Case 1:12-cv JLK Document 36 Filed 08/06/13 USDC Colorado Page 1 of 24 UNITED STATES DISTRICT COURT DISTRICT OF COLORADO

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1 Case 1:12-cv JLK Document 36 Filed 08/06/13 USDC Colorado Page 1 of 24 Civil Action No. 12-cv JLK UNITED STATES DISTRICT COURT DISTRICT OF COLORADO RAGS OVER THE ARKANSAS RIVER, INC., Petitioner, v. THE BUREAU OF LAND MANAGEMENT, an agency of the United States; et al., and Respondents, OVER THE RIVER CORPORATION, Intervenor-Respondent. ANSWER OF INTERVENOR, OVER THE RIVER CORPORATION, TO FIRST AMENDED PETITION FOR REVIEW OF AGENCY ACTION Over The River Corporation ( OTR ), by its attorneys, Kaplan Kirsch Rockwell LLP, for its Answer to the First Amended Petition ( Petition ), states: INTRODUCTION 1. The allegations in 1 of the Petition contain a summary of Petitioner s lawsuit, to which no response is required. However, OTR admits the allegations in 1 of the Petition that the Over The River Project ( OTR Project or Project ) will cover 5.9 miles of a 42-mile stretch of the Arkansas River and that the fabric panels will be made of loosely woven polypropylene fabric. OTR specifically denies the allegation that the Project is a massive commercial art project and denies all allegations not specifically admitted.

2 Case 1:12-cv JLK Document 36 Filed 08/06/13 USDC Colorado Page 2 of OTR admits that some of the Project will be located within an area designated in the BLM Royal Gorge Resource Management Plan ( Royal Gorge RMP ) as an Area of Critical Environmental Concern ( ACEC ) and denies all other allegations in 2 of the Petition. 3. OTR admits the allegation in 3 of the Petition that the Arkansas Canyonlands ACEC is located in part within the Arkansas Headwaters Recreation Area ( AHRA ). OTR admits the allegation in 3 that the AHRA is a scenic area. OTR admits the allegation in 3 that the AH- RA is used for fishing, rafting, hiking and other outdoor recreational activities. The remainder of the allegations in 3 are vague and nonspecific, and OTR lacks sufficient information to admit or deny the same, and therefore denies them. 4. OTR lacks knowledge or sufficient information to admit or deny the allegations in 4 of the Petition that management of the AHRA is of great importance to the people of Colorado generally and to the people residing near the AHRA specifically and therefore denies those allegations. OTR admits that the AHRA is subject to a Cooperative Management Agreement among a number of federal and state agencies. OTR denies that the AHRA is managed by local interest groups. OTR lacks knowledge or sufficient information to admit or deny the allegations regarding the efficacy of the management system and therefore denies those allegations. 5. OTR admits that the impacts if any to the AHRA and its resources will be temporary, and denies the remainder of the allegations in 5 of the Petition. 6. OTR admits that the Project will require an approximately 28-month construction period, during significant parts of which no work will occur, and approximately three months for removal. OTR admits that to support the fabric panels over the Arkansas River, the Project depends on anchors and cables. OTR admits that that the removal plan proposes to decouple anchors one 2

3 Case 1:12-cv JLK Document 36 Filed 08/06/13 USDC Colorado Page 3 of 24 foot below ground surface, leaving the remainder of the foundation element in the ground permanently, and that anchors will be completely removed where installed for worker training purposes only. OTR admits that the Project requires drilling equipment to perform the installation. OTR denies all other allegations in 6 of the Petition. 7. OTR denies the allegations in 7 of the Petition. 8. OTR denies the allegations in 8 of the Petition. 9. OTR admits that there will be temporary, limited lane closures on U.S. 50 during construction and removal of the Project and that the highway is used by tourists and members of local communities within the AHRA for personal, recreational, and commercial purposes but otherwise denies the allegations in 9 of the Petition purports to state a legal conclusion to which no answer is required. However, OTR denies the allegations in 10 of the Petition. 11. OTR admits only that Petitioner seeks the referenced order in 11 of the Petition but denies that any such remedy identified in 11 is available or appropriate. JURISDICTION AND VENUE purports to state a legal conclusion to which no answer is required purports to state a legal conclusion to which no answer is required. PARTIES 14. OTR lacks knowledge or sufficient information to admit or deny the allegations in 14 of the Petition and therefore denies those allegations. 15. OTR admits the allegations of OTR admits that the Department of Interior is responsible for land use planning and pro- 3

