1127 Auraria Parkway, Suite 106
Denver, CO 80204 303-455-0604
Attorneys for Appellant
Colorado Wild Public Lands Inc.
UNITED STATES DEPARTMENT OF THE INTERIOR
OFFICE OF HEARINGS AND APPEALS
INTERIOR BOARD OF LAND APPEALS
COLORADO WILD PUBLIC LANDS INC.,
U.S. BUREAU OF LAND MANAGEMENT,
RUTH WELCH, Colorado State Director
STEVE BENNETT, Field Manager, Colorado
River Valley Field Office,
IBLA No. 2015-0065
Re: Colorado River Valley Field
Office Decision Record,
Environmental Assessment (DOIBLM-
and Finding of No Significant
Impact for the Sutey Land
APPELLANT COLORADO WILD PUBLIC LAND’S
STATEMENT OF REASONS
TABLE OF CONTENTS
STATEMENT OF FACTS 1
I. CWPL HAS STANDING 1
II STANDARD OF REVIEW 2
III. THE LAND EXCHANGE VIOLATES THE FEDERAL LAND POLICY
AND MANAGEMENT ACT 2
A. The Appraisals Violates FLPMA And APA Standards 2
1. BLM Relied On 2012 Appraisals That Exceeded Their
Validity Period 2
2. The 2013 Verbal Appraisal Did Not Comply With Required
3. BLM Arbitrarily Determined Federal Parcel A’s Market Value 6
a) The Appraisal’s Conclusion That Parcel A Lacks Access
Is Contrary To Law And The Record 7
b) The Appraisal Ignored Related Sales Involving
Two Shoes Ranch 10
i. Base Properties 11
ii. West Crown Property 13
B. BLM’s Division Of Sutey Ranch Resulted In Violations of FLPMA 14
1. BLM Exceeded Its Land Exchange Authority 15
2. BLM’s Public Interest Determination Was Unlawful 16
3. The Land Donation Violated FLPMA’s Consistency
IV. BLM VIOLATED THE NATIONAL ENVIRONMENTAL POLICY ACT 19
A. BLM Violated NEPA’s Notice And Comment Procedures 20
1. BLM Unlawfully Withheld The Appraisals From Public
2. The Public Was Precluded From Commenting On Changes
To The Land Exchange 23
B. BLM Unlawfully Relied On Management Plans To Conclude Under
NEPA That Impacts Were Mitigated And Insignificant 25
1. The Conservation Easement’s Management Plan Is
2. An Undeveloped Plan For Sutey Ranch Does Not Support BLM’s
On December 17, 2014, Colorado Wild Public Lands Inc. (CWPL) filed an administrative
appeal with the Interior Board of Land Appeals (IBLA) challenging the U.S. Bureau of Land
Management’s (BLM) June 20, 2014 approval of a land exchange near Aspen, Colorado and the
Colorado State Director’s affirmation of the Land Exchange in denying CWPL’s Protest. The Land
Exchange involves transferring 1,240 acres of public lands located at the base of Mount Sopris –
known as Federal Parcel A – for inclusion in Leslie and Abigail Wexner’s 4300-acre private ranch
estate. Because the Land Exchange violates the Federal Land Policy and Management Act
(FLPMA) and the National Environmental Policy Act (NEPA) as well as standards set forth
under the Administrative Procedure Act (APA), IBLA should rescind BLM’s approval.
STATEMENT OF FACTS
CWPL incorporates the background provided in its December 17, 2014 Petition for Stay.
I. CWPL HAS STANDING
CWPL has previously provided the IBLA with evidence and argument to support its
standing to bring this appeal. Petition for Stay at 3-4; Opposition to Request for Dismissal at 5-9.
CWPL submits two additional standing declarations (Exhs. 22 and 23) from its members.1
Further, CWPL’s injury from losing public lands is supported by the Ninth Circuit.
The present challenge to FLPMA’s equal-value requirement is not merely a generalized
allegation of federal revenue loss at taxpayers’ expense. Rather, it is an effort by land
users to ensure appropriate federal guardianship of the public lands which they frequent.
If, by exchange, public lands are lost to those who use and enjoy the land, they are
certainly entitled under the APA to file suit to assure that no exchange takes place unless
the governing federal statutes and regulations are followed, including the requirement
that the land exchanged is properly valued by the agency.
Desert Citizens Against Pollution v. Bisson, 231 F.3d 1172, 1177 (9th Cir. 2000).
II. STANDARD OF REVIEW
1 Exhibits 22 and 23 are attached to this Statement of Reasons. All other exhibits
referenced were submitted with CWPL’s Petition for Stay. Other citations are to documents
BLM included in the administrative record and filed with the IBLA.
Review of BLM’s Land Exchange is based on the APA and considers whether BLM’s
decision is arbitrary, capricious, not supported by substantial evidence, or contrary to law.
Akootchook v. U.S., 271 F.3d 1160, 1164 (9th Cir. 2001); see Olenhouse v. Commodity Credit,
42 F.3d 1560, 1574-75 (10th Cir. 1994). The ‘substantial evidence’ test asks whether the record
contains “relevant evidence as a reasonable mind might accept as adequate to support a
conclusion and whether it demonstrates that the decision was based on a consideration of
relevant factors.” Hjelvik v. Babbitt, 198 F.3d 1072, 1074 (9th Cir. 1999).
III. THE LAND EXCHANGE VIOLATES THE FEDERAL LAND POLICY AND
BLM is authorized by FLPMA to engage in land exchanges. 43 U.S.C. § 1716(a),
§ 1715(a). BLM land exchanges, however, must comport with FLPMA’s rules, regulations,
handbooks and industry standards. In particular, BLM must receive “fair market value” for the
public lands being disposed in a land exchange, and the lands being exchanged must be “equal
value.” Id. § 1701(a)(9), § 1716(b). To satisfy both requirements, BLM conducts an appraisal of
the properties. Id. § 1716(d)(1). A BLM appraisal must (1) “determine highest and best use of
the property” and (2) assume private ownership. 43 C.F.R. § 2201.3-2(a)(1) & (2). A land
exchange also must serve the “public interest,” which means it results in better federal land
management and provides for the needs of the public. 43 U.S.C. §§ 1716(a); 1701(a)(1).
Further, land exchanges and donations must be consistent with applicable resource management
plans and goals. Id. § 1732(a); § 1715(b); 43 C.F.R. §§ 1610.5-3(a), 1601.0-5(b), 1601.0-5(c).
A. BLM’s Appraisals Violate FLPMA And APA Standards
1. BLM Relied On 2012 Appraisals The Exceeded Their Validity Period
BLM appraisals have a defined validity period of between 6 and 12 months from their
effective date. BLM Land Exchange Handbook at 7-7 (“Approved appraisal reports or appraised
values generally remain accurate for about six to twelve months from the effective date of the
value opinion”); see also Desert Citizens Against Pollution v. Bisson, 231 F.3d 1172, 1185 (9th
Cir. 2000) (finding appraisals exceeded 6-month validity period in BLM Handbook as well as
State’s “unwritten policy” of 12 months). BLM’s Land Exchange Handbook, adopted in
accordance with Uniform Appraisal Standards for Federal Land Acquisitions (UASFLA) and the
Uniform Standards of Professional Appraisal Practice (USPAP),2 acknowledges some flexibility
within the 6-12 month window, based on local market conditions or physical changes to the
property. BLM Land Exchange Handbook at 7-7.3 However, an appraisal that is older than 12
months requires a new appraisal. Id. Consistent with BLM’s Handbook, a 2006 BLM Instruction
Memorandum (IM) similarly states that “a new appraisal would generally be required” for
appraisals older than 12 months. Exh. 18 (BLM Instruction Memorandum (Sept. 14, 2006))
(further providing that “the standard validity period for most appraisals would be at least six
months from the date of valuation”). Because an appraisal’s validity period is limited, the IM
provides that BLM “field offices are encouraged to schedule and request appraisals so they are
one of the last tasks, if not the last task, to be completed before the decision.” Id.
