Tillett v. Bureau of Land Management et al

Filing 35

ORDER AND OPINION; granting in part and denying in part 28 Motion for Summary Judgment. READ ORDER FOR DETAILS. Signed by Judge Susan P. Watters on 8/28/2015. (Copy mailed to Jerri Tillett) (ACL, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
BILLINGS DIVISION

JERRI JOETTE TILLETT,
CV 14-73-BLG-SPW
Plaintiff,
vs.

ORDER AND OPINION

BUREAU OF LAND
MANAGEMENT; INTERIOR
BOARD OF LAND APPEALS; and
DEPARTMENT OF INTERIOR,
Defendants.

I.

Introduction
Plaintiff Jerri Tillett brings this action for injunctive relief against the United

States Department oflnterior, Bureau of Land Management, and Interior Board of
Land Appeals (collectively, "BLM"). Tillett challenges BLM's plan to use multiyear prescribed fires on approximately 6,200 acres in the northern part of the Pryor
Mountain Wild Horse Range. (Doc. 1-1 at 4-5). These arguments are construed to
allege that BLM' s authorization of the plan violates the National Environmental
Policy Act ("NEPA"). 1
1

Although Tillett brought her claims under Bivens she clarifies that she merely
checked what she thought was the most appropriate box listed on the Formal
Complaint. Construing her pleadings liberally, this Court finds her claim may be
construed as a challenge to final agency action under the Administrative Procedure
Act.
1

BLM moves for summary judgment and asks the Court to uphold its Finding
of No Significant Impact (FONSI) and dismiss Tillett's Complaint. (Doc. 28).
The motion is fully briefed. (Docs. 29, 31, 34 ). Having fully reviewed the record,
the Court finds that the facts and legal arguments are adequately presented in the
briefs and record. Accordingly, in the interest of avoiding further delay, and
because the Court finds that oral argument would not significantly aid the
decisional process, the Motion shall be decided on the record before this Court
without a hearing.

II.

Background
The Pryor Mountain Wild Horse Range ("Horse Range") spreads over

38,000 acres in Montana and Wyoming. In addition to wild horses, the Horse
Range is home to a number of different wildlife species, including migratory birds,
several bat species, Rocky Mountain bighorn sheep, mule deer, black bears, and
mountain lions, as well as various fauna and sensitive plant species.
As part of its management obligations ofthe Horse Range, BLM evaluated
the range and issued a herd management area plan ("HMAP") in 2009, establishing
an appropriate management level of horses, and setting out goals and objectives for
successful management of resources in the Horse Range to "preserve and maintain
a thriving natural ecological balance and multiple use relationships." (Doc. 26 at
818). During its evaluation, BLM found that certain areas of range were overused
2

due to grazing and drought. Using this information, BLM issued the 2009
Environmental Assessment for the Pryor Mountain Wild Horse Range Herd
Management Plan ("the Plan"). (!d. at 818-0963). The Plan's purpose is to
maintain a viable breeding wild horse population that perpetuates the
characteristics of the Pryor Mountain horses, maintain the range in good condition,
prevent further range deterioration, and improve range sites that are in bad
condition. (!d. at 822). Overall, the Plan contemplates a larger wild horse
population, development of wildlife waterers, noxious weed treatment, fence
reconstruction, wildlife habitat enhancement, and range improvement through fuel
reduction, riparian protection, and wildlife habitat enhancement. (!d. at 806).
Relevant to this case, the Plan also documents the need for prescribed fire to
bring forest stands in the Horse Range within the natural range of viability for the
existing forest types, and to maintain forest health, wildlife and wild horse habitat
enhancement. (!d. at 846). Specifically, the Plan contemplates using prescribed
fire over the years to "reduce the loss of existing habitat types to wildland fire ....
[And to] increase the available forage for wild life and wild horses and increase
available suitable big hom sheep habitat." (!d. at 900).
Consistent with the Plan, BLM issued the 2014 Pryor Mountain Wild Horse
Range Prescribe Fire Environmental Assessment (2014 EA), to which Tillett
objects, on March 7, 2014. (Id. at 15, 20). In the 2014 EA, BLM seeks to
3

