McFarland White Ranch v. SCHAFER et al

Filing 31

FINDINGS AND RECOMMENDATIONS re 20 MOTION for Summary Judgment ; Plaintiff's Motion for Summary Judgment filed by McFarland White Ranch and 25 Cross MOTION for Summary Judgment filed by ED SCHAFER, Lesley Thompson, Department of Agric ulture, Tom Tidwell, Gail Kimbell, Douglas Dodge. IT IS RECOMMENDED that McFarland White Ranch's Motion for Summary Judgment be DENIED and that the Forest Service's Motion for Summary Judgment be GRANTED. Objections to F&R are due by 3/27/2009. Signed by Magistrate Carolyn S Ostby on 3/10/2009. (POC, )

IN THE UNITED STATES DISTRICT COURT F O R THE DISTRICT OF MONTANA B I L L I N G S DIVISION CV-08-77-BLG-RFC-CSO M c F A R L A N D WHITE RANCH Plaintiff, vs. E D SCHAFER, in his capacity as S e cr e t a r y of the United States D e p a r tm e n t of Agriculture; et al., Defendants. P la in t iff McFarland White Ranch ("MWR") brought this lawsuit fo r declaratory and injunctive relief, seeking a right-of-way across p u b lic lands managed by the defendants (collectively "Forest Service"). This Court has jurisdiction under 28 U.S.C. § 1331. Pending before the C o u rt are the parties' cross-motions for summary judgment. For r e a s o n s stated below, the Court will recommend granting the Forest S e r v ice 's motion and denying MWR's motion.1 F I N D I N G S AND R E C O M M E N D A T I O N S OF U N I T E D STATES MAGISTRATE JU DGE

C h ie f Judge Cebull referred this case to the undersigned for all p re t r ia l purposes under 28 U.S.C. § 636, including submission of p ro p o s e d findings and recommendations. Court's Doc. No. 11.
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I.

BACKGROUND T h e Complaint alleges that MWR owns property on the east side

o f the Crazy Mountains.2 Portions of MWR's property are interspersed in a checkerboard fashion with public lands of the Lewis and Clark N a t io n a l Forest so that MWR may access these inholdings only by c r o s s in g National Forest lands. AR 6, 12-13. Historical access to these in h o ld in g s has been by foot or horseback. Def's Br. in Support of Their C r o s s MSJ (Court's Doc. No. 26) at 4. See also 36 C.F.R. § 251.50(c) (no s p e cia l use authorization required for noncommercial activities such as h ik in g or horseback riding). In January 2003, Northwest Management, Inc., on behalf of M W R , submitted a Special-Use Application and Report, seeking a u t h o r iz a t io n to construct permanent roads across four corners of N a t io n a l Forest lands to access MWR's inholdings. MWR estimated the t o t a l length of the four proposed corner crossings to be approximately 2 5 0 0 feet, nearly one-half mile. AR 5. The proposed corner crossings lie

A lth o u g h the Complaint does not allege the MWR's legal status, the a p p lic a tio n filed with the Forest Service in 2003 identifies MWR as a corporation. AR 71.
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within an Inventoried Roadless Area. AR 16. MWR desires road access fo r "forest management and logging activities." AR 5-6. From 2003 to 2005, MWR and the Forest Service discussed this p ro p o s a l. Ultimately, the Forest Service, as a condition of approving t h e MWR proposal, required a grant by MWR to the Forest Service of a r e c ip r o c a l easement across MWR private land of unrestricted public a c ce s s to national forest system lands. AR 8. The public access sought b y the Forest Service was across approximately 3.5 miles of now private r o a d on MWR property to the Big Elk drainage.3 The October 21, 2005, le tt e r rejecting MWR's proposal explained that: (1) federal regulations a n d agency policy requires the Forest Service to seek a reciprocal righto f-w a y where there is a demonstrated need for public access to national fo r e s t system land, and (2) that the need for public access to public land lo ca t e d on the east side of the Crazy Mountains has been established in

