23G

• Board Meeting Date: 4/30/2004
• Description: 23G
• Board Meetings - Doc Type: Executive Session

party.' 5 U.S.C. § 706. "The APA's arbitrary and capricious standard is a deferential one;
administrative determinations may be set aside only for substantial procedural or substantive
reasons, and the court cannot substitute its judgment for that of the agency." Utahns for Better
Transp V United States Dept. of Transp , 305 F.3d 1152, 1164 (10t Cir. 2002).
In determining whether the agency acted in an arbitrary and capricious
manner, we must ensure that the agency decision was based on a consideration of
the relevant factors and examine whether there has been a clear error of judgment.
... We consider an agency decision arbitrary and capricious if the agency .. .
relied on factors which Congress had 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.
Colorado Envtl. Coalition v Dofnbeck, 185 F.3d 1162, 1167 (10t Cir. 1999) (internal quotations
and citations omitted).
2 Both Plaintiffs and Defendant - Intervenors filed motions to supplement the Administrative
Record submitted by the agency. Plaintiffs offer a copy of the Record of Decision on the Land Use
Authorization for Joe Wright Dam and Reservoir and Amendment to the Land and Resources
Management Plan issued on July 29, 1994 (attached to Plaintiffs' motion to supplement at Tab A), a copy
of a Decision Memorandum for the Secretary of Agriculture from James R. Lyons, Assistant Secretary,
signed on August 15, 1994 by Secretary of Agriculture Michael Espy (attached to motion at Tab B), and
a copy of § 1909.12, Forest Plan Implementation and Amendment Process from the Forest Service
Handbook. The Court finds it appropriate to supplement the Record with Tab A and the first two pages
of Tab B. Tab C will be treated as a courtesy attachment for the Court.
Defendant - Intervenors offer five documents to which there is no objection: WSSC's Decrees
dated 12/18/45, 4/24/79, and 5/12/86; a FEIS for Long Draw Reservoir Enlargement Project dated
2/7/73; and a DEIS for Long Draw Reservoir Enlargement Project dated 6/6/72. Those documents are
accepted. In addition, Intervenors offer eight documents relating to an application for water rights filed
by the United States in the District Court for Water Division No. 1, State of Colorado, for federal lands
including Roosevelt National Forest and Rocky Mountain National Park. The Court agrees with
Plaintiffs that supplementation of the record with these eight documents is inappropriate because the
Forest Service did not rely upon these documents in making its decision to grant the right -of -way permit
at issue As discussed in Section B of this order, the issue of reserved water rights is wholly unrelated to
the Federal Government's right to regulate and manage Federal lands.
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