Free 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-AP-1071 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 and ALXCHNG, LLC, a Texas Limited Liability Company CNXCHNG, LLC, a Texas Limited Liability Company RIO OXBOW RANCH, Inc., a Colorado Corporation Interveners ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )

________________________________________________________________________ INITIAL BRIEF OF APPELLANTS ________________________________________________________________________ Come Now the Plaintiffs, by and through their undersigned attorney and file their Brief as follows: Nature of the Action This is an appeal by affected citizens, businesses and a non profit public interest group of a decision of the United States Forest Service (FS) to exchange Federal properties in the Rio Grande National Forest (RGNF) for Non Federal properties owned by proponents of the exchange. Jurisdiction

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This Court has Jurisdiction pursuant to The Administrative Procedure Act (APA), 5 U.S.C.A. §701 and 702. This Action involves guestions arising under the Federal Land Management and Policy Act (FLPMA) 43 U.S.C.A. 1716; the Rangeland Renewable Resources Planning Act of 1974 (RPA) as amended by the National Forest Management Act of 1976 (NFMA) 16 U.S.CA. 1601; the National Environmental Policy Act (NEPA) 42 U.S.C.A. 4332; and the National Scenic Byway Act (NSBA) 23 U.S.C.A 162. Venue All of the properties involved in this exchange are located in Mineral, Rio Grande and Hinsdale Counties within the State of Colorado. Standing Plaintiff, San Luis Valley Ecosystem Counsel, Inc. (SLVRSC) is a nonprofit Colorado Corporation acting as a public interest group concerned about preservation of the natural and human environment of the San Luis Valley area of Colorado which includes all of the Counties where properties are located. Its members use the Federal lands, and the private in holdings involved, for recreation, esthetic and wildlife appreciation. Plaintiff, Jere Guthals and Jim Martin are residents of Mineral County who use all of the federal lands involved for recreation. Jere Guthals is the President of the Creede Off-Road Vehicle Club. Plaintiff, Jim Martin, is President of the Snow Country Explorers which is a recreational snowmobiling club and which maintains snowmobile and cross-country ski trails in the Mineral County area by permit and contract with the RGNF. They are frequently on and near the Federal parcels and nonfederal parcels involved and are familiar with the hunting and recreational quality and value of these various properties. (R1036-1037) Plaintiff, Nancy Albright, is a long time resident of Mineral County. She is a hiker and hunter on all of the lands involved. She is a professional licensed real Estate Broker and has owned and operated Rincon Realty, a Real Estate Brokerage firm, in Creede, Colorado, located in Mineral County for many years (R 590). Antlers Rio Grande Lodge, Inc. owns and operates a lodge and restaurant located on highway 149 near Creede, Colorado and bordering the RGNF. The Rio Grande river runs through the property. One of the Federal parcels involved in this exchange, N2, is

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adjacent to and borders Antlers' property to the north. Antlers'guests use the RGNF to the north and west including the Rio Grande river segment on N2, and the trails in the upland area which is part of what is known as deer park on Bristol Head Mountain. (R1038-1054). Plaintiff Powers is President of Antlers and lives on the property. All Plaintiffs who are property owners in Mineral County (Guthals, Martin Albright, Powers and Antlers) will suffer degradation of land values caused by uncertainty about continuing access to the forest lands as a result of land adjustment policy of the FS which adversely affects landowners and the economy of Mineral County in general. Plaintiffs have standing as users of the federal lands in question; United State v. Students Challenging Regulatory Agency Procedures, 412 U.S. 669 93 S. Ct 2404 (1973); Clarke v. Securities Industry Association, 479 U.S. 388, 107 S. Ct 759 (1987). Plaintiffs have standing to challenge the exchange on equal valuation issues arising under FLPMA, 43 U.S.C. 1716 (b), Order of Judge John L. Kane of September 26, 2005, made final at hearing October 28, 2005, and Desert Citizens Against Pollution v. Bison, 231 F. 3d. 1172, 1179 (9th cir. 2000) and National Credit Union Ass' v. First Nat' Bank & n l Trust Co., 522 U.S. 479, 492 (1998). Interveners/Proponents Alan Lisenby, from Atlanta Georgia, purchased an historic ranch in Mineral County, Colorado known as Wright' Lower Ranch in 1997 by purchasing the closely s held family corporation of the prior owners. He renamed the Ranch Rio Oxbow Ranch (R3209). He built a home on this property which he uses as a vacation retreat. He is the real party in interest who will acquire the Federal parcels L1, L2, L3, L4, and L5. Charles Nearberg, from Dallas, Texas, purchased the Elkhorn Ranch consisting of 600 acres and located on Trout Creek, a tributary of the Rio Grande, in Mineral County in March, 1997 (R 3239). In November, 1998 he purchased the historic Broadacres Guest Ranch, (through a corporate shell, Lasoleil, L.L.C.) on the Rio Grande River and in Mineral County consisting of 654.44 acres (R3257). Since then he has purchase several contiguous private parcels and the ranch today is approximately 1,000 acres. He is the real party in interest who will acquire federal parcels N1, N2, N4, N5, and N6. (See footnote 1, infra.)

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History of the Exchange The Rio Oxbow Ranch encompasses several miles of the Rio Grande River valley and flood plane bordered mostly by the Sliver Tread National Scenic Byway to the north and the RGNF to the South. The Rio Grande River winds through the property. There are other large private land holdings both up and down river. Shortly after he purchased the ranch, Lisenby approached the FS about an exchange of some portions of the Rio Oxbow Ranch for some of the adjoining FS properties. The FS owns as part of the RGNF the forested upland and transition to flood plane lands to the south of Rio Oxbow Ranch. There is a saw tooth border here between the Ranch and the RGNF roughly approximating this transition area. Lisenby seeks to acquire this transition area. This parcel comprising 215.07 acres, is designated herein as L5. This property is rich in wildlife at all times of the year including threatened species and it is hunted regularly for big game species. Lisenby wishes to build five home sites in this forested transition area and to acquire the valuable hunting rights for himself to the exclusion of the public. On the northern side of the Rio Oxbow Ranch there are four parcels of property essentially corners of RGNF property between RIO Oxbow and Highway 149 to the north. These are designated herein L: 1, 2, 3 and 4. A stretch of the Rio Grande River runs through one of these (L3). Commercial and private rafters use this parcel as the only public resting and recovery spot for miles in both directions. Lisenby seeks to stop the public use of any RGNF lands near his and south of highway 149. There are five separate corners of Rio Oxbow Ranch property which traverse to the north side of Hwy.149. These are referred to as the Long Ridge Properties (LR 1-5). These are not fenced and they are historically used by the public as if public lands. Although they are adjacent to Hwy 149, they are so steep that access is impossible to all but one small piece and development is not feasible (R 3204). Lisenby proposed exchanging these parcels of his lands for the other FS properties. FS initially rejected the Long ridge properties and changed the focus to acquiring the Carson mining area. Carson is a collection of late 18th century mining claims and an associated ghost town straddling the continental divide 50 miles up river in Hinsdale County. The FS wished to acquire the ghost town for its historic value and to create a FS