I t appears that the Forest Service originally also sought access a c ro s s MWR lands north of the Big Elk drainage. See AR 75; MWR's R e s p . Br., Dkt. No. 29 at 2. This additional access was not mentioned in t h e letter rejecting MWR's proposal and thus is not reviewed here. The C o u rt also notes that the Defendants' briefs do not argue that MWR's r e q u e s t e d access can be conditioned on two separate right-of-waygran ts.
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the Forest Plan. Id. As early as 1986, the Lewis and Clark National F o r e s t Plan identified, as an acquisition priority, public access through M W R to the National Forest at Big Elk Canyon. AR 404. MWR itself a c k n o w le d g e d that "there is very limited public access into the east side o f the Crazy Mountains" and that the "McFarland White Ranch does h o ld the only vehicular access into this part of the Crazy Mountains." AR 61-62. The Forest Service told MWR that if MWR would offer a r e c ip r o c a l easement as requested ­ and as the Forest Service believed it w a s required to seek ­ the situation would change and further d is cu s s io n would be warranted. AR 8-9. D is c u s s io n continued between representatives of MWR and the F o r e s t Service. In October 2007, MWR's counsel of record Kathryn B r a c k Morrow wrote to the Forest Service, contending that it had not a c te d on MWR's January 2003 application, that the delay was u n re a s o n a b le , and that MWR would consider the application denied if t h e Forest Service did not act within 30 days. AR 39. In its response, t h e Forest Service clarified that, in its view, there was no formal a p p lic a t io n , only a proposal that the Forest Service had already rejected in writing. AR 13, 36.
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On March 10, 2008, Morrow again wrote to the Forest Service. AR 3 . She stated that the letter "serves as an application for access, as p ro p o s e d in [MWR's] January 9, 2003 request." Id. Morrow reaffirmed t h a t MWR would not agree to unlimited public access across the ranch r o a d as a condition of obtaining access across Forest Service land. The F o r e s t Service District Ranger responded: As stated previously, [MWR's] proposal has been rejected on the p re -a p p lic a t io n screening criteria as not being in the public in t e r e s t . Therefore, there is no `application' to renew. ... I would b e glad to continue our discussions should Mr. White change his p ro p o s a l to include provision of a right-of-way to NFS land in the B ig Elk drainage, including discussing how the Forest Service m ig h t mitigate his concerns. AR 1. This lawsuit followed approximately two months later, in June 2008. II. P A R T I E S ' ARGUMENTS M W R seeks an order compelling the Forest Service to process M W R 's application for a right-of-way, an order directing the Forest S e r v ice to grant MWR's application, and a declaration that the Forest S e r v ice violated the National Forest Management Act ("NFMA") by fa ilin g to process MWR's application. Plaintiff's MSJ (Court's Doc. No. 2 0 ) at 2. MWR's argues that the Forest Service violated the Alaska
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National Interest Lands Conservation Act ("ANILCA") by failing to p ro v id e MWR access and that the Forest Service violated its own r e g u la tio n s and NFMA by failing to process MWR's application for a r ig h t -o f-w a y . Pl's Mem. in Support of MSJ (Court's Doc. No. 21) at 9. Because the Forest service did not take action on the application, MWR d id not have the option of an administrative appeal. Id. at 16-18. MWR's contentions can be summarized as follows. Under A N I L C A , the Forest Service has a non-discretionary duty to provide a c ce s s to private property surrounded by federal land. Id. at 10. The F o r e s t Service's rejection of MWR's proposal at the pre-screening stage in s u ffic ie n t ly justifies denial of access under ANILCA. Id. at 12. Also, t h e Forest Service's demand for "reciprocal access" is unreasonable, b e c a u s e the Forest Service's proposed reciprocal access across MWR's la n d covers several miles, whereas MWR only seeks four corner c r o s s in g s . Id. at 13-15. The Forest Service was not justified in w it h h o ld in g access under ANILCA while negotiating for unfair r e c ip r o c a l access. Id. at 15-16. MWR argues that the Forest Service n e v e r offered additional compensation to make up for the unequal e x c h a n g e . Id. at 16.
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The Forest Service argues that it did not unlawfully withhold a c tio n , and that the action it did take was not arbitrary and capricious. Def's Br. in Support of Their Cross MSJ (Court's Doc. No. 26) at 8, 14. Its arguments can be summarized as follows. MWR's APA claim ­ for a g e n cy action unlawfully withheld ­ fails because the Forest Service did a c t, by denying MWR's application in a letter. Id. at 8-9. MWR's a p p lic a t io n did not meet the regulatory pre-screening criteria, and r e je c tio n was the final agency action. Id. at 9-11. Also, ANILCA does n o t contain a mandatory duty to act, but places discretion in the S e c r e t a r y of Agriculture. Id. at 12-14. T h e Forest Service argues that it may place conditions on access r ig h t s under ANILCA, and reciprocal access is a condition allowed, and e v e n directed, under the pertinent regulations. Id. at 15-17. The Forest S e r v ice asserts that the regulations implement, rather than preempt, r e g u la te d ANILCA access (Id. at 5-11) and that "reciprocal" in this c o n t e x t means equivalent use rights, not equal values of the rights e x c h a n g e d . Id. at 11-14. Where the reciprocal exchange is unequal in v a lu e , the Forest Service may provide additional compensation, which t h e Forest Service argues it offered here. Id. at 16-17.
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III.

