Backcountry Hunters and Anglers v. United States Forest Service et al

Filing 91

OPINION AND ORDER ON MOTION FOR RELIEF FROM JUDGMENT: Petitioner's Motion for Relief from Judgment 82 is DENIED. by Chief Judge Marcia S. Krieger on 2/13/14.(msksec, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Honorable Marcia S. Krieger
Civil Action No. 11-cv-03139-MSK-KLM
BACKCOUNTRY HUNTERS AND ANGLERS, Colorado Chapter,
Petitioner,
v.
UNITED STATES FOREST SERVICE;
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,
Respondents,
and
COLORADO OFF-HIGHWAY VEHICLE COALITION;
TRAILS PRESERVATION ALLIANCE;
SAN JUAN TRAIL RIDERS;
PUBLIC ACCESS PRESERVATION ASS=N;
THE BLUE RIBBON COALITION,
DUNTON HOT SPRINGS, INCL;
DUNTON, LLC,
TOWN OF RICO, COLORADO;
RICO ALPINE SOCIEETY; and
SAN JUAN CITIZENS ALLIANCE,
Respondent-Intervenors.
______________________________________________________________________________
OPINION AND ORDER ON MOTION FOR RELIEF FROM JUDGMENT
______________________________________________________________________________
THIS MATTER comes before the Court pursuant to the Petitioner’s Motion for Relief
from Judgment (# 82), the Respondents’ response (# 83), certain Intervenors’ response (# 84),
and the Petitioner’s reply (# 87).

1

The Court assumes the reader’s familiarity with the underlying facts and proceedings to
date, and offers only a cursory summary. The Petitioner challenges a June 16, 2010 Area
Restrictions Order issued by the United States Forest Service (“USFS”) that “close[d] the RicoWest Dolores Travel Management Area to cross-country travel” by motorized vehicles, but left
in place existing permissions for the use of motorized vehicles on 14 specific trails. The
Petitioner contended that the June 16, 2010 Order actually constituted a change in the
designation of the 14 trails, such that the June 16 Order operated to “open” those trails to
motorized use. The Petitioner challenged the decision to “open” the trails as a “final agency
action” reviewable under the Administrative Procedures Act (“APA”), 5 U.S.C. § 5 U.S.C. § 702
et seq. and other statutes.
In an Opinion and Order (“Opinion”) dated March 21, 2013 (# 60), this Court found that
USFS documentation dating back to at least 1999 designated the trails in question as open for
motorized use, and thus concluded that the June 10, 2010 Order did nothing more than restate
existing USFS policy regarding motorized use of the trails. As such, the Court concluded that
the June 10, 2010 Order was not a “major federal action” that was susceptible to the APA review
sought by the Petitioners. The Court subsequently granted judgment (# 61) to the Respondents
and the Petitioner has taken an appeal (# 70).
Approximately two months after the filing of the Notice of Appeal, the Petitioner filed
the instant Motion for Relief From Judgment (# 82), arguing that: (i) the USFS responded to a
FOIA request by the Petitioner in April 2013, producing certain documents that had not been
included in the Administrative Record during the prior proceedings; (ii) those documents reveal
that the USFS’ June 2010 decision was not simply a continuation of existing management
policies regarding the subject trails, but rather an “explicit[ ] reconsider[ation] of the motorized