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managed interpretive site. To help to acquire this site, Lisenby invited Nearberg into the exchange. Nearberg proposed acquiring several parcels of the RGNF, N1 and N2 bordering Broadacres Ranch and, N4 and N5 bordering Trout Creek Ranch. Later, to appease a neighbor he felt might object to the exchange, and with close connection to the FS, Nearberg proposed acquiring another property, N6, on Trout Creek and bordering a mountain lake and to transfer that property to Karper in exchange for other. Nearberg' s reasons for acquiring the other properties are less clear. FS claims he wants to square up borders and not change the character of the property. Under this theory he simply seeks to deprive the public and Antlers in particular use of these valuable recreational opportunities for the sole use of Broadacres' guests. Powers has maintained to FS that Nearberg seeks to move his private residence to the Tout Creek Ranch and to develop Broadacres into a large private residential community (R1038-1054). The Proposed exchange was originally reviewed and approved at the regional level as an exchange of these properties for the entire private in holding including the important historic site at Carson (R 2853-2855). However, HAZMAT analysis determined that much of the Carson, including the ghost town, was not appropriate for acquisition because of contamination. Rather than deleting some of the properties proponents wanted to acquire, FS proposed acquiring the Long Ridge properties originally rejected and four private in holdings in the RGNF fifty miles distant in Rio Grande County on Bonafacio and Nicomodes Gulches. These properties are in a non-tourist area not far down a dusty dirt road from the District Rangers house. They are described as " somewhat xeric"by proponents' biologist. These properties are designated herein as the B: 1, 2, 3, and 4.1 Argument I. Defendant improperly implemented the Exchange before Appeal The Agreement to initiate the Rio Oxbow Exchange was executed on January 24, 2001 (R 2777-2790). The " agreement to initiate means a written, nonbinding statement
1

Plaintiffs allege the inclusion of the Bonafacio properties and the N6 property in this exchange creates the appearance of impropriety by FS employees; See, Plaintiffs Reply to Defendants and Interveners' Response to Plaintiffs Amended Motion for Leave to Conduct Discovery, filed 11-26-04 and incorporated herein by this reference. These issues should be considered in context with the rest of this brief.

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of present intent to initiate and pursue an exchange, which is signed by the parties and which may be amended by consent of the parties or terminated at any time upon written notice by any party,"36 C.F.R. 254.2. " Secretary is not required to exchange any The Federal lands. Land exchanges are discretionary, voluntary real estate transactions between the Federal and non-Federal parties. Unless and until the parties enter into a binding exchange agreement, any party may withdraw from and terminate an exchange proposal at any time during the exchange process," 36 C.F.R. 254.3(a). Federal Regulations, 36 C.F.R. 215.10 (a) & (b), in effect prior to June 4, 2003 and 36 C.F.R. 215.9 (a) & (b) in effect after June 4, 2003 both prohibit implementation of agency action prior to 15 days following any appeal to an appeal Deciding Officer. The Decision Notice was signed on January 24, 2004 (R 19) and published on February 13, 2004 (R 781). A total of twelve appeals were timely filed, including all of the Plaintiffs'appeals and all were denied in writing with no changes alterations or additions to the Decision Notice (R 733-808). On January 20, 2004, (the day of the Decision Notice) and within the 45 day period that the decision can not be implemented, FS signed a final binding agreement to complete the exchange (R 2184-2194). By entering a binding agreement to complete the exchange with no provision or condition for possible reversal on intra-agency appeal, the FS breached controlling regulations prohibiting implementation. If FS had set aside or altered the DN on this appeal, then it would have simultaneously breached its contract with the proponents. This rendered meaningless the twelve appeals of the Decision Notice. This Court has authority to set aside the improper and unauthorized act of the FS of prematurely signing the Exchange Agreement and to remand this matter to the agency for proper consideration of the appeals, A.P.A. §706(2) (A). II. FS failed to follow the Forest Plan and act in the public interest The Rio Grande National Forest and Resource Management Plan, the " Forest Plan,"was first issued in January 1985. It was prepared according to the RPA, NFMA, and NEPA, and associated regulations (R 1264, 1296). The Forest Plan is required by the Rules implementing NFMA. It is to be revised every 10 to 15 years (R1264). The Forest Service adopted the current and applicable Forest Plan on November 7, 1996 (R1290).

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Implementation of the Forest Plan is achieved through individual site specific projects, and all projects must be consistent with the Plan. 16 U.S.C. §1604(i); 36 C.F.R. §219.10(e) and Citizens for Environmental Quality v. United States, et. al., 731 F. Supp. 970, 977 (D.C. Colo., 1989); Colorado Environmental Coalition v. Dombeck 185 F3d. 1162, 1168 (10th, 1999). This Court has previously reviewed adoption by FS of the RGNF Forest Plan, Citizens, supra.. In that case this Court found the RGNF officials failed to follow established norms, made conclusory findings without supporting facts, and failed to consider appropriate and reasonable alternatives in adopting the Forest Plan, Citizens at 989. RGNF was reversed again, this time by the Deputy Under Secretary of the Department of Agriculture, in 1996 for refusing to follow the plain language of regulations requiring the designation of Management Indicator Species (MIS) and a monitoring program (R1505). FS comes to this court with a history or refusing to follow the plain language of law and regulations regarding adoption of a forest plan. FS action must be supported by substantial evidence and, if not, it must be set aside Olenhouse v. Commodity Credit Corp. 42 F 3d 1560, 1574 (10th D.C.A., 1994). An agency must abide by established norms and policies unless it provides a convincing reason why a departure from its policies is justified, Grace Petroleum Corp. v. F.E.R.C., 815 F2d 589, 591 (10th Cir. 1987). The purpose of the Forest Plan is to provide for multiple use and sustained yield of goods and services from National Forest System lands in an environmentally sound manner (R 1264). The Forest Plan is a contract with the present as well as a promise to the future and it represents the Forest Service' commitment to the users of the forest to s fulfill the terms of the contract (R 1290). It is critically important for the Forest Service to protect the unique qualities of the Rio Grande (R1260). The applicable Forest Plan requires that the Goals and Objectives of the Plan must be used as a guide to selection of potential projects. The Proposed action must be consistent with the Forest wide and Management Area Standards. Projects which do not comply with the Standards must be rejected unless the Plan is specifically amended to allow the action (R 1299). " Standards are courses of action or levels of attainment