S U M M A R Y JUDGMENT STANDARD S u m m a r y judgment is proper where the pleadings, discovery and

a ffid a v its show that there is "no genuine issue as to any material fact a n d that the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). Material facts are those which may affect the o u t c o m e of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1 9 8 6 ). A dispute as to a material fact is genuine if there is sufficient e v id e n c e for a reasonable trier of fact to return a verdict for the n o n m o v in g party. Id. S u m m a r y judgment is appropriate for resolving challenges to a g e n cy action under the APA, although in the administrative context it d iffe r s from actions originally begun in district court . A district court is g e n e r a lly not required to resolve any factual issues when reviewing a d m in is t r a t iv e proceedings. Instead, the district court's function is to d e t e r m in e whether or not as a matter of law the evidence in the a d m in is t r a t iv e record permitted the agency to make the decision it did. Occidental Engineering Co. v. I.N.S., 753 F.2d 766, 769-70 (9 th Cir. 1 9 8 5 ). See also Johnson v. U.S. Forest Service, 93 Fed. Appx. 133 (9th C ir . 2004)(unpublished decision holding that summary judgment is an
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appropriate mechanism for deciding the legal question of whether the F o r e s t Service could reasonably have found the facts as it did). IV . A N A L Y S IS T h e first question the Court must address is whether the Forest S e r v ice acted on MWR's request for access. If it did not act, then the C o u rt must determine whether to issue a writ of mandamus compelling t h e Forest Service to act. If it did act, then the Court must determine w h a t deference to accord to the agency action, and whether the Forest S e r v ice 's action was in accordance with law. A. A g e n c y Action

M W R seeks relief under the Administrative Procedure Act (APA), 5 U.S.C. § 706(1) which requires a reviewing court to "compel agency a c tio n unlawfully withheld or unreasonably delayed...." For judicial r e v ie w of an agency's failure to act under the APA, a petitioner must at le a s t show "agency recalcitrance ... in the face of clear statutory duty or ... of such a magnitude that it amounts to an abdication of statutory r e s p o n s ib ilit y ." Montana Wilderness Ass'n, Inc. v. U.S. Forest Service, 3 1 4 F.3d 1146, 1150 (9th Cir. 2003). T h e Forest Service denied MWR's proposal on October 21, 2005,
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writing: "Your current proposal is unacceptable and is hereby rejected." AR 8. The Forest Service interpreted its regulations to preclude any r ig h t to appeal this decision administratively. AR 36. Hence, for p u r p o s e s of judicial review, the rejection of the proposal is judicially r e v ie w a b le final agency action. 5 U.S.C. § 704. As in other instances w h e n the Forest Service rejects special-use proposals at the prea p p lic a t io n screening level, the agency has acted and MWR's recourse is in federal court. See e.g. Everett v. United States, 980 F.Supp. 490, 492 (D .D .C . 1997); see also KOLA, Inc. v. United States, 882 F.2d 361, 3636 4 (9th Cir. 1989) (special use permit determinations under 36 C.F.R. §§ 2 5 1 .5 4 -5 6 are reviewable by federal courts). MWR argues that the Forest Service has refused to act, thus s h ie ld in g itself from administrative and judicial review. But, although t h e denial of a proposal under the pre-application screening criteria is n o t subject to administrative review, as set forth above, a prea p p lic a t io n denial is subject to judicial review under the APA. The F o r e s t Service concedes that the Forest Service rejection of MWR's p ro p o s a l for access is subject to judicial review and that this Court has ju r is d ic t io n over MWR's claims.
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Thus, the Forest Service has not unlawfully withheld action and M W R is not entitled to relief under 5 U.S.C. § 706(1). B. A P A Standard of Review

