Case 1:11-cv MSK Document 31 Filed 04/20/12 USDC Colorado Page 1 of 14 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

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1 Case 1:11-cv MSK Document 31 Filed 04/20/12 USDC Colorado Page 1 of 14 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 1:11-cv MSK-KLM BACKCOUNTRY HUNTERS AND ANGLERS, Colorado Chapter,, UNITED STATES FOREST SERVICE, a federal agency within the U.S. Department of Agriculture; MARK STILES, in his official capacity as Forest Supervisor for the San Juan National Forest; and THOMAS TIDWELL, in his official capacity as Chief of the United States Forest Service, and v. COLORADO OFF HIGHWAY VEHICLE COALITION, TRAILS PRESERVATION ALLIANCE, SAN JUAN TRAIL RIDERS, PUBLIC ACCESS PRESERVATION ASS N, and THE BLUE RIBBON COALITION Respondent-Intervenors. Defendants. MOTION FOR LEAVE TO FILE AMICUS CURIAE BRIEF Stephen B. Johnson, Colo. Bar No Stephen B. Johnson Law Firm, P.C. 526 W. Colorado Avenue PO Box 726 Telluride, CO (970) Counsel for Proposed Amici Dunton Hot Springs, Inc., Dunton, LLC, Town of Rico, Colorado, and Rico Alpine Society. Filed April 20, 2012

2 Case 1:11-cv MSK Document 31 Filed 04/20/12 USDC Colorado Page 2 of 14 Dunton Hot Springs, Inc., Dunton, LLC (collectively "Dunton"), the Town of Rico, Colorado ("Rico") and the Rico Alpine Society ("RAS") (collectively proposed amici ) file this Motion for Leave to File Amicus Curiae Brief and to participate as amici curiae in the abovecaptioned proceeding, and in support of s Complaint for Declaratory and Injunctive Relief and Petition for Review of Agency (Dkt. No. 1), and its Motion for Preliminary Injunction (Dkt. No. 29). Proposed amici respectfully request that the Court grant their Motion and accept for filing the attached Amicus Curiae Brief of Dunton, Rico and RAS. Proposed amici specifically request that this Brief be considered before ruling on Plaintiff s Motion for Preliminary Injunction. As grounds for this Motion, proposed amici state: BACKGROUND 1. Proposed amici include a major business and resort operator, a municipality, and a recreational and educational group, all of which are located or based in the heart of the upper Dolores Ranger District of the San Juan National Forest (SJNF) where the 14 motorized trails at issue in this case are situated. Neither the Federal Defendants, nor any of the five Respondent- Intervenors are as closely connected with, or physically-based, in this specific area on a fulltime, year-round basis. Many of the 14 motorized trails at issue in this case are literally in proposed amici s backyards. 2. Dunton is one of the largest private landowners 1 - and the largest employer 2 - on the West Fork of the Dolores River in Dolores County, Colorado. Dunton owns and operates the Dunton 1 Dunton owns a significant amount of property in the West Fork of the Dolores River and on Lizard Head Meadows within the Mancos-Dolores Ranger District of the San Juan Forest ( Forest ). These properties are all located within the Rico/West Dolores ( RWD ) Travel Management Plan ( TMP ) area. 2

3 Case 1:11-cv MSK Document 31 Filed 04/20/12 USDC Colorado Page 3 of 14 Hot Springs Resort which is located adjacent to the SJNF. The Resort is a luxurious, restored ghost town and mining camp with world-class hot springs, spa and cuisine. Dunton offers its Resort guests a rustic Old West experience and quiet use recreational opportunities including fishing, horse-back riding and hiking in the Resort, affiliated properties, and on surrounding SJNF lands. See generally Dunton is actively trying to increase its resort business at Dunton Hot Springs and has a business plan aiming to double or triple existing business. The success of this effort will depend in large part on the quality of the guest experience. That experience, in turn, is dependent upon resort amenities, and the natural beauty, solitude, and relatively pristine quality of the surrounding forest and wildlife. Thus, Dunton s economic future is directly tied to the preservation of the SJNF lands in the RWD area, and the ability to enjoy quiet, non-motorized summer uses in those areas. 3. Rico, Colorado is a home-rule municipality located on the East Fork of the Dolores River. Rico has a year-round population of approximately 260 residents, increasing to approximately 350 in the summer. Rico is the sole incorporated municipality within the Rico/West Dolores ( RWD ) area, and is virtually surrounded by the SJNF. See Petition 61 (Dkt. No. 1). Rico maintains a website that describes the municipality as well as its relationship with the surrounding national forest, see Hyperlink reference not Specifically, Dunton LLC owns the Dunton Hot Springs Resort, approximately 80 acres size; numerous individual parcels along the West Dolores River ( West Fork ), notably including the 80 acre Emma Mine; 23 acres in small West Fork parcels; the 480 acre Cresto Ranch at the mouth of Johnny Bull Creek ( Cresto Ranch ); an 80 acre in-holding east of Dunton Hot Springs which is traversed by the Fall Creek trail ( Timber Tract ); a 320 acre inholding adjacent to the Lizard Head Wilderness ( Lizard Head Tract ) 2 Dunton regularly employs approximately fifty employees and independent contractors and provides annual sales tax revenues, payrolls and property taxes in an approximate total amount exceeding $1 Million. Coupled with guest sales and development-related expenditures, Dunton easily generates at least $1.5 Million in direct economic impact to Dolores County each year. 3