4 Case 1:12-cv JLK Document 36 Filed 08/06/13 USDC Colorado Page 4 of 24 ject approval on the lands subject to its management; denies that the Department of Interior is solely responsible for management of the AHRA, some of which management is shared with the State of Colorado; denies that IBLA is an agency within the Department of Interior and admits that IBLA is an administrative tribunal within the Department of Interior; and admits all other allegations of OTR admits the allegations of OTR admits the allegations of OTR admits the allegations of OTR admits the allegations of 20. LEGAL FRAMEWORK The Federal Land Policy and Management Act ( FLPMA ) purports to state a legal conclusion to which no answer is required. 22. OTR admits only that the statute speaks for itself. 23. OTR admits only that the terms of the statute speak for themselves and denies all other allegations of 23 of the Petition. 24. OTR admits only that the terms of the statute speak for themselves and denies all other allegations of 24 of the Petition. 25. OTR admits only that the terms of the regulations speak for themselves and denies all other allegations of 25 of the Petition. 26. OTR admits only that the terms of the statute speak for themselves and denies all other allegations of 26 of the Petition. 4

5 Case 1:12-cv JLK Document 36 Filed 08/06/13 USDC Colorado Page 5 of 24 The National Environmental Policy Act ( NEPA ) 27. OTR admits only that the terms of the statute speak for themselves and denies all other allegations of 27 of the Petition. 28. OTR admits only that the terms of the statute speak for themselves and denies all other allegations of 28 of the Petition. 29. OTR admits only that the terms of the statute and regulations speak for themselves and denies all other allegations of 29 of the Petition. 30. OTR admits only that the terms of the regulations speak for themselves and denies all other allegations of 30 of the Petition. 31. OTR admits only that the terms of the regulations speak for themselves and denies all other allegations of 31 of the Petition. 32. OTR admits only that the terms of the regulations speak for themselves and denies all other allegations of 32 of the Petition. FACTUAL BACKGROUND The Over the River Project 33. OTR denies that the exhibition of the project will occur in July of any year and admits the other allegations in 33 of the Petition. 34. OTR admits the allegations in 34 of the Petition that the Project will cover 5.9 miles of a 42-mile stretch of the Arkansas River and that the fabric panels will be made of loosely woven polypropylene fabric. 35. OTR admits the allegations in 35 of the Petition. 5

6 Case 1:12-cv JLK Document 36 Filed 08/06/13 USDC Colorado Page 6 of OTR admits that U.S. Highway 50 and the Union Pacific Railroad parallel the Arkansas River between Salida and Canon City, Colorado. The term Art Project Area is vague and is nowhere defined, and OTR therefore denies all other allegations in 36 of the Petition. 37. The term Art Project Area is vague and is nowhere defined, and OTR therefore denies the allegations in 37 of the Petition. 38. OTR admits that Cañon City and Salida are the nearest incorporated population centers to the proposed project site. The term Art Project Area is vague and is nowhere defined, and OTR therefore denies all other allegations in 38 of the Petition. 39. OTR admits that to support the polypropylene fabric panels over the Arkansas River, the Project depends on anchors and cables but otherwise denies the allegations in 39 of the Petition. 40. OTR admits that the statement in 40 of the Petition was made in the Final EIS ( FEIS ). 41. The expression next to and/or beneath is vague and undefined, and OTR therefore denies the allegations in 41 of the Petition. OTR affirmatively states that the anchors will be placed near Highway 50 or the railroad tracks in most but not all project locations. 42. OTR denies that drilling activities will displace soil and mineral resources; the term Art Project Area is vague and is nowhere defined; and OTR therefore denies the allegations in 42 of the Petition. 43. OTR admits that the OTR Project is approved for a two-week exhibition period. 6