U n d e r the APA, an agency action must be set aside if it is " a rb it r a r y , capricious, an abuse of discretion, or not otherwise in a c co rd a n c e with law[.]" 5 U.S.C. § 706(2)(A). Agency decisions "are e n t it le d to a presumption of regularity. But that presumption is not to s h ie ld the agency's action from a thorough, probing, in-depth review." NRDC v. Winter, 518 F.3d 658, 688 (9 th Cir. 2008) (quoting Citizens to P r e s e r v e Overton Park, Inc. v. Volpe, 401 U.S. 402, 415 (1971)). This is a deferential standard of review, and the court "cannot s u b s t itu t e [its] judgment for that of the agency." Wetlands Action N e t w o r k v. U.S. Army Corps of Engineers, 222F.3d 1105, 1114-15 (9 th C ir . 2000). The agency's decision may be overturned only if the agency c o m m it t e d a "clear error in judgment." Id. at 1114-15 (citing Northwest E n v ir o n m e n t a l Defense Center v. Bonneville Power Admin., 117 F.3d 1 5 2 0 , 1536 (9 th Cir. 1997). C. R e v ie w of Forest Service Action

S u b s t a n t iv e review of the Forest Service action begins with the
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applicable statute, which the parties agree is the Alaska National I n t e r e s t Lands Conservation Act ("ANILCA"). The pertinent section p ro v id e s : Notwithstanding any other provision of law, and s u b je c t to such terms and conditions as the S e cre t a r y of Agriculture may prescribe, the S e cre t a r y shall provide such access to n o n fe d e r a lly owned land within the boundaries of t h e National Forest System as the Secretary d e e m s adequate to secure to the owner the r e a s o n a b le use and enjoyment thereof: Provided, T h a t such owner comply with the rules and r e g u la t io n s applicable to ingress and egress to or fr o m the National Forest System. 1 6 U.S.C. § 3210(a)(emphasis in original).4 M W R first argues that this section "clearly requires" the Forest S e r v ice to grant MWR access to his inholdings. MWR Br. at 10. This c o n t e n t io n must be rejected, however, because Congress specified in A N I L C A that access is subject to such terms and conditions as the S e c r e t a r y of Agriculture may prescribe. See also Adams v. United S t a t e s , 255 F.3d 787, 793 (9th Cir. 2001) (holding that "§ 1323(a)

D e s p it e the narrow title of the Act, this section applies n a t io n w id e . Montana Wilderness Association v. U.S. Forest Service, 6 5 5 F.2d 951, 957 (9th Cir. 1981).
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explicitly conditions access on the inholder's compliance with the `rules a n d regulations applicable to ingress and egress to or from the National F o r e s t System'"). In Mountain States Legal Foundation v. Espy, 833 F .S u p p . 808, 817 (D.Idaho 1993), the Court held that this "clear la n g u a g e " gives "the Forest Service the affirmative right to prescribe r e a s o n a b le terms and conditions of access, and which subjects the right o f access to the rules and regulations applicable to ingress and egress to a n d from the National Forest System.") ; see also Idaho Conservation L e a g u e v. Caswell, 1996 WL 938215, *6 (D. Idaho) (noting that Forest S e r v ice placed "extensive" conditions on access to inholding, and r e q u ire d submission of numerous proposals to satisfy those conditions). The Secretary of Agriculture has promulgated regulations g o v e r n in g procedures by which landowners may apply for access across N a t io n a l Forest System lands. See Title 36 C.F.R., Part 251, Subpart D . Subpart D requires that a landowner apply for access in accordance w it h 36 C.F.R. § 251.54. It also provides that a landowner may be r e q u ire d to provide a "reciprocal grant of access to the United States a c ro s s the landowner's property where such reciprocal right is deemed b y the authorized officer to be necessary for the management of
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adjacent Federal land." 36 C.F.R. § 251.114(c) The regulations in 36 C.F.R. § 251.54 require inholders seeking s u r fa c e -d is t u r b in g access to apply for and receive a special-use a u t h o r iz a t io n . The application process begins with a proposal to the D is t ric t Ranger or Forest Supervisor with jurisdiction over the affected la n d . 36 C.F.R. § 251.54(b). MWR submitted such a proposal (AR 717 3 ) and does not dispute that it was required to do so. W h e n the Forest Service receives a proposal for a special use, u n d e r a regulation entitled "pre-application actions" the Forest Service firs t screens the proposal to ensure that the proposal meets certain m in im u m requirements. 36 C.F.R. § 251.54(e). The "initial screening" c r it e r ia relevant here are: (i) T h e proposed use is consistent with the la w s , regulations, orders, and policies e s t a b lis h in g or governing National Forest S y s te m lands, with other applicable Federal la w . ... T h e proposed use is consistent or can be m a d e consistent with standards and g u id e lin e s in the applicable forest land and r e s o u r c e management plan. ... T h e proposed use will not create an e x c lu s iv e or perpetual right of use or occu p a n cy. T h e proposed use will not unreasonably
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(ii)