4 Case 1:11-cv MSK Document 31 Filed 04/20/12 USDC Colorado Page 4 of 14 valid. Rico is a party to a 2011 Memorandum of Understanding Between San Juan Public Land Center & Town of Rico, Colorado ( MOU ) and is a Cooperating Agency with the San Juan Public Land Center 3. The MOU addresses cooperation and information sharing concerning a pending Land and Resource Management Plan Revision (LRMP/RMP) for the SJNF. See Exhibit 2 to Memorandum in Support of Motion for Preliminary Injunction (Dkt. No. 26-2); Marion Declaration, Exhibit 6 to Memorandum at (Dkt. No. 26-6). A Draft Environmental Impact Statement ( DEIS ) and a Draft Land Management Plan ( DLMP ) have been issued. (Both documents are available at 4. As with both other proposed amici, Rico is concerned that continued motorized designation and use of the 14 trails addressed in s Motion for Preliminary Injunction, particularly including the Calico, Horse Creek and Burnett Creek trails, has created an incorrect baseline of existing conditions with respect to the LRMP/RMP and any future Travel Management Plan for the RWD. See Dkt. No. 26-6, Marion Declaration, Such an incorrect baseline will harm Rico s procedural interests as a Cooperating Agency with respect to the Final LRMP/RMP. Proposed amici agree with Petitioner s contention in its Motion for Preliminary Injunction, that by establishing an improper baseline for the future TMP process, the Forest Service s authorization of ORV use on the 14 trails creates a risk that the analysis of alternatives required by NEPA will be skewed toward an outcome that favors motorized use. See Dkt. No. 26 at 32 & n.6. Rico s economy relies heavily upon big game hunters, who increasingly consist of archers and black powder shooters, as well as rifle hunters. Motorized trails in the Rico area have impaired hunting opportunities for its residents and visitors, 3 The San Juan Public Land Center administered the Dolores Ranger District until recently. 4

5 Case 1:11-cv MSK Document 31 Filed 04/20/12 USDC Colorado Page 5 of 14 particularly during archery and black powder season. Continued designation and use of these motorized trails will negatively impact Rico s economy as well as the quality of life of its residents and tourists. 5. RAS is a Colorado non-profit corporation and 501(c)(3) organization organized in 2003 with over 50 members residing in the Rico and Dolores River region. According to its Mission Statement: The Rico Alpine Society exists to promote the preservation, restoration, and appreciation of the natural outdoor environment in the Rico area through the active involvement of the Rico Community by volunteer activities, education and charitable contributions. See generally Many RAS members enjoy hiking, hunting and sightseeing opportunities in the Rico area as well as on trails elsewhere in the RWD. RAS membership includes many Rico residents, a SJNF-licensed outfitter and a retired National Forest Supervisor. 5. Dunton, Dunton s properties, the Town of Rico, and the majority of the RAS membership are located within the upper Rico-West Dolores area. Dunton s residents, guests, licensees and outfitter, Rico residents and visitors, and RAS members frequently use and recreate on and near SJNF trails, including the 14 trails at issue in this case. 6. Dunton is located only 3.6 miles from the northern end of the Calico Trail trailhead and some of its properties (Dunton Hot Springs, Timber Tract, Cresto ranch) are adjacent to the Calico Trail network. Dunton s horseback outfitter and guests have at times has been unwilling to use certain motorized trails including the Calico Trail (Petition at 71 to 73, 84), and the Johnny Bull Trail (Petition at 74, 93) adjacent to Dunton s Cresto Ranch property, due to conflicts with dirt bikers, rutted, muddy and braided trail conditions primarily caused or 5