7 Case 1:12-cv JLK Document 36 Filed 08/06/13 USDC Colorado Page 7 of OTR admits that the Project will require an approximately 28-month construction period, during significant parts of which no work will occur; and admits that approximately 3,000 crew work days may be required to complete installation. 45. OTR admits that the Project requires drilling equipment and personnel to perform the installation, but denies all other allegations in 45 of the Petition. 46. OTR admits that the Project will involve small quantities of materials like fuel, oils and greases that are commonly used on construction sites throughout the nation to operate and maintain equipment, and that those materials will be used and stored pursuant to standard controls and safeguards. OTR denies all other allegations in 46 of the Petition. 47. OTR admits the allegation that removal would require approximately three months. 48. OTR admits that that the removal plan proposes to decouple anchors one foot below ground surface, leaving the remainder of the foundation element in the ground permanently, and that anchors will be completely removed where installed for worker training purposes only. OTR denies all other allegations in 48 of the Petition. The Arkansas Headwaters Recreation Area 49. OTR admits the allegations in 49 of the Petition that that the AHRA is a recreation area located in Chaffee, Lake, Pueblo, and Fremont Counties, Colorado, and is comprised of the surface of the Arkansas River, lands owned by the State of Colorado and lands owned by the United States. 50. OTR admits that the statement in 50 of the Petition was made in the FEIS. 51. OTR admits that the statement in 51 of the Petition was made in the FEIS. 52. OTR admits that the statement in 52 of the Petition was made in the FEIS. 7

8 Case 1:12-cv JLK Document 36 Filed 08/06/13 USDC Colorado Page 8 of OTR admits that the statement in 53 of the Petition was made in the FEIS. 54. OTR admits that the allegation in 54 of the Petition that the AHRA is subject to a Cooperative Management Agreement between a number of federal and state agencies. 55. OTR admits only that the terms of the Cooperative Management Agreement speak for themselves. 56. OTR admits only that the terms of the Cooperative Management Agreement speak for themselves. 57. OTR admits that there is a Citizen Task Force comprised of different stakeholders. OTR denies that BLM and the State manage the AHRA with the advice of a 14-member Citizen Task Force. Otherwise, OTR lacks knowledge or sufficient information to admit or deny the allegations in OTR admits only that the terms of the AHRA Plan speak for themselves. The Royal Gorge Resource Management Plan 59. OTR admits the allegations in 59 of the Petition. 60. OTR admits the allegations in 60 of the Petition. 61. OTR admits the allegations in 61 of the Petition. 62. OTR admits that the Royal Gorge RMP designates the ACEC but denies the remainder of the allegations in 62 of the Petition. 63. OTR admits the terms of the FLPMA statute speak for themselves. 64. OTR admits that the statement in 64 of the Petition was made in the FEIS. 65. OTR admits only that the terms of the RMP speak for themselves and denies all other allegations of 65 of the Petition. 8

9 Case 1:12-cv JLK Document 36 Filed 08/06/13 USDC Colorado Page 9 of OTR admits only that the terms of the RMP speak for themselves and denies all other allegations of 66 of the Petition. 67. OTR admits that the quoted statement was part of the contents of a memorandum from former BLM Field Manager Roy Masinton to the Front Range Resource Advisory Council dated June 23, OTR admits only that the terms of the FEIS speak for themselves and denies all other allegations of 68 of the Petition. BLM Approval of the Art Project 69. OTR admits the allegations in 69 of the Petition. 70. OTR denies the allegations in 70 of the Petition. 71. OTR admits that scoping meetings occurred in January and February of 2006 and denies the remainder of the allegations in 71 of the Petition. 72. OTR admits the allegation in 72 of the Petition. 73. OTR admits the statement in 73 of the Petition was made in the FEIS. 74. OTR admits that the Notice of Intent published in the Federal Register speaks for itself. 75. OTR admits the statement in 75 of the Petition was made in the FEIS. 76. OTR admits the allegation in 76 of the Petition. 77. OTR denies that the OTR Plan was inadequate to analyze the impacts of the Project but admits that Christo submitted additional information requested by BLM. 78. OTR admits that Christo submitted additional information requested by BLM but otherwise denies the allegation in 78 of the Petition. 9