(iv)

(v )

conflict or interfere with administrative use b y the Forest Service, other scheduled or a u t h o r iz e d existing uses of the National F o r e s t System, or use of adjacent nonN a t io n a l Forest System lands. 3 6 C.F.R. § 251.54(e)(1). Any proposed use that does not meet all r e q u ire m e n t s above "shall not receive further evaluation and p ro c e s s in g . In such event, the authorized officer shall advise the p ro p o n e n t that the use does not meet the minimum requirements." 36 C .F .R . § 251.54(e)(2). I f a proposal passes the initial screening above, it proceeds to a s e c o n d -le v e l screening. 36 C.F.R. § 251.54(e)(5). Here, an authorized o ffic e r must reject any proposal if the officer determines, among other t h in g s , that: (i) T h e proposed use would be inconsistent or in c o m p a tib le with the purposes for which t h e lands are managed, or with other uses; or T h e proposed use would not be in the public in t e r e s t ....

(ii)

Id . H e r e , the Forest Service's stated reasons for denying MWR's s p e cia l use permit proposal were:

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· · ·

·

·

I t is inconsistent, and cannot be made c o n s is t e n t , with the Forest Plan; I t would establish an exclusive right of a c c e s s only for your ranch; I t conflicts with the Forest Service [sic] a b ility to secure public and administrative a c c e s s to NFS land; I t is inconsistent with the purposes for w h ic h the NFS lands are managed (i.e. as a d e s ig n a t e d roadless area), and with other u s e s ; and I t is not in the public interest.

A R 8. Thus, the Forest Service found MWR's proposal was inconsistent w it h initial screening criteria (ii), (iv), and (v), and with second-level c r it e r ia (i)and (ii). MWR argues that the Forests Service improperly used of " a g a in s t the public interest" alone as a rationale for denying the p ro p o s a l. MWR Resp. Br., Court Doc. No. 29, at 20-21. But the r e je c tio n letter sent in October 2005, quoted above, cites several s c r e e n in g criteria, not just public interest. AR 8. It is true that the F o r e s t Service, in an April 2008 letter to MWR's counsel Morrow, said t h a t , "as stated previously," MWR's proposal was rejected as not in the p u b lic interest. AR 1. But the actual rejection letter is far more d e t a ile d . Also, the Forest Service wrote Morrow in November 2007, and

