Free Answer to Amended Complaint - District Court of Colorado - Colorado

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 04-cv-01071-JLK 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 OF AMERICA, Defendant, and ALXCHNG, LLC, a Texas limited liability company, CNXCHNG, LLC, a Texas limited liability company, and RIO OXBOW RANCH, INC., a Colorado corporation, Defendant-Intervenors.

DEFENDANT'S SUPPLEMENTAL ANSWER TO SECOND AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Defendant, the United States Forest Service ("Forest Service"), by and through its counsel, submits its Supplemental Answer to the Second Amended Complaint for Declaratory and Injunctive Relief ("Second Amended Complaint").1

Defendant moved to dismiss Count I and II of the First Amended Complaint, and also moved for a more definite statement with respect to Count IV. Docket # 11. The Motion to Dismiss was
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Any allegation or averment not specifically and unequivocally admitted herein is denied. I. INTRODUCTION 1. Paragraph 1 of the Second Amended Complaint purports to characterize the nature

of the claims and the bases of this lawsuit to which no response is required. To the extent that Paragraph 1 can be construed to make any allegations of material fact with respect to Defendant's failure to comply with federal law, such allegations are denied. II. JURISDICTION AND VENUE 2. Paragraph 2 of the Second Amended Complaint purports to state legal conclusions

with respect to the Court's jurisdiction to which no response is required. To the extent that Paragraph 2 can be construed to make any allegations of material fact with respect to Defendant's failure to comply with federal law, such allegations are denied. Defendant denies that the Court has jurisdiction over all of Plaintiffs' claims because of their lack of standing. Defendant admits that the Rio Oxbow Land Exchange ("Land Exchange") involves properties located in Mineral, Rio Grande, and Hinsdale Counties in Colorado. Defendant admits that venue is proper for all claims over which this Court has jurisdiction. III. PARTIES 3. Defendant lacks sufficient knowledge or information to form a belief as to the truth

denied on September 28, 2005, as was the motion for more definite statement. Docket # 67. This Supplemental Answer responds to allegations in the Second Amended Complaint which Defendant moved to dismiss and/or sought a more definite statement, and incorporates its previous answers and denials to the allegations that were not the subject of the motion to dismiss and the motion for more definite statement. 2

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or falsity of the allegations of Paragraph 3 of the Second Amended Complaint, and accordingly, denies them. 4. Defendant lacks sufficient knowledge or information to form a belief as to the truth

or falsity of the allegations of Paragraph 4 of the Second Amended Complaint, and accordingly, denies them. 5. Defendant lacks sufficient knowledge or information to form a belief as to the truth

or falsity of the allegations of Paragraph 5 of the Second Amended Complaint, and accordingly, denies them. 6. Defendant lacks sufficient knowledge or information to form a belief as to the truth

or falsity of the allegations of Paragraph 6 of the Second Amended Complaint, and accordingly, denies them. 7. Defendant lacks sufficient knowledge or information to form a belief as to the truth

or falsity of the allegations of Paragraph 7 of the Second Amended Complaint, and accordingly, denies them. 8. Defendant lacks sufficient knowledge or information to form a belief as to the truth

or falsity of the allegations of Paragraph 8 of the Second Amended Complaint, and accordingly, denies them. 9. Defendant lacks sufficient knowledge or information to form a belief as to the truth

or falsity of the allegations of Paragraph 9 of the Second Amended Complaint, and accordingly, denies them. 3

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10. Complaint.

Defendant admits the allegations of Paragraph 10 of the Second Amended

IV. STANDING 11. Defendant lacks sufficient knowledge or information to form a belief as to the truth

or falsity of the allegations in the first three sentences of Paragraph 11 of the Second Amended Complaint, and accordingly, denies them. Defendant denies the allegations of the fourth sentence of Paragraph 11. 12. Defendant lacks sufficient knowledge or information to form a belief as to the truth

or falsity of the allegations in the first five sentences of Paragraph 12 of the Second Amended Complaint, and accordingly, denies them. Defendant denies the allegations of the sixth sentence of Paragraph 12. 13. Defendant lacks sufficient knowledge or information to form a belief as to the truth

or falsity of the allegations in Paragraph 13 of the Second Amended Complaint, and accordingly, denies them. Defendant further denies the allegation in Paragraph 13 suggesting that the Forest Service "ignored prohibitions" on scenic degradation. 14. Defendant admits that the parcel known as "N2" is in the vicinity of the Antlers