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status of the 14 trails,” and thus, a distinct and reviewable “final agency action”; and (iii) the
documents, being “newly discovered evidence” whose existence would materially alter the
Court’s prior reasoning, warranted the Court granting the Petitioner relief from the judgment
pursuant to Fed. R. Civ. P. 60(b).1
The Court begins with Fed. R. Civ. P. 60(b). That rule permits relief from a judgment or
order due to, among other things, “newly discovered evidence that, with reasonable diligence,
could not have been discovered in time to move for a new trial under Rule 59(b).” Fed. R. Civ.
P. 60(b)(2). To demonstrate “newly discovered evidence” warranting relief under this Rule, the
Petitioner has the burden to show: (i) that the evidence was newly discovered since the Opinion
was issued; (ii) that the Petitioner acted diligently in discovering the new evidence; (iii) the new
evidence is not merely cumulative or impeaching; (iv) the new evidence is material; and (v) a
new review of the merits with the newly discovered evidence considered would probably
produce a different result. Dronsejko v. Thornton, 632 F.3d 658 670 (10th Cir. 2011).
The Court will assume that the Petitioner can establish the first two elements (that the
new evidence in question was not previously available and is the product of reasonable
diligence), and will turn to the question of whether the tendered new evidence is material and
would likely have led the Court to a different conclusion than the one reached in its Opinion, or
whether it is merely cumulative.

1

The Petitioner dealt with the potential jurisdictional impediment of the pending appeal in
a single-sentence footnote, noting that “the Court can consider a Rule 60 motion while an appeal
is pending.” Citing Aldrich Enterprises, Inc. v. U.S., 938 F.3d 1134, 1143 (10th Cir. 1991).
Aldrich teaches that a District Court lacks jurisdiction to grant a Rule 60(b) motion while the
judgment, but may consider the motion and, if appropriate, “notif[y the Court of Appeals] of its
intention to grant the motion upon proper remand.” Id. Of course, the District Court can also
consider the motion and deny its on its merits, notwithstanding the pending appeal.
3

Putting aside a great deal of repetition in the various exhibits supporting the Petitioner’s
motion, the pertinent material is an e-mail exchange between several USFS employees in early
April 2010. The discussion apparently concerned a USFS employee’s attempt to update
something called “Infra Trails” – apparently a USFS database of trail information that includes
information such as “mileposts,” “seasons of use,” and what uses are “managed” and
“allowed/accepted.” One USFS employee, Christopher Bouton, remarked in an April 1, 2010 email that “there are a few mistakes [in the Infra Trails system]” with regard to whether certain
trails were designated for motorized or non-motorized use. Stating that he was “assuming that
we are going for existing condition based on the Visitor Map,”2 he pointed out several instances
in which the Infra Trails system should be modified to reflect the actual Visitor Map
designations (in each instance, apparently, recognizing that certain trails at issue here were
indeed open to motorized use per the Visitor Map). The e-mail chain seems to suggest that other
USFS employees accepted Mr. Bouton’s “trail changes,” and that they were subsequently
incorporated into the Infra trails system.
The Petitioner seizes upon the use of the phrase “trail changes” in the e-mail chain,
interpreting it to suggest that Mr. Bouton and others were making “changes” to the USFS
2

It is not clear to the Court what this “Visitor Map” is. Footnote 8 of the Court’s prior
Opinion addresses the matter in some detail, noting that there is one map in the Administrative
Record at page 4867, bearing a revision date of 1994, which the Respondents’ brief on the merits
of the dispute referred to as a “1994 Visitor Map.” The Petitioner’s instant motion makes a
reference to a “2005 Visitor Map,” found at page 4872 of the Administrative Record. That
document does not, as best the Court can discern, bear a date, although the Court will take at face
value the Petitioner’s assertion that it hails from that time period and will refer to it as the “2005
map.” The two maps differ in certain minor respects with regard to their indications of the trails
at issue here, but both maintain the practice of directing the reader to the “Area Table” or “Road
and Trail Table” for information about the motorized status of each trail. The Court’s prior
footnote 8 addressed its review of the Road and Trail Table and Area Table that apparently
accompanied the 1994 map; the parties have not identified or addressed the contents of those
tables as they might relate to the 2005 map, nor described any apparent variances between the
1994 and 2005 versions of those tables.
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designation of the trails at issue here, and that such a change in designation must necessarily be a
new land use decision subject to APA review. But this misreads the thrust of the e-mail chain.
The e-mail chain reflects an attempt by USFS to make “changes” to the data in the Infra Trails
database, correcting that internal data to more correctly reflect how trails had actually been
managed since at least 2005 (if not 1994).3 Nothing in the e-mail chain seems to suggest that
Mr. Bouton was suggesting that the USFS change how the trails would be managed in the real
world – i.e. there is no indication that Mr. Bouton’s “changes” would be effectuated by a USFS
employee going out to the trailheads and changing signage from “no motorized vehicles” to
“motorized vehicles permitted” or the like. Mr. Bouton’s suggestions unambiguously indicate
that they were intended to reflect “existing condition based on the Visitor Map” – a map that had
been in existence for at least five years already.4 Although perhaps not cumulative, this
additional information would not have altered the outcome of the Court’s Opinion; if anything, it
is entirely consistent with the Court’s finding that the July 2010 Order made no actual changes to

