I shared my previous post, which presented the FriendsofWolfCreek.org's challenges to the RGNF/USDA interpretation of their conflicting legal mandates and how it's playing out with the Alberta Park Parcel, with the RGNF Supervisor's office and received the following response from Public Affairs Specialist Mike Blakeman. I have added a few paragraph breaks for clarity, but haven't altered anything else. Nor do I have any comments to add. I hope you find the information useful.
Forest Service
Rio Grande National Forest, Supervisor's Office
Hi Peter,
I read your blog and maybe the following from the Draft Record of Decision will help add a little clarity.
In June 2015, a lawsuit was filed challenging my 2015 ROD but the land exchange was completed subject to a stipulation that would allow “unwinding” the exchange in the event of an adverse ruling.
On May 19, 2017, the district court held that the Forest Service abdicated its duty to consider imposing deed restrictions on the federal land to be exchanged, that the power to impose deed restrictions demonstrated “actual power to control” the private development and this failure led the Forest Service to unlawfully limit its NEPA analysis.
Therefore, the district court set aside the 2015 ROD. The Court emphasized the fact that the private land came into being through a land exchange in 1986 and the 1986 land exchange was constrained by the scenic easement. The Court held that the Forest Service was required by 36 C.F.R. 254.3(h) to consider imposing deed restrictions in the 2015 evaluation of the proposed land exchange.
The Court failed to recognize that the Forest Service had considered, and rejected, imposing deed restrictions in the second land exchange.
The Court also found the ESA analysis insufficient. The Court was skeptical of the decision to allow LMJV to be covered by an incidental take statement granted through the Section 7 consultation on the federal decision to grant a land exchange rather than requiring LMJV to go through the Section 10 process to get incidental take coverage for impacts caused by private development.
However, the Court did not find that the Section 7 process violated the law. Instead, the Court found that the conservation measures were inadequate to meet ESA requirements. The Court assumed that the conservation measures were necessary to avoid jeopardy to the Canada lynx and held that the conservation measures were insufficient for that purpose.
The Court found three specific deficiencies in the conservation measures. First, the measures were found not to be reasonably specific, certain to occur and subject to deadlines or otherwise enforceable obligations because the funding commitment was not sufficient and there was no provision for resolution of any disagreement between LMJV and USFWS regarding specific measures. Slip Op. p. 34. Second, the conservation measures impose no binding obligation on the Forest Service to insure its action is not likely to jeopardize the lynx. Third, to the extent that the USFWS has an enforcement role regarding the conservation measures it is limited to the point of essentially leaving LMJV to self-report.
On September 14, 2017 the district court denied a motion to reconsider. Subsequently, LMJV, Rocky Mountain Wild2 and the United States all appealed the district court’s ruling and participated in the court’s mediation program. However, the case was not settled and the United States decided to pursue a new decision and dismissed its appeal. LMJV has declined to withdraw its appeal. Rocky Mountain Wild has filed a motion to dismiss the LMJV appeal and notified the court it would withdraw its own appeal if the LMJV appeal is dismissed.
Here is the wording from the Draft ROD on how these deficiencies identified by the court are corrected in the new decision.
The Deputy Regional Forester did address regulatory authority under 36 C.F.R. 254.3(h) in response to the 2016 objections and found that deed restrictions were not needed or appropriate.
In 2015, I concurred with the determination that the land exchange, without deed restrictions, would be in the public interest but I did not expressly state that view in the ROD.
In my decision today, however, I am turning down the land exchange proposal without deed restrictions and choosing, instead, the ANILCA right-of-way alternative under which the scenic easement applies to the entire private parcel.
This decision addresses the district court’s concern that the land exchange alternative gives up existing regulatory authority while recognizing that I cannot compel LMJV to accept any deed restrictions. A land exchange is a consensual real estate transaction for the proponent as well as for the Forest Service. The Forest Service participated in the appellate court’s mediation process but that process was unsuccessful. Therefore, it is time to grant LMJV the access Congress has mandated through ANILCA.
In response to the district court’s finding that the conservation measures were inadequate, LMJV has clarified in its April 12th 2018 letter and proposed MOU that the funding commitment is firm and the Technical Committee has authority to expend funds as it sees fit without LMJV approval.
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