BLM’s June 2014 approval of the Land Exchange, including the agency’s equal value
and fair market value determinations, relied on appraisals beyond their validity period. The
appraisals were not “one of the last tasks” performed prior to BLM’s approval of the Land
Exchange See Exh. 18. Instead, the appraisals were completed and effective on November 15,
2012. Exh. 7, 8 & 20. Accordingly, BLM unlawfully employed outdated appraisals.
BLM claims there is no “hard rule” requiring new appraisals after 12 months. BLM Stay
Opp. at 16; Exh. 5 (Protest Denial at 1). However, as noted, the UASFLA requires BLM to
develop formal regulations and procedures detailing “automatic reviews of reports on a
scheduled periodic basis” (UASFLA, § D-13), and BLM’s Land Exchange Handbook provides
that appraisals are valid for between 6 and 12 months.
2 BLM regulations provide that appraisals conform, “to the extent appropriate, with the
Department of Justice ‘Uniform Appraisal Standards for Federal Land Acquisitions.” 43 C.F.R. §
2201.3; see also Exh. 17 (Initiation Agreement at 3). The UASFLA is available at:
http://www.justice.gov/enrd/3044.htm. The USPAP is available at: http://www.uspap.org/.
3 BLM’s Handbook is available at:
Ignoring the general rule regarding the 6 to 12-month validity period, BLM argues in
briefing that there are times when the validity period may be exceeded depending on “local
market conditions.” BLM Stay Opp. at 17.4 However, based on the administrative record, BLM
did not invoke this reason for relying on appraisals beyond their validity period. And neither
BLM’s Stay Opposition nor the State Director provide a basis for deviating from the Handbook’s
6-12 month validity period. See Olenhouse, 42 F.3d at 1575 (finding agency conclusions will be
set aside “if unsupported by substantial evidence”). Meanwhile, as set forth in the Declaration of
Mark Weston, an expert appraiser with over 23 years of relevant experience, the local market is
subject to extreme fluctuations. Exh. 21. As Mr. Weston explains:
The real estate market in Pitkin County is subject to unique drivers, including
extraordinarily high market values, limited availability of private land, a very restrictive
development code, and high demand from extremely affluent people.
Exh. 21 at ¶ 3. As a result, the appraisals should have been revised to reflect the current market.
In sum, BLM must redo the appraisals. The appraisals from November 2012 are beyond
their validity period and cannot be relied upon to support BLM’s “fair market” and “equal value”
findings. See 43 U.S.C. § 1701(a)(9); § 1716(b).
2. The 2013 Verbal Appraisal Did Not Comply With Required Procedures
On November 1, 2013, BLM was provided with a verbal appraisal for all properties
involved in the Land Exchange. Exh. 19 (BLM Appraisal DOI Memorandum, Nov. 5, 2013).
The appraisal involved “a telephone conversation on November 1, 2013” between the appraiser
Kevin Chandler and BLM’s Kent Stevens, wherein the appraiser reviewed the market values
relevant to Land Exchange and concluded that “the current market still accurately reflects the
values previously reported.” Id. BLM refers to this appraisal as a “consultation,” while the
Wexners refer to it as a “check.” BLM Stay Opp. at 18; Wexners Stay Opp. at 22; see also Exh. 5
4 BLM and the Wexners suggest a validity period is not necessary for land exchange
appraisals because the values are “relative.” Exh. 5 (Protest Denial at 2); Wexners Stay Opp. at
20-21. This reasoning is not persuasive for two reasons. The 12-month validity period is
contained in the Land Exchange Handbook, meaning it applies specifically to land exchanges.
Second, appraisals are used not only to comply with FLPMA’s equal value requirement, but also
to ensure BLM receives “fair market value” for the public lands. 43 U.S.C. § 1701(a)(9).
(Protest Denial at 2). The record does not disclose the purpose of this verbal appraisal, or
whether it was undertaken in recognition that the November 2012 appraisals were outdated.
Regardless of its purpose or title, the verbal appraisal constitutes an “appraisal” subject to
required procedures. The appraiser opined “that the current market still accurately reflects the
values previously reported” and based his opinion on a “more current market analysis and other
general appraisal work since” the November 2012 appraisals. Accordingly, the verbal appraisal
meets the definition of an appraisal. Exh. 19. The USPAP defines an appraisal as “the act or
process of developing an opinion of value.” USPAP at U-1 (further noting appraisal’s
relationship to “previous value opinion” may be expressed). Moreover, the USPAP’s Advisory
Opinion 3 states: “[r]egardless of the nomenclature used, when a client seeks a more current
value or analysis of a property that was the subject of a prior assignment, this is not an extension
of that prior assignment that was already completed, it is simply a new assignment.”
It is undisputed that the November 2013 appraisal did not adhere to these required
USPAP procedures and standards. See BLM Land Exchange Handbook at 1-6 (requiring
compliance with USPAP and USAFLA); UASFLA at 7 (“Appraisal preparation, documentation
and reporting shall be in conformity with these [UASFLA] Standards, which are compatible with
standards and practices of both the appraisal industry and the current edition of the Uniform
Standards of Professional Appraisal Practice.”). “An oral real property appraisal must address
the substantive matters set forth in Standards Rule 2-2(b).” USPAP, Standards Rule 2-4. Rule 2-
2(b) of the USPAP Standards articulates reporting options available to appraiser, including the
content of a Summary Appraisal Report: identity of client and intended users, intended use of
appraisal, detailed description of property, basis of market value opinion, effective date of
appraisal and summary report, appraisal methods used, techniques employed and reasoning
supporting the opinion. USPAP, Standards Rule 2-2(b). Further, USPAP Standards Rule 2-1
requires “[e]ach written or oral real property appraisal report must: (a) Clearly and accurately set
forth the appraisal in a manner that will not be misleading; (b) contain sufficient information to
enable the intended users of the appraisal to understand the report properly; and (c) clearly and
accurately disclose all assumptions, extraordinary assumptions, hypothetical conditions, and
limiting conditions used in the assignment.” The November 2013 appraisal did not memorialize
its conclusion in a new appraisal report, and failed to disclose the relevant market, comparable
properties used, appraisal method, reasoning, or otherwise include supporting information.
Accordingly, the November 2013 verbal appraisal was not compliant with UASAP
procedures, must be redone, and cannot be relied upon to address the outdated 2012 appraisals.
3. BLM Arbitrarily Determined Federal Parcel A’s Market Value
The appraisal for Federal Parcel A established a market value of $2,500 per acre –
totaling $3,100,000. Exh. 7 at 59. This appraisal provided the basis for BLM to conclude that the
Land Exchange satisfied FLPMA’s “equal value” and “fair market value” requirements. See 43
C.F.R. § 1716(b); § 1701(a)(9). “Market values” are based on “the highest and best use of the
property” and the property’s value must be determined “as if in private ownership and available
for sale in the open market.” 43 C.F.R. § 2201.3-2(a)(1) & (2); id. § 2200.0-5(n) (further
defining “market value”). The “[h]ighest and best use means the most probable legal use of a
property, based on market evidence as of the date of valuation, expressed in an appraiser’s
supported opinion.” Id. § 2200.0-5(k). According to the UASFLA, the most probable use must
be “physically possible, legally permissible, financially feasible, and result in the highest value.”
UASFLA at 17 (noting “the appraiser’s determination of highest and best use is one of the most
important elements of the entire appraisal process”). Accordingly, as the courts have held, the
appraisal must consider the intended future use of the private property. Bisson, 231 F.3d at 1181-
85, 1187 (“The government must not wear blinders when it participates in a real estate
transaction, particularly if the result, as here, is the transfer of a flagrantly undervalued parcel of
federal land to a private party”); U.S. v. Benning, 330 F.2d 527, 531 (9th Cir. 1964) (“The
highest and best use is not found from the past history or present use of these lands but from
reasonable future probability in the light of the history of the region in general.”).5
The appraisal’s market value determination for Parcel A, however, ignored applicable
law regarding future access to Parcel A. It also arbitrarily dismissed relevant related sales.