Guest Ranch. Defendant lacks sufficient knowledge or information to form a belief as to the truth or falsity of the allegations in the first five sentences in Paragraph 14 of the Second Amended Complaint, and accordingly, denies them. Defendant denies the sixth sentence of Paragraph 14. 4

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15.

Defendant lacks sufficient knowledge or information to form a belief as to the truth

or falsity of the allegations in Paragraph 15 of the Second Amended Complaint, and accordingly, denies them. Defendant denies that the Land Exchange sets precedent for other land exchanges, or will have an impact on the economy of Mineral County, or was conducted without regard to objective standards or criteria. V. FACTS 16. Defendant admits the allegations of Paragraph 16 of the Second Amended

Complaint except that it denies that the percentage of public land in Mineral County is 96%, and avers that this figure is more or less 93.5%. Defendant also states that the vast majority of this public land belongs to the Rio Grande National Forest and the Weminuche Wilderness. 17. Complaint. 18. Complaint. 19. Complaint. 20. Complaint. 21. Complaint. 5 Defendant denies the allegations of Paragraph 21 of the Second Amended Defendant denies the allegations of Paragraph 20 of the Second Amended Defendant admits the allegations of Paragraph 19 of the Second Amended Defendant denies the allegations of Paragraph 18 of the Second Amended Defendant admits the allegations of Paragraph 17 of the Second Amended

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22.

Defendant admits that the mining claims referred to in Paragraph 22 of the Second

Amended Complaint were unacceptable for acquisition by the public due to contamination. Defendant denies the remaining allegations of Paragraph 22. 23. Complaint. 24. Defendant admits that it provided formal public notification of the Land Exchange Defendant admits the allegations of Paragraph 23 of the Second Amended

on or about April 25, 2001. Defendant denies the remaining allegations of Paragraph 24 of the Second Amended Complaint. 25. Defendant admits the allegations in the first sentence of Paragraph 25 of the

Second Amended Complaint. As to the second sentence of Paragraph 25, Defendant admits that it provided Antlers and Powers with notice of the proposed Land Exchange. Defendant denies all other allegations in the second sentence of Paragraph 25 of the Second Amended Complaint. 26. Defendant admits that it provided the public with the legally required comment

period and denies the remaining allegations of Paragraph 26 of the Second Amended Complaint. Defendant further denies the inference or implication in this Paragraph that "polling" is a legal requirement in Defendant's assessment of any land exchange transaction. 27. Defendant admits that it conducted an Environmental Assessment ("EA") and that

no Environmental Impact Study ("EIS") was necessary because the Responsible Official made a Finding of No Significant Impact. Defendant further admits that the EA was made available for public comment as required by law. Defendant denies the remaining allegations of Paragraph 27 6

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of the Second Amended Complaint. 28. Defendant admits the first sentence of Paragraph 28 of the Second Amended

Complaint. Defendant further states that no public comment period for appraisals is required by law or policy. Defendant denies the remaining allegations of Paragraph 28 of the Second Amended Complaint. 29. Complaint. 30. Defendant admits that it entered into an Exchange Agreement on January 21, 2004 Defendant admits the allegations of Paragraph 29 of the Second Amended

and denies all other allegations of the first sentence of Paragraph 30 of the Second Amended Complaint. Defendant denies the allegations in the second sentence of Paragraph 30 of the Second Amended Complaint. Defendant admits the allegations of the third sentence of Paragraph 30 of the Second Amended Complaint. 31. Complaint. 32. Complaint. 33. Defendant admits the allegations in the first sentence of Paragraph 33 of the Defendant admits the allegations of Paragraph 32 of the Second Amended Defendant denies the allegations of Paragraph 31 of the Second Amended

Second Amended Complaint. Defendant denies the remaining allegations of Paragraph 33 of the Second Amended Complaint.

