Upload
vankhue
View
218
Download
0
Embed Size (px)
Citation preview
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
1
STATEMENT OF DISPUTED FACTS
C. D. Michel - Cal. B.N. 144258 (pro hac vice)MICHEL & ASSOCIATES, PC180 E. Ocean Boulevard, Suite No. 200Long Beach, CA 90802 Telephone: 562-216-4444Facsimile: 562-216-4445Email: [email protected]
David T. Hardy - S.B.N. 42888987 E Tanque Verde, No. 309Tucson, AZ 85749-9399 Telephone: 520-749-0241 Facsimile: 520-749-0088 Email: [email protected]
Attorneys for Proposed Defendant-Intervenor National Rifle Association
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
PRESCOTT DIVISION
CENTER FOR BIOLOGICALDIVERSITY
Plaintiff,
v.
U. S. BUREAU OF LANDMANAGEMENT; RON WENKER,Acting Director of U.S. Bureau of LandManagement; JAMES KENNA, BLMArizona State Director; KENSALAZAR, Secretary of Interior, andU.S. FISH AND WILDLIFE SERVICE,
Defendants, and
NATIONAL RIFLE ASSOCIATION,Defendant-Intervenor.
CASE NO. 3:09-cv-08011-PCT-PGR
STATEMENT OF DISPUTED FACTS INRESPONSE TO STATEMENT OFMATERIAL FACTS FILED BYPLAINTIFF CENTER FORBIOLOGICAL DIVERSITY;STATEMENT OF FACTS IN SUPPORTOF DEFENDANT-INTERVENORNATIONAL RIFLE ASSOCIATION'SMOTION FOR PARTIAL SUMMARYADJUDICATION
Case 3:09-cv-08011-PGR Document 116 Filed 12/10/10 Page 1 of 35
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Citations to the portions of the Administrative record created by the1
Bureau of Land Management are cited as “ASRMPXXXXXX,” whereas portions
of the administrative record created by the Fish and Wildlife Service are cited
either as “RXXXXX” or “MXXXXX.”
2
STATEMENT OF DISPUTED FACTS
PLAINTIFF’S STATEMENT OFMATERIAL FACTS
DEFENDANT-INTERVENOR’SSTATEMENT OF DISPUTED
MATERIAL FACT
1. The Arizona Strip covers approximately
1.98 million acres of public land in isolated
terrain adjacent to the Grand Canyon in the
northwest corner of Arizona. Of this total,
approximately 1.68 million acres are not
within either the Vermilion Cliffs “VCNM”)
or the Grand Canyon-Parashant National
Monument (“GCPNM”) and thus are
covered by the management plan for the
Arizona Strip Field Office (“ASFO”).
ASRMP060330.
1. Disputed. Even assuming the reference
to the “Arizona Strip” is intended to refer
to the “Arizona Strip Field Office,” the
“1.98 million acres” in the Arizona Strip
Field Office referred to in Material Fact
No. 1 includes 130,962 acres of private
land (i.e., the entire 1.98 million is not
public lands, as stated in Material Fact No.
1). See ASRMP060330. Intervenor does1
not dispute that the ASFO includes 1.68
million acres. ASRMP060326.
Case 3:09-cv-08011-PGR Document 116 Filed 12/10/10 Page 2 of 35
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
PLAINTIFF’S STATEMENT OFMATERIAL FACTS
DEFENDANT-INTERVENOR’SSTATEMENT OF DISPUTED
MATERIAL FACT
3
STATEMENT OF DISPUTED FACTS
2. As it is separated by the Grand Canyon
from the rest of Arizona, the Arizona Strip is
among the most remote and rugged public
lands in the lower 48 states. ASRMP060328.
2. Disputed. The cited selection states:
“Rugged and isolated, the Planning Area is
one of the largest, unfragmented stretches
of sparsely developed lands in the
contiguous United States. The deep
canyons of the Colorado River separate the
area from the rest of Arizona.” The cited
document refers only to the “Planning
Area” and not the “Arizona Strip,” and
Plaintiff does not cite to any authority
supporting Plaintiff’s interpretation that
the “Planning Area” is the same as the
“Arizona Strip.”
3. The Arizona Strip contains many
documented and undocumented fossils and
other geologic treasures. Many special
status species of both plants and animals
inhabit the Arizona Strip, including the
desert tortoise, desert-nesting bald eagle,
peregrine falcon, and southwestern willow
flycatcher. Historic and cultural resources
are also found on the Arizona Strip
including remnants of Native American
culture as well as that of the homesteaders.
ASRMP060332-38.
3. Disputed. The cited section does not
mention “the desert tortoise, desert-nesting
bald eagle, [or] peregrine falcon . . . . ”
Furthermore, it is impossible to state
affirmatively that an area contains “many”
“undocumented fossils,” and regardless,
the cited source does not make such a
claim.