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required to achieve the Desired Conditions. Standards are mandatory; deviation from Standards is not permissible without an amendment to the Forest Plan."(R1321). The Forest Plan, Key National and Regional Policies, require that land adjustments meet the objectives of the Forest Plan and the applicable land management goals (R1427). A. The Federal Parcels do not meet the Criterion for disposal by land adjustment The RGNF Land adjustment strategy is included in Appendix E of the Forest Plan (R 1463). The types of land the Forest service would like to acquire and the types of lands suitable for disposal are listed. None of the RGNF parcels to be transferred out of the forest have even a single one of the characteristics which would make them suitable for exchange: (1) None of the parcels is slated for use by any other public entity; (2) none of the properties is a small parcel intermingled with mineral or homestead patents, all such properties do border private ranches but none are intermingled; (3) these lands are not being exchange for the purpose of private development in the public interest; (4) None of the parcels is isolated from other RGNF lands; (5) none of the lands have any structures of any kind currently existing (R 7) and (6) none of the Federal parcels is in developed areas that are losing National Forest character. The DN references the land adjustment policy at R 10-11. There is a statement that Federal parcels are losing there national forest character; however, this conclusion is unsupported by any discussion or evidence in the record. In fact, the properties to be disposed have most, if not all, of the characteristics listed in Appendix E of properties to be acquired. These include wildlife, recreational, scenic, threatened species, waterfront, wetlands, floodplain and unique geologic structures. Key National and Regional Land Adjustment Policies are included in the Forest Plan, Exhibit B. These require FS to... " manage National Forest System Lands identified for exchange or sale consistent with surrounding management area goals... "(R1433). The exchange of certain federal parcels does conflict with goals of surrounding management areas including: Scenic Byway Management Prescription Area and Elk and Deer Winter Range Management Prescriptions, discussed in more detail infra. Key National and Regional Policy on landownership adjustments requirements and the deviations there from in this case are:

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" not adversely affect land values by management activities." Disposal of Do federal lands consisting of 1/3 of Antlers border with the forest damaging its business and land value violates this prescription, discussed in more detail infra.. " Ensure needed public rights of way are retained across all lands conveyed out of public ownership." Plaintiff, Antlers' only access to the upland portion of its property , and continuing access through N2 to higher elevations and trails in the forest is being moved in this exchange to an unknown and unspecified location. The accomplishment of this movement of access road is delegated to Antler' Competitor, proponent, Nearberg. s " Convey lands only if: Lands do not contain habitat identified by US Fish and wildlife Service a necessary for recovery of federally listed threatened and endangered species." Much of the lands are important habitat for threatened species Lynx and proponents are being allowed to build five guest homes in this habitat. (See further discussion, infra.). " Convey lands only if: lands do not contain unique characteristics." Rio Grande River and flood plane, a unique geological site and critical elk winter range are being disposed of in this exchange (see further discussion, infra.). The DN claims that the exchange is necessary to protect roads and the Continental Divide Trail. However, the EA documents on file show that all of the acquired properties in the Carson and the Bonafacio have roads running through them which appear on the official Forest Service map. Established public use of roads across private property creates a public right of way that can not be lost even by long periods of disuse. Board of County Commissioners of Saguache v Flickinger, 687 P.2d 975 (Colo. 1984). While it is certainly reasonable that FS may wish to acquire right of way easements to secure roads or trails from any conceivable dispute; nevertheless, the suggestion in the file that there may be some present or threatened conflict over long established public use is wholly without support in the record. Because the DN violates the Forest Plan, Appendix E and B, regarding criteria for land ownership adjustment and lacks factual support the DN should be reversed. B. Violation of Scenic Integrity Standards

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The properties to be disposed of in this exchange are within a designated Scenic Byway Management Area, The Silver Thread Scenic Byway. Byways are areas of the forest where outstanding scenic features draw attention and use. (R1375) The Silver Thread National Scenic Byway is established by the U.S. Department of Transportation pursuant to 23 USCA 101 and 162. It is the declared national policy that special effort should be made to preserve the natural beauty of the countryside and public park and recreation lands, wildlife and waterfowl refuges, and historic sites. The Secretary of Transportation shall cooperate and consult with the Secretaries of the Interior, Housing and Urban Development and Agriculture, and with the States in developing transportation plans and programs that include measures to maintain or enhance the natural beauty of the lands traversed. All actions must be planned and carried out to minimize harm, 23 U.S.C. 138 and Citizens to Preserve Overton Park, Inc. v. Volpe, 91 S.Ct. 814, 818, 401 U.S. 402, 405 (1971). FS recognized this legal responsibility to protect the Silver Thread Scenic Byway in the Forest Plan by Creating a Scenic Byway management prescription area. Actions that could affect scenic character of the Silver Thread are subject to Management-Area Prescription 4.21. Standard 1, requires that " activities in the area will meet the adopted Scenic Integrity Objective" This Standard is mandatory and no provision for deviation is . allowed to the Responsible Official. (R 1375) Because of their proximity to the Silver Thread Byway, their unaltered condition and their high visibility, all the Federal Parcels designated for disposal are classified with a Scenic Integrity Objective of " High." These lands provide " spectacular"foreground and middle ground views from the Scenic Byway. (R 63) Development pressure is building in Mineral County and high density development could have a substantial adverse affect on this scenic resource. (R 63) The Divide District of the RGNF lists the area where the Federal Parcels are located as Sensitivity Level 1, which means the viewing public and the District have indicated that viewers have a " High Concern"for the Scenic Resources along the highway. (R 76) The DN acknowledges that, after the exchange, there could be development on parcels N1, N2, N4, N5 and L5 (R 77). In regard to N2, the DN admits: " Scenic the Integrity could move from ` high'to ` none'in this portion of the scenic corridor, thus

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having a notable effect to the scenic value if these parcels are developed"(R76). Rio Oxbow plans to build five homes on parcel L5 directly in the view shed (R 76). If this