10 Case 1:12-cv JLK Document 36 Filed 08/06/13 USDC Colorado Page 10 of OTR admits the allegation in 79 of the Petition. 80. OTR admits the allegation in 80 of the Petition. 81. OTR admits the allegation in 81 of the Petition. 82. OTR denies the allegation in 82 of the Petition, because four public meetings were held regarding the draft EIS. 83. OTR lacks knowledge or sufficient information to admit or deny the allegations in 83 of the Petition and therefore denies those allegations. 84. OTR admits the allegation in 84 of the Petition. 85. OTR admits the allegation in 85 of the Petition. 86. OTR admits only that the Record of Decision and Notice of Availability published in the Federal Register speak for themselves. 87. OTR lacks knowledge or sufficient information to admit or deny the allegations in 87 of the Petition and therefore denies those allegations. 88. OTR lacks knowledge or sufficient information to admit or deny the allegations in 88 of the Petition and therefore denies those allegations. 89. OTR lacks knowledge or sufficient information to admit or deny the allegations in 89 of the Petition and therefore denies those allegations. 90. OTR lacks knowledge or sufficient information to admit or deny the allegations in 90 of the Petition and therefore denies those allegations. 91. OTR lacks knowledge or sufficient information to admit or deny the allegations in 91 of the Petition and therefore denies those allegations. 10

11 Case 1:12-cv JLK Document 36 Filed 08/06/13 USDC Colorado Page 11 of 24 The Art Project as Recreation 92. OTR admits only that the terms of the FEIS, Record of Decision and Royal Gorge RMP speak for themselves. 93. OTR admits only that the terms of FEIS, Record of Decision and Royal Gorge RMP speak for themselves. 94. OTR admits only that the terms of the Royal Gorge RMP speak for themselves and denies all other allegations of 94 of the Petition. 95. OTR admits that the Over the River temporary work of art is unique, but denies that art and cultural uses of public land, such as The Burning Man event, are uncommon. 96. OTR denies the allegations in 96 of the Petition. 97. OTR denies the allegations in 97 of the Petition. 98. OTR denies the allegations in 98 of the Petition. 99. OTR denies the allegations in 99 of the Petition OTR denies the allegations in 100 of the Petition OTR denies the allegations in 101 of the Petition OTR denies the allegations in 102 of the Petition OTR admits only that the terms of the Royal Gorge RMP speak for themselves and denies all other allegations of 103 of the Petition OTR admits only that the terms of the Royal Gorge RMP speak for themselves and denies all other allegations of 104 of the Petition OTR admits only that the terms of the Royal Gorge RMP speak for themselves and denies all other allegations of 105 of the Petition. 11

12 Case 1:12-cv JLK Document 36 Filed 08/06/13 USDC Colorado Page 12 of OTR admits only that the terms of the FEIS, Record of Decision and Royal Gorge RMP speak for themselves and denies all other allegations of 106 of the Petition OTR admits only that the terms of the Royal Gorge RMP speak for themselves and denies all other allegations of 107 of the Petition OTR admits only that the terms of the Royal Gorge RMP speak for themselves and denies all other allegations of 108 of the Petition OTR admits only that the terms of the Royal Gorge RMP speak for themselves and denies all other allegations of 109 of the Petition OTR admits only that the terms of the Royal Gorge RMP speak for themselves and denies all other allegations of 110 of the Petition OTR denies the allegations in 111 of the Petition OTR denies the allegations in 112 of the Petition OTR denies the allegations in 113 of the Petition OTR denies the allegations in 114 of the Petition OTR denies the allegations in 115 of the Petition. The Art Project s Impacts to Protected ACEC Resources 116. OTR admits the allegations in 116 of the Petition OTR lacks knowledge or sufficient information to admit or deny the allegations in OTR lacks knowledge or sufficient information to admit or deny the allegations in

13 Case 1:12-cv JLK Document 36 Filed 08/06/13 USDC Colorado Page 13 of OTR lacks knowledge or sufficient information to admit or deny the allegations in OTR lacks knowledge or sufficient information to admit or deny the allegations in 120 Bighorn Sheep 121. OTR admits that a portion of the temporary work of art will occur in Bighorn Sheep Canyon and denies the remainder of the allegations in 121 of the Petition OTR admits that the bighorn sheep is the Colorado state animal but lacks knowledge or sufficient information to admit or deny the remainder of the allegations in 122 of the Petition and therefore denies those allegations OTR admits that bighorn sheep are present during parts of the year in parts of the 5.9- mile panel area OTR lacks knowledge or sufficient information to admit or deny the allegations in OTR admits that the project area contains bighorn sheep habitat and that bighorn sheep generally have some degree of fidelity to their home range. OTR states that bighorn sheep in the area have been stocked or introduced to the area. OTR lacks knowledge or sufficient information to admit or deny the remainder of the allegations in 125 of the Petition and therefore denies all other allegations in 125 of the Petition OTR lacks knowledge or sufficient information to admit or deny the allegations in