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informed her that in October 2005 MWR's proposal was rejected in w r itin g "for a number of reasons[.]" AR 13. And, the October 2005 r e je c tio n letter was enclosed. Id. The record makes clear that MWR's p ro p o s a l was not rejected only under the public interest criteria, and t h a t MWR and its counsel were aware of the additional reasons for r e je c tio n . The Court cannot conclude the Forest Service acted arbitrarily or c a p r ic io u s ly in determining that MWR's proposal did not meet one or m o r e of the screening criteria. For example, the record shows it was not u n re a s o n a b le for the Forest Service to conclude that MWR's proposal w o u ld establish an exclusive right of access for the ranch, and was in c o n s is t e n t ­and could not be made consistent ­ with the Forest Plan, w h ic h calls for more public access. It follows that the Forest Service w a s not obligated to further process MWR's proposal, as the Forest S e r v ice determined that the proposal did not meet the initial screening r e g u la to r y criteria. M W R argues that the Forest Service wrongfully denied access w h ile the proposal for a permit was pending. But the mere submission o f a proposal does not grant MWR rights to build roads on public land.
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36 C.F.R. § 251.54(c). M W R 's primary argument appears to be that the Forest Service m a y not require lengthy public access to Big Elk Canyon as a condition t o granting MWR's request to build roads on four corners of the public la n d adjacent to its inholdings. MWR argues that the access sought by t h e Forest Service is not "reciprocal" because it is significantly longer in d is ta n ce than the access MWR seeks. The Court reject this argument fo r the following reasons. The Ninth Circuit has held that the Forest Service is entitled to a r e c ip r o c a l right-of-way under its regulation. In Adams, the plaintiffs, w it h o u t permission, widened and graded a road on National Forest land a c ce s s in g two inholdings. 255 F.3d at 791. The plaintiffs, also without p e r m is s io n , built two additional roads partially or wholly on National F o r e s t land that could be accessed only by crossing plaintiffs' property. Id. The Ninth Circuit affirmed the district court ruling that the Forest S e r v ice was entitled to a right-of-way across the plaintiffs' private land t o reclaim National Forest land the plaintiffs had damaged. Id. at 796. The court held "the district court did not err in interpreting the r e g u la tio n s [36 C.F.R. § 251.114(c)] as providing the United States with
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a right of way." Id. No party disputes that, under the Forest Service's proposal, MWR is being asked to give a substantially longer right-of-way than it r e c e iv e s . But the regulations are specifically designed to address e x c h a n g e s of unequal value. "If the value of the rights-of-way obtained b y the Government exceeds the value of the rights-of-way granted, the d iffe r e n c e in value will be paid to the landowner." 36 C.F.R. § 2 5 1 .1 1 4 (c ). The regulations thus anticipate that some exchanges, as w o u ld be expected, will be unequal in value, and they provide a m e c h a n is m for equalization in the form of additional compensation. MWR also argues that the Forest Service did not inform it that e q u a liz in g compensation was available. Court's Doc. No. 21 at 14; C o u rt 's Doc. No. 29 at 19-21. But in December 2004, the Forest Service w r o t e to Mac White "[w]e believe these elements point to a logical s o lu t io n , a reciprocal access agreement. Under such an agreement, if p ro p o s e d road or trail rights-of-way to be exchanged are of unequal v a lu e , mechanisms exist to provide equalizing compensation." AR 53. Thus, the record contradicts MWR's argument. T h e Forest Service argues that, under this regulatory scheme,
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"reciprocal" means "in kind" ­ i.e. mutual unrestricted access ­ rather t h a n equal value. This contention finds support in the regulatory la n g u a g e which authorizes the condition of a "reciprocal grant of access" n o t simply "reciprocal access". 36 C.F.R. § 251.114(c). The Court thus c a n n o t conclude that the Forest Service acted arbitrarily, capriciously, o r contrary to law, or that it abused its discretion. In summary, the language of ANILCA itself subjects MWR's r e q u e s t for access to Forest Service regulation and discretion. The F o r e s t Service's regulations allow it to require a reciprocal grant of r ig h t -o f-w a y access ­ where deemed necessary for management by the s u p e r v is in g officer ­ in exchange for approving a special use permit for A N I L C A access to inholdings. The Ninth Circuit has held that these r e g u la tio n s do properly provide the United States with the a u t h o r iz a t io n to seek a reciprocal right-of-way. Here, the Forest Service w e ll-d o c u m e n t e d a need for public access to National Forest lands in the C r a z y Mountains. ANILCA and the regulations provide the Forest S e r v ice with a great deal of discretion. Although opinions could r e a s o n a b ly differ in analyzing the respective access burdens sought by t h e parties, the law gives the discretion to the Forest Service in
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granting access to public land. The Forest Service rejected MWR's p ro p o s a l after considering the proper regulatory factors and the record s u p p o r t s the Forest Service's conclusions. Thus the Court cannot s u b s t itu t e its judgment for that of the agency, and must conclude the F o r e s t Service's decision was not contrary to law. V. C O N C L U S IO N B a s e d on the foregoing, IT IS RECOMMENDED that the Forest S e r v ice 's Motion for Summary Judgment (Court's Doc. No. 25) be G R A N T E D , and McFarland White Ranch's Motion for Summary J u d g m e n t (Court's Doc. No. 20) be DENIED. D A T E D this 10th day of March, 2009. /s / Carolyn S. Ostby C a r o ly n S. Ostby U .S . Magistrate Judge

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