Exchange were not approved development would not take place on any of the federal lands to be exchanged. The EA concludes that the Exchange will protect the scenic integrity of the Carson Mining site properties (R 77). The Carson and Bonifacio properties are not in the Scenic Byway Management Area. To the extent that the exchange sacrifices the scenic integrity of the byway to facilitate the scenery of non designated areas, the action is arbitrary, capricious, contrary to law and regulation and not supported by substantial evidence. C. The DN violates wildlife winter range management prescriptions The Forest Plan designates a winter range special management area and sets prescriptions for this area. Special-Area Prescription 5.41 requires special management of Deer and Elk Winter Range. The desired condition is management to sustain healthy plant communities with a variety of plants for food and cover and to limit human activity in winter. These goals are developed in coordination with the States, in this case, the State of Colorado. (R 1384) An amendment to the plan adopts rocky mountain elk and mule deer as MIS for the RGNF (R 1495, 1513). These species were selected because their population changes are believed to indicate the effects of management activities. (R 1511) Monitoring of game species under the Plan is to be accomplished through the Colorado Division of Wildlife (CDOW) (R 1515). FS depends on the Colorado Division of Wildlife for

designation of Elk and Deer winter range including designation of crucial or critical winter range (R 3976). FS regulations classify winter range as follows: " Critical Winter Range"is a further break down of winter range into that area of winter range which is essential or critical for these animals survival, particularly during a harsh winter. The hierarchy is: Winter Range- Crucial Winter Range- Critical Winter Range." (Supp. to AR, Vol. 11, Tab1). All of these parcels are designated winter range and in the winter range management prescription area. N1 and N2 are designated " critical"winter range

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FS is required to collaborate with CDOW regarding habitat management for big game species (R 1515). FS requested comments from the Colorado CDOW regarding this exchange and its potential impact on wildlife. Area 76 includes the entire Creede basin and the upper Rio Grande River watershed in Mineral and Hinsdale Counties. (Supp. to A.R., Vol. 11, Tab 2). Brent Woodward, District Wildlife Manager for the Creede District, Unit 76, responded for the CDOW regarding his district. The non federal parcels in the Carson and Long Ridge to be acquired in the exchange and all federal parcels designated for disposal in the exchange are within his district (R 17611762). Mr. Woodward noted the Carson properties to be acquired by the FS have little wildlife value. He is clear, however, that there is great wildlife value to the properties being disposed of by the FS. He expressed his concerns for the lands the FS wants to trade to Lisenby and Nearburg. Specifically L5 and N4 occur in transition zones between spruce/ fur forest and open meadow. Elk use these areas at all times of the year. Dwellings or other building should be discouraged or prohibited by deed restriction. Parcel N1 and N2 occur in critical big game winter range and a migration corridor. During normal to severe winters this area supports up to 300 head of wintering elk. Again, any building should be discouraged, preferably prohibited by deed restriction. (R 1761) " Lastly, I would like to express my concern about future land swaps in the Creede area. I realize that Game Management Unit 76 consists of only 4-5% private land. However, the vast majority of this private land lies in big game winter range. Unit 76 supports a large summer herd of elk. But most of these elk migrate out of Unit 76 for the winter The CDOW tries to manage Unit 76 as a quality elk hunting unit, however, we can only manage within the ability of the habitat to support elk. In the 7 years I have been in Creede, I have seen a dramatic increase in the development of big game winter range held in private hands. In the future, I would like to see the Forest Service refuse to swap USFS lands within big game winter range in Unit 76 or only swap for like habitat in the same area. The winter range in Nicomodes and Bonafacio would be good to have under public control; however, it doesn' help the wintering t elk up in Creede."(R 1762) Mr. Woodward, on behalf of the CDOW, believed that the exchange would be damaging to CDOW efforts to manage Unit 76 specifically to elk. He requests that FS

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prohibit any development of N4, L5, N1 and N2 and that failure to do so would damage the ability of CDOW to manage the area. Woodward' comments are corroborated in a s letter from Dr. Don Steinbach, Professor Emeritus, Wildlife & Fisheries Sciences Dept. Texas A & M University (R974). A reviewing Court may properly be skeptical as to whether the conclusions of an AE have a substantial basis in fact if the responsible agency has apparently ignored the conflicting view of other agencies having pertinent expertise. Davis v Minetta 302 F 3d 1104, 1123 (10th Cir. 2002) and Sierra Club v. United States Army Corps of Engr' 701 s, F.2d 1011, 1030 (2nd Cir. 1983). Astonishingly, the EA brushes off the critical big game winter range issue regarding N1 and N2 with the statement that Nearberg, the recipient of these valuable lands, has said he plans no change in management of the land after he acquires it although he refuses to allow any protective covenants to the winter range areas. (R 73) Reliance by the FS on a verbal unenforceable statement by the private proponent of the exchange is on its face arbitrary, capricious and not supported by substantial evidence. The DN concludes the exchange is beneficial and appropriate because there is a net gain of winter range by offsetting the Bonafacio properties gained against the N1 and N2 properties lost without any analysis of the quality or location. (R 8) There is no quantitative evaluation of the gain or loss of habitat from this exchange in that report. The EA discusses MIS and concludes that the overall management of the forest is not expected to affect MIS so that a specific analysis of this exchanges potential affects is not necessary. The FS reviewer of the EA determined there was no support for this conclusion in the EA (R2406). The requirement to evaluate the affects of FS decisions applies to project level actions, Utah Environmental congress v Bosworth, 372 F.3rd 1219, 1226 (10th Cir. 2002) and 36 C.F.R 219. In reversing a site specific decision of FS based upon MIS trends rather than specific data, the Tenth Circuit Court of Appeals ruled: " Accordingly, we conclude that in order to effectuate its MIS monitoring duties under the language of its regulations, the Forest Service must gather quantitative data on actual MIS populations that allows it to estimate the effects of any forest management activities on the animal population trends, and determine the relationship between management activities and population changes." Utah at 1227.