Accordingly, BLM cannot rely of the Parcel A appraisal to ensure compliance with FLPMA’s
equal value and fair market value requirements.
a) The Appraisal’s Conclusion That Parcel A Lacks Access Is
Contrary To Law And The Record
The Parcel A appraisal states that “a lack of vehicle access significantly impacts values.”
Exh. 7 (Appraisal, Parcel A at 52, 53); id. at 12 (“there is no vehicle access to the subject
property”); Exh. 9 (BLM’s Appraisal Review, Parcel A at 5) (“Access is an important issue with
each of the subject parcels and especially with 1,240 acre Parcel A.”). BLM’s Stay Opposition
and the State Director’s Protest Denial similarly offer that “Parcel A is landlocked and currently
does not have any legal vehicle access.” BLM Stay Opp. at 23 (emphasis added); Exh. 5 (Protest
Denial at 8).
However, FLPMA and its regulations require that the appraisal values Parcel A based on
the intended future use by the private party. 43 C.F.R. § 2201.3-2(a)(2) (value as “if in private
ownership”). Industry standards set forth in the UASFLA concur, providing that “if the property
is clearly adaptable to a use other than the existing use, its marketable potential for such use
should be considered to the extent that potential affects market value.” UASFLA at 34. In this
respect, the appraisal must evaluate the future and intended use.
Under the Uniform Appraisal Standards for Federal Land Acquisitions, an appraiser must
assess each reasonably probable future use ‘in terms of its physical possibility, legal
permissibility, financial feasibility, and its degree of profitability.’
5 Industry practice treats private lands being conveyed to the government differently than
the public lands involved in a land exchange. Rather than look to future uses by the government,
appraisals establish value based on existing uses of private property. UASFLA at 18 (“The use to
which the government will put the property after it has been acquired is, as a general rule, an
improper highest and best use. It is the value of the land acquired which is to be estimated, not
the value of the land to the government.”).
Spanish Springs v. DOI, 328 Fed. App. 365, 367 (9th Cir. 2009) (emphasis added), citing
Benning, 330 F.2d at 531.
Indeed, courts have held appraisals invalid where they fail to assess future uses in
determining “highest and best use.” In Bisson, a land exchange involved conveying federal
lands to a private party for use as a landfill. Under federal ownership, these lands had been used
as part of a mine site. Bisson, 231 F.3d at 1175. The appraisal valued the federal lands for
mining use, but not its intended use as a landfill. Id. The court set aside the land exchange
“because landfill use was reasonably probable” and “the appraisal report failed to consider
market demand for this potential future use.” Id. at 1181-83. Several years later, the Ninth
Circuit again ruled that the appraisal illegally valued the parcel as though it would continue to be
a mine or as open space, and not a landfill. National Parks & Conservation Ass’n v. BLM, 606
F.3d 1058, 1067-69 (9th Cir. 2010) (finding “the use of the land as a landfill was not only
reasonable, it was the stated intent of the exchange”).
Here, upon conveyance to the Wexners, Federal Parcel A will become part of the Two
Shoes Ranch. The record confirms that Parcel A will become part of the Wexners’ privatelyowned
4,300-acre;. See Wexners Land Exchange Proposal (Feb. 11, 2011) at 1 (“The owners of
the Two Shoes Ranch ….have explored various options for completing a land exchange with the
Federal government to acquire certain parcels of Federal land”); id. at 3 (“Two Shoes Ranch
intends to consolidate the 1,240 acre  parcel with its other adjoining lands for more efficient
ranch management.”); BLM’s Response to Comments at 89 (“Under the Proposed Action,
…Parcel A would be incorporated into the Two Shoes Ranch”); Exh. 3 at 1 (noting Wexners
contacted BLM to enter into land exchange because Parcel A “lies in the middle of their ranch”).
This use was neither speculative nor conjectural.
Accordingly, Parcel A will have the same access as any other part of the Two Shoes
Ranch, including through Prince Creek Road and Thomas Road. See Exh. 7 (Appraisal, Parcel A
at 12) (noting “private roads that traverse the holding [Parcel A] are controlled by the
proponent”); id. at 21 (same); see also Wexners Stay Opp., Exh. P (showing additional access via
Thomas Road). BLM’s review of the appraisal concedes that “[t]he proponent [Wexners] can
provide vehicular access to each subject parcel [including Parcel A] from private roads.” Exh. 9
at 5 (BLM Appraisal Review, Parcel A). Consequently, the appraisal should have valued Parcel
A with such future access.
In response, BLM does not address FLPMA’s requirement to determine market value
based on intended future uses, but instead quips that “CWPL appears to principally suggest
access by trespassing private property.” BLM Stay Opp. at 23. This contention is specious, and
ignores CWPL’s argument entirely. That Parcel A will be included in the Two Shoes Ranch, and
thus all access deficiencies that may currently characterize the property will be nullified, is
neither speculative nor hypothetical, but the intended result of the Land Exchange. This is also
not a case where further approvals will be required to achieve necessary access. Cf. Ted Lapis,
178 IBLA 62, 74-75 (2009) (upholding appraisals’ finding that access was speculative because it
required future compliance with Wyoming law and additional costs). At bottom, the appraisal
violates FLPMA’s legal standard for determining market value and did not consider relevant
evidence on the issue.
Notably, had the appraisal evaluated Federal Parcel A as including vehicle access, the
market value assigned to this property would have been far greater than $2,500/acre. Parcel A’s
value was based on six comparable sales. Exh. 7 (Appraisal, Parcel A at 35-48). Sales 1-3 had
vehicle access. Based on the flawed premise that Parcel A lacked vehicle access, Sales 1-3 were
adjusted downward 50-75% in order to provide comparable sales to Parcel A:
– Sale 1 sold for $11,262 per acre, but the appraisal applied “a negative adjustment of
75% for access results,” and thus was reduced to “$2,816 per acre.”
– Sale 2’s market value was reduced by 50% due to vehicle access, resulting in a
downward adjustment from $9,107 per acre to a $4,554 per acre value; and,
– Sale 3 was similarly reduced; its per acre value of $8,571 was reduced by 65% to
account for vehicle access, resulting in a $3,000 per acre value. id.
Exh. 7 (Appraisal, Parcel A at 56, 52-53); see id. at 12 (conceding comparable sales “required
downward adjustment to account for … superior access”). The use of the actual values of Sales
1-3 would have resulted in a market value of $9,646/acre for Parcel A, rather than $2,500/acre —
or a total of $11,961,040 versus $3,100,000). Consequently, the appraisal erred by reducing the
value of comparable properties and significant deflating Parcel A’s market value.
The appraisal’s use of Sales 4-6 was similarly flawed. The appraisal found that these
three properties lack access and thus were comparable to Parcel A. Exh. 7 (Appraisal, Parcel A at
57) (“the holding lacked legal or physical access from any public roadway”); id. (“only has
seasonal vehicle access from jeep trails that cross the [adjacent] BLM tract”); id. (“seasonal
vehicle access only from County Road 121 via jeep trails that cross intervening public land”).
However, because Parcel A will not lack access, the appraisal should have dismissed Sales 4-6 as
comparable sales entirely, or their sale values should have been adjusted upwards. As is,
however, these properties are not comparable because they lack access.
The Wexners argue the “UASFLA prohibits valuing an exchange by considering
adjoining property of the proponents.” Wexners Stay Opp. at 33. Although the UASFLA
precludes consideration of the Land Exchange’s effect on the existing Two Shoes Ranch’s value,
this restriction does not relate to the appraisal’s error regarding Parcel A’s access. As explained:
The appraisals conducted for this land exchange only consider the values of the Federal
and Non-Federal Parcels. Private lands that are not proposed to be conveyed in the
exchange (i.e., the existing Two Shoes Ranch) will not be appraised; therefore the
potential value of these lands is unknown. The value of these private lands may increase,
decrease, or remain the same following the exchange, but this is beyond the scope of this
EA and the appraisal analysis.