implement the prescribed fire portion of the 2009 Plan over approximately 6,200
acres ("prescribed bum area") in the northern portion of the Horse Range. (Id.)
BLM determined that buildup of hazardous fuels and poor forest health exposes
the areas in and around the Horse Range to wildfire risk because "reduced fire
frequency in the forested settings have caused a departure from the natural fire
regime .... [and] [c]urrent forest stand structures, density levels, and species
compositions elevate the risk oflarge scale/high intensity, high severity standreplacing wildland fire." (Jd. at 28-29).
From February to July 2013, BLM issued the Notice of Proposed Action to
members on the Wilderness interest mailing list, the United States Forest Service,
the Crow Tribe, the Northern Cheyenne Tribe, Montana Department ofFish,
Wildlife and Parks, and the Montana State Historic Preservation Office. (Id. at
181-247). BLM released a preliminary version of the 2014 EA, FONSI and
Decision Record (DR) adopting the Proposed Action and initiated a 30-day public
comment period on September 25, 2013. (Jd. at 73).
On September 13,2013, BLM Billings Field Manager James Sparks sent a
letter to various interested individuals advising them that the draft EA was
available for a 30-day public review and comment period beginning September 23,
2013, and ending October 24, 2013. (Jd. at 73-74). Sparks advised the letter
recipients that they could find the draft EA on BLM's website. (Jd. at 73) Tillett

4

was listed on the mailing list. (!d. at 126). On October 9, 2013, Tillett
acknowledged receipt of Sparks' letter in her letter to BLM acting director,
Katherine Kitchell. (!d. at 128). Tillett thanked Kitchell for the notice and
submitted her official comments on the 2014 EA. (!d.) She explained her
difficulty in obtaining an EA and requested that BLM extend the comment period.

(!d.) She also stated that she had been steadfastly opposed to prescribed fires on
the Horse Range for over a decade. (!d. at 128-29).
On November I, 2013, BLM staff and managers met with several
individuals representing various groups and interests to answer questions regarding
the preliminary EA. (!d. at 128-29) BLM extended the comment period to
November 4, 2013. (!d. at 1) Sparks sent out another letter on March 7, 2014,
enclosing the final EA/FONSI and DR. (/d. at 1, 68) Tillett was listed on that
mailing list as well. (!d.)
On March 7, 2014, BLM issued the Fire EA, FONSI and DR to implement
prescribed burning in the northern part of the Horse Range. (!d. at 1-67). Tillett
filed her Complaint and Motion for Preliminary Injunction on June 9, 2014, to stay
the prescribed fires on the Horse Range. (Doc. 1, 2). Tillett objects to the 2014
EA on several grounds. (Doc. 1-1 at 4-5).

5

III.

Procedural Framework

A.

NEPA standard of review

NEP A is a procedural statute enacted to protect the environment by
requiring government agencies to meet certain procedural safeguards before taking
action affecting the environment. See Cal. Ex. ref. Lockyer v. US. Dept. ofAgric.,
575 F.3d 999, 1012 (9th Cir. 2009). In other words, NEPA "force[s] agencies to
publicly consider the environmental impacts of their actions before going
forward." Idaho Sporting Cong., Inc. v. Rittenhouse, 305 F.3d 957, 963 (9th Cir.
2002). NEPA requires an agency proposing a major federal action significantly
impacting the environment to prepare an environmental impact statement ("EIS")
to analyze potential impacts and alternatives. 42 U.S.C. § 4332(C). To determine
whether an EIS is required, the agency typically first prepares an EA. 40 C.F.R. §
1501.4(b). An EA is a "concise public document" that "include[s] brief
discussions of the need for the proposal, of alternatives as required by [42 U.S. C. §
4332(2)(E)], of the environmental impacts of the proposed action and alternatives,
and a listing of agencies and persons consulted." 40 C.F.R. §§ 1508.9(a), (b);

Native Ecosystems Council v. US. Forest Serv., 428 F.3d 1233, 1239 (9th Cir.
2005).
Because NEPA does not contain a separate provision for judicial review,
courts review an agency's compliance with NEPA under the Administrative
6

Procedure Act ("APA"), 5 U.S.C. §§ 701-706. 5 U.S.C. § 706(2)(A). Judicial
review of administrative agency decisions under the AP A is based on the
administrative record compiled by the agency- not on independent fact-finding by
the district court. Camp v. Pitts, 411 U.S. 138, 142 (1973). Courts may resolve
APA challenges via summary judgment. See Nw. Motorcycle Ass 'n v. United

States Dep't Agric., 18 F.3d 1468, 1472 (9th Cir. 1994). Summary judgment is
appropriate where "there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter oflaw." Fed. R. Civ. P. 56(a).

