Rags Over the Arkansas River, Inc. v. The Bureau of Land Management et al

Filing 43

AMENDED 34 JOINT CASE MANAGEMENT PLAN FOR PETITIONS FOR REVIEW OF AGENCY ACTION IN ENVIRONMENTAL CASE. By Judge John L. Kane on 10/2/13. (mnfsl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 1:12-cv-00265-JLK
RAGS OVER THE ARKANSAS RIVER, INC.,
Petitioner,
v.
THE BUREAU OF LAND MANAGEMENT; KEITH E. BERGER, in this official
capacity as Field Manager for the Royal Gorge Field Office of the Bureau of Land
Management; LEAH QUESENBERRY, in her official capacity as Acting District
Manager for the Front Range District of the Bureau of Land Management;1 HELEN
HANKINS, in her official capacity as Colorado State Director of the Bureau of Land
Management; and KENNETH SALAZAR, in his official capacity as Secretary of the
Department of the Interior,
Respondent,
and
OVER THE RIVER CORPORATION
Respondent-Intervenor.

AMENDED JOINT CASE MANAGEMENT PLAN FOR PETITIONS FOR
REVIEW OF AGENCY ACTION IN ENVIRONMENTAL CASE

1. APPEARANCES OF COUNSEL
For Petitioner:
Michael Ray Harris
Kevin Lynch
1

Pursuant to Federal Rule of Civil Procedure 25(d), Ms. Quesenberry is substituted for Greg
Shoop.
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Brandon Pattison, Student Attorney
Chris Stevens, Student Attorney
Domenic Nicotra, Student Attorney
Holly DeJong, Student Attorney
Environmental Law Clinic
University of Denver
Sturm College of Law
2255 E. Evans Ave.
Denver, CO 80208
[phone] (telephone)
[phone] (facsimile)

For Respondent:
Kristofor R. Swanson
U.S. Department of Justice
Environment & Natural Resources
Division
P.O. Box 7611
Washington, D.C. 20044-0663
[phone] (telephone)
[phone] (facsimile)
[e-mail] (E-Mail)
For Respondent-Intervenor:
John E. Putnam
Lori Potter
Kaplan Kirsch & Rockwell LLP
1675 Broadway, Suite 2300
Denver, CO 80202
[phone] (telephone)
[e-mail]