BLM Response to Comments at 90. In short, this UASFLA restriction is not relevant to the
value of Parcel A and whether it will have access once the Land Exchange is complete.
b) The Appraisal Ignored Related Sales Involving Two Shoes Ranch
The Wexners began acquiring property in the Aspen area for a private ranch estate in
2002. In separate transactions, the Wexners purchased two base properties (the Bane Tracts and
Crystal Valley Ranch) for their Two Shoes Ranch. Exh. 21 (Weston Decl. ¶¶ 4-6). These
properties were acquired for $65,000,000, at an average purchase price of $16,085/acre. Id.6
Other parcels were later added to the Ranch estate, including the West Crown property, which
was sold to the Wexners in 2010 for $13,929/acre. Exh. 8 (Appraisal, West Crown at 31); Exh. 7
(Appraisal, Parcel A at 41).7 As noted above, the Wexners actively sought out the Land
Exchange to complete their Two Shoes Ranch estate because Parcel A is located between their
existing Ranch properties. Wexners Stay Opp., Exh. P.8 Parcel A and Two Shoes Ranch contain
the same topographical features and natural resources, including two creeks, rugged terrain,
wildlife, and native plants.
i. Base Properties
The appraisal for Parcel A failed to include the Wexners’ prior acquisitions of the Two
Shoes Ranch base properties as comparable sales. Exh. 7 (Appraisal, Parcel A at 35) (listing all
comparables considered). Instead, six other real estate transactions were deemed comparable
and relied upon in the appraisal. Id. Consequently, Parcel A’s market value of $2,500 per acre
was far below – more than six times below — what the Wexners paid for the base properties.
The Parcel A appraisal (Exh. 7) and BLM’s approval of the appraisal (Exh. 9) are silent
as to why the sales involving the Two Shoes Ranch base properties were omitted from the
appraisal and not chosen as comparable sales. In fact, the appraisal makes no mention of these
related transactions, even though these parcels are adjacent to Parcel A and also involved the
Wexners. For this reason alone, BLM’s appraisal for Parcel A was arbitrary, as it failed to
6 Before initiating BLM’s administrative process, the Wexners proposed a legislative land
exchange in 2008. Exh. 3 (Feasibility Report at 1); Exh. 4 (Pitkin County Memo at 2). The
Wexners sought support by offering to Pitkin County $950,000 for certain county projects and
programs. Exh. 4 (Pitkin County Memo at 7). The County elected to not support the Wexners’
proposal. Exh. 3 (Feasibility Report at 1). In 2010, the Wexners abandoned their attempt for
Congressional approval of the land exchange. Id.
7 The West Crown property is also referred to as “Non-Federal Parcel 2” in the Land
Exchange and as comparable Sale 3 in the Parcel A appraisal. Id.
8 The Wexners claim they sought acquisition of Parcel A to protect it “from oil and gas
development.” Wexners Stay Opp. at 28. The record undermines this contention. BLM Mineral
Report (Jan. 2013) at 3, 7.
consider relevant factors – the transactions involving Two Shoes Ranch – or even explain this
omission. See Hjelvik, 198 F.3d at 1074; Olenhouse, 42 F.3d at 1574-75.
Recognizing this deficiency, BLM’s Stay Opposition and the State Director offer a post
hoc explanation, claiming that the Two Shoes Ranch properties were far different: they involved
larger parcels, came with vehicle access, improvements, water rights, and development rights.
BLM Stay Opp. at 24; Exh. 5 (Protest Denial at 9). To the extent these explanations may be
considered, they are factually incorrect, based on a misreading of the law, and irrelevant.
The size of the two properties purchased previously for the Two Shoes Ranch are not
relevant, as value is determined on a per acre basis. For example, whereas the Two Shoes Ranch
acquisitions were valued at $16,085/acre, Parcel A’s market value was $2,500/acre. In any case,
at 1,240 acres, Federal Parcel A is comparable in size to the two base properties acquired to
establish Two Shoes Ranch. Exh. 21 (Weston Decl. ¶ 5) (one base property was 1,560 acres).
BLM and the State Director’s claim (BLM Stay Opp. at 24) that Parcel A lacks vehicle
access is flawed for the reasons stated above: upon completing the Land Exchange, Parcel A will
have access via the Two Shoes Ranch. This is not a distinguishing factor.
The claim (BLM Stay Opp. at 24) that the properties purchased for the Two Shoes Ranch
included “improvements” is factual wrong. The Bane Tracts – one of the base properties – was
vacant land at the time of the Wexners’ purchase. Exh. 21 (Weston Decl. ¶ 4). The other base
property – the Crystal Island Ranch – contained a home that was immediately demolished by the
Wexners upon acquisition, and thus this improvement did not contribute to its market value. Id.
(Weston Decl. ¶¶ 8-9).
Lastly, the development rights on the properties acquired to establish the Two Shoes
Ranch were the same. Based on the same Pitkin County zoning rules, the owner of the Bane
Tracts had applied for development rights through Pitkin County’s Growth Management Quota
System (GMQS) and was provided with 20-year vested residential development rights for very
large homes. Exh. 21 (Weston Decl. ¶ 10). The same zoning rules apply to Parcel A, and the
evidence shows that the acquisition of such development rights is reasonably probable if desired.
Id.9 In any case, BLM’s instructions provided that the appraisal “assume that the property
[Parcel A] is in private ownership, zoned consistent with similar non-Federal property in the area
(i.e., the current zoning of RS-30 by Pitkin County).” Exh. 9 at 3, 5.10 Accordingly, BLM’s
argument that Parcel A currently lacks development rights (BLM Stay Opp. at 24) does not
explain why transactions involving the two base properties were excluded from the appraisal.
ii. West Crown Property
In addition to ignoring the two base properties to determine Parcel A’s market value, the
appraisal also dismissed the Wexners’ 2010 purchase of 140-acre West Crown parcel. Exh. 7
(Appraisal, Parcel A at 41). Notably, Parcel A’s appraisal included as a comparable sale the
2005 purchase of this property – an admission that most all characteristics of the West Crown
property are comparable to Parcel A — but rejected the Wexners’ 2010 acquisition. Id. The 2005
transaction amounted to $8,571/acre and the 2010 transaction totaled $13,928/acre. Id. at 35.
In contrast to the two base properties discussed above, the appraisal here explains its
rejection of the 2010 sale price, claiming this transaction involved “a highly motivated buyer”
(the Wexners) and thus the price did not reflect market value. Exh. 7 (Appraisal, Parcel A at 41).
BLM’s Stay Opposition and the State Director’s Protest Denial offer the same explanation. BLM
Stay Opp. at 24; Exh. 5 (Protest Denial at 9).
The record, however, does not support this reasoning for rejecting the 2010 West Crown
transaction. See Olenhouse, 42 F.3d at 1574-75. Rather, record evidence contradicts the
9 Moreover, because Parcel A is adjacent to the two base properties, it contains the same
topography and wildlife habitat as the Two Shoes Ranch, such that these two characteristics
would not make it any more difficult to obtain development rights for Parcel A as it was for the
two base properties. Wexners Stay Opp. at 35 & Exh. U at ¶ 9.
10 The appraisal appears to have violated the instructions on this issue. The appraisal
claimed that the GMQS “Exemption” did not apply to Federal Parcel A. Exh. 9 at 5 (claiming
Parcel A “lack[ed] eligibility for a residential GMQS Exemption to build even one house”); Exh.