Case 3:09-cv-08011-PGR Document 116 Filed 12/10/10 Page 3 of 35
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
PLAINTIFF’S STATEMENT OFMATERIAL FACTS
DEFENDANT-INTERVENOR’SSTATEMENT OF DISPUTED
MATERIAL FACT
Defendant-Intervenor National Rifle Association (“NRA”) disputes whether2
several statements in te Administrative Record for this case are factually correct. NRA’s intervention as to Plaintiff Center for Biological Diversity's (“Plaintiff”)NEPA and ESA claims (now just NEPA claims, as a result of Plaintiff's amendmentof its Complaint), however, does not require the resolution of such factual disputes,as the aforementioned claims are based on the Administrative Record, regardless ofwhether statements found therein are factually true. (See Pl.'s Mot. for Summ. J.,Docket Document 98, at 13 [“The facts are based on information in theadministrative records in this case . . .”], and 14 [stating “this Court's review isgoverned by the Administrative Procedures Act . . .”]); Rock Creek Alliance v. U.S.Forest Serv, 703 F. Supp. 2d 1152, 1163 (D. Mont. 2010) (indicating that ruling on asummary judgment motion regarding an alleged APA violation does “not requireresolution of factual disputes[,]” because such actions are “based on theadministrative record” for the final agency action being challenged); OccidentalEng'g Co. v. Immigration & Naturalization Serv., 753 F.2d 766, 769-70 (9th Cir.1985) (indicating that normally a “court is not required to resolve any facts in areview of an administrative proceeding”). Thus, any fact NRA characterizes as“undisputed” in this Statement indicates NRA does not dispute that particularstatement of a “Material Fact” appears in the Administrative Record (and is thus“undisputed” for the purposes of the motion at hand, see LRCiv 56.1(b)), though itdoes not necessarily indicate that NRA has conceded to the ultimate truth of the“Material Fact” asserted.
4
STATEMENT OF DISPUTED FACTS
4. The GCPNM is collaboratively managed
by the Bureau of Land Management (“BLM”)
and the National Park Service (“NPS”). NPS
has primary management authority over the
portion of GCPNM that lies within the Lake
Mead National Recreation Area, and BLM
has primary management authority over the
remaining part of the monument.
ASRMP060325. VCNM is wholly located on
BLM-administered public lands.
ASRMP060325.
4.Undisputed.2
Case 3:09-cv-08011-PGR Document 116 Filed 12/10/10 Page 4 of 35
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
PLAINTIFF’S STATEMENT OFMATERIAL FACTS
DEFENDANT-INTERVENOR’SSTATEMENT OF DISPUTED
MATERIAL FACT
5
STATEMENT OF DISPUTED FACTS
5. On November 16, 2005, BLM released a
d r a f t R e s o u r c e M a n a g e m e n t
Plan/Environmental Impact Statement
(“Draft Plan/EIS”) for the Arizona Strip,
including Resource Management Plans
(“RMPs” or “Plans”) for lands managed by
BLM within the ASFO, GCPNM, and
VCNM. Plaintiff Center for Biological
Diversity (the “Center”) submitted timely
comments on the Draft Plan/EIS on March
16, 2006, see ASRMP023614 et seq., and
timely comments on the Final EIS (“FEIS”)
on April 2, 2007, see ASRMP036465 et seq.
5.Undisputed. Intervenor does not dispute
the first factual allegation in Material Fact
No. 5 based on Defendants’ Answer to
Plaintiff’s First Amended Complaint
(Docket Document 31, “Defendants’
Answer”) at page 8, Paragraph 50. The
remainder of Material Fact No. is based on
Plaintiff’s citations to the Record, though
those citations violate LRCiv 56.1(a)
(“Each material fact shall be set forth in a
separately numbered paragraph and shall
refer to a specific admissible portion of the
record where the fact finds support . . . .”).
(Italics added).
6. BLM issued Records of Decision (RODs)
for the Plans on January 29, 2008, approving
final RMPs that were essentially identical to
the proposed RMPs evaluated in the FEIS.
6. Undisputed. Though Plaintiff’s
assertion of Material Fact No. 6 violates
LRCiv 56.1(a), Intervenor does not dispute
Material Fact No. 6 based on Defendants’
Answer at page 10, paragraph 63.
7. The California condor was listed as an
endangered species under the Endangered
Species Act (“ESA”) on March 11, 1967.
32 Fed. Reg. 4001; ASRMP056143.
7. Undisputed.
Case 3:09-cv-08011-PGR Document 116 Filed 12/10/10 Page 5 of 35
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
PLAINTIFF’S STATEMENT OFMATERIAL FACTS
DEFENDANT-INTERVENOR’SSTATEMENT OF DISPUTED
MATERIAL FACT
6
STATEMENT OF DISPUTED FACTS
8. Six California condors were released in
the Arizona Strip on December 12, 1996 as
an experimental nonessential population
under 16 U.S.C. § 1539(j) (ESA § 10(j)).
ASRMP056143.
8. Undisputed, though the cited selection
does not include a specific reference to “16
U.S.C. § 1539(j) (ESA § 10(j))” as
Plaintiff indicates, nor does the selection
mention that “six” condors were released
on December 12, 1996.
9. Ninety-six condors have since been
released in Arizona. ASRMP056144.
9. Undisputed, assuming Material Fact
No. 9 is that ninety-six condors were
released in Arizona between December 12,
1996, and July 31, 2007, the later date
being referred to in the cited section as the
date of the most recent relevant data.
10. At the time the Biological Opinion was
prepared, fifty-nine condors remained
in the wild in Arizona. ASRMP056144.
10. Undisputed.
Case 3:09-cv-08011-PGR Document 116 Filed 12/10/10 Page 6 of 35
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
PLAINTIFF’S STATEMENT OFMATERIAL FACTS
DEFENDANT-INTERVENOR’SSTATEMENT OF DISPUTED
MATERIAL FACT
7
STATEMENT OF DISPUTED FACTS
11. For purposes of the ESA, § 10(j)
condors are treated as either “threatened” or
“proposed to be listed,” depending on
whether they are found on National Park
Service land or other federal land,
respectively, and are fully protected as
endangered on land outside of the
designated experimental population area. 50
C .F .R . P a r t [ s i c ] 1 7 .8 4 ( j ) (2 ) ( i ) ;
ASRMP056144.