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FS cannot speculate as it has done here about the effects of its action on MIS. The EA and FONSI based thereon is not supported by substantial evidence of no impact on Elk and Deer winter range and should be reversed and remanded. D. Compromise of Unique Geological Site violates the Forest Plan The Forest Plan Management Area Prescription 3.1 creates Special Interest Area for use and interpretation emphasis. (R1370) The prescription applies to unique geological and scenic areas. The theme for these areas is to preserve the scenic quality, to preserve scientific value and develop educational uses. A Unique Geological site in the form of 150'high cliffs bordering the Rio Grande River is located on Federal parcel N2. The site is inadequately protected by convents and its loss is not compensated by gain of comparable value. The Antlers Cliffs are recognized by the Forest Service as a unique geologic site of interest to amateur rock collectors i.e. rock hounds. It admits this unique geological feature is a rarity and often visited by educational groups and amateur and professional geologists and paleontologists. (R 64). RGNF produces and distributes for the public a pamphlet describing the fossil resources in the RGNF in the Creede Formation. The pamphlet describes the quality of the section of the Antlers cliffs on N2 for collecting fossils. The pamphlet refers to other potential sites in the Creede area where the formation is exposed, but the pamphlet shows only one of those sites other than N2 is RGNF property. That site, dry creek, is not as extensive or dramatic as the N2 site. (R 2137) See also portions of the book: Colorado Rock Hounding, which highlights the N2 portion of the Antlers Cliffs as the most significant location to collect rocks, specifically fossils, in the RGNF. (R 826-832). Forest Plan standards require the FS to allow rock collecting by the public, Forest Plan, Physical Resources, Standard #1 (R 1323). FS decision in this case to dispose of the most important such site in the RGNF violates this standard as well as the special interest Management area prescription. Although a protective covenant will be applied to allow access for scientific and educational purposes by permission of the land owner (R 42), there is no discussion at all in the EA or DN of the requirement to protect amateur rock collecting activity in the forest.

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Also, the cliffs on N2 are of global scientific importance. The Colorado Geological Survey ranks the fossil area of the Creede formation in the second from the highest category of " global"importance on their scale of four levels of statewide importance and four levels of global importance. (R 820, 823-825). The Creede formation fossil beds located on N2 are classified as G2 which means: " Rare: fewer than 20 sites worldwide and vulnerable to loss or fewer than five sites nationally or best known site nationally."(R 824-825) Two experts on the geology of the Creede Formation urged the FS not to dispose of the cliffs on N2 because of their professional scientific and amateur importance. They noted the enormous body of amateur and scientific literature referencing these cliffs. They point out the rarity of the cliffs and their significance as a veritable laboratory and classroom on volcanic crater lakes and in particular in the geological process of oil formation. (letter of Dan Larson PhD., professor of geology at University of Memphis, R 856-909, letter of Phil Bethke, PhD. U. S. Geologic Survey, retired, R 839-846). Both of these experts have done extensive research on the Creede Formation and published on the subject. They cite numerous professional and amateur publications referencing the Antlers cliffs. Professor Larson has recommended further projects on these specific cliffs at the location designated for disposal. The comments of Bethke and Larson were submitted to Peter Ambrose, FS Paleontologist. (R 2055). Mr. Ambrose corroborated the correctness of their views. " Creede Formation is of great interest to paleontologists both professional and The amateur."(R2050). He agreed that there is substantial scientific and educational value in continuing to federally mange the site as a significant element of our national heritage (R 2050). While the amateur fossil hunter interest alone did not justify keeping the

property, in Mr. Ambrose'opinion, this fact together with the importance of unimpeded educational and scientific access justifies the parcel being kept under forest service management (R 2050). Instead of eliminating the site form the exchange, FS added a protective covenant to the parcel N2 cliffs to allow professional access by owner permission only and upon execution of a release. Professor Larson commented that this covenant was inadequate to protect the land for scientific research, as, in his experience, these types of covenants had

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not worked. (R 558-571) Indeed it is obvious that most interested educators and scientists who may in the future want to study the Antlers Cliffs would not have knowledge of the existence of the covenant or any means to enforce the same. There are numerous comments in the record regarding the Proponent, Nearberg' hostility to the s, public in general and his lack of regard for the environment. Ignoring the vital and important interest of the public as expressed by an eminently qualified expert in the field and a direct user, if you will, of the public asset in question is arbitrary, capricious and not supported by substantial material facts. E. Loss of recreational value and disregard of local citizens and authorities The EA concludes that there will be substantial increase in public recreational opportunity by acquisition of the non federal parcels and little loss as a result of disposal of the federal properties. (R9) There is no support for these conclusions and substantial evidence in the record to the contrary. Gain of recreation is not one of the listed primary benefits to the government from the exchange (R8). The EA concludes that the Bonafacio and Carson properties only " help offset"the loss of the Federal Properties (R9). Two of the Bonafacio properties, discussed in the EA, were deleted from the final DN approving the Exchange (368 acres versus 678 acres, R6 and 68). The public is getting much less property than was analyzed in the EA. The EA flatly admits that recreational opportunities on the Long Ridge properties are somewhat limited. (R 49 and 68) The EA concludes, however, that even though there are no trails on or near the Longridge properties that acquisition would provide access by foot to FS lands to the north not otherwise accessible. (R 68) Even this point is not supported by the record. A review of the RGNF map of the Long Ridge Properties shows FS 509, also designated as a stock driveway, parallels highway 149 to the north of the Longridge properties and provides access to the area in question. Also, shown on this same map, there is a foot trail entering this area from highway 149 at a point where it borders current FS property in Section 11. (R 31) In regard to the Carson properties, the Feasibility analysis for the Rio Oxbow Land Exchange Proposal was signed in January and February 2001. It specifies the main reason for the exchange as the importance of obtaining the Carson Mining Claims as a

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major historical property (R 2755). The Bonafacio properties had nothing to do with this proposal. When the HAZMAT study was done on the Carson historical claims, it revealed the contamination was so widespread and significant that the entire center of the Carson mining district including the historic site was dropped from the exchange. (R2017) The map of the proposed acquisition of property in the Carson area at R33 shows that the historic structures in the Carson area are excluded from the exchange. This decision also excluded from acquisition by FS most of the private area traversed by the Continental Divide Trail and Forest Service roads. The conclusion that the exchange is necessary to preserve rights of way for the roads and the trail in the area is not supported by substantial evidence and is arbitrary. A review of the comments submitted from the public show that the great majority opposed this exchange. (R 231 and 809 et. seq.) Of those that are favorable, most site as grounds for their support the acquisition of the Carson " historical site"or obtaining the rights of way. (R 250, R 283, 994) These citizens were either misinformed or misled about the nature of this exchange and should not have been counted as favorable. Many are mischaracterized as favorable or neutral when in fact they are opposed. For example, Bethke and Larson are characterized as neutral. The Rio Grande River runs through two of the Federal parcels, N2 and L3. These parcels of FS land are situated in the middle of long stretches of the river on private lands. The photograph of L3 (R 3383) shows the property is easily accessible from the river on both banks. This fact is corroborated by public comments in the record. (Summary at R 809 and R 927) No discussion is given in the EA of how the adverse effects described at R 48 and 68 from loss of these sites is mitigated. In the DN, the Responsible Official minimizes this loss to the public of these stopping sites although the objections were characterized by FS as " strong"(R927). No basis is given for this conclusion. The Mineral County Commissioners expressed their objection to the loss of access to these sites (R 234, R 957). They appealed the Decision objecting to the inclusion of N2 and L3 in the exchange. They cite the FS lack of consideration of the significant adverse impact this will have on local tourism now and in the future. They

