Case 1:18-cv-01017-PAB Document 39 Filed 07/18/18 USDC Colorado Page 1 of 6

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO

Civil Action No. 18-cv-01017-PAB

ROCKY MOUNTAIN PEACE & JUSTICE CENTER; CANDELAS GLOWS/ROCKY FLATS

GLOWS; ROCKY FLATS RIGHT TO KNOW; ROCKY FLATS NEIGHBORHOOD
ASSOCIATION; and ENVIRONMENTAL INFORMATION NETWORK (EIN) INC.,

Plaintiffs,
v.

UNITED STATES FISH AND WILDLIFE SERVICE;

JAMES KURTH, in his official capacity as Acting Director of the United States Fish and
Wildlife Service; and
RYAN ZINKE, in his official capacity as Secretary of the Interior;

and

UNITED STATES FEDERAL HIGHWAY ADMININSTRATION;

BRANDYE HENDRICKSON, in her official capacity of Acting Administrator of the United
States Federal Highway Administration; and
ELAINE L. CHAO, in her official capacity as Secretary of Transportation
Defendants.
__________________________________________________________________

PLAINTIFFS’ RESPONSE TO NEW AUTHORITY PRESENTED AT

HEARING ON MOTION FOR PRELIMINARY INJUNCTION
__________________________________________________________________

At the hearing on Plaintiffs’ Motion for Preliminary Injunction held on July 17, 2018,

Defendant’s counsel cited new authority not presented in Defendants’ Opposition to Plaintiffs’

Motion for Preliminary Injunction (ECF 14). Specifically, Ms. Lawrence-Hammer cited Forest

Guardians v. Forsgren, 478 F.3d 1149 (10th Cir. 2007) as controlling precedent that the 2004

Comprehensive Conservation Plan (ECF 14-10) (2004 CCP) is not subject to mandatory

reinitation of ESA Section 7 consultation under 50 C.F.R. §402.16(d). Counsel strongly asserted

during her closing argument that this is not the Ninth Circuit but rather the Tenth, and that

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Forsgren was the controlling law in this Circuit.

Relying on Norton v. Southern Utah Wilderness Alliance, 542 U.S. 55, 124 S.Ct. 2373,

159 L.Ed.2d 137 (2004), in Fosgren the Tenth Circuit reasoned “(. . .) LRMPs, once approved,

amended, or revised, constitute ongoing, self-implementing action under § 7(a)(2).” Forest

Guardians v. Forsgren, 478 F.3d at 1154. Upholding the lower court’s dismissal of plaintiff’s

claim that the listing of a Distinct Population Segment of the Canada Lynx under the ESA

triggered a required the initiation of Section 7 consultation for the applicable Land and Resource

Management Plan (LRMP), the Tenth Circuit explained that approved “plans” are excluded from

reinitation requirements since they only constitute a framework for later project decisions and are

not an “action” subject to Section 7 consultation:

Plans do not grant, withhold, or modify any contract, permit or other legal instrument,
subject anyone to civil or criminal liability, or create any legal rights. Plans typically do
not approve or execute projects and activities. Decisions with effects that can be
meaningfully evaluated typically are made when projects and activities are approved.
Id. at 1153.

However, in Fosgren the Tenth Circuit also articulated an important clarification and

limitation on the scope of its ruling, stating “Much like the promulgation of a regulation, we have

little doubt after Norton that the act of approving, amending, or revising a LRMP constitutes

“action” under § 7(a)(2) of the ESA. See 50 C.F.R. 402.02 (. . .).” Id. 1154 (emphasis added).

The Fosgren exclusion of approved “plans” does not apply to the Service’s action at issue

in this matter. As demonstrated by the Defendants’ project documents and pleadings, the action

taken by the USFWS in the 2018 Environmental Action Statement (ECF 7-13, AR 78) (2018

EAS) is patently “amending or revising” the 2004 CCP.

Specifically, the 2018 EAS (1) refers to “(. . .) the action of making minor adjustments to

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the management direction and strategies found in the Rocky Flats National Wildlife Refuge

Comprehensive Conservation Plan (. . .)” (ECF 7-13 at 1 [emphasis added]); (2) “(. . .) covering

minor changes in existing master plans [and] comprehensive conservation plans (. . .)” (ECF 7-

13 at 1, 4 [emphasis added]); (3) (“I approve making minor adjustments to the management

direction and strategies found in the Rocky Flats National Wildlife Refuge Comprehensive

Conservation Plan (. . .) [/s/ David Lucas]” (ECF 7-13 at 2); (4) “Table 2. Summary of multiple

use trails located on the Rocky Flats National Wildlife Refuge, 2018” (table detailing changes in

use and location of trails from the 2004 CCP under the 2018 EAS) (ECF 7-13 at 7 – 8 [emphasis

in original]); (5) “Proposed action: Minor adjustments to the management direction and

strategies found in the Rocky Flats National Wildlife Refuge Comprehensive Conservation

Plan as necessary to better implement wildlife-dependent recreational opportunities” (ECF

7-13 at 8 [emphasis in original]); and (6) “(. . .) the following Service actions are designated

categorical exclusions (. . .) 516 DM 8.5(B)(9) covering minor changes in existing master plans,

comprehensive conservation plans (. . .)” (ECF 7-13 at 9 [emphasis added]).”