11. Disputed. The cited selection
(ASRMP056144) does not fully track
Plaintiff’s assertion. ASRMP056143-44
states “For purposes of section 7
consultation, when condors are on lands
not within the National Wildlife Refuge
System or the National Park System, but
within the experimental population area,
they are treated as if proposed for listing.
When condors are on National Wildlife
Refuge or National Park System lands
within the designated experimental
population area, they are treated as a
threatened species. Any condors outside
the experimental population area are fully
protected as endangered.” Plaintiff’s
citation to 50 C.F.R. Part [i.e., Section]
17.84(j)(2)(i) appears to be an error, as that
part does not address the matter raised in
Material Fact No. 11. Additionally,
Material Fact No. 11 should be
disregarded, as it is a conclusion of law,
not a statement of fact.
Case 3:09-cv-08011-PGR Document 116 Filed 12/10/10 Page 7 of 35
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
PLAINTIFF’S STATEMENT OFMATERIAL FACTS
DEFENDANT-INTERVENOR’SSTATEMENT OF DISPUTED
MATERIAL FACT
8
STATEMENT OF DISPUTED FACTS
12. Under Section 10(j) of the ESA, a take
of these condors does not constitute a per
se violation of the ESA so long as the take
is non-negligent, incidental to a lawful
activity, and reported as soon as possible.
ASRMP054057. See also 61 Fed. Reg.
54044, 54057.
12. Disputed. ASRMP054057 does not
provide any information related to
Material Fact 12. Further, it is unclear
which condors Plaintiff is referring to
when referring to “these condors.” The
Federal Register section cited parallels 50
C.F.R. § 17.84(j)(2)(i), which states
[t]hroughout the entireCalifornia condorexperimental populationarea, you will not be inviolation of the EndangeredSpecies Act (Act) if youunavoidably andunintentionally take(including killing orinjuring) a Californiacondor, provided such take isnon-negligent and incidentalto a lawful activity, such ashunting, driving, orrecreational activities, andyou report the take as soonas possible . . . .
The cited Federal Register selection makes
no mention of what is (or is not) “a per se
violation of the ESA.” Additionally,
Material Fact No. 12 should be
disregarded, as it is a conclusion of law,
not a statement of fact.
Case 3:09-cv-08011-PGR Document 116 Filed 12/10/10 Page 8 of 35
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
PLAINTIFF’S STATEMENT OFMATERIAL FACTS
DEFENDANT-INTERVENOR’SSTATEMENT OF DISPUTED
MATERIAL FACT
9
STATEMENT OF DISPUTED FACTS
13. The Bureau of Land Management
Manual § 6840.21E3(c)2 provides that
BLM must conference for proposed
species as opposed to formally consult
with U.S. Fish and Wildlife Service
(“FWS”).
13. Disputed. Material Fact No. 13 states
a requirement as a general proposition
(“BLM must conference for proposed
species . . . with U.S. Fish and Wildlife
Service”) that is much broader than what is
stated in the relevant subsection. The
subsection cited (not found in the current
Bureau of Land Management Manual, but
located in the Administrative Record at
M001437) actually states that
[i]f project modificationscannot be made such that theproposed action is not likelyto adversely affect the listedspecies, . . . proposedspecies, . . . BLM shallinitiate form consultation forlisted species . . . orconference for proposedspecies . . . . This includesactions for which the overalleffect may be beneficial tothe listed species . . . but islikely to cause adverseeffects. This also includesall actions for whichincidental take is anticipatedto occur.
Additionally, Material Fact No. 13 should
be disregarded, as it is a conclusion of law,
not a statement of fact.
Case 3:09-cv-08011-PGR Document 116 Filed 12/10/10 Page 9 of 35
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
PLAINTIFF’S STATEMENT OFMATERIAL FACTS
DEFENDANT-INTERVENOR’SSTATEMENT OF DISPUTED
MATERIAL FACT
10
STATEMENT OF DISPUTED FACTS
14. The U.S. Fish and wildlife Service
(“FWS”) prepared a Biological Opinion
(“BiOp”) for the ASRMP that concluded
the Proposed Plan “is not likely to
jeopardize the continued existence of the
[listed species occurring on the project
site], and is not likely to destroy or
adversely modify designated . . . critical
habitat.” ASRMP056212.
14. Undisputed.
15. The BiOp’s “no jeopardy” conclusion
in regards to the condor was based on an
evaluation of two small subsets of the
Arizona Strip project area. ASRMP56214.
15. Disputed. Assuming the cited selection
is intended to be ASRMP056214, and
further assuming Plaintiff’s reference to
“the condor” is intended to mean
potentially-affected California condors,
that selection does not include a statement
that expressly indicates what is stated in
Material Fact No. 15. Further,
ASRMP056214 is part of a document that
states the following: “The conclusions of
this biological opinion are based on the
project as described in the ‘Description of
the Proposed Action’ section” of that
document. See ASRMP056212.
Case 3:09-cv-08011-PGR Document 116 Filed 12/10/10 Page 10 of 35
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
PLAINTIFF’S STATEMENT OFMATERIAL FACTS
DEFENDANT-INTERVENOR’SSTATEMENT OF DISPUTED
MATERIAL FACT
11
STATEMENT OF DISPUTED FACTS
16. Most condor movements in the
Arizona Strip occur “within the
nonessential experimental population
area,” i.e., outside of the limited
geographic areas assessed in the
BiOp. ASRMP056160.