7 at 21. Public lands conveyed to a private party after 2000 do not qualify for a GMQS
exemption. Exh. 7 at 21. The appraisal was required, however, to assume Parcel A was in private
ownership, such that this Exemption would be available. Regardless of whether the exemption
applied, Parcel A could still “compete in the GMQS to obtain such [development] rights.” Id.
appraisal’s rationale. The 2010 sale ($1,950,000) was below the asking price. According to the
Parcel A appraisal, “the [West Crown] parcel was available [in 2010] for $3,000,000 through a
local realtor.” Exh. 7 (Appraisal, Parcel A at 41). Thus, even assuming the Wexners were
motivated, they did not overpay. In fact, their offer ($13,928/acre) was less than what they paid
for the Two Shoes Ranch base properties ($16,085/acre). See Exh. 21 (Weston Decl. ¶¶ 4-6).
Moreover, simply because the sale price for the West Crown property increased over a
five-year period does not mean a motivated buyer impacted its market value, especially in a
unique market like the Roaring Fork Valley and Aspen-Carbondale area. Exh. 4 (Pitkin County
Memo at 8); Exh. 21 (Weston Decl. ¶ 3). Notably, the appraisal provides no support for its
conclusory claim that the 2010 purchase price reflects a motivated buyer. See Exh. 7 (Appraisal,
Parcel A at 41). Similarly, the record lacks supporting evidence that the 2010 sale of the West
Crown property was not purchased at “market value,” wherein the “buyer and seller each acts
prudently and knowledgeably, and the price is not affected by undue influence.” See 43 C.F.R. §
B. BLM’s Division Of Sutey Ranch Resulted In Violations Of FLPMA
Because the Parcel A appraisal severely undervalued this federal property due to the
aforementioned legal errors, FLPMA’s “equal value” mandate forced BLM to change the scope
of the Land Exchange. The November 2012 appraisals determined that the market value of non-
Federal lands — particularly, Sutey Ranch — significantly exceeded the combined value of the six
federal parcels – most notably, Parcel A. Exh. 6 (Decision Record at 4). Thus, to achieve equal
value, BLM excluded almost half of Sutey Ranch from the Land Exchange and concurrently
agreed that the Wexners would donate the excluded portion to BLM, along with over $1 million
for future management of Sutey Ranch. Id. at 1-2, 6.12 However, in doing so, BLM exceeded its
11 The appraisal also fails to explain why this acquisition or the base property sales could
not have been discounted, as occurred whenthe appraisal discounted several of the comparable
sales based on access. See Exh. 7 (Appraisal, Parcel A at 56).
12 BLM divided Sutey Ranch into two parcels, whereby Parcel 1A became the ‘exchange’
parcel and Parcel 1B was declared the ‘donation’ parcel. Exh. 11. A “supplement” to the
FLPMA authority, and violated the “public interest” requirement for land exchanges and rules
applicable to land donations. See 5 U.S.C. § 706(2)(A) & (C).
1. BLM Exceeded Its Land Exchange Authority
When appraisals show that the lands or interests to be exchanged are not equal, FLPMA
and its regulations contain three specific ways that values can be “equalized:” cash equalization
payments, a waiver, or removing some lands from the proposed land exchange. 43 U.S.C. §
1716(b); 43 C.F.R. § 2201.6(a)-(c). Cash equalization payments cannot exceed 25% of the value
of the federal parcels. Id. § 2201.6(b). A waiver of a cash equalization payment may not exceed
3% of the federal lands being exchanged. Id. § 2201.6(c).13
Here, BLM attempted to satisfy FLPMA’s equal value mandate for the Land Exchange
through a land donation of Parcel 1B by the Wexners. A land donations, however, is not a
permissible method to equalize values. FLPMA regulations expressly limit the equalization
methods to those articulated. 43 C.F.R. § 2200.0-6(c) (“[L]ands or interests to be exchanged
shall be of equal value or equalized in accordance with the methods set forth in § 2201.6 of this
part”). The difference between the federal and non-federal lands exceeded the limit on waivers
and cash donations. BLM tried to avoid the 25% limit on a cash donation by accepting a land
donation, but land donations are not available under FLPMA. BLM cannot circumvent the 25%
limit on cash equalization payments by accepting a land, instead of cash, donation.
Congress could have included land donations as the method of equalizing values.
Congress certainly knew how to provide exceptions to the equal value requirement, as evident by
BLM’s ability to equalize values through waivers and cash equalization payments of up to 25%
of the federal lands. See 43 U.S.C. § 1716(b). And, elsewhere, FLPMA contemplates donations
of land being made to BLM. See id § 1715 (authorizing BLM “to acquire… by … donation…
appraisals calculated values for the two newly-divided parcels based on the market values found
in the November 2012 appraisal, allowing BLM to claim that the values were now equal. Id.
13 FLPMA contemplates one other means to equalize values, but it does not apply here.
When federal lands are “not more than $150,000,” BLM may engage in an expedited land
exchange of “approximately equal value” if certain conditions are met. 43 U.S.C. § 1716(h).
lands or interests therein”).14 But the absence of land donations in the context of equalizing
values for land exchanges reveals Congressional intent. See Russello v. U.S., 464 U.S. 16,
(1983) (“Congress includes particular language in one section of a statute but omits it in another
section of the same Act, it is generally presumed that Congress acts intentionally and purposely
in the disparate inclusion or exclusion.”); Padilla-Caldera v. Holder, 637 F.3d 1140, 1151 (10th
Cir. 2011). If Congress had intended for BLM to use land donations to satisfy the equal value
requirement, it would have included language to that effect. See id.
In sum, FLPMA and its regulations do not permit land donations to equalize values. In
accepting the land donation of Parcel 1B, BLM thus acted “in excess of statutory…authority.”
See 5 U.S.C. § 706(2)(C); see Olenhouse, 42 F.3d at 1574 (review of agency action involves
determining “whether the agency acted within the scope of its authority”).
2. BLM’s Public Interest Determination Was Unlawful
The exclusion of Parcel 1B from the Land Exchange caused BLM to violate FLPMA’s
“public interest” mandate. FLPMA section 206(a) requires BLM to determine that a land
exchange will serve the public interest. 43 U.S.C. § 1716(a); Bisson, 231 F.3d at 1180 n.8
(FLPMA authorizes land exchange “only on condition that the public interest will be served by
the trade”). A land exchange is in the public interest if the lands acquired by BLM will provide
for “better federal land management” and the needs of the public than the lands conveyed. 43
U.S.C. § 1716(a) (identifying several factors to consider); 43 C.F.R. § 2200.0-6(b). BLM must
explain and support its determination with record evidence. 43 C.F.R. § 2200.0-6(b).
Here, BLM’s Public Interest Determination extended beyond the lands included in the
Land Exchange. BLM balanced the benefits of including the entire Sutey Ranch, including the
lands removed from the Land Exchange in Parcel 1B. Exh. 6 (Decision Record at 2) (“In
14 The Sutey Ranch donation must be viewed in light of the whole Land Exchange. Indeed,
all of BLM’s analysis and approval documents, including BLM’s Final EA and Decision Record,
address the Land Exchange and donation as one transaction. But for the Land Exchange, the
Wexners would not be donating Sutey Ranch Parcel 1B, even with the accompanying “favorable
tax incentive.” See Wexner Stay Opp. at 26.
addition to its natural resource values, non-Federal Parcel 1 has high recreational values because
…”) (emphasis added); id. at 4 (BLM’s Decision Record stating “we determined that the
exchange and donation under the Proposed Action Alternative would better support local
economies, community growth, and expansion goals of the three counties”) (emphasis added).
BLM touts the fact that residential development – in the form of 278 buildable lots — will not
occur on the entire Suety Ranch. Id. at 3 (noting Sutey Ranch could have been “legally
subdivided … into as many as 278 buildable lots.”); BLM Director’s May 1, 2014 Notification to
Congress at 1 (representing “[a]cquisition of the non-Federal lands will: [e]liminate the threat of
development of the non-Federal lands into a planned subdivision of 278 buildable lots”). BLM
also touts the wildlife benefits of the whole 556-acre Sutey Ranch:
The Sutey Ranch has critical big game winter habitat in an area where large blocks of
undeveloped habitat are rapidly disappearing due to development pressures in the
Roaring Fork Valley. Protection of the ranch as open space will be of great benefit to
wildlife and the local community.