B.

Judicial Review under the Administrative Procedure Act

In reviewing an agency action under the APA, the Court must determine
whether the action is "arbitrary, capricious, an abuse of discretion, or otherwise not
in accordance with the law." 5 U.S.C. § 706(2)(A). "Normally, an agency rule
would be arbitrary and capricious if the agency has relied on factors which
Congress has not intended it to consider, entirely failed to consider an important
aspect of the problem, offered an explanation for its decision that runs counter to
the evidence before the agency, or is so implausible that it could not be ascribed to
a difference in view or the product of agency expertise." Motor Vehicle Mfrs.

Ass 'n v. State Farm Mutual Auto Ins. Co., 463 U.S. 29, 43 (1983). Review under
this standard is narrow, and the reviewing court may not substitute its judgment for
that of the agency. Id. Review is highly deferential to the agency's expertise, and
7

presumes the agency action to be valid. Arkansas v. Oklahoma, 503 U.S. 91, 112
( 1992). The agency, however, must articulate a rational connection between the
relevant data and articulate a satisfactory explanation for its action including a
"rational connection between the facts found and the choice made." Id.; see also
Midwater Trawlers Co-op v. Dep't of Commerce, 282 F.3d 710,716 (9th Cir.

2002). Thus, the court must look at whether the decision considered all of the
relevant factors or whether the decision was a clear error of judgment. I d. Once
the court is "satisfied that a proposing agency has taken a hard look at a decision's
environmental consequences, [its] review is at an end." Idaho Conservation
League v. Mumma, 956 F.2d 1508, 1519 (9th Cir. 1992).
IV.

Discussion
A.

NEPA claims
1.

BLM provided adequate notice and allowed sufficient
opportunity for public comment.

Tillett argues that BLM's first NEPA violation was failing to notifY her of
the proposed EA on the prescribed bums. (Doc. 31 at 4). NEPA requires the
agency to "involve environmental agencies, applicants, and the public, to the
extent practicable" in the preparation of the EA. See 40 C.F.R. § 1501.4(b). The
Ninth Circuit has interpreted this requirement to mean that "a sufficient amount of
environmental information- as much as is practicable - be provided so that a
member of the public can weigh in on the significant decisions the agency will
8

make in preparing the EA." Bering Strait Citizens for Responsible Res. Dev. v.

United States Army Corps ofEng., 524 F .3d 93 8, 953 (9th Cir. 2008).
"Circulation of a draft EA is not required in every case," Bering Strait, 524
F.3d at 953. Nonetheless, BLM made the draft 2014 EA available on its website,
(doc. 26 at 73), and notified over 100 individuals via letter that the draft 2014 EA
was available for review. (Id. at 123-127). BLM requested comments on several
occasions, provided a formal comment period, extended that formal comment
period upon the public's request, and held a meeting on November 1, 2013,
receiving additional comments from the public. (Id. at 1). The Court finds the
"quality of the BLM's dissemination of environmental information to the public
and its consideration of public comment, before issuing its EA, was reasonable and
adequate[.]" Bering Strait, 524 F.3d at 953. BLM's public meeting on November
4, 2013, also satisfied the requirement to provide adequate information "through
public meetings or by a reasonably thorough scoping notice." Id at 952.
Additionally, the record belies Tillett's argument that she did not receive
notice from BLM about the proposed EA. In her October 9, 2013 letter to Kitchell,
Tillett acknowledged receiving Sparks' letter notifYing the public of the proposed
EA and comment period. (Doc. 26 at 128). Also in her October 9, 2013, letter,
Tillett provided her comments on the draft EA, (id. at 128-131 ), and thus
participated in the comment period like many others. (Id. at 131-178). Finally,
9

BLM extended the comment period on the draft 2014 EA as Tillett specifically
requested in her letter. (!d. at 1). Thus, the record demonstrates that even if Tillett
did not know about the draft 2014 EA until October 9, 2013, she had over a month
to submit her comments in light of the extension, which was the same period
available to submit comments prior to the extension. In other words, Tillett had
sufficient time and knowledge to inform BLM's decision-making process.
Based on the number and content of the public comments BLM received on
the draft EA and the plans contained therein, this Court finds that the public,
including Tillett, was "provided with sufficient environmental information,
considering the totality of the circumstances, to permit [them] to weigh in with
their views and thus inform the agency decision-making process." Bering Strait,
524 F.3d at 953. BLM diligently involved the public in preparing and
implementing the NEPA procedures. See 40 C.F.R. § 1506.6(a).