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state that the proposed boat ramp improvement in other locations do not address this loss (R 555). FS concludes L3 cannot be used for public access to the river from highway 149 and its use is limited to rafters stopping there as they float by. They rely on a letter from Colorado Department of Highways (R 2593). The letter actually says commercial rafting outfitters would be allowed to use the site, just not the public generally, because of the limited shoulder on the right of way itself. They also corroborate the statement above that there is a lower level of flood plane of the property. CDOT does not consider this usable for automobile parking by the general public because of flooding at high water, it could however be used by commercial outfitters. Also, the letter of Woodward referenced above also discusses that there is considerable low land available at L3 for public access but the cost of the improvements is the only impediment, not the insufficiency of land available ( R1761) The Scenic Byway Act, provides for federal DOT funding and expertise to improve access sites from the byway to water resources for recreational purposes. The Federal Department of Transportation was not consulted regarding the potential of improving L3 for water access and the pleas of the County to maintain this option were ignored even though this is a favored policy objective of the National Scenic Byway Act, 23 U.S.C.S. 16(c)(5). Mineral County is being deprived of a valuable federally protected right under the Scenic Byway Act to benefit from this property. FS was supposed to help Mineral County avail itself of this important federal right not stand in the way as it has in this case. The DN concludes that the private proponents will improve the sites up river at either the Park Corrals or the Rio Grande Campground to better accommodate river users (R 9). The Mineral County Commissioners have included a statement in the record that this has nothing to do with alleviating the loss of other sites at N2 and L3 (R555). FS makes no statement why improvement of the boat ramp at other sites is a mitigating factor. N5 and N6 both border a mountain lake. N5 has a segment of Trout Creek running through it. This area is very near the Weminuche wilderness. This trade

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proposes to totally isolate this lake from access by the public and eliminate a portion of Trout Creek. Importantly, the properties being traded out of the FS have significant hunting value. The DN cites gain of hunting and wildlife watching value by acquisition of the Bonafacio and Carson properties (R 9). This reference is contradictory to the opinion of the expert specialist, Brent Woodward, who opined the Carson area has little wildlife and in particular big game value. Bonafacio is referred to as having some wildlife value and some hunting value. It is not characterized by any specialist as great or significant. On the contrary, great hunting value to the properties marked for disposal gets little or no mention in the EA and the DN. Unit 76 is designated and maintained by CDOW as a " quality elk hunting unit." Loss of important transition lands and critical winter range of big game affects the animal habitat which in turn hurts the hunting quality. Numerous comment letters refer to loss of hunting on almost all federal parcels. (R 809, 231 and 927) There is substantial evidence of loss of recreational value. The conclusion in the DN that there is no loss disregards or fails to analyze substantial evidence in the record. F. No substantial evidence supports the finding of no adverse economic impact Land Exchanges may only be implemented if they are in the public interest. In determining the public interest, FS must give " consideration to the needs of state and full local residents and their economies"(FLPMA and R 23). The DN at R 9 concludes:

" Overall recreational opportunities are not expected to diminish and therefore there should be no loss to the local economy. There also should be no specific economic loss to any commercial enterprise, because no authorizations have been issued for commercial activities on the NFS lands included in this exchange."(R 9, last paragraph). Gregg Coln, CEO of Mountain Man Tours, the largest permitted rafting and fishing guide outfitter in the Divide District of the RGNF, objected to the potential loss of both river access sites as well as other features of the Federal parcels (R 251). The EA at 5.3.2 (R 82) concludes these sites are used frequently by outfitters. The conclusion of the DN contradicts the EA. The County Commissioners in their letter of appeal conclude there will be an economic adverse impact from loss of these sites.

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There is evidence in the record that the upper Rio Grande watershed, CDOW management unit 76 is a quality elk hunting unit. The addition of winter range in the Bonafacio is of no help to the wintering herds in the Creede area of unit 76. Mule Deer and Elk were designated as MIS because they are of special interest locally for their economic and recreational value (R 1617). Many comment letters object to the loss of the high quality hunting grounds on the federal parcels (R 809, 231 and 927). One commenter attests to seeing as many as 600 head of elk on property N2 at one time. Further, damage to the Silver Thread Scenic Byway and its impact on tourism is ignored. " Colorado... tourism is a main source of income. There is a direct tie For between scenery and local economic benefits"(Forest Plan, R1305). Antlers is a long established guest ranch. It is located directly adjacent to its competitor, Broadacres. Both Antlers and Broadacres border the property N2. Antlers will lose 1/3 of its border with the National forest in this exchange. Privatization of N2 will deny access to the recreational assets of that property to guests of Antlers (R 10381054). It is likewise obvious that loss of an entire boundary with RGNF property by Antlers will diminish the overall value of the Antlers'property. Proponent is paying $252,800.00 for this property (R3325). According to proponents, Broadacres has no intention of developing the property (R 922). The conclusion is inescapable that it is of great economic benefit to Broadacres to have exclusive access to this recreational property for its guests and to deny access thereto to its competitor. National Goals of FS are included in appendix A of the Forest Plan. It is a National Goal to promote and not to undermine privately provided recreational opportunities (FSM 2340.2, R 1409). The text of this goal include not only special permitees using the FS lands but also operations on private land that further FS goals of use of the FS lands by the public. The refusal of FS to even acknowledge the adverse impact of this action on Antlers is in direct violation of this national goal. Except for the long ridge property gained in this transaction described by the EA as having little recreational value, the Mineral County area receives no economic or recreational gains in this exchange. These various references to the record show there is evidence of substantial economic consequences to the Mineral County area not given full consideration by the FS.