6 Case 1:11-cv MSK Document 31 Filed 04/20/12 USDC Colorado Page 6 of 14 aggravated by dirt bikers, a desire for a quiet use experience, lack of wildlife viewing opportunities, and safety concerns for riders, horses, bikers and hikers. Dirt bike riders often deviate from the Calico Trail to East Fall Creek trail just above Dunton. The Calico and Fall Creek Trails have been popular hiking and horseback riding trails for Dunton guests. The dirt bike use on these Trails has caused extreme trail rutting, trail braiding, stream cutting, mud pits, damaged trees and destroyed wetlands. As a result, Dunton guests have recently used these trails far less frequently than before Dunton has suffered continued trespass on its private property at the Dunton Hot Springs resort from dirt bikers originating from motorized trails within the West Dolores portion of the Calico Trail network of the RWD area, specifically including the East Fall Creek Trail (one of the 14 trails addressed in Plaintiff s Motion for Preliminary Injunction). 7. Dunton s owners, employees, guests, as well as constituents and members of the Town of Rico and RAS, have experienced reduced wildlife viewing and fishing and hunting opportunities as a result of rapidly increasing numbers of dirt bikers on a greatly expanded motorized trail system in the RWD area. This increase in dirt biking in the Rico West Dolores travel Management Area became quite noticeable beginning around , when the Dolores Ranger District began installing trail signage and publishing trail maps allowing motorized uses on the 14 trails. The dirt bikers have become increasingly attracted to the RWD area because of the now-extensive motorized trail designations and signage in the RWD area. 8. At the same time as this motorized trail system was expanded within the Rico West Dolores Travel Management Area, it has also substantially deteriorated and has become more difficult for the public and members of the amici to hike, bike, horseback ride, or hunt on. 6

7 Case 1:11-cv MSK Document 31 Filed 04/20/12 USDC Colorado Page 7 of 14 Motorized-related resource destruction (primarily erosion) both on and off the motored trails has substantially and negatively impacted water quality, fisheries, wildlife habitat, and opportunities for quiet use and solitude by guests, constituents and members of the proposed amici. These impacts are detailed in the numerous comment letters that proposed amici have provided in the course of the Rico West Dolores Travel Management Planning process and are further detailed in the attached Brief. 9. For Dunton, Rico and RAS this case presents issues of great importance that concerns whether the federal defendants have complied with and properly implemented the National Environmental Policy Act ( NEPA ), and the National Forest Management Act ( NFMA ). Proposed amici believe that motorized trail designations on the 14 trails addressed in Petitioner s Complaint occurred without opportunity for prior public notice or comment, in violation as Petitioner claims of the NEPA and the NFMA. 10. Each of the proposed amici have extensively communicated with and commented to San Juan National Forest and Dolores Ranger District officials concerning motorized trail use and motorized trail designations in the RWD area. Each of the proposed amici participated in the RWDTMP process. See Complaint at paras. 105 to 109, 128. Dunton also participated in an appeal of the RWDTMP, and both Rico and RAS submitted letters to the Deciding Officer in lieu of an appeal. These communications are detailed in the attached Brief. Each of the proposed amici have a strong interest in the outcome of this litigation, close familiarity with the motorized trails at issue in this case and their impact upon the surrounding federal and private lands, and a unique local perspective that may assist this Court in resolving this case. 7