2.

Sensitive species

Next, Tillett argues that BLM violated NEPA because it failed to adequately
analyze and consider the adverse impacts that the 2014 EA will have on the
sensitive plant species and migratory birds2 in the prescribed burn area. (Doc. 31

2

Although Tillett characterizes her complaints about the effects of the prescribed
bums on migratory birds as violations ofthe Migratory Bird Treaty Act (doc. 34 at
5), it is clear from her argument that she objects to the impacts of the plan
described in the EA on the birds and their habitat. Accordingly, because she is a
prose litigant, the Court affords her the benefit of the doubt and construes her
10

at 6; 31-3 at 7) She argues that BLM has an obligation to protect these sensitive
species through specific management actions. (Doc. 31 at 6; Doc. 3-2 at 4). Tillett
cites to BLM's 2013 Billings and Pompeys Pillar National Monument Resource
Management Plan and Environmental Impact Statement, which notwithstanding its
lack of applicability to the 2014 EA, provides the court with the information that a
"sensitive species" designation requires BLM to pay "particular management
attention due to population or habitat concerns," and that "[c]onsultation is
required on any action that a federal agency proposes that (1) may adversely
impact a federally listed species, or (2) will result in jeopardy or adverse
modification of critical habitats." (Doc. 31-2 at 3. 7.3.3). 3 Tillett points out that
BLM provided little to no support regarding the impact of the prescribed bums on
the sensitive species in the prescribed bum area. (Doc. 3 at 6).
In response, BLM agrees that sensitive species exist in the particular project
areas but contends that the EA considered the effects of the project on the
migratory birds. (Doc. 34 at 10). BLM argues that mitigation measures in the EA
provide that an inventory for sensitive species will occur before the bums and that

argument as an alleged NEP A violation rather than a Migratory Bird Treaty Act
violation. See Karim-Panahi v. Los Angeles Police Dept., 839 F.2d 621,623 (9th
Cir. 1988).
3

The Court recognizes that BLM did not tier the 2014 Fire EA to the 2013 EIS
referenced by Tillett. Nevertheless, BLM is still bound by the obligations and
categorizations contained therein.
11

only one sensitive migratory bird species, the Clark's Nutcracker, exists in the
area. In other words, BLM argues the EA is adequate because it acknowledges
that a sensitive species lives in the bum area and it contemplates that the BLM will
count the birds before the bum. Further, BLM points out that the sensitive plant at
issue, Lesica's Bladderpod, is not found within the bum area. (!d.)
Because Lesica's Bladderpod is not found within the prescribed burn area,
the Court need delve no further on that issue. Because BLM admitted that the
Clark's Nutcracker, a sensitive species, was located in the prescribed bum area,
however, the 2014 EA must contain a "convincing statement of reasons explaining
why impact of the prescribed burns [on that species] was insignificant." See
LaFlamme v. F.E.R.C., 852 F.2d 389,401 (9th Cir. 1988) ("An agency cannot ...

avoid its statutory responsibilities under NEP A merely by asserting that an activity
it wishes to pursue will have an insignificant effect on the environment. .. it must

supply a convincing statement of reasons why potential effects are insignificant.")
The 2014 EA does not supply such a statement.
BLM failed to analyze how, if at all, the prescribed burns will affect the
Clark's Nutcracker. The EA generally states that by reducing the potential for high
intensity stand replacing wildfires, the project benefits wildlife, including the birds,
(doc. 26 at 11 ), but nowhere in the EA does BLM discuss any adverse impacts to
the Clark's Nutcracker. BLM simply noted the presence of the Clark's Nutcracker
12

in or near the project area, (id. at 56), assessed that the species was very common
throughout "the project area," (id. ), and then stated "birds of all species have
adapted to habitats that are dynamic, regularly changing and restored by wildfire."