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Summary of violation of FLPMA and FMA and Forest Plan standards The FS had the EA evaluated before it was published to the public for comment in December 26, 2002. The evaluator, John Murphy, noted the large number of protective covenants placed on the properties being transferred out of the forest. He concluded, " If we want to maintain this level of control over these lands we should not even be entertaining the idea of exchanging them." (R 2406) The substantial evidence in the file shows the exchange of valuable properties from the forest is not in the public interest, and it violates law and regulations and should be reversed. III. Violation of the National Environmental Policy Act A. The Forest Service failed to prepare an EIS Growing public concern about the quality of our natural environment prompted congress to enact The National Environmental Policy Act (NEPA) to curb the accelerating destruction of our country' natural beauty, Citizens to Preserve Overton s Park, Inc. v. Volpe, 401 U.S. 402, 405; 91 S. Ct. 814. NEPA, 42 U.S.C. 4332 (2) (C) requires that when a government agency prepares to take an action " significantly affecting the quality of the human environment ," that a hard look at the environmental consequences be done in the form of an environmental impact statement (EIS), 40 CFR 1502.4. Prior to deciding to prepare an EIS, however, an agency may prepare a less detailed document called an Environmental Assessment (EA), 40 CFR 1508.9. An EA is used by an agency to decide " whether to prepare an environmental impact statement or a finding of no significant impact,"(FONSI) Committee to Preserve Boomer Lake v. Department of Transportation, 4 F.3d 1543, 1554 (10th DCA, 1993); Citizens Committee to Save Our Canyons v. United States Forest Service, 297 F. 3d 1012, 1022 (10th DCA 2002). In this case the FS performed an EA and issued a FONSI. The biological assessment, the archeological inventory and the environmental assessment itself were prepared by subcontractors hired, managed by the and subject to termination at will of proponents (R 921, 2478). The FONSI was improper because it was undisputed or there was significant material evidence that the action will significantly impact the human environment and these potential impacts warrant study required by an EIS.

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The term " affecting"means will or may have an effect on the environment. Id. 1508.3. " Effects"include direct and indirect effects. Id. 1508.8 Indirect effects are effects which are caused by the action and are later in time or farther removed in distance, but are still reasonably foreseeable. Indirect effects may include growth inducing effects and other effects related to induced changes in the pattern of land use, population density or growth rate, and related effects on air and water and other natural systems. Effects may also include those resulting from actions which may have both beneficial and detrimental effects, even if on balance the agency believes that the effect will be beneficial. Id. 1508.8. This exchange will have impact or effects within the meaning of NEPA. The EA admits direct or indirect degradation of the scenic byway scenic integrity caused by probable future development on the federal parcels after they become private, loss of river and rafting sites along the scenic byway, and loss of important and " critical"elk winter range. By definition loss of critical winter range will have an adverse affect on the ability of the elk to survive. Inability of these animals to survive is an impact. In addition, there is evidence of probable affect on tourism. This is supported by knowledgeable local businesses and local government. When FS refuses to give credence to or consider the authoritative or expert opinions of other agencies in an EA and FONSI, particularly where the FS has no inherent expertise, the Court should look upon the conclusions of FS with skepticism, Davis v Minetta 302 F 3d 1104, 1123 (10th Cir. 2002) and Sierra Club v. United States Army Corps of Engr' 701 F.2d 1011, 1030 (2nd Cir. s, 1983). " Effects"or " impact"includes the cumulative impact of an action. Id. 1508.8. " Cumulative impact"is the impact on the environment which results from the incremental impact of the action when added to other past, present, and reasonably foreseeable future actions. Cumulative impacts can result from individually minor but collectively significant actions taking place over a period of time. Id. 1508.7. At (R15) the FS concludes the effects of its policies are well known and disclosed. A review of the record shows this was never even discussed. The Cumulative affects discussion of the EA discusses the past present and future affects of this exchange alone, in isolation and

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without reference to other exchanges, exchange policy or outside non federal actions such as private development and state action. (R 80-81). There is a letter from Mineral County Commissioners in regard to another exchange included in the record for unrelated reasons (R 3499). In the letter the Commissioners expressed concern over the exchange because it had a one-sided effect on Mineral County and violated County policy. The letter is evidence that other exchanges may not be as benign as FS claims and suggests. Mineral County believes they are having a cumulatively adverse affect. This failure of the FS to evaluate the cumulative effects was noted as an inadequacy of the EA by their own evaluator, John Murphy, on December 26, 2002 (R 2405). The cumulative affects of land adjustment policy past and future must be analyzed in a land adjustment action by the Forest Service, Muckleshoot Indian Tribe v. U.S. Forest Service, 177 F.3d 800 (9thC.A. 1999). Failure to do so in this case was reversible error. All effects must be analyzed even beneficial effects and even if the agency thinks on balance the effect will be beneficial. Id. 1508.8. A simple statement that the benefits outweigh the negatives as stated in the FONSI (R 14) is insufficient to justify failure to analyze the specific beneficial and adverse impacts. The term " significantly"is defined to require " consideration of both context and intensity"id. 1508.27 (a) and (b). Context means that the significance of an action must be analyzed in several contexts, national, regional and local. In the case of a site-specific action, significance would usually depend upon effects in the locale rather than in the world as a whole. id.1508.27(b). This is an " assemblage exchange." The properties fall into three widely separated and economically and politically distinct locals. The Carson properties are high on the Continental decide in Hinsdale County. The Bonafacio properties are in a large agricultural valley near Monte Vista and Del Norte in Rio Grande County. The Federal and Long Ridge properties are located along the Rio Grande River Valley in Mineral County. Impact on each local environment should have been analyzed. The term " intensity"refers to the severity of the impact which should be evaluated according to ten enumerated factors. Id. at 1508.27(b) (1) to (10). Section

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1508.27(b)(1) states, " Impacts that may be both beneficial and adverse. A significant effect may exist even if the Federal agency believes that on balance the effect will be beneficial." At page 14 of the record the FONSI comes to the direct opposite conclusion required by this regulation on this point " Unique characteristics of the geographic area"must be considered under 1508.27 (b) (3). The list of " unique characteristics"is a non exclusive. The Antlers cliffs characterized by FS as a unique geologic feature (R 42) qualify under this section as unique and the impact adds to the quantum of severity necessary to be a " significant" impact. Subsection (3) includes " ecologically critical areas." Critical winter range should be considered an " ecologically critical area" Neither of these features was considered . by FS under this subsection (R15). The impact on Critical winter range alone is significant enough to require an EIS. If there is controversy over the action then this is an indicator that impacts are sufficiently severe to warrant an EIS. Id. 1508.27 (4). The letter of Woodward and the very classification of " critical"winter range conflicts with the EA conclusion of no significant impact. There was a controversy here ignored by FS. Also, the Experts, Bethke and Larson, disagreed with the loss of the geologic site of interest, Antlers cliffs, and opined the protection afforded through conservation easement is inadequate. The opinion of the local authority, Mineral County Commissioners on the economic impact is also ignored with no countervailing expert opinion. The obvious meaning of this regulation is that where experts disagree there should be an EIS. Under (5) the degree to which the possible effects of the action are highly uncertain or involve unique or unknown risks is an indicator of severity. FS states that this action is similar to " many past actions that have occurred in the RGNF and the effects are well known"(R15). This is an admission that this exchange is part of a long term sequence of events. FS may not sweep impacts under the rug with the conclusory statement that impacts are well understood and inconsequential. This is the very kind of agency indifference that NEPA was intended to avoid. Under subsection (6), the degree to which the action sets a precedent or that it represents a decision in principle is a factor in severity that is significant and warrants an EIS. The FONSI states this action is not precedent setting in that similar exchanges have