16. Disputed. The cited section does not
equate (as Material Fact No. 16 does) the
“nonessential experimental population
area” with an area “outside of the limited
geographic areas assessed in the BiOp.”
17. The BiOp acknowledges that, per a
FWS Southwest Condor Review Team
report from April 2007 (SWCR), “most
mortalities since 2002 have been due to
lead poisoning” caused by “exposure from
lead ammunition,” and that “[i]ngestion of
lead in carcasses and the resulting toxicity
is a primary cause of injury and mortality
to condors in the nonessential
experimental population.” ASRMP056169,
056192.
17. Disputed. Material Fact No. 17
misrepresents the contents of
ASRMP056169, which states “most
mortalities since 1992 have been due to
lead poisoning, with exposure from lead
ammunition.” Intervenor does not dispute
Material Fact No. 17 to the extent it
accurately reflects what is stated in
ASRMP056192, however, ASRMP055829
states “[t]he magnitude of the affects to
California condors from the ingestion of
lead ammunition on the Arizona Strip is
unknown.”
Case 3:09-cv-08011-PGR Document 116 Filed 12/10/10 Page 11 of 35
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
PLAINTIFF’S STATEMENT OFMATERIAL FACTS
DEFENDANT-INTERVENOR’SSTATEMENT OF DISPUTED
MATERIAL FACT
12
STATEMENT OF DISPUTED FACTS
18. Hunting is allowed in most of the
Arizona Strip, including in the Vermilion
Cliffs National Monument and Grand
Canyon-Parashant National Monument.
ASRMP060329.
18. Disputed. The cited selection (when
read with ASPRMP060328) states that
hunting, among other listed outdoor
activities, is an activity enjoyed by visitors
to the Planning Area. It does not provide
any indication that “hunting is allowed in
most of the Arizona Strip[,]” nor does it
specifically state that hunting is allowed in
either of the monuments mentioned in
Material Fact No. 18.
19. The Arizona Strip “is known
worldwide as one of the best mule deer
hunting areas.” ASRMP055829.
19. Undisputed.
20. Condors are known to be poisoned by
consuming hunter-shot lead ammunition
and lead ammunition fragments found in
carcasses shot by hunters. Lead poisoning
is contributing to the overall decline of
condors in California. ASRMP056169;
ASRMP056210.
20. Disputed. ASRMP056169 does not
indicate “Lead poisoning is contributing to
the overall decline of condors in
California[;]” instead, it states “[t]he
overall decline in California condor
numbers has been attributed to illegal
collection of eggs and birds, poisoning
from predator control, lead poisoning,
effects of DDT . . . .” Additionally,
ASRMP056210 does not indicate
“Condors are known to be poisoned by . .
.[,]” it actually states that “California
condors may be injured or killed by . . .”
Case 3:09-cv-08011-PGR Document 116 Filed 12/10/10 Page 12 of 35
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
PLAINTIFF’S STATEMENT OFMATERIAL FACTS
DEFENDANT-INTERVENOR’SSTATEMENT OF DISPUTED
MATERIAL FACT
13
STATEMENT OF DISPUTED FACTS
21. The “[i]ngestion of lead . . . is a
primary cause of injury and mortality to
condors in the [10(j)] population.”
ASRMP056192.
21. Undisputed.
22. “Numerous scientific studies have
shown that shotgun pellets and rifle bullet
fragments in animal carcasses are the
primary source of this contamination.”
M10015.
22. Undisputed, assuming the cited
selection is intended to be M010015.
Case 3:09-cv-08011-PGR Document 116 Filed 12/10/10 Page 13 of 35
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
PLAINTIFF’S STATEMENT OFMATERIAL FACTS
DEFENDANT-INTERVENOR’SSTATEMENT OF DISPUTED
MATERIAL FACT
14
STATEMENT OF DISPUTED FACTS
23. “Lead exposure has been recognized as
a major threat to condors for several
decades, and ingestion of ammunition has
long been considered the primary source of
this exposure. Free-flying condors have
detectable blood lead levels that often
require emergency veterinary intervention
(Fry 2003). The vast majority of condors
tested in the last ten years have blood lead
levels that exceed the Centers for Disease
Control (CDC) threshold for immediate
clinical intervention in children of 10 :g/dL,
and many condors have been observed with
blood lead levels exceeding 100 :g/dL.
Sorenson and Burnett (2007) documented a
sharp increase in blood lead levels in
condors during the fall hunting season. Lead
ammunition is the only documented source
that could cause acute lead exposure at the
very high levels seen in wild condors. Since
lead is not biologically accumulated, acute
levels of blood lead, as seen in the vast
majority of condors . . . are most reasonably
derived from repeated ingestion of tiny lead
fragments; condors must consume lead
directly from highly concentrated sources
23. Disputed. Assuming the cite selection
is intended to be M010026-27, Plaintiff
has omitted the phrase “in the graph
below” from the quotation it is citing,
which changes the meaning of the
sentence drastically. That is, the sample
size utilized regarding the graph at issue
was ninety-six condors, whereas, the way
Plaintiff has altered this sentence, it
indicates the statement is being made as to
the entire population of California
condors.