8 Case 1:11-cv MSK Document 31 Filed 04/20/12 USDC Colorado Page 8 of Each of the proposed amici is vitally concerned with the Federal Defendant s unlawful authorization of off-road vehicle ("ORV") use on more than 80 miles of trails in the San Juan National Forest. Many of these trails, particularly the Calico Trail network (Complaint at para. 67, 71-74) are in close proximity to Dunton's business and property holdings, Rico's geographical boundaries, and places where Dunton, Rico and RAS guests, residents and members recreate or desire to recreate within the SJNF. Any failure to achieve success by Plaintiff in this litigation will harm the economic, recreational and aesthetic interests of proposed amici and their guests, residents, and members. 12. Proposed amici s participation will be useful to the Court, will not prejudice any party 4, and will aid in the administration of justice. Accompanying this Motion as an attachment, Dunton, Rico and RAS lodge an amicus curiae brief in support of the s Motion for a Preliminary Injunction and request that it be accepted for filing upon granting this Motion. This Motion is filed on April 20, According to the Joint Case Management Plan, Respondents and Respondent-Intervenors response to Plaintiff s Motion for Preliminary Injunction is due to be filed by April 25. Respondent-Intervenors response to Plaintiff s Motion for Preliminary Injunction is due to be filed by April 30. Petitioner will file its reply brief by May In Federal Defendant s counsel Alison D. Garner s April 13, response to counsel for proposed amici s conferral as addressed in paragraph 15, below, she stated in part that We do not believe a motion for preliminary injunction is an appropriate forum for an amicus brief. She did not cite any potential prejudice to Federal Defendants that would result from filing of an amicus brief with respect to the Motion for Preliminary Injunction. 8

9 Case 1:11-cv MSK Document 31 Filed 04/20/12 USDC Colorado Page 9 of 14 ARGUMENT 13. An amicus curiae may participate at the discretion of the Court. Ellsworth Associates Inc. v. United States, 917 F.Supp. 841, 846. (D.D.C. 1996). There are no formal prerequisites for qualifying as an amicus, although generally they must have a special interest in the case. See Cobell v. Norton, 246 F.Supp.2d 59 (D.D.C. 2003): This Court has recently stated that "[a]n amicus curiae, defined as "friend of the court,"... does not represent the parties but participates only for the benefit of the Court. Accordingly, it is solely within the discretion of the Court to determine the fact, extent, and manner of participation by the amicus." United States v. Microsoft Corp., 2002 WL at *2 (D.D.C.2002) (citing Ryan v. Commodity Futures Trading Comm'n, 125 F.3d1062, 1064 (7th Cir. 1997)). In this context, the Seventh Circuit has opined that [a]n amicus brief should normally be allowed when a party is not represented competently or is not represented at all, when the amicus has an interest in some other case that may be affected by the decision in the present case (though not enough affected to entitle the amicus to intervene and become a party in the present case), or when the amicus has unique information or perspective that can help the court beyond the help that the lawyers for the parties are able to provide. Otherwise, leave to file an amicus curiae brief should be denied. Ryan, 125 F.3d at Cobell, 246 F. Supp.2d Courts often accept the participation of an amicus who offers information that is both timely and useful to the court s understanding of the case and the potential ramifications of its 9

10 Case 1:11-cv MSK Document 31 Filed 04/20/12 USDC Colorado Page 10 of 14 result. Ellsworth Associates, 917 F. Supp. at 846. In Ellsworth Associates, the District Court for the District of Columbia allowed two individuals to participate as amici because they demonstrated that they had a special interest in this litigation as well as a familiarity and knowledge of the issues raised therein that could aid in the resolution of this case. Id. As explained by now-justice Samuel Alito, an amicus who makes a strong but responsible presentation in support of a party can truly serve as the court s friend. Neonatology Associates, P.A. v. Commissioner of the IRS, 293 F.3d 128, 131 (3rd Cir. 2002). Noting the predominant practice in the courts of appeal to more liberally allow amicus status, he rejected a small body of judicial opinions that look with disfavor on motions for leave to file amicus briefs. Id. at In United States Of America v. City And County Of Denver; The Denver Police Department; And The Civil Service Commission For The City And County Of Denver, 927 F.Supp (Dist. Ct. Colo.), the Court allowed the United States to participate as amicus curiae in a proceeding, because of it impliedly found that government s interests may be affected by the outcome and that its views will be of assistance to the court. 927 F. Supp. at In the case of Hydro Resources, Inc., Petitioner, v. United States Environmental Protection Agency, Respondent, And Navajo Nation, Intervenor.; State Of New Mexico; National Mining Association; United Nuclear Corporation; State Of Colorado; State Of Kansas; State Of Utah; State Of Wyoming; The Pueblo Of Santa Clara; The Pueblo Of Sandia; The Pueblo Of Isleta; And The Pueblo Of Zia, Amici Curiae, 608 F.3d 1131 (CA ), the court addressed in a footnote several motions for leave to file amicus curiae briefs, and granted leave for multiple amici to file amicus briefs based on adequate interest and useful arguments: 10