14 Case 1:12-cv JLK Document 36 Filed 08/06/13 USDC Colorado Page 14 of OTR admits that bighorn sheep are found on the north and south sides of the Arkansas River in parts of the 5.9 mile panel area and denies all other allegations in 127 of the Petition OTR lacks knowledge or sufficient information to admit or deny the allegations in OTR lacks knowledge or sufficient information to admit or deny the allegations in OTR denies the allegations in 130 of the Petition OTR denies the allegations in 131 of the Petition OTR admits only that the terms of the FEIS speak for themselves and denies all other allegations of 132 of the Petition. OTR specifically denies that any forested lands are being treated of the Petition states a legal conclusion to which no response is required. To the extent a response is required, OTR admits only that the terms of the FEIS and Record of Decision speak for themselves and denies all other allegations in 133 of the Petition OTR lacks knowledge or sufficient information to admit or deny the vague allegation concerning BLM project plans and therefore denies that allegation. OTR admits only that the terms of the FEIS speak for themselves and denies all other allegations in 134 of the Petition. Fisheries 135. OTR admits that the statement in 135 of the Petition was made in the FEIS OTR admits that the statement in 136 of the Petition was made in the FEIS OTR denies the allegations in 137 of the Petition. 14

15 Case 1:12-cv JLK Document 36 Filed 08/06/13 USDC Colorado Page 15 of 24 Avian Species 138. OTR admits that the statement in 138 of the Petition was made in the FEIS OTR lacks knowledge or sufficient information to admit or deny the allegations in OTR admits that the statement in 140 of the Petition was made in the FEIS OTR admits only that the terms of the FEIS speak for themselves and denies all other allegations of 141 of the Petition OTR admits only that the terms of the FEIS and Record of Decision speak for themselves and denies all other allegations of 142 of the Petition. Impact to Scenic Resources 143. OTR admits only that the terms of the Royal Gorge RMP speak for themselves OTR lacks knowledge or sufficient information to admit or deny the allegations in OTR lacks knowledge or sufficient information to admit or deny the allegations in OTR admits only that the terms of the VRM Class II guidance speak for themselves; states that agency guidance is nonbinding; and denies all other allegations of 146 of the Petition OTR admits only that the terms of the FEIS speak for themselves and denies all other allegations of 147 of the Petition OTR admits only that the terms of the FEIS speak for themselves and denies all other allegations of 148 of the Petition. 15

16 Case 1:12-cv JLK Document 36 Filed 08/06/13 USDC Colorado Page 16 of OTR admits only that the terms of the FEIS speak for themselves and denies all other allegations of 149 of the Petition OTR denies the allegations in 150 of the Petition OTR admits only that the terms of the FEIS speak for themselves and denies all other allegations of 151 of the Petition OTR admits only that the terms of the FEIS speak for themselves and denies all other allegations of 152 of the Petition OTR lacks knowledge or sufficient information to admit or deny the allegations in OTR lacks knowledge or sufficient information to admit or deny the allegations in 154 Impact to Cultural Resources (Traditional Recreation) 155. OTR admits the allegations in 155 of the Petition OTR lacks knowledge or sufficient information to admit or deny the allegations in OTR denies the allegations in 157 of the Petition OTR denies the allegations in 158 of the Petition. The Art Project s Impact to Life Along U.S. Highway OTR admits that the Project will occur along U.S. 50, that U.S. 50 is a federal highway, that U.S. 50 is generally an east-west corridor, and that U.S. 50 is used by a variety of travelers for personal, recreational and commercial purposes. OTR denies all other allegations in 159 of the Petition. 16