(Id. at 57). But "[g]eneral statements about possible effects and some risk do not
constitute a hard look absent a justification regarding why more definitive
information could not be provided." Conservation Cong. v. Finley, 774 F.3d 611,
621 (9th Cir. 2014). Likewise, simply stating that all birds can fly out of the area
does not constitute taking a "hard look" at the environmental impacts.
BLM also failed to consider how the prescribed burns will affect the Clark's
Nutcracker's habitat. Although the EA states that the Clark's Nutcracker is found
within the bum area and the "middle to upper" areas of the range, the EA does not
state how much of the bird's habitat will remain during and after the bums. In
summary, BLM devotes two sentences in the EA to the Clark's Nutcracker, neither
of which analyzes the environmental impacts of the bum on the sensitive species. 4
NEPA requires agencies to ensure professional and scientific integrity, by
setting forth the methodologies used and making "explicit reference by footnote to
the scientific and other sources relied upon for conclusions in the statement."

Earth Island Inst. v. US. Forest Serv., 442 F.3d 1147, 1160 (9th Cir. 2006),

4

Noting that the 2014 EA is tiered to the 2009 HMAP/EA, the Court looked there
for further supporting discussion on the Clark's Nutcracker. The 2009 EA does
not discuss the Clark's Nutcracker at all.

13

abrogated on other grounds by Winter v. Natural Res. Def Council, Inc., 555 U.S.
7 (2008) (citing 40 C.F.R. § 1502.24). 5 It does not make sense to give the Clark's
Nutcracker a "sensitive species" designation and then treat the bird the same as
other migratory birds without that designation. Moreover, it does not comport with
ELM's obligation to give sensitive species particular management consideration.
(Doc. 31-2 at 3.7.3.3). In its discussion regarding the prescribed bums on the
sensitive species in the prescribed bum area, ELM not only failed to set forth any
methodologies used in its FONSI, it failed to analyze the issue at all. In short, it
completely failed to "examine the relevant data and articulate a satisfactory
explanation for its action including a rational connection between the facts found
and the choice made." Motor Vehicle Mfrs. Ass 'n, 463 U.S. at 43.
The Court concludes that more is required under NEPA in order for ELM to
conclude that no significant impacts on the sensitive species in the area will result
from the prescribed bums contemplated in the 2014 EA. ELM's motion for
summary judgment on this issue is denied.

5

Although NEPA regulations impose this requirement explicitly on an EIS, this
Court, like many others, finds that it applies to a Final EA. See Earth Island Inst.
v. US. Forest Serv., 697 F.3d 1010, 1019 (9th Cir.2012) (where defendants did not
dispute this requirement applied to the EA, court considered whether it had been
met); see also W Watersheds Projectv. Bureau ofLand Mgmt., 971 F. Supp. 2d
957, 974 (E.D. Cal. 2013), appeal dismissed (July 21, 2014) (ELM is required to
set forth the methodologies it uses and references it relies upon for the conclusions
it makes in the final EA).
14

d.

Soil Erosion and Pesticides

Tillett argues that BLM did not adequately analyze the effects the prescribed
bums will have on the landscape within the prescribed bum area. Specifically,
Tillett contends that post-bum, the charred landscape will be more susceptible to
the elements, resulting in greater erosion and more noxious weeds, which will in
tum, require more pesticide applications. (Doc. 31 at 16). BLM argues that many
of the mitigation measures included in the 2014 EA address soil erosion and
minimize the establishment of noxious weeds. (Doc. 34 at 12).
The record demonstrates that BLM took the requisite 'hard look' at soil
erosion and pesticide use. The 2014 EA includes a broad range of mitigation
tactics to minimize erosion and the need for pesticides. (Doc. 24 at 20-22, 25-25).
It also discusses significant efforts to prevent noxious weed introduction during the

prescribed bums, including washing all equipment before entering the area,
detecting and eradicating new noxious weed establishment and minimizing soil
disturbance. (Id. at 53). The 2014 EA indicates that these efforts reduce the need
for pesticides. (Id.) In the event pesticides are required, only those pesticides
previously vetted through the prior Vegetation Treatment EIS conducted in 2007
will be used. (Id. at 4). The analysis reflected in the record on this issue is
sufficient to satisfy the Court that BLM's decision was not arbitrary and
capnCIOUS.
15

e.