3

This is confirmed by an April 14, 2010 e-mail from Jessica Ramirez about attempts to
craft an “emergency closure order” – one that ultimately became the June 10, 2010 Order at issue
here. The e-mail states that, under that order, “roads and trails will remain ‘as-is.’ . . . ‘as-is’
means as depicted on the Visitor Map – which we know is not how they are in INFRA.” This
confirms that the June 2010 Order did not change the real-world management of the trails in
question here, and the discussion of “changes” means “changes to USFS’ internal database to
correctly reflect real-world management characteristics.”
4

The Petitioner points out at least three instances in which Mr. Bouton’s suggested
corrections to the Infra Trails database “were inconsistent with the trail use statuses reflected in
the . . . 2005 visitor map.” Each of the three examples involved Mr. Bouton identifying the
trails as being “open to motorcycles” when the visitor map indicated that the trails were “open to
all motorized uses” (such as automobiles and all-terrain vehicles). It is by no means clear from
the e-mail exchange, or anything else in the record, that Mr. Bouton was intentionally attempting
to effect a change in the actual real-world management of the trails. Instead it appears that he
was addressing loose terminology (using “motorcycles” to mean “motorized uses”) or was
simply mistaken about what the 2005 Visitor Map actually reflected.
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how the trails at issue were being managed and thus, did not constitute a final agency action
reviewable under the APA.
The Petitioner also points to a May 21, 2010 e-mail from Vicky Duvall that makes
reference to “trials [for which] I made changes to the ATM data . . . .” The trails she references
includes many of the trails at issue in this action. The Petitioner explains that “ATM data” is a
component of a “Trail Management Objective,” which is itself a data field contained in the Infra
Trails database. The Petitioner explains that “if a particular trail’s ATM is changed, that will
alter how the Forest Service manages the trail, which uses are allowed or prohibited, and how the
trail is depicted on future maps.” Once again, however, this evidence establishes merely that
USFS recognized that its data in the Infra Trails database did not reflect its historic, real-world
designations of those trails, which were themselves based on Visitor Maps from 2005 and earlier,
and that the USFS was intending to change the Infra Trails data to correctly reflect how the trails
were actually being designated and managed. The correction of inaccuracies in an agency’s
internal data, harmonizing that data to accurately reflect actual, historical management activities,
is not a final agency action subject to APA review.
Certainly, there can be no doubt that USFS’ internal records and overall planning
documents did not always accurately reflect how the USFS was actually designating and
managing the trails in practice. But the new evidence tendered by the Petitioner does not change
the central, largely-undisputed fact observed by the Court in its original Opinion: the USFS had –
rightly or wrongly -- designated the trails at issue here as opened to motorized use many years
before the June 2010 Order, and that Order did nothing to change the existing designations of
those trails. The tendered newly-discovered evidence thus is merely cumulative, and insufficient
to indicate that the outcome of this case might have been different if the tendered evidence had

6

been presented earlier. Accordingly, the Court denies the Petitioner’s request for relief pursuant
to Rule 60(b)(2).
For the foregoing reasons, the Petitioner’s Motion for Relief From Judgment (# 82) is
DENIED.
Dated this 13th day of February, 2014.
BY THE COURT:

Marcia S. Krieger
Chief United States District Judge

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