Exh. 6 (BLM’s Decision Record) at 3.
Including Parcel 1B in the Public Interest Determination is not permissible under
FLPMA’s plain language. The public interest balancing is specific to the lands being traded. As
made clear in the regulations, “[t]he resource values and the public objectives that the Federal
lands or interests to be conveyed may serve if retained in Federal ownership are not more than
the resource values of the non-Federal lands or interests and the public objectives they could
serve if acquired.” 43 C.F.R. § 2200.0-6(b)(1) (emphasis added); Antonio J. Baca, 144 IBLA, 35,
37 (1998) (highlighting balance is between “the selected public land” and “the offered private
land”). Because the 235-acre Parcel 1B was eliminated from the Land Exchange, that parcel
should not have been weighed against the public lands being conveyed to the Wexners. BLM
was required to make its Public Interest Determination solely based on the land included in the
Land Exchange. Nowhere in the Decision Record or administrative record did BLM articulate
the values specific to Parcel 1A of Sutey Ranch and use only those values for its Public Interest
Determination. By assessing the entire Sutey Ranch, BLM overstated the public benefits and
unlawfully weighed the values of the entire Sutey Ranch against the lands being disposed. See
Baca, 144 IBLA at 37 (public interest determination overturned if “contrary to law”).
BLM highlights its discretion in making a public interest determination. BLM Stay Opp.
at 20-21. CWPL does not dispute the agency’s recitation of the law, but have not challenged
BLM’s exercise of its discretion. Rather, BLM has violated the plain terms of FLPMA, section
206(a), by rendering its Public Interest Determination as if Parcel 1B was part of the Land
Exchange. BLM’s determination is thus a clear error of law.
BLM argues this violation cannot be raised. BLM Stay Opp. at 21. However, because
FLPMA, 43 U.S.C. § 1716(a), imposes a clear mandate on BLM to make a public interest
determination specific to lands included in a land exchange, BLM had “independent knowledge”
of its legal obligation. See Barnes v. U.S. Dep’t of Transp., 655 F.3d 1124, 1132 (9th Cir. 2011)
(finding ‘so obvious’ legal violations need not be raised in agency proceedings); Today’s IV v.
FTA, 2014 WL 3827489, *15 (C.D. Cal. May 29, 2014) (rejecting waiver argument because
agency had independent knowledge of issue).15
By considering lands not included in the Land Exchange, BLM’s Public Interest
Determination considered factors “which Congress has not intended for it to consider,” and thus
was arbitrary and capricious. See State Farm, 463 U.S. at 43. This Determination was also “not
in accordance with law” (5 U.S.C. § 706(2)(A)), because under FLPMA section 206(a), it must
be specific to lands involved in the land exchange, not other lands.
3. The Land Donation Violated FLPMA’s Consistency Requirement
FLPMA and its implementing regulations require BLM to determine that the acquisition
of donated lands is consistent with applicable land use plans and is needed to enhance
15 Further, CWPL’s Protest did challenge as unlawful BLM’s use of a land donation to
satisfy FLPMA’s equal value requirement for the Land Exchange, which also resulted in BLM’s
flawed public interest determination. In any case, because IBLA proceedings are part of BLM’s
process for approving a land exchange, the record is not yet complete. See National Parks &
Conservation Ass’n, 606 F.3d. at 1064-65 (noting record includes everything through IBLA
decision); cf. Theodore Roosevelt Conservation P’ship v. Salazar, 616 F.3d 497, 515 (D.C. Cir.
2010) (noting plaintiffs waived NEPA argument because not raised during IBLA proceedings).
management goals. 43 U.S.C. §§ 1732(a); 1715(b); 43 C.F.R. §§ 1610.5-3(a), 1601.0-5(b),
1601.0-5(c). BLM violated this consistency requirement for the Parcel 1B land donation.
Similar to its Public Interest Determination, BLM failed to acknowledge the division of
Sutey Ranch. The agency did not evaluate Parcel 1B independently to ensure it met FLPMA’s
consistency standards. See BLM Land Exchange Handbook at 7-9 (requiring donations to be
analyzed separately). Indeed, none of BLM’s findings are specific to Parcel 1B. According to
the Decision Record, BLM made the required consistency finding based on Sutey Ranch’s entire
556 acres. Exh. 6 (Decision Record at 6). BLM made no consistency finding specific to Parcel
1B and its 235 acres. The Decision Record identifies “recreation, habitat, [and] watershed” as
significant resource values found on Sutey Ranch. Id. at 6. However, these values are not
specific Parcel 1B because water rights and irrigated land characterize Parcel 1A only, and not
Parcel 1B. Exh. 11 (Supplemental Appraisal, Sutey Ranch at 1). BLM misspeaks by claiming
that “the public benefits associated with acquiring Parcel 1B are the same as those described
above for Parcel 1A.” BLM Stay Opp. at 5. Notably, the agency offers no support or citation for
this conclusory statement. Elsewhere (id. at 22-23), BLM makes claims that have nothing to do
with FLPMA’s consistency requirement for lands being donated.
IV. BLM VIOLATED THE NATIONAL ENVIRONMENTAL POLICY ACT
NEPA was enacted to “ensure that the agency will not act on incomplete information,
only to regret its decision after it is too late to correct.” Marsh v. Or. Natural Res. Council, 490
U.S. 360, 371 (1989). It accomplishes these goals through two main directives. First, NEPA
requires federal agencies to take a “hard look” at environmental impacts of their proposed
actions. New Mexico v. BLM, 565 F.3d 683, 704 (10th Cir. 2009). Second, NEPA mandates
agency transparency by informing and involving the public. Baltimore Gas v. NRDC, 462 U.S.
87, 97 (1983); Dine Citizens Against Ruining our Environment v. Klein, 747 F.Supp.2d 1234,
1256 (D. Colo. 2010). “By focusing both agency and public attention on the environmental
effects of proposed actions, NEPA facilitates informed decision-making by agencies and allows
the political process to check those decisions.” New Mexico, 565 F.3d at 703.
Under NEPA, each federal agency must circulate for public review an environmental
impact statement (“EIS”) for all “major Federal actions significantly affecting the quality of the
human environment.” 42 U.S.C. § 4332(2)(C); 40 C.F.R. § 1501.4. Federal agencies may first
prepare an EA that includes “sufficient evidence and analysis.” 40 C.F.R. §§ 1508.3; 1501.4(c),
(e), 1508.9(a). If an agency determines that an EIS is unnecessary, it must issue a “finding of no
significant impact” (FONSI) that provides a convincing statement of reasons as to why the action
“will not have a significant effect on the human environment.” Id. §§ 1508.9, 1508.13;
Wilderness Soc’y v. Wisely, 524 F. Supp.2d 1285, 1308 (D. Colo. 2007).
A. BLM Violated NEPA’s Notice And Comment Procedures
Public involvement is an agency’s NEPA process is paramount. 40 C.F.R. § 1500.1(b)
(“… public scrutiny [is] essential to implementing NEPA.”); § 1506.6 (requiring agencies to
“make diligent efforts to involve the public in preparing and implementing their NEPA
procedures”); see Brodsky v. Nuclear Regulatory Comm’n, 704 F.3d 113, 120-22 (2d Cir. 2013).