Case 3:09-cv-08011-PGR Document 116 Filed 12/10/10 Page 14 of 35
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
PLAINTIFF’S STATEMENT OFMATERIAL FACTS
DEFENDANT-INTERVENOR’SSTATEMENT OF DISPUTED
MATERIAL FACT
15
STATEMENT OF DISPUTED FACTS
24. “According to the Fish and Wildlife
Service (SCRT 2007), in 2002, 23 condors
in Arizona had elevated blood lead levels
(>15µg/dl, indicating exposure), with 13
condors requiring emergency treatment
(chelation) to purge the lead from their
systems. In 2003, there were 13 cases of
lead exposure requiring 5 chelations. In
2004 there were 35 cases of lead exposure
requiring 18 chelations. In 2005 over 50%
of all Arizona condors had lead exposure
and 23% (18 birds) required chelation
treatment; radiographs of four condors
showed visible lead fragments or shotgun
pellets in their stomachs. In 2006 95% of
all Arizona condors (54 birds) had lead
exposure and 40 condors (70% of the
Arizona population) were chelated;
radiographs of four condors showed
ammunition fragments consistent with
those recovered in past years.”
M10033-34.
24. Undisputed.
Case 3:09-cv-08011-PGR Document 116 Filed 12/10/10 Page 15 of 35
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
PLAINTIFF’S STATEMENT OFMATERIAL FACTS
DEFENDANT-INTERVENOR’SSTATEMENT OF DISPUTED
MATERIAL FACT
16
STATEMENT OF DISPUTED FACTS
25. BLM adopted one mitigation measure
regarding condor exposure to lead in the
FEIS and RODs: “The BLM and NPS
[will] identify and, where possible, reduce
or eliminate sources of lead contamination
for Condors within the Planning Area. The
BLM and NPS [will] encourage voluntary
use of non-lead ammunition in the
Planning Area.” ASRMP060463; see also
ASRMP062401; 06429; 062519.
25. Disputed. Though Material Fact No.
25 correctly quotes ASRMP060463, the
quoted language is, per ASRMP060377,
properly labeled a “decision” and not a
“mitigation measure.” Accord
ASRMP062369. Intervenor assumes
Plaintiff’s citations to 06429 was intended
to refer to ASRMP060429. It should be
noted that a statement similar to what
Plaintiff has quoted appears on
ASRMP062519, and it is referred to as a
“conservation measure.” See
ASRMP062518.
Case 3:09-cv-08011-PGR Document 116 Filed 12/10/10 Page 16 of 35
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
PLAINTIFF’S STATEMENT OFMATERIAL FACTS
DEFENDANT-INTERVENOR’SSTATEMENT OF DISPUTED
MATERIAL FACT
17
STATEMENT OF DISPUTED FACTS
26. Under Appendix 2E, “Conservation
Measures for Special Status Species,”
Conservation measure CC-3.D states that
“[u]se of non-lead ammunition is strongly
encouraged for activities involving the
discharge of firearms.” ASRMP061637.
26. Undisputed.
27. The FEIS fails to even mention,
however, the adverse effects of lead
ammunition on condors in the
“environmental consequences” section of
the FEIS. ASRMP060988-90.
27. Undisputed, assuming Plaintiff’s
reference to the “‘environmental
consequences’” section was intended to
refer to the “Environmental Impacts”
chapter of the document being cited (as
there appears to be no section of that
document with the title Plaintiff has
provided). See ASRMP060846.
Case 3:09-cv-08011-PGR Document 116 Filed 12/10/10 Page 17 of 35
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
PLAINTIFF’S STATEMENT OFMATERIAL FACTS
DEFENDANT-INTERVENOR’SSTATEMENT OF DISPUTED
MATERIAL FACT
18
STATEMENT OF DISPUTED FACTS
28. A Southwest Condor Working Group
study (FWS 2007) found it “unlikely
that the northern Arizona and southern
Utah condor program will succeed at
achieving a self-sustaining condor
population with the current lead exposure
situation.” M010016;
R014961.
28. Undisputed.
29. During conferencing with BLM, FWS
recommended that BLM “reduce effects of
project activities on condors and further
recovery of the species,” and that “for
those activities where ammunition is used
in the area and for which BLM has
authority, BLM require that only non-lead
ammunition will be used.”
ASRMP056248.
29. Undisputed.
30. Alternative non-lead ammunition is
readily available in almost all calibers used
by hunters. Table 5, R14968-69;
R14966-70.
30. Disputed. Assuming Plaintiff
intended to cite R104966-70; that selection
does not state or directly state or imply that
“[a]lternative non-lead ammunition is
readily available in almost all calibers used
by hunters.”
(Plaintiff’s Material Facts 32 through 76 have to do with claims outside the scope of
Defendant-Intervenor National Rifle Association’s intervention, and are accordingly not
responded to herein).
Case 3:09-cv-08011-PGR Document 116 Filed 12/10/10 Page 18 of 35
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
19
STATEMENT OF DISPUTED FACTS
INTERVENOR’S STATEMENT OF
MATERIAL FACT
1. “On November 13, 1990, the [United
States Fish and wildlife] Service
conducted its first public meeting to
discuss the feasibility of reintroducing
California condors in the Grand Canyon
area, the Grand Canyon National Park
hosted the meeting.” Endangered and
Threatened Wildlife and Plants:
Establishment of a Nonessential
Experimental Population of California
Condors in Northern Arizona, 61 Fed.
Reg. 54,044, 54,051 [R007597] (Oct.
16, 1996).