17 Case 1:12-cv JLK Document 36 Filed 08/06/13 USDC Colorado Page 17 of OTR denies the allegations in 160 of the Petition OTR admits that temporary lane closures, temporary lane shifts and temporary lane delays are expected during the Project and that the FEIS estimates that temporary lane closures will occur on 218 days, which is approximately 23% of the total Project work days, and denies the remainder of the allegations in 161 of the Petition OTR admits that the FEIS estimates that during the exhibition, traffic delay is estimated to be approximately 17 minutes in the westbound direction and 11 minutes in the eastbound direction for motorists traveling the entire length of the project corridor, and denies the remainder of the allegations in 162 of the Petition OTR admits that the FEIS states that travel delays during the two-week exhibition may be caused by lower overall average speeds throughout the corridor due to many visitors being unfamiliar with US 50, occasional stops for through traffic at primary intersections, and slower speeds in panel viewing areas and areas with traffic management facilities OTR admits that the FEIS considered and modeled the travel delay that may be caused by a vehicle crash or other incident and admits that the FEIS model demonstrated that a five-minute delay would generate a vehicle queue of approximately 1.2 miles and travel delay of approximately 43 minutes, that a 20-minute delay would generate a vehicle queue of approximately 2.9 miles and a travel delay of approximately 138 minutes, and a one-hour delay would generate a vehicle queue of three miles in the westbound direction and 0.8 miles in the eastbound direction and a travel delay of 1.8 hours in the westbound direction and 0.75 hours in the eastbound direction. OTR denies all other allegations of 164 of the Petition OTR denies the allegations in 165 of the Petition. 17

18 Case 1:12-cv JLK Document 36 Filed 08/06/13 USDC Colorado Page 18 of OTR admits only that the terms of the FEIS speak for themselves and denies all other allegations of 166 of the Petition OTR denies the allegations in 167 of the Petition OTR denies the allegations in 168 of the Petition OTR denies the allegations in 169 of the Petition OTR admits only that the terms of the FEIS and Record of Decision speak for themselves and denies all other allegations in 170 of the Petition. The Smith Appeal 171. OTR admits the allegations in 171 of the Petition OTR admits that the IBLA is a tribunal within the Department of Interior and denies all other allegations in 172 of the Petition OTR admits the allegations in 173 of the Petition OTR admits the allegations in 174 of the Petition OTR admits only that the terms of the Court s order speak for themselves and denies all other allegations of 175 of the Petition OTR admits only that the terms of the Court s order speak for themselves and denies all other allegations of 176 of the Petition OTR admits the allegations in 177 of the Petition OTR admits only that the terms of the Notice of Administrative Decision and Joint Case Management Order speak for themselves and denies all other allegations of 178 of the Petition OTR admits only that the terms of the Third Party Appeal speak for themselves and denies all other allegations of 179 of the Petition. 18

19 Case 1:12-cv JLK Document 36 Filed 08/06/13 USDC Colorado Page 19 of OTR admits only that the terms of the IBLA s order speak for themselves and denies all other allegations of 180 of the Petition OTR admits only that the terms of the IBLA s order speak for themselves and denies all other allegations of 181 of the Petition OTR admits only that the terms of the IBLA s order speak for themselves and denies all other allegations of 182 of the Petition. FIRST CAUSE OF ACTION (FLPMA: Failure to Amend the Royal Gorge RMP) 183. OTR incorporates by reference its answers to above OTR admits only that the terms of FLPMA speak for themselves and denies all other allegations of 184 of the Petition OTR admits only that the regulations speak for themselves and denies all other allegations of 185 of the Petition OTR admits only that the regulations speak for themselves and denies all other allegations of 186 of the Petition OTR admits only that the terms of the Royal Gorge RMP speak for themselves and denies all other allegations of 187 of the Petition OTR admits only that the terms of the FEIS speak for themselves and denies all other allegations of 188 of the Petition OTR admits only that the terms of the IBLA s order speak for themselves and denies all other allegations of 189 of the Petition OTR denies the allegations in 190 of the Petition. 19

20 Case 1:12-cv JLK Document 36 Filed 08/06/13 USDC Colorado Page 20 of 24 SECOND CAUSE OF ACTION (FLPMA: Inconsistency with the Royal Gorge RMP) 191. OTR incorporates by reference its answers to above OTR admits only that the terms of the statute speak for themselves OTR admits only that the terms of the regulation speak for themselves and denies all other allegations of 193 of the Petition OTR admits only that the terms of the FEIS and Record of Decision speak for themselves and denies all other allegations of 194 of the Petition OTR admits only that the terms of the Royal Gorge RMP speak for themselves and denies all other allegations of 195 of the Petition OTR admits only that the terms of the Royal Gorge RMP speak for themselves and denies all other allegations of 196 of the Petition OTR denies the allegations in 197 of the Petition OTR admits only that the terms of the IBLA s order speak for themselves and denies all other allegations of 198 of the Petition OTR denies the allegations in 199 of the Petition. THIRD CAUSE OF ACTION (FLPMA: Violation of the Royal Gorge RMP s ACEC Designation) 200. OTR incorporates by reference its answers to above OTR admits only that the terms of the statute speak for themselves OTR admits only that the terms of the Royal Gorge RMP speak for themselves and denies all other allegations of 202 of the Petition. 20