The public must be informed and its comments considered “[a]t all stages throughout the
[NEPA] process.” New Mexico, 565 F.3d at 704. “A public comment period is beneficial only
to the extent the public has meaningful information on which to comment.” Id. at 708; Bering
Strait Citizens for Responsible Resource Development v. U.S. Army Corps of Engineers, 524
F.3d 938, 953 (9th Cir. 2008) (“An agency, when preparing an EA, must provide the public with
sufficient environmental information, considered in the totality of the circumstances, to permit
the members of the public to weigh in with their views and thus inform the agency
BLM violated NEPA by not providing CWPL members and the public an opportunity to
comment on (1) the appraisals and (2) the exclusion of portions of the Sutey Ranch from the
Land Exchange. In the April 2013 Draft EA, BLM did not detail or make available the
completed appraisals or disclose that a substantial portion of Sutey Ranch would be excluded.16
As an initial matter, BLM attempts to excuse this NEPA violation by claiming public
comment is generally not required for an EA. BLM Opp. to Stay at 25. Indeed, whereas NEPA’s
notice and comment procedures are mandatory when an EIS is prepared (40 C.F.R. § 1503.1),
compliance with these procedures for EAs it is only required when the agency determines it is
practicable and appropriate. Bering Strait, 524 F.3d 962-53; 43 C.F.R. § 46.305 (BLM NEPA
regulations requiring notice and comment required on EAs when deemed “practicable”); id. §
46.305(a) (requiring “public notification and public involvement” when “practicable”); Id. §
46.305(b) (BLM “may seek comments on an environmental assessment if they determine it to be
appropriate”); see also Citizens for Better Forestry v. U.S. Dep’t of Agric., 341 F.3d 961, 970
(9th Cir. 2003) (“the public must be given an opportunity to comment on draft EAs”).
Here, however, BLM’s argument rings hollow. BLM made the requisite findings that
mandate compliance with NEPA’s notice and comment requirements. That is, BLM determined
that NEPA’s procedures for initial scoping and public comment on the Draft EA were practicable
and appropriate. See Final EA at 1-9 – 1-10 (explaining “the principal goals of scoping are to
allow public participation to identify issues, concerns, and potential impacts that require detailed
analysis”). Indeed, BLM undertook a NEPA scoping process in May 2012 and circulated the
Draft EA for public review and comment on April 29, 2013, providing a 30-day comment period.
Exh. 6 (Decision Record at 2); Final EA at 1-9 & 4-6. Accordingly, BLM’s belated argument
that public notice and comment is not always required ignores the agency’s own contrary NEPA
determination, and the fact that scoping occurred, a Draft EA was released, and BLM provided
16 BLM describes the proposed Land Exchange in its April 2013 Draft EA as including the
entire 556-acre Sutey Ranch. Draft EA at 2-2 – 2-3. BLM did not disclose — as a NEPAalternative
or even as an alternative that was considered but precluded from further study — that a
portion of Sutey Ranch would become a land donation. See Draft EA 2-7 – 2-10. The Draft EA
is also noticeably silent as to the results of the November 2012 appraisals.
for public comment. The issue here, therefore, is whether BLM’s NEPA process failed to
provide sufficient information so that the public could weigh in adequately.17
1. BLM Unlawfully Withheld The Appraisals From Public Comment
BLM could have released the appraisals for public review and comment at the same time
as the April 2013 Draft EA. All the appraisals had been completed six months before the Draft
EA was circulated, in November 2012. See Exh. 7, 8, 20. Instead, BLM chose to withhold them
from the public. The public was thus unable to comment on the appraisals and meaningfully
participate in the NEPA process. See Rickenbaugh Decl. ¶¶ 4, 15 (Exh. 13); Froelicher Decl. ¶ 6
With the appraisals, the public would have been able to comment on BLM’s compliance
with FLPMA. FLPMA is an environmental protection statute governing BLM’s administration
of public lands. Appraisals are undertaken in the context of land exchanges to avoid violations
of FLPMA’s “fair market value” requirement and “equal value” mandate. 43 U.S.C. §§ 1716(d),
1701(a)(9), 1716(b). Both restrictions prevent BLM from summarily disposing public lands
containing significant and valuable resources. See id. § 1701(a)(1), (a)(8) & (a)(12). Thus, the
appraisals educate BLM during its decision-making process and publicly disclose how BLM
intends to comply with these FLPMA requirements for public land conservation. By
withholding the appraisals during the NEPA public comment period, BLM prevented the public
from “weighing in” at a time when their comments would matter on issues concerning FLPMA
compliance. See 40 C.F.R. § 1508.27(b)(10) (relevant factors under NEPA include whether
17 In addition to notice and comment under NEPA, FLPMA, 43 U.S.C. § 1702, and the
APA, 5 U.S.C. § 554(c) also require adequate public comment on the Land Exchange. See
Portland Audubon Soc’y v. Endangered Species Committee, 984 F.2d 1534, 1541 (9th Cir. 1993)
(finding exemption to Endangered Species Act was adjudicatory and subject to public comment).
18 Notably, CPWL members took steps to obtain the appraisals. In May 2013, CWPL
members filed a Freedom of Information Act (FOIA) request with BLM to obtain the appraisals.
Rickenbaugh Decl. ¶ 15 (Exh. 13). When BLM failed to provide the appraisals and after an
administrative appeal, CWPL members filed a FOIA suit on December 13, 2013. Rickenbaugh v.
USDOI, 13-cv-3341 (D. Colo). The appraisals were eventually released, but the comment period
had closed and was not reopened by BLM.
action threats violations of environmental law); see also Bering Strait, 524 F.3d at 951-53; 40
C.F.R. § 1500.1(b).
2. The Public Was Precluded From Commenting On Changes To The Land
Through most of its administrative process, BLM represented to the public that the Land
Exchange included the entire 556-acre Sutey Ranch. The Wexners had purchased Sutey Ranch
in 2008 and 2010 for the sole purpose of exchanging it for Parcel A. Exh. 4 (Pitkin County
Memo at 2); Final EA at 1-2; Wexners’ Land Exchange Proposal (Feb. 11, 2011) (Wexner Press
Release noting “the 520 acres at Sutey Ranch has been increased by 37 acres (and additional
water rights) purchased by Two Shoes in late 2010”). The November 2012 appraisal assessed
Sutey Ranch as a whole, and valued its “556.63 acres of vacant land” at $5,290,000. Exh. 20
(Appraisal, Sutey Ranch at 2). The April 2013 Draft EA described the Land Exchange as
inclusive of the entire Sutey Ranch. Draft EA at 1-2.
However, almost immediately after the comment period closed on the Draft EA, BLM
changed the lands included in the Land Exchange by: (1) dividing Sutey Ranch into two parcels,
whereby Parcel 1A would be valued at $3,050,00 for 321 acres and Parcel 1B at $2,240,000 for
235 acres; and (2) deciding that Parcel 1B was no longer part of the Land Exchange and instead
would be donated. Western Land Group Letter to BLM (July 15, 2013) at 1 (“Offer of Land
Donation”). In August 2013, BLM requested and obtained a supplement to the Sutey Ranch
appraisal for the sole purpose of reducing the acreage included in the Land Exchange. Exh. 11 at
1, 4 (“The process of the Sutey Ranch / BLM Land Exchange, in order to equalize the proposed
exchange, requires a division of one parcel from the previously completed exchange appraisal
reports.”). As approved in June 2014, the Land Exchange included only 321 acres of Sutey
Ranch. Exh. 6 (Decision Record at 1-2, 6).
BLM could have revealed and sought public input on reformatting the scope of the Land
Exchange in this manner. The need to equalize the value of the exchanged properties was known
long before the Draft EA was prepared and released in April 2013. The November 2012
appraisals, for example, informed BLM that the values were inequitable, and caused the Wexners
to offer Parcel 1B as a donation to BLM. Western Land Group Letter to BLM (July 15, 2013) at
1 (“Based on the appraisals prepared for … [BLM], it is our understanding that the combined
value of the Non-Federal Parcels  exceeds the value of the six Federal Parcels.”).
Nonetheless, in violation of NEPA, BLM prevented the public and CWPL members from
commenting on this aspect of the Land Exchange. See Rickenbaugh Decl. ¶ 4, 15 (Exh. 13);
Froelicher Decl. ¶ 6 (Exh. 15). As discussed above, donating a portion of Sutey Ranch was
undertaken due to FLPMA’s rule that requires “equal value” land exchanges. This rule
implements FLPMA and its overarching policies in relation to the Nation’s public lands. See 43
U.S.C. § 1701(a) (requiring BLM to ensure U.S. public receives fair market value for its “public
lands and their resources,” and “disposal of a particular parcel will serve the national interest”);
Norton v. S. Utah Wilderness Alliance, 542 U.S. 55, 58 (2004) (emphasizing that “BLM’s
management of public lands has been governed by the Federal Land Policy and Management Act
of 1976 (FLPMA) …, which ‘established a policy in favor of retaining public lands for multiple
use management’”)). Indeed, FLPMA’s management goal of sustain yield “requires BLM to
control depleting uses over time, so as to ensure a high level of valuable uses in the future.”
