MICHEL & ASSOCIATES, PCmichellawyers.com/wp-content/uploads/2010/11/12.10.10-NRAs... · MICHEL &...

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

mailto:[email protected]


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


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.


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



MATERIAL FACT

3


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.


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



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


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


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



MATERIAL FACT

5


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.


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



MATERIAL FACT

6


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.


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



MATERIAL FACT

7


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.


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



MATERIAL FACT

8


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,



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



MATERIAL FACT

9


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,



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



MATERIAL FACT

10


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.


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



MATERIAL FACT

11


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.”


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



MATERIAL FACT

12


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 . . .”


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



MATERIAL FACT

13


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.


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



MATERIAL FACT

14


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.


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



MATERIAL FACT

15


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.


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



MATERIAL FACT

16


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.


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



MATERIAL FACT

17


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.


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



MATERIAL FACT

18


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).


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


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).


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


MATERIAL FACT

20


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].


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


MATERIAL FACT

21


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].


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


MATERIAL FACT

22


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].


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


MATERIAL FACT

23


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].


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


MATERIAL FACT

24


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].


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


MATERIAL FACT

25


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].


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


MATERIAL FACT

26


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].


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


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


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.


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


MATERIAL FACT

28


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.


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


MATERIAL FACT

29


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.


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


MATERIAL FACT

30


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.


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


MATERIAL FACT

31


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.


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


MATERIAL FACT

32


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.


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


MATERIAL FACT

33


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


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


MATERIAL FACT

34


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


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


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







mailto:[email protected].






Date post:	08-Sep-2018
Category:	Documents
Upload:	vankhue
View:	216 times
Download:	0 times

MICHEL & ASSOCIATES, PCmichellawyers.com/wp-content/uploads/2010/11/12.10.10-NRAs... · MICHEL &...

Documents