida Power & Light Co. v. Lorion, 470 U.S. 729, 743 (1985); Camp v. Pitts, 411 U.S. 138, 143 (1973). As the Tenth Circuit has stated: "the focal point for judicial review should be the administrative record already in existence, not some new record made initially in the reviewing court." Bar MK Ranches v. Yuetter, 994 F.2d 735, 739 (10th Cir. 1993) (quoting Camp v. Pitts, 411 U.S. 138, 142 (1973)).2 To ensure fair review of an agency action, therefore, the court

The Forest Service originally certified and lodged the Administrative Record for this litigation on June 21, 2004. See Docket No. 5. At Plaintiffs' request, the Forest Service supplemented the Administrative Record with one additional volume by filing a Supplemental Record on December 16, 2004, and November 15, 2005. See Docket Nos. 62 and 80. 10

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"should have before it neither more nor less information than did the agency when it made its decision." The Fund for Animals, et al. v. Williams, 245 F.Supp.2d 49, 55 (D.D.C. 2003) (citing IMS, P.C. v. Alvarez, 129 F.3d 618, 623 (D.C.Cir. 1997) (further citations omitted)). As the Court of Appeals for the District of Columbia has explained, for a court "to review less than the full administrative record might allow a party to withhold evidence unfavorable to its case," while "to review more than the information before the [agency] at the time [of its] decision risks our requiring administrators to be prescient or allowing them to take advantage of post hoc rationalizations." 245 F.Supp.2d at 55 (citing Walter O Boswell Mem'l Hosp. v. Heckler, 749 F.2d 788, 792 (D.C. Cir. 1984) (emphasis added). In Franklin Savings Assn v. Director; Office of Thrift Supervision, 934 F.2d 1127 (10th Cir. 1991), the Tenth Circuit identified these narrow circumstances in which a court may supplement the record: A reviewing court may go outside of the administrative record only for limited purposes. For example: [1] Where the administrative record fails to disclose the factors considered by the agency, a reviewing court may require additional findings or testimony from agency officials to determine if the action was justified; or [2] where necessary for background information or for determining whether the agency considered all relevant factors including evidence contrary to the agency's position; or [3] where necessary to explain technical terms or complex subject matter involved in the action. Id. at 1137-38 (citations omitted); See also Camp v. Pitts, 411 U.S. at 142-143 (in order to supplement the record on review, a plaintiff must show that the record is so bare as to frustrate

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judicial review.)3 It is clear that"[t]he circumstances which warrant consideration of extrarecord materials are extremely limited." Custer County Action Assn. v. Garvey, 256 F.3d 1024, 1027 n.1 (10th Cir. 2001) (denying motion to supplement administrative record and reiterating that "[t]he circumstances which warrant consideration of extra-record materials are `extremely limited.'" ). Plaintiffs have not even undertaken to overcome, with clear evidence, the presumption that the agency properly designated the record. Bar MK Ranches, 994 F.2 at 740. As such, any extra-record references be stricken and not form the basis of any opinion of this Court. III. Plaintiffs' Belated Request to Supplement the Administrative Record with Affidavits Should be Denied Based on Plaintiffs' Absolute Failure to Confer. Local rule 7.1A, D.C.COLO.LCivR, states that the "court will not consider any motion . . . unless counsel for the moving party . . . before filing the motion, has conferred or made reasonable good-faith efforts to confer with opposing counsel . . . to resolve the disputed matter." This Court also requires the parties to confer and attempt to resolve their differences before

In order to make a showing that supplementation of the administrative record is warranted, "a party must provide the court with reasonable, non-speculative grounds to believe that materials considered in the decision-making process are not included in the record." Ammex Inc. v. United States, 62 F.Supp.2d 1148, 1156 (Ct. Int'l Trade 1999). Here, Plaintiffs have offered nothing of the sort. It should also be noted that the courts have found that where the challenged agency action is not supported by the record, they have remanded the action to the agency, not allowed introduction of extra-record evidence. Camp v. Pitts, 411 U.S. at 143; see also County of Los Angeles v. Shalala, 192 F.3d 1005, 1023 (D.C. Cir. 1999), cert. denied, 530 U.S. 1204 (2000) (quoting Florida Power & Light v. Lorion, 470 U.S. 729, 744 (1985)); ASARCO, Inc. v. EPA, 616 F.2d 1153, 1160 (9th Cir. 1980) ("If the court determines that the agency's course of inquiry was insufficient or inadequate, it should remand the matter to the agency for further consideration and not compensate for the agency's dereliction by undertaking its own inquiry into the merits."). 12