Case 3:09-cv-08011-PGR Document 116 Filed 12/10/10 Page 19 of 35
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
INTERVENOR’S STATEMENT OF
MATERIAL FACT
20
STATEMENT OF DISPUTED FACTS
2. In May 1995, the NEPA process
(regarding the proposed reintroduction
of California condors to parts of
northern Arizona, southern Nevada, and
southern Utah, the “Reintroduction”)
was initiated with the mailing (by the
Federal Wildlife Service, the “Service”)
of a NEPA scoping letter being
sent out to approximately200 Federal and Stateagencies, tribal, county,and city governments,private industries,conservation groups, andother interested parties. Itannounced the Service'sintent to prepare anEnvironmentalAssessment on a proposalto establish a long termproject to reintroduceCalifornia condors intonorthern Arizona andrequested comments onthe proposal.
61 Fed. Reg. at 54,051 [R007597].
3. “[T]he Service mailed out
approximately 300 copies of the draft
Environmental Assessment” (“EA”)
regarding the Reintroduction on August
14, 1995. 61 Fed. Reg. at 54,051
[R007597].
Case 3:09-cv-08011-PGR Document 116 Filed 12/10/10 Page 20 of 35
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
INTERVENOR’S STATEMENT OF
MATERIAL FACT
21
STATEMENT OF DISPUTED FACTS
4. “On January 2, 1996, the Service
published (61 FR 35) a proposed rule to
establish a nonessential experimental
population of California condors in
northern Arizona/southern Utah with a
comment period that closed on February
1, 1996.” 61 Fed. Reg. at 54,051
[R007597].
5. As of January 14, 1996, a “legal
notice, announcing the proposed rule
[regarding the Reintroduction], the two
hearings, and inviting public comment”
had been published in a total of sixteen
different newspapers located in the
Arizona, Utah, and Nevada. 61 Fed.
Reg. at 54,051 [R007597].
Case 3:09-cv-08011-PGR Document 116 Filed 12/10/10 Page 21 of 35
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
INTERVENOR’S STATEMENT OF
MATERIAL FACT
22
STATEMENT OF DISPUTED FACTS
6. The comment period deadline
[regarding the Reintroduction] of
February 1, 1996, was extended to April
1, 1996, “to address the comments and
concerns of the communities located
within the proposed experimental
population area. During the extension
period a series of eight meetings were
conducted with State, County, and local
governments and industry
representatives located within the
proposed experimental population area
to address their specific concerns.” 61
Fed. Reg. at 54,051 [R007597].
7. A Finding of No Significant Impact
(“FONSI”) [regarding the
Reintroduction] was completed on
February 29, 1996, and a revised version
of that FONSI “was signed on
September 23, 1996[.]” 61 Fed. Reg. at
54,051 [R007597].
Case 3:09-cv-08011-PGR Document 116 Filed 12/10/10 Page 22 of 35
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
INTERVENOR’S STATEMENT OF
MATERIAL FACT
23
STATEMENT OF DISPUTED FACTS
8. The final rule for the Reintroduction
was published October 16, 1996, and
began with the following summary:
The U.S. Fish and WildlifeService (Service), incooperation with theArizona Game and FishDepartment, and the U.S.Bureau of LandManagement, plans toreintroduce Californiacondors (Gymnogypscalifornianus) into northernArizona/southern Utah andto designate these birds as anonessential experimentalpopulation under theEndangered Species Act . . .. This California condorreintroduction does notconflict with existing oranticipated Federal or Stateagency actions or currentand future land, water, or airuses on public or privatelands.
61 Fed. Reg. at 54,050 [R00759]
9. Sport hunting is within the class of
“current and future” uses that “should
not be restricted due to the designation
of the nonessential experimental
population of California condors.” 61
Fed. Reg. at 54,050 [R007596].
Case 3:09-cv-08011-PGR Document 116 Filed 12/10/10 Page 23 of 35
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
INTERVENOR’S STATEMENT OF
MATERIAL FACT
24
STATEMENT OF DISPUTED FACTS
10. The Service has clearly stated
Section 10(j) (i.e., 16 U.S.C. § 1539(j))
of the Endangered Species Act (the
“ESA”) “relax[es] regulations governing
the protection of reintroduced
populations of endangered species” and
“allows the Service to manage the
experimental population in a manner
that will ensure that current and future
land, water or air uses and activities
should not be restricted and the
population can be Planning for recovery
purposes.” 61 Fed. Reg. at 54,049,
54,055 [R007595, R007601].
11. As part of the Reintroduction, The
Service recognized “the nonessential
experimental population designation[,
among other things, was] necessary to
receive cooperation of the affected
landowners, agencies, and recreational
interests in the experimental population
area.” 61 Fed. Reg. at 54,044, 54,050
[R007590, R007596].
Case 3:09-cv-08011-PGR Document 116 Filed 12/10/10 Page 24 of 35
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
INTERVENOR’S STATEMENT OF
MATERIAL FACT
25
STATEMENT OF DISPUTED FACTS
12. By the time the final rule regarding
the Reintroduction was published, the
Service had “conducted a minimum of
59 meetings, . . . published 42 legal
notices . . . , and developed a mailing list
approaching 400 in an attempt to inform
all interested parties and address their
concerns.” 61 Fed. Reg. at 54,051-52
[R007597-98].
13. Analysis of the comments [produced
during the Reintroduction comment
period] revealed 19 issues[;]” the
material accompanying the final rule
statement in the Federal Register
addresses each of those issues
individually. 61 Fed. Reg. at 54,051
[R007597].
14. One issue raised by the public
regarding the Reintroduction was: “How
will the operation of the California
condor reintroduction project at the
Vermilion Cliffs affect hunting in the
area?” 61 Fed. Reg. at 54,052
[R007598].