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occurred locally and nationally. Again FS states these do not have to be considered in any context or cumulatively with other actions since each exchange is unique and rests on its own merits (R 15). The many deviations from the Forest Plan show this is either a significant precedent or a ongoing policy with significant impact. Subsection (7) of 1508.27 (b) requires that if the action is related to other actions with individually insignificant but cumulatively significant impacts then there is sufficient intensity to be " significant"requiring an EIS. The Cumulative effects section of the FONSI indicates the cumulative effects have been considered. The actual analysis in the EA is at R 80-86. As has already been stated, there is no actual discussion of any impact or effect other than on the specific properties involved in this specific exchange. Subsection (8) of 1508.27 states that the extent to which the action affects highways or " may cause loss or destruction of significant scientific... resources"creates intensity. This subsection makes clear the damage to the scenic byway and the possible loss of the antlers cliffs scientific resource is significant and should have been considered. Subsection 1508.27 (b) (9) states that the extent to which the action may adversely affect threatened species or its habitat is an indicator of severity sufficient to require an EIS. The BA and EA acknowledge Lynx habitat will be exchanged however concludes the effects will not be significant. Suitable Lynx habitat is characterized by essentially wet wooded areas in the Southern Rocky Mountains. Lynx do not live in dry treeless areas. Only wet treed areas should be included as suitable for mapping lynx habitat. USDA Forest Service Southern Rockies Canada Lynx Amendment to Rio Grande Forest Management Plan, January 2004,, Habitat Mapping, page 1. The BA describes parcel B1 as dry, treeless grassland with some shrubs (R 47). Nevertheless this property is improperly characterized as having 50 acres of suitable lynx winter foraging (R 60 and 195) and included as offsetting the loss of Federal parcels. The highest quality lynx habitat has both winter foraging and denning habitat, and this is the kind of property suitable for acquisition by exchange, Lynx Amendment to Forest Plan, supra. p. S-5. By far the best Lynx habitat involved in this exchange is property L5 which is described as having significant winter foraging and denning habitat. Lynx have been sited and tracked in and around these properties, affidavit of Jake Powell,

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Appendix F, to Plaintiffs'Motion for restraining Order and Preliminary Injunction served in this action, June 1, 2004). The quality and character of the parcels being gained is not comparable to that being lost. The biological assessments show that more than twice the denning habitat will be lost than gained (R197). The biological assessment actually says, " Total potential losses of suitable habitat to the Canada lynx on the federal lands would be offset, to a degree, by the increased administrative protection resulting through this exchange"(R 197). As stated above the quality of habitat acquired is overstated and not suitable for exchange. The EA, prepared by the proponents' employee, Barry Rhea, concludes there may be an impact (R 74). This is all that is required to trigger the necessity of an EIS. B. FS failed to consider alternatives NEPA requires consideration of reasonable alternatives. FS considered and rejected omission of L3 and N2 as an alternative (R12). FS admits these properties were controversial and elimination would cure many objections to this exchange. No explanation is made as to why this alternative was not selected other than Proponents get less property. Initially this exchange was considered to acquire the Carson. Bonafacio was an addition when all of the Carson could not be acquired. The record shows Bonafacio (B3 and B4) are valued at $397,000.00 (R3040). N2 and L3 are valued at $252,800 and $4,100 respectively for a total of $258,900. If these properties were eliminated, The FS would be receiving $33,600 instead of paying $104,000.00. The real question here was whether adding Bonafacio to this exchange justified including N2 and L3. FS acknowledges there is an alternative Right of way acquisition program that it does not discuss as an alternative at all in the EA. An alternative is reasonable and should be thoroughly considered if it achieves the goals the agency set out to achieve. National Resources Defense Counsel, Inc. v. Penna, 967 F. Supp. 9 (D.D.C. 1997). Here the agency set out to obtain the Carson. The Bonafacio was an after thought. In preparing an environmental impact statement an agency cannot restrict its analysis to those alternative means by which the particular proponent can reach his goals. Simmons v. U.S. Army Corp. of Engineers, 120 F.3d 664 (7th D.C.A, 1997); Ayers v. Espy, 873 F. Supp. 455 (D.C. 1994)

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C. FS failed to allow adequate public comment Powers requested the FS to allow a private archeologist retained by him to accompany the proponents' archeologist (R 2060). Such a procedure could only improve the results and benefit FS with a second opinion and thereby serve the public interest. FS refused the request. The report from proponents' archeologist to his boss, Lisenby, indicated there are archeological sites present on some of the properties including N2, but are characterized as insignificant (R 2047). Plaintiff Nancy Albright submitted anecdotal evidence of artifacts found on the property (R2029). Powers complained the proponents' archeologist understated the significance of the sites. FS ignored this comment and attempted to prohibit Powers from reviewing the report. This was in direct violation of regulations allowing Powers access and in spite of giving proponents full access to all sites and information (R 2027). Powers requested copies of the appraisals for comment before the final decision notice. FS failed to produce the same. Later, when the EA was published for comment from the public, FS failed to publish the appraisals even though they were already completed. FS misrepresented that it would acquire more property than it legally was allowed under the equal valuation provisions of FLPMA in its EA. The public was misled as to the actual properties FS could acquire. (See equal valuation issues infra.) NEPA' purpose is to encourage public involvement in the preparation of s Environmental Assessments as every step of the process. Town of Rye, N.Y. v. Skinner 907 F. 2d 23 (2d D.C.A. 1990) certiorari denied 111 S.Ct. 673, 498 U.S. 1024. FS failed to give serious and objective consideration to public input. IV. the Lands exchanged are not of equivalent value as required by FLPMA The Federal Land Policy Management Act (FLPMA), 43 U.S.C. 1716 (b) requires, " values of the lands exchanged by the Secretary under this Act a