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COUNT I FLPMA Lack of Equivalent Value 34. Defendant incorporates by reference, as though fully set forth herein, each of its

answers and denials to Paragraphs 1 through 33 above. 35. Complaint. 36. Complaint. 35. [sic] Defendant denies the allegations of misnumbered Paragraph 35 [sic] of the Second Amended Complaint. 36. [sic] Defendant denies the allegations of misnumbered Paragraph 36 [sic] of the Second Amended Complaint. COUNT II PROCEDURAL VIOLATION OF FLPMA 37. Defendant incorporates by reference, as though fully set forth herein, Defendant denies the allegations of Paragraph 36 of the Second Amended Defendant denies the allegations of Paragraph 35 of the Second Amended

each of its answers and denials to Paragraphs 1 through 36 above, including the second paragraph numbered 35 and the second paragraph numbered 36. 37. [sic] Defendant denies the allegations in the second misnumbered Paragraph 37 of the Second Amended Complaint. 38. Defendant denies the allegations of Paragraph 38 of the Second Amended

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Complaint and avers that it provided all required notice of the appraisal. 39. As to the allegations in Paragraph 39 of the Second Amended Complaint,

Defendant admits that it did not provide for public comment on the appraisal and avers that no public comment was required. 41. [sic] There appears to be no Paragraph 40 of the Second Amended Complaint. As to the allegations in Paragraph 41 of the Second Amended Complaint, Defendant admits that Charles Powers and Antlers Rio Grande Lodge submitted a timely appeal on certain issues. Defendant denies all other allegations in Paragraph 41. 42. Complaint. 43. Complaint. COUNT III DENIAL OF APPEAL RIGHTS UNDER 36 CFR §215.9 43. [sic] Defendant incorporates by reference, as though fully set forth herein, each of its answers and denials to Paragraphs 1 through 43 above, including to the various misnumbered paragraphs contained therein. 44. As to the allegations contained in Paragraph 44, Defendant admits that on January Defendant denies the allegations of Paragraph 43 of the Second Amended Defendant admits the allegations of Paragraph 42 of the Second Amended

21, 2004 after the Decision Notice was signed, the Forest Service signed the Exchange Agreement. The Defendant further admits that it filed the Agreement in the public records of the

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applicable counties. Defendant denies all other allegations in Paragraph 44 of the Second Amended Complaint. 45. Complaint. COUNT III [sic] FLPMA Violation of land acquisition standards 46. Defendant incorporates by reference, as though fully set forth herein, each of its Defendant denies the allegations of Paragraph 45 of the Second Amended

answers and denials to Paragraphs 1 through 45 above, including the various misnumbered paragraphs set forth therein. 46. [sic] Defendant admits that FLPMA requires land exchanges to be in the public interest and denies the remaining allegations of the second Paragraph 46 of the Second Amended Complaint. 47. Complaint. 48. Defendant denies the allegations of Paragraph 48 of the Second Amended Defendant denies the allegations of Paragraph 47 of the Second Amended

Complaint, including sub-parts (1) through (5). COUNT IV FLPMA Violation of forest plan objectives and standards 49. Defendant incorporates by reference, as though fully set forth herein, each of its

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answers and denials to Paragraphs 1 through 48 above, including the various misnumbered paragraphs contained therein. 49 [sic] As to the allegations in misnumbered Paragraph 49 of the Second Amended Complaint, Defendant admits the allegations of the first sentence and denies all other allegations in misnumbered Paragraph 49 of the Second Amended Complaint. 50. Defendant admits that the Land Exchange will remove 814.91 acres of winter

range from Forest Service management and denies all other allegations in Paragraph 50 of the Amended Complaint. 51. Complaint. 52. Complaint. 53. Defendant denies the allegation in Paragraph 53 of the Second Amended Defendant denies the allegations in Paragraph 52 of the Second Amended Defendant denies the allegations in Paragraph 51 of the Second Amended