Case 3:09-cv-08011-PGR Document 116 Filed 12/10/10 Page 25 of 35
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
INTERVENOR’S STATEMENT OF
MATERIAL FACT
26
STATEMENT OF DISPUTED FACTS
15. The Service’s response to the issue
expressed in Intervenor’s Material Fact
No. 14 included statements that “[t]he
field operation of the reintroduction
project will have no impact on the[]
hunts” that occur in the area, other than
the temporary closures needed for the
actual release of condors (affecting only
ten acres), and that “no restrictions are
being placed on public hunting
opportunities or any other outdoor
recreational activities.” 61 Fed. Reg. at
54,052 [R007598].
16. One issue raised by the public
regarding the Reintroduction was: “Lead
poisoning could be a
problem . . . . How does the Service
plan to address this potential threat to
condors?” 61 Fed. Reg. at 54,054
[R007600].
Case 3:09-cv-08011-PGR Document 116 Filed 12/10/10 Page 26 of 35
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
INTERVENOR’S STATEMENT OF
MATERIAL FACT
Intervenor notes that it does not agree with the Service that deaths related1
to the use of lead ammunition are “to be expected[.]”
27
STATEMENT OF DISPUTED FACTS
17. The Service’s response to the issue
expressed in Intervenor’s Material Fact
No. 16 included statements that the
Service did “not intend to request
modifications or restrictions to the
current hunting regulations anywhere in
the vicinity of the Vermilion Cliffs
release site or in the experimental
population area[;]” the Service also
noted that “[s]ome condor deaths from
this and other sources of mortality are to
be expected, but will presumably be
more than compensated by natural and
captive reproduction.” 61 Fed. Reg. at1
54,055 [R0075601].
18. “The first release of condors into the
wild in northern Arizona occurred on
December 12, 1996.” ASRMP056143.
19. As of July 31, 2007, ninety-six
“condors have been released in
Arizona.” ASRMP056144.
Case 3:09-cv-08011-PGR Document 116 Filed 12/10/10 Page 27 of 35
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
INTERVENOR’S STATEMENT OF
MATERIAL FACT
28
STATEMENT OF DISPUTED FACTS
20. As part an effort to reduce “the
amount of lead available to condors[,]”
the Arizona Game and Fish Department
(the “Department”) “administered a free
non-lead ammunition program for the
fall 2005 and 2006 hunting seasons in
game management units within the
condor range in Arizona.” R014966.
21. The “voluntary lead-reduction
efforts [i.e., what is mentioned in
Intervenor’s Material Fact No. 20] have
reduced the amount of lead available to
condors in Arizona[, and the free non-
lead ammunition program] has also
received overwhelmingly positive
feedback from the hunting and
environmental communities,
demonstrating the merits of the ground-
breaking cooperative effort.” R014970.
Case 3:09-cv-08011-PGR Document 116 Filed 12/10/10 Page 28 of 35
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
INTERVENOR’S STATEMENT OF
MATERIAL FACT
29
STATEMENT OF DISPUTED FACTS
22. The Arizona Game & Fish
Department (and others it works with)
plans “to significantly increase hunter
outreach efforts in an attempt to reach a
90-100% participation rate [in program
mentioned in Intervenor’s Material Fact
No. 20] by big game hunters within the
core condor range.” R014970.
23. In February of 2008, the Bureau of
Land Management (the “Bureau”)
adopted Records of Decision (“RODs”)
and Resource Management Plans
(“RMPs”) regarding Vermillion Cliffs
National Monument (“VCNM”), a
portion of Grand Canyon Parashant
National Monument (“GCPNM”) and an
area between the two designated as the
Arizona Strip Field Office (“ASFO”).
ASRMP062316-7, ASRMP062586-7,
ASRMP062911-2.
24. The GCPNM “is administered
jointly by the [Bureau and the National
Parks Service]; therefore, the [National
Parks Service] prepared a separate
ROD” for the portion of GCPNM that it
administers. ASRMP062590.
Case 3:09-cv-08011-PGR Document 116 Filed 12/10/10 Page 29 of 35
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
INTERVENOR’S STATEMENT OF
MATERIAL FACT
30
STATEMENT OF DISPUTED FACTS
25. “The Arizona Strip FO [Field
Office] encompasses roughly 1.98
million acres located between the two
Monuments in both Coconino and
Mohave Counties: 1,679,896 acres of
BLM lands, 170,165 acres of Arizona
State Trust lands, and 130,962 acres of
private lands. The Arizona Strip FO also
contains 41 acres of USFS lands that
make up the Tanglefoot Work Area.”
ASRMP060330.
26. As stated in the ASFO ROD “the
decisions in the approved RMP only
apply to the 1,679,896 acres of BLM-
administered lands within the Arizona
Strip FO.” ASRMP062915.
27. GCPNM, ASF, and VCNM are
sometimes collectively referred to as the
Planning Area. ASRMP060326.
28. All of the RMPs were based on a
single document that served two
purposes; that document was the
Arizona Strip Proposed Plan/Final
Environmental Impact Statement
(“EIS”). ASRMP062316-7,
ASRMP062586-7, ASRMP062911-2.