Wilderness Study Areas and Wilderness Characteristics

Tillett next asserts that the 2014 EA failed to consider how the prescribed
bums will affect the wilderness characteristics and Wilderness Study Areas of the
Pryor Mountain Area. (Doc. 31 at 12-13). BLM asserts it took a hard look at the
impacts on the wilderness characteristics in the area. (Doc. 34 at 14).
"Among the resources to be managed on federal lands, lands with statutorily
defined wilderness characteristics are of particular importance." Oregon Natural
Desert Ass'n v. Bureau ofLand Management, 625 F.3d 1092, 1097 (9th Cir. 2010).
Congress passed the Wilderness Act in 1964 with the express purpose of
"assur[ing] that an increasing population, accompanied by expanding settlement
and growing mechanization, does not occupy and modify all areas within the
United States and its possessions, leaving no lands designated for preservation and
protection in their natural condition." 16 U.S.C. § 1131(a).
The Federal Land Planning Management Act ("FLPMA") interacts with the
Wilderness Act to provide BLM with broad authority to manage areas with
wilderness characteristics contained in the federally owned land parcels BLM
oversees, including by recommending these areas for permanent congressional
protection. Oregon Natural Desert Ass'n, 625 F.3d at1097. "[T]he FLPMA
makes clear that wilderness characteristics are among the values which the BLM
can address in its land use plans, and hence, needs to address in the NEP A analysis
16

for a land use plan governing areas which may have wilderness values." !d. at
1112.
Relevant to the situation at hand, in 1991, the Secretary ofthe Interior issued
the Wilderness Study Areas (WSA) Record of Decision (RD) for the Pryor Range.
(Doc. 24 at 42). This document finalized BLM's recommendation to Congress and
adjusted the original BLM recommendations for the Pryor Mountains WSA by
recommending the inclusion of 12,575 acres and adjusting boundaries and the
Bighorn Tack-on WSA by recommending the inclusion of2,470 acres and
adjusting the boundary. (Id). The 2014 EA prescribed bum areas overlap with
portions of the WSAs and lands with wilderness characteristics designated in the
RD. (Id. at 42, 48).
While Tillett is correct that the bums are set to occur on portions of the
WSA and lands with wilderness characteristics, her arguments with respect to this
issue are vague and non-specific. (See Doc. 34 at 12-13). A review of the record
convinces this Court that BLM took the requisite hard look at the effects ofthe
prescribed bums on the WSAs and wilderness characteristics in the area. While
Tillett seems to generally take issue with prescribed fires occurring in the WSAs,
BLM specifically contemplated using prescribed fire in its Management ofWSAs
Manual as a tool to make conditions possible for natural fire to return to the WSAs.

(Id. at 46).
17

Notably, BLM acknowledges that the lands with wilderness characteristics
are "essentially extensions" of the WSAs and taken together, provide extensive and
expansive opportunities for primitive recreation opportunities. (!d. at 48). Using
minimal ground treatments and small fires, the 2014 EA contemplates minimal
impact on the wilderness characteristics. Considering fire is a wilderness
characteristic in and of itself, this Court fmds that BLM's analysis on this issue
contains "a reasonably thorough discussion of the significant aspects of the
probable environmental consequences," of the prescribed bums on the WSAs and
wilderness characteristics of the area. City of Carmel-By-The-Sea v. US. Dep't of

Transp., 123 F.3d 1142, 1150 (9th Cir.l997) (quoting Idaho Conservation League
v. Mumma, 956 F.2d 1508, 1519 (9th Cir.1992)).
V.

Conclusion

In sum, the Court finds that BLM complied with all but one of its NEP A
obligations: the requirement to take a hard look when it considered the impacts of
the prescribed bums on sensitive species in the area, in particular the Clark's
Nutcracker. Accordingly, IT IS HEREBY ORDERED that:
BLM' s Motion for Summary Judgment (doc. 28) is GRANTED IN PART
AND DENIED IN PART. It is further ordered that BLM's decisions regarding
impacts on special status species, in the Environmental Assessment are

18

VACATED and the matter is REMANDED to the BLM for further proceedings
consistent with this opinion and this case is hereby closed.
DATED this

~

Q1doyofAu~

r.J~
'SUSANP:WATTERS
U.S. DISTRICT COURT JUDGE

19