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bringing the matter before the Court. See Senior Judge John L. Kane, Jr., Pretrial and Trial Procedures 7.1A, Admonition. Under governing rules, Plaintiffs, as parties seeking to file a motion, were obligated to confer with the Forest Service in good faith concerning the relief they request. See D.C.COLO.LCiv.R 7.1A. Plaintiffs did not fulfill their obligation to confer in good faith. In fact, Plaintiffs did not confer at all before filing their "Notice of Filing Affidavits." See Docket No. 85 (filed 12/21/05). Generally the requirement to confer contemplates that counsel will "`converse, confer, compare views, consult and deliberate.'" Hoelzel v. First Select Corp., 214 F.R.D. 634, 636 (D. Colo. 2003) (quoting Cotracom Commodity Trading Co. v. Seaboard Corp., 189 F.R.D. 456, 459 (D. Kan. 1999)). In Hoelzel, the court held that the "duty to confer involves more than making a certain number of contacts with opposing counsel" and that the "quality of contacts is far more important than the quantity." 214 F.R.D. at 636. Plaintiffs made no effort to confer on the proposed supplementation. Even if the parties had ultimately disagreed, that does not excuse Plaintiffs from their duty to confer. Even when opposing counsel is contacted multiple times, that may not necessarily satisfy the duty to confer. See, e.g., Cotracom, 189 F.R.D. at 459 (although defense counsel made four phone calls and wrote two letters, "[i]n this instance the court does not find the efforts of defense counsel constitute reasonable efforts to confer in good faith."); see also Augustine v. Adams, No. CIV.A.95-2489-GTV, 1997 WL 260016 at *2 (D. Kan. 1997) (court "not impressed" with plaintiff's argument she had a deadline to file motion to compel as she "could have moved simply to extend the deadline") (Exh. D). 13

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This Court may deny the relief Plaintiffs request based on failure to confer alone. See, e.g., Hoelzel, 214 F.R.D. at 636 (denying a motion to compel as "Plaintiff's counsel flagrantly violated the requirements of Rule 7.1A and misstated the facts in his Motion to Compel"); Ballou v. University of Kansas Medical Ctr., 159 F.R.D. 558, 560 (D. Kan. 1994) (overruling the motion to compel for failure to comply with duty to confer). CONCLUSION For all of the foregoing reasons, Plaintiffs' procedurally defective and belated request to supplement the AR with affidavits from individuals who had repeated opportunities to supplement the record should be denied. DATED this day of January, 2006. Respectfully submitted, WILLIAM J. LEONE United States Attorney ___________________ ROXANE J. PERRUSO TERRY FOX Assistant United States Attorneys 1225 Seventeenth Street, Suite 700 Denver, CO 80202 Telephone: (303) 454-0100 [email protected] [email protected] Attorneys for the Defendant, United States Forest Service

By:

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Of Counsel Diane M. Connolly Deputy Regional Attorney United States Department of Agriculture Office of the General Counsel 730 Simms Street, Room 309 Golden, CO 80401

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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO CERTIFICATE OF SERVICE (CM/ECF) I hereby certify that on January _, 2006, I electronically filed the foregoing with the Clerk of Court using the CM/ECF system. Charles C. Powers Charles C. Powers, Attorney at Law P.O. Box 1273 South Fork, CO 81154 [email protected] Charles B. White Jennifer L. Soice Petros & White LLC 730 17th Street # 820 Denver, CO 80202-3518 [email protected] [email protected] The following non-ECMF individual has received notice as follows: Diane M. Connolly, Esq.: [email protected]

Office of the United States Attorney

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