Case 3:09-cv-08011-PGR Document 116 Filed 12/10/10 Page 30 of 35
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
INTERVENOR’S STATEMENT OF
MATERIAL FACT
31
STATEMENT OF DISPUTED FACTS
29. Comparison of the Planning Area
and the Nonessential Experimental
Populations area shows that the vast
majority of the Planning Area is within
the Nonessential Population Area. Thus,
based on the overlap of the two defined
areas, it would appear members of the
nonessential experimental population
have the potential to be present in almost
all of the Planning Area. See
ASRMP060327 (Planning Area map);
61 Fed. Reg. at 54,059 [R007605]
(Nonessential Experimental Population
Area map).
30. The EIS states five possible
alternatives regarding the future
management of the Planning Area,
including a “no action” alternative; not
one of those alternatives proposes an
action that increases the amount of lead-
based ammunition being used in the
Planning Area. ASRMP060353,
ASRMP060363-73, ASRMP060352-
645.
Case 3:09-cv-08011-PGR Document 116 Filed 12/10/10 Page 31 of 35
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
INTERVENOR’S STATEMENT OF
MATERIAL FACT
32
STATEMENT OF DISPUTED FACTS
31. None of the alternatives stated in the
EIS would have, if implemented,
increased the amount of lead-based
ammunition available to condors. See
ASRMP060352-645.
32. The EIS provides the explanation for
the alleged omission (raised at page 27
[filing Pagination] of Plaintiff’s Motion
for Summary Judgment [Docket
Document No. 98]). As to hunting in
the Planning Area, “regulation and
management of hunting is the
responsibility of AGFD [i.e., the
Department,]” and as to recreational
shooting, the BLM [i.e., the Bureau] did
not incorporate a non-lead requirement
because the Bureau and the National
Parks Service (“NPS”) intend to honor
the precepts of the Service’s “agreement
with the Coalition of County and Local
Governments that current and future
land, water, or air uses and activities
should not be restricted due to the
designation of the nonessential
experimental population, and/or the
presence or potential presence of
California condors.” ASRMP061475.
Case 3:09-cv-08011-PGR Document 116 Filed 12/10/10 Page 32 of 35
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
INTERVENOR’S STATEMENT OF
MATERIAL FACT
33
STATEMENT OF DISPUTED FACTS
33. The EIS defines recreational
shooting as “the discharge of any
firearm for any lawful, recreational
purpose other than the lawful taking of a
game animal. Recreational shooting
typically includes unstructured activities
such as target shooting, sighting in
rifles, and plinking in open country.”
ASRMP062272.
34. The Bureau, the Service, and the
Department all appear to agree regarding
the existence of a lead threat to
California condors. R014962,
ASRMP056169
Case 3:09-cv-08011-PGR Document 116 Filed 12/10/10 Page 33 of 35
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
INTERVENOR’S STATEMENT OF
MATERIAL FACT
34
STATEMENT OF DISPUTED FACTS
35. The Bureau, the Service, and the
Department have all taken steps to,
“where possible, reduce or eliminate the
sources of lead contamination for
condors within the Planning Area
[including] encouraging the use of non-
lead ammunition in the planning area.”
R014966, ASRMP056228, and
ASRMP060463.
/s/ C.D. Michel
C.D. Michel, Attorney for ProposedDefendant-Intervenor the National RifleAssociation
Case 3:09-cv-08011-PGR Document 116 Filed 12/10/10 Page 34 of 35
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
35
STATEMENT OF DISPUTED FACTS
CERTIFICATE OF SERVICE
I hereby certify that on this 10 day of December, I electronically transmitted theth
document STATEMENT OF DISPUTED FACTS IN RESPONSE TO STATEMENTOF MATERIAL FACTS FILED BY PLAINTIFF CENTER FOR BIOLOGICALDIVERSITY; STATEMENT OF UNDISPUTED FACTS IN SUPPORT OFDEFENDANT-INTERVENOR NATIONAL RIFLE ASSOCIATION'S MOTIONFOR PARTIAL SUMMARY ADJUDICATION to the Clerk’s Office using theCM/ECF System for filing and transmittal of a Notice of Electronic Filing to the followingCM/ECF registrants:
Adam F. KeatsJohn T. BuseCenter for Biological Diversity351 California Street, Suite 600San Francisco, CA 94104Tel.: (415) [email protected]@biologicaldiversity.org
Luther L. HajekUS Dept. Of Justice ENRDP.O. Box 663Ben Franklin StationWashington, DC 20044-0663Tel.: (202) [email protected]
Richard Glen PatrickUS Attorney’s Office 2 Renaissance Sq40 N. Central Ave., Suite 1200Phoenix, AZ 85004-4408Tel.: (602) [email protected]
John Buse Center for Biological Diversity 5656 South Dorchester AvenueSuite 3Chicago, IL 60637-1705Tel.: (323) [email protected]
Rickey Doyle Turner, Jr. Environment and Natural ResourcesDivisionWildlife & Marine Resources SectionU.S. Department of Justice Ben Franklin Section P.O. Box 7369Washington, DC 20044-7369Tel No.: (202) [email protected].
Sue A KleinUS Attorney's Office40 N Central Ave, Ste 1200Phoenix, AZ [email protected]
Anna Margo Seidman [email protected] Scott [email protected] Club International501 2nd St NEWashington, DC 20002
Brian Fredrick RussoLaw Office of Brian F. Russo111 W Monroe St, Ste 1212Phoenix, AZ [email protected]
Seth M. BarskyUS DOJ, Env. & Nat. Res. Div.601 D St NWWashington, DC [email protected]
/s/ C.D. MichelC.D. Michel
Case 3:09-cv-08011-PGR Document 116 Filed 12/10/10 Page 35 of 35