Norton, 542 U.S. at 58. Accordingly, precluding public comment on BLM’s attempt to comply
with FLPMA undermines NEPA’s central goal of public scrutiny of — and participation in — an
agency’s decisionmaking process.
BLM’s Stay Opposition and the State Director highlight the fact that the final EA
contemplated the land donation of Parcel 1B. BLM Stay Opp. at 27 (“The final June 2014 EA
clearly contained a discussion of the donation of a portion of the Sutey Ranch parcel.”); Exh. 5
(Protest Denial at 7). This is true, but does not address the relevant NEPA violation. The public
was unable to comment on dividing and excluding portions of Sutey Ranch because it was absent
from the Draft EA and BLM did not re-open the comment period once this change was made.
B. BLM Unlawfully Relied On Management Plans To Conclude Under NEPA That
Impacts Were Mitigate And Insignificant
Under the APA and the ‘arbitrary and capricious’ standard of review in 5 U.S.C. §
706(2)(A), an agency’s findings and conclusions must be supported by evidence in the
administrative record. See Motor Vehicle v. State Farm, 463 U.S. 29, 43 (1983) (review
considers whether agency “offered an explanation for its decision that runs counter to the
evidence before the agency”); Olenhouse, 42 F.3d at 1575 (“requir[ing] agency’s action to be
supported by the facts in the record”). If an agency merely offers a conclusion and substantial
evidence in the record is wanting, courts will find that decision arbitrary. See e.g. Pennaco
Energy v. U.S. Dept. of Interior, 377 F.3d 1147, 1156 (10th Cir. 2004) (“In addition to requiring
a reasoned basis for agency action, the ‘arbitrary or capricious’ standard requires an agency’s
action to be supported by the facts in the record.”); Wisely, 524 F.Supp.2d at 1297, 1312 (ruling
BLM lacked evidence to support its NEPA finding).
Like other agency actions, BLM’s NEPA findings and conclusion for the Land Exchange,
including its FONSI, are reviewed under the arbitrary and capricious standard. Davis v. Mineta,
302 F.3d 1104, 1111, 1125 (10th Cir. 2002). Under these standards, conservation measures that
purportedly mitigate certain impacts must be fully developed and supported by record evidence.
Id. (finding mitigation “measures are speculative without any basis for concluding they will
occur”); National Audubon Soc. v. Hoffman, 132 F.3d 7, 17 (2d Cir.1997) (“When the adequacy
of proposed mitigation measures is supported by substantial evidence, the agency may use those
measures as a mechanism to reduce environmental impacts below the level of significance that
would require an EIS.”); Wetlands Action Network v. U.S. Army Corps of Engineers, 222 F.3d
1105, 1121 (9th Cir. 2000) (finding mitigation measures were fully developed and “extremely
detailed” such that agency “could determine the precise nature of many of the mitigation
measures at the time it made the permitting decision”); NPCA v. Babbitt, 241 F.3d 722, 733-34
(9th Cir. 2001) (“A perfunctory description or mere listing of mitigation measures, without
supporting analytical data, is not sufficient to support a finding of no significant impact.”).
Several courts have rejected an agency’s reliance on mitigation to offset known impacts
under NEPA. Wyoming Outdoor Council v. Army Corps of Engineers, 351 F. Supp.2d 1232,
1250-52 (D. Wy. 2005) (“Rather than being detailed and justified by some evidence in the record
that would support their efficacy, the mitigation measures mandated by [the permit] are vague
and speculative.”). One court found the mitigation measures “were not even developed, much
less evaluated.” San Luis Valley Ecosystem Council, 657 F.Supp.2d at 1245-46 (noting FWS did
not “evaluate the efficacy of many of the proposed safeguards”). Another court determined
that absent “detailed mitigation plans,” BLM could not support a FONSI because the severity of
impacts was unknown. Klein, 747 F.Supp.2d at 1258-59 (noting “permit revision decision
document contains only vague reference to ‘mitigation/data recovery plans’ which will be
conducted”). Further, reliance on mitigation was held unlawful when agency only provided a
“cursory discussion of the reclamation activities it plans to perform following the logging.”
Rocky Mountain Wild v. Vilsack, 843 F.Supp.2d 1188, 1197 (D. Colo. 2012).
Here, BLM relied on mitigation measures to address the Land Exchange’s adverse
impacts: (1) a conservation easement’s management plan for livestock grazing on Federal Parcel
A and (2) a management plan for recreation on Sutey Ranch (both Parcels 1A and 1B). These
two measures fail to meet NEPA’s evaluation requirements and do not support BLM’s FONSI.
1. The Conservation Easement’s Management Plan Is Nonexistent
“Federal Parcel A contains extensive habitat for the Harrington’s penstemon” – a plant
designated by BLM as a “sensitive species.” Biological Resources Report at 4.19 Parcel A
contains at least 55 acres of habitat occupied by the Harrington’s penstemon. Final EA at 3-114 –
3-116; 3-123; Biological Resources Report at 4 (“Please note, additional habitat for Harrington
19 BLM provides substantial protections for species listed as “sensitive species.” Final EA
at 3-97 (“it is BLM’s policy to initiate proactive conservation measures that reduce or eliminate
threats to BLM sensitive species[,] to minimize the likelihood of and need for listing of those
species under the ESA”); see Thomas Roosevelt P’ship v. Salazar, 616 F.3d 497, 505 (D.C. Cir.
2010) (“According to the Bureau’s Manual on Special Status Species,  the Bureau shall work
‘to improve the condition of special status species and their habitats to a point where their special
status recognition is no longer warranted.’ … The manual further states that any actions or
projects “authorized by BLM shall further the conservation of … special status species”).
penstemon is present on Parcel A, however a more detailed inventory would be required to
effectively map all occupied habitat.”). Livestock grazing within Parcel A has significantly and
adversely impacted this plant, “as the majority of the inflorescenses of Harrington penstemon
had been removed in the most heavily grazed areas.” Final EA at 3-119; Biological Resources
Report at 4. BLM adopted conservation measures applicable within Federal Parcel A that were
incorporated into the agency’s grazing permits and allotment management plans to address
impacts and improve conditions for the Harrington’s penstemon. Final EA at 3-119, 120
(measures include reduction in livestock on allotment, rotational grazing, and reducing number
of summer grazing days); Biological Resources Report at 5 (detailing areas along Thomas Creek
where livestock grazing has “significantly impacted” “both wetland and upland habitats”).
Upon completion of the Land Exchange, however, the protections applicable to a BLMsensitive
species and the specific conservation measures included in the permittee’s permits and
allotment plan will no longer apply, and Harrington’s penstemon habitat will be lost. Final EA at
3-123. Absent BLM’s measures, livestock grazing on Parcel A will continue (id. at 3-53) and
will have significant impacts on populations and the habitat of the Harrington’s penstemon.
To address such impacts and support its FONSI, BLM relied on the future development
of a management plan, as contemplated under a conservation easement. As BLM explained:
the easements would require that a Grazing Management Plan be developed by a natural
resource professional. Proper grazing management would be an important aspect of
managing the riparian/wetland habitats on Parcels A and B. When the Grazing
Management Plan for the conservation easements is developed, the new grazing system
would likely be evaluated to determine if it is allowing some recovery of the
riparian/wetland habitat along Thomas Creek on Parcel A or if additional changes are
BLM Response to Comments at 61; see Wexners Stay Opp., Exh. B at 1 (Colorado Parks and
Wildlife wishing “to assist in the development and