21 Case 1:12-cv JLK Document 36 Filed 08/06/13 USDC Colorado Page 21 of OTR admits only that the terms of the Royal Gorge RMP speak for themselves and denies all other allegations of 203 of the Petition OTR denies the allegations in 204 of the Petition OTR admits only that the terms of the IBLA s order speak for themselves and denies all other allegations of 205 of the Petition OTR denies the allegations in 206 of the Petition. FOURTH CAUSE OF ACTION (FLPMA: Violation of the Royal Gorge RMP s VRM Class II Designation) 207. OTR incorporates by reference its answers to above OTR admits only that the terms of the statute speak for themselves OTR admits only that the terms of the Royal Gorge RMP speak for themselves and denies all other allegations of 209 of the Petition OTR admits only that the terms of the BLM VRM Class II guidance speak for themselves; states that agency guidance is non-binding; and denies all other allegations of 210 of the Petition OTR denies the allegations in 211 of the Petition OTR lacks knowledge or sufficient information to admit or deny the allegations in OTR denies the allegations in 213 of the Petition. FIFTH CAUSE OF ACTION (FLPMA: Unnecessary and Undue Degradation of Resources) 214. OTR incorporates by reference its answers to above OTR admits only that the terms of the statute speak for themselves. 21

22 Case 1:12-cv JLK Document 36 Filed 08/06/13 USDC Colorado Page 22 of purports to state a legal conclusion to which no answer is required. To the extent an answer is required, OTR denies the allegations in 216 of the Petition OTR denies the allegations in 217 of the Petition OTR denies the allegations in 218 of the Petition OTR denies the allegations in 219 of the Petition OTR denies the allegations in 220 of the Petition OTR denies the allegations in 221 of the Petition. SIXTH CAUSE OF ACTION (NEPA: Failure to Analyze Environmental Impacts and Mitigation Measures) 222. OTR incorporates by reference its answers to above OTR admits only that the terms of the statute and regulations speak for themselves and denies all other allegations of 223 of the Petition OTR admits only that the terms of the regulations speak for themselves and denies all other allegations of 224 of the Petition OTR denies the allegations in 225 of the Petition OTR denies the allegations in 226 of the Petition OTR admits that BLM did not prepare a supplemental EIS and denies all other allegations in 227 of the Petition OTR denies the allegations in 228 of the Petition All allegations in the Petition that are not specifically admitted are denied. 22

23 Case 1:12-cv JLK Document 36 Filed 08/06/13 USDC Colorado Page 23 of 24 REQUEST FOR RELIEF OTR asks the Court to deny the requested relief and to enter judgment in favor of Respondents and Respondent-Intervenor. Respectfully submitted this 6 th day of August, /s/ Lori Potter Lori Potter John E. Putnam KAPLAN KIRSCH & ROCKWELL LLP 1675 Broadway, Suite 2300 Denver, CO (303) Phone jputnam@kaplankirsch.com lpotter@kaplankirsch.com ATTORNEYS FOR INTERVENOR OVER THE RIVER CORPORATION 23

24 Case 1:12-cv JLK Document 36 Filed 08/06/13 USDC Colorado Page 24 of 24 CERTIFICATE OF SERVICE I hereby certify that on this 6 th day of August, 2013, I filed the foregoing with the Court via CM/ECF and served a copy of the same through CM/ECF to the following: Michael Ray Harris Kevin Lynch Environmental Law Clinic University of Denver Sturm College of Law 2255 E. Evans Ave. Denver, Colorado mharris@law.du.edu Kristofer Swanson U.S. Department of Justice Environmental & Natural Resources Division Natural Resources Section P.O. Box 7611 Washington, DC Kristofor.swanson@usdoj.gov /s /Lori Potter Lori Potter 24