Complaint, except that it admits that it conducted no "polling," nor was it legally required to, and further states that the EA speaks for itself. 54. Defendant admits that the Land Exchange includes a geological site of interest,

and denies the remaining allegations in Paragraph 54 of the Second Amended Complaint including the allegation that it violated unspecified and unnamed provisions of the Forest Plan. 55. Complaint. 11 Defendant denies the allegations of Paragraph 55 of the Second Amended

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COUNT V - VIOLATION OF NEPA Failure to Prepare EIS 56. Defendant incorporates by reference, as though fully set forth herein, each of its

answers and denials to Paragraphs 1 through 55 above, including the various misnumbered paragraphs contained therein. 56. [sic] Defendant incorporates its response to the first Paragraph 56 of the Second Amended Complaint. 57. Paragraph 57 of the Second Amended Complaint sets forth conclusions of law to

which no response is required. To the extent that a response is deemed necessary, Defendant states that NEPA requires an examination of environmental consequences, and this examination occurs during the preparation of EA and during the preparation of an EIS, only if one is necessary. 58. Defendant admits that the final acreage received by it was less than originally

proposed and denies all remaining allegations of Paragraph 58 of the Second Amended Complaint. 59. Complaint. 60. Defendant admits that it did not conduct new analysis after the Lynx was Defendant denies the allegations in Paragraph 59 of the Second Amended

reclassified as a "threatened species" and denies all remaining allegations of Paragraph 60 of the Second Amended Complaint.

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61. Complaint. 62.

Defendant denies the allegations of Paragraph 61 of the Second Amended

Defendant admits that it did not prepare an EIS. Defendant denies the remaining

allegations of Paragraph 62 of the Second Amended Complaint. 63. The allegations of Paragraph 63 of the Second Amended Complaint state legal

conclusions to which no response is necessary. To the extent a response is deemed necessary, Defendant denies the allegations of Paragraph 63 of the Second Amended Complaint. 64. Defendant denies the allegations of Paragraph 64 of the Second Amended

Complaint. Defendant further denies that Plaintiffs are entitled to the relief claimed in Section VI, subparagraphs A through D, of the Second Amended Complaint, or any relief whatsoever. DEFENSES 1. 2. 3. 4. 5. 6. Exchange. 7. progresses. 13 Defendant reserves the right to assert additional defenses as this lawsuit Plaintiffs have failed to state a claim upon which relief may be granted. Plaintiffs lack standing to assert some of the claims at issue. Plaintiffs may have failed to exhaust administrative remedies. Defendant denies violating any law or regulation governing the Land Exchange. Defendant lawfully concluded that the Land Exchange was in the public interest. Defendant appropriately evaluated the potential environmental impact of the Land

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WHEREFORE, having answered the Second Amended Complaint, Defendant prays that upon final hearing thereof, the Court enter judgment in its favor and against Plaintiffs, and dismiss the above-styled and numbered cause in its entirety with prejudice, awarding Defendant costs and all such other and further relief, at law or in equity, to which Defendant may be entitled. DATED this 12 th day of October, 2004. Respectfully submitted,

WILLIAM LEONE United States Attorney

s/ Habib Nasrullah HABIB NASRULLAH ROXANE PERRUSO Assistant United States Attorneys 1225 Seventeenth Street, Suite 700 Denver, CO 80202 Telephone: (303) 454-0100 Fax: (303) 454-0407 Email: [email protected] [email protected] Attorneys for Defendant

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CERTIFICATE OF SERVICE I hereby certify that on October 12, 2005, 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: Charles Clair Powers [email protected] Jennifer Lynn Soice [email protected] [email protected]

and I hereby certify that I have mailed or served the document or paper to the following non CM/ECF participants in the manner indicated by the nonparticipant's name: By mail, postage prepaid Gordon H. Rowe, Jr., Atty At Law P.O. Box 1273 South Fork, CO 81154

s/ Habib Nasrullah Habib Nasrullah, AUSA Attorney for Defendant United States Attorney's Office 1225 Seventeenth Street, Suite 700 Denver, CO 80202 Phone: 303-454-0100 Fax: 303-454-0407 [email protected]

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