11 Case 1:11-cv MSK Document 31 Filed 04/20/12 USDC Colorado Page 11 of 14 Pending before the court are several motions seeking leave to file amicus briefs. Because the movants possess an adequate interest and present arguments that are useful to this court, we grant the motions of the Pueblos of Santa Clara, Sandia, Isleta, and Zia and the United Nuclear Corporation. We deny the motion of the American Indian Law Professors for leave to file an amicus brief only because granting the motion would cause one or more members of this court to recuse themselves from the matter. See 16AA Charles Alan Wright et al., Federal Practice and Procedure 3975, at (4th ed. 2008) ( Some circuits will restrict amicus filings in order to avoid disqualifying a member... of the en banc court... ). The states of Colorado, Kansas, New Mexico, Utah, and Wyoming also filed an amicus brief, which Federal Rule of Appellate Procedure 29(a) allows them to do without requesting the leave of this court. Fn. 7, 608 F.3d at The proposed amici wish to participate in the merits briefing on Plaintiff s Complaint in this case, including briefing in support of the Plaintiff s Motion for Preliminary Injunction filed on March 28, 2012, see Dkt. No. 25, 26 insofar as said Motion will necessarily entail briefing on the merits. See Judge Kane s March 29, 2012 Minute Order, Dkt. No. 27: Because s motion for preliminary injunction requires a decision on the likelihood of s success on the merits of its complaint, it should be assigned to a district judge pursuant to D.C.Colo.LCivR 40.1A before completion of pre-merits briefing on the AP Docket. Proposed amici all share with Plaintiff a special interest in restoration of many of the 14 trails addressed in Plaintiff s Motion for Preliminary Injunction to non-motorized status. Any failure 11

12 Case 1:11-cv MSK Document 31 Filed 04/20/12 USDC Colorado Page 12 of 14 to obtain preliminary injunctive relief as sought in Plaintiff s Motion for Preliminary Injunction will irreparably harm the interests of proposed amici and their guests, residents, and members beginning in the summer of 2012, as more fully explained in the attached Brief. 18. In accordance with Local Rule 7.A.1 to the extent applicable 5, on April 5, 2012 counsel for the proposed amici contacted counsel for the parties in this case and conferred as to whether they would consent to the proposed amici filing a Motion for Leave to File Amicus Curiae Brief in this case. Counsel for stated that consents to this Motion. Counsel for Federal Defendants stated that they will oppose this Motion. Counsel for Intervenor-Defendants stated that Intervenor-Defendants take no position on this Motion. CONCLUSION Proposed amici have special, vested economic, recreational, aesthetic and procedural interests and unique local perspectives that may be of assistance to the Court in deciding the issues concerning the Motion for Preliminary Injunction and the merits of the Complaint. Accordingly, the Motion for Leave to file Amicus Curiae Brief should be granted and the attached Brief accepted for filing. Respectfully submitted, /s/ Stephen B. Johnson Stephen B. Johnson Law Firm, P.C. 5 Local Rule 7.A.1 applies to parties. Proposed amici are not parties and are not seeking to become parties at this time. 12

13 Case 1:11-cv MSK Document 31 Filed 04/20/12 USDC Colorado Page 13 of 14 Counsel for Proposed Amici Curiae Dunton Hot Springs, Inc., Dunton, LLC, Town of Rico, Colorado, and Rico Alpine Society. CERTIFICATE OF SERVICE I hereby certify that on April 20, 2012, I electronically transmitted the attached document to the Clerk s Office using the CM/ECF System for filing and transmittal of a Notice of Electronic Filing to the following counsel of record in this matter: Jason A. Hill Natural Resources Section Environment & Natural Resources Division United States Department of Justice Ben Franklin Station, PO Box 663 Washington, D.C Jason.hill2@usdoj.gov Paul A. Turcke Moore Smith Buxton & Turcke, Chartered 950 West Bannock Street, Suite 520 Boise, ID pat@msbtlaw.com Michael C. Soules, Colo. Bar No Natural Resources Clinic University of Colorado Law School Wolf Law Building, UCB 404 Boulder, CO (303) michael.soules@colorado.edu Signed original on file at the law office of Stephen B. Johnson Law Firm, P.C. 13

14 Case 1:11-cv MSK Document 31 Filed 04/20/12 USDC Colorado Page 14 of 14 /s/ Colette Raeber 14