2. STATEMENT OF LEGAL BASIS FOR SUBJECT MATTER
JURISDICTION
The Court has jurisdiction under 28 U.S.C. § 1331, 28 U.S.C. § 1346, and 5
U.S.C. § 702 because this action involves the United States government as a
defendant, and Petitioner’s claims arise under the laws of the United States.
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3. DATES OF FILING OF RELEVANT PLEADINGS
A. Date Petition for Review Was Filed:
Petitioner, Rags Over the Arkansas River, Inc. (“ROAR”) filed a Petition
for Review of Agency Action on February 1, 2012. See ECF. No. 1.
B. Date Petition for Review Was Served on U.S. Attorney’s Office:
Service occurred on February 9, 2012.
C. Date Answer or Other Response Was Filed:
Respondent, Bureau of Land Management (“BLM”), filed a Motion to
Dismiss or, in the alternative, to Stay District Court Proceedings on April
24, 2012. See ECF No. 8. BLM’s motion to dismiss was denied on July 5,
2012. See ECF No. 12.
4. STATEMENT(S) REGARDING WHETHER THIS CASE RAISES
UNUSUAL CLAIMS OR DEFENSES
The parties concur that this case does not raise any unusual claims or
defenses.
5. OTHER MATTERS
A. ROAR challenges the Bureau of Land Management’s (“BLM”) issuance of
a land use authorization to Respondent-Intervenor, Over the River
Corporation (“OTR”). The parties recognize that the same government
action challenged in ROAR’s Petition is currently the subject of an
administrative review before the Interior Board of Lands Appeals (“Smith
Appeal”), which is the basis for the Court’s orders staying the District
Court proceedings. See ECF Nos. 12, 20.
B. As a condition of the Stay, the Court has ordered BLM not to issue a Notice
to Proceed to OTR, which is required before OTR can begin installation of
the project authorized by BLM’s permit, for 60 days following a decision
by the Interior Board of Land Appeals in the Smith Appeal. See ECF No.
12, 20. The Court also ordered the parties to confer and prepare a Joint
Case Management Plan for this action, which includes a date within 45
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days of the Court’s order for BLM to provide its administrative record.
ECF No. 20 at 2.
C. After the Court issued its Amended Stay Order, OTR filed a Motion to
Intervene in this action on August 28, 2012. See ECF No. 21. The court
granted the motion to intervene on September 12, 2012.
D. If OTR desires to obtain a Notice to Proceed from BLM before final
resolution of this action, OTR will provide all parties and the Court notice
simultaneously with such a request to the BLM. ROAR reserves its right to
move for a preliminary injunction, if necessary and appropriate.
6. PROPOSED SCHEDULE
A. Lifting of the Stay
BLM will provide notice to the Court and all parties of the Interior Board of
Land Appeals’ decision in the Smith Appeal within 5 days after the final
resolution of the pending appeal. The filing of such notice by BLM will
have the effect of lifting the current Stay of District Court proceedings.
Before such notice, BLM, OTR, and ROAR retain their respective rights to
move to lift, or amend, the current Stay on District Court proceedings, at
any time.
If the decision of the IBLA is anything other than an affirmance of the
BLM’s decision, the parties will confer and, within 10 days of BLM’s filing
of notice, file a status report, separately or jointly, setting forth their views
as to the manner in which, or whether, the case should proceed. Should the
IBLA affirm the BLM decision, the District Court proceedings will proceed
in the manner set forth below.
B. Deadlines for Filing of the Amended Petition and/or Answer
Any Amended Petition, if necessary, must be filed by ROAR within 14
days after the Stay is lifted in accordance with Paragraph 6(A). BLM and
OTR must answer or otherwise respond to the Petition, as amended, within
35 days after the Stay is lifted.
C. Deadlines for Filing Administrative Record and Motions Disputing the
Record:
Pursuant to the Court’s Amended Order Staying Case (at 2), as amended on
September 27, 2012, BLM filed and produced its Administrative Record, as
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lodged with the Interior Board of Land Appeals for the Smith Appeal on
October 12, 2012. The remaining administrative record deadlines will
proceed as follows:
1. BLM will lodge a final administrative record, as results from the Smith
Appeal, within 50 days after the Stay is lifted, or 15 days after a
response to ROAR’s Amended Petition for Review, if an Amended
Petition for Review is necessary.
2. The parties will confer, if necessary, regarding any disputes over the
completeness of the final administrative record within 15 days after it is
lodged;
3. Any motion to supplement the final record, if necessary, must be filed
by October 22, 2013; any response to the motion to supplement will be
due within 30 days thereafter, and any reply due 10 days after the filing
of the response.
D. Deadlines for Filing of Motions to Dismiss
Should BLM or OTR respond to the Petition, as set out in Paragraph 6(B),
with a motion to dismiss, ROAR will have 21 days to file its response; any
reply will be due 10 days after service of the response.
E. Deadlines for Filing of Merit Briefs
ROAR’s opening brief must be filed by November 4, 2013, unless a motion
to supplement the record is filed. If a motion to supplement the record is
filed, ROAR’s opening brief must be filed within 30 days of the resolution
of that motion.
BLM’s and OTR’s responses to the opening brief must be filed within 30
days after ROAR files its opening brief. ROAR’s reply to BLM’s and
OTR’s response must be filed within 15 days after the responses.
7. STATEMENTS REGARDING ORAL ARGUMENT
A. Petitioner’s Statement:
ROAR respectfully requests oral argument. This case raises administrative
law issues not previously decided in this District or the Tenth Circuit.
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Namely, (1) whether the project is authorized by the applicable federal land
use plan for the area, known as the Royal Gorge Resource Management
Plan (“Royal Gorge RMP”); and (2) whether the BLM improperly
identified the Art Project as a recreational activity where such recreational
use is clearly inconsistent with the Royal Gorge RMP. ROAR believes the
Court would be benefitted by oral argument of the issues presented.
B. Respondents’ Statement:
BLM takes no position with respect to oral argument, but do not believe
that this case presents novel issues.
C. Respondent-Intervenor’s Statement:
OTR also believes that there are no novel or unique issues, but that this is a
straightforward Administrative Procedure Act case. Accordingly, OTR
takes the position that oral argument is only necessary to the extent that the
merits judge determines it would be helpful after reviewing the merits
briefing.
8. CONSENT TO EXERCISE OF JURISDICTION BY MAGISTRATE
JUDGE
A. ( ) All parties have consented to the exercise of jurisdiction of a
United States Magistrate Judge
B. (X) All parties have not consented to the exercise of jurisdiction of a
United States Magistrate Judge.
9. OTHER MATTERS
The parties filing motions for extension of time or continuances must
comply with D.C.COLO.LCivR 5.1G by submitting proof that a copy of
the motion has been served upon all attorneys of record and all pro se
parties. Parties filing motions for extension of time or continuances must
comply with D.C.COLO.LCivR 6.1E. by serving such motion on the
moving attorney’s client.
10. AMENDMENTS TO JOINT CASE MANAGEMENT PLAN
The parties agree that the Joint Case Management Plan may be altered or
amended only upon a showing of good cause.
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DATED this 2nd day of October, 2013.
BY THE COURT:

s/John L. Kane
John L. Kane
SENIOR U.S. DISTRICT JUDGE
APPROVED:
UNITED STATES ATTORNEY

__s/ Michael Ray Harris
Michael Ray Harris
Environmental Law Clinic
University of Denver
Sturm College of Law
2255 E. Evans Ave.
Denver, CO 80208
[e-mail]
[phone]

__s/ Kristofor R. Swanson ______
Kristofor R. Swanson
U.S. Department of Justice
Environment & Natural Resources
Division
[e-mail]
P.O. Box 7611
Washington, D.C. 2004-0663

Attorneys for Petitioner
Rags Over the Arkansas River, Inc.

Attorney for Respondents
United States Attorney’s Office

__s/ Lori Potter
Lori Potter
John E. Putnam
Kaplan Kirsch & Rockwell LLP
1675 Broadway, Suite 2300
Denver, CO 80202
[phone] (telephone)
[e-mail]
Attorneys for Respondent-Intervenor
Over the River Corporation

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