The FWS’ self-professed reason for the 2018 EAS was to satisfy the requirements of the

National Environmental Policy Act (NEPA) to review the action described in the 2018 EAS

(ECF 7-13 at 4); specifically, changes to the 2004 CCP’s selected “Alternative B – Wildlife,

Habitat, and Public Use” (See ECF 7-13 at 5 – 8). These changes, even though characterized as

“minor,” are adequate for the Court to find that the action underlying the 2018 EAS constituted

an amendment or revision of the 2004 CCP.

This view is buttressed by the Defendants’ own briefing in this motion, wherein they

acknowledge that the action underlying the 2018 EAS constitute “changes” to the 2004 CCP.

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ECF 14 at 17 – 18 (“The six extraordinary circumstances that Plaintiffs allege may apply to the

EAS all concern the opening of trails on the Refuge in general, not the specific changes to the

CCP/EIS that are at issue in this case.” [emphasis added]).

As asserted in open court, Plaintiffs’ Fifth Claim alleges that the reinitation of Section 7

consultation for the 2004 CCP is required under 50 C.F.R. §402.16(d) with the designation of

Critical Habitat for the Preble’s Meadow Jumping Mouse in 2010, and the failure to do so

constitutes a violation of ESA Section 7 (ECF 1 at 35 – 36). The argument by Defendants’

counsel that Fosgren is controlling and that such reinitation is prohibited in the Tenth Circuit is

incorrect. As argued above, it is evident that the 2018 EAS is an amendment and/or a revision of

the 2004 CCP, and therefore would be considered an “agency action” under Fosgren. See Salix v.

U.S. Forest Serv., 944 F. Supp. 2d 984, 997 (D. Mont. 2013), aff'd and remanded sub nom.

Cottonwood Envtl. Law Ctr. v. U.S. Forest Serv., 789 F.3d 1075 (9th Cir. 2015) (“The [Fosgren]

court reasoned that an “agency action” includes the adoption of a forest plan, the amendment or

revision of a forest plan, and the proposal and approval of a site-specific project in the forest.

[Forest Guardians v. Forsgren, 478 F.3d] at 1154.” [emphasis added]).

Stripped of its reliance on the "plans” exclusion in Fosgren, the Defendants are left with

the argument that the various informal and formal Section 7 consultations since the 2010

designation of Critical Habitat for the Preble’s Meadow Jumping Mouse satisfy the requirement

for a mandatory reinitation of consultation under 50 C.F.R. §402.16(d). As briefed and argued by

Plaintiffs’ counsel, the “piecemeal” approach to Section 7 consultation is inadequate to satisfy

the requirements set forth in the FWS’ regulations for a programmatic consultation to analyze the

impacts of all past, present and all future projects under consultation on the Mouse Critical

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Habitat. (See Reply In Support of Plaintiffs’ Motion, ECF 22 at 10). For the same reason, the

informal consultation dated March 23, 2018 is deficient, and can only be remedied by an

adequate Section 7 consultation that determines whether the impacts of the public trails project

described in the 2018 EAS, together with the impacts of all past projects, and the impacts of all

future projects under consultation, will result in the “destruction or adverse modification” of the

Mouse Critical Habitat. See Ctr. For Native Ecosystems v. Cables, 509 F.3d 1310, 1321 – 1322

(10th Cir. 2007).

Respectfully submitted this 18th day of July, 2018.

LAW OFFICES OF RANDALL M. WEINER,

P.C.

By: /s/ Andrew G. Ogden

Andrew G. Ogden, of counsel
Randall M. Weiner
Annmarie Cording
Dana J. Stotsky, of counsel
3100 Arapahoe Avenue, Suite 202
Boulder, CO 80303
Telephone: (303) 440-3321
FAX: (720) 292-1687
E-mail: randall@randallweiner.com

Attorneys for Plaintiffs

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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

CERTIFICATE OF SERVICE (CM/ECF)

I hereby certify that on July 18, 2018, the foregoing, along with all exhibits thereto, will
be electronically filed with the Clerk of the Court via the CM/ECF system, which will generate
automatic service upon all Parties enrolled to receive such notice, including:

Jessica Held
Lesley Lawrence-Hammer
U.S. Department of Justice
Environment and Natural Resources Division Natural Resources Section
P.O. Box 7611
Washington, DC 20044-7611
Phone: 202.305.0492

/s/ Andrew G. Ogden

Andrew G. Ogden of counsel
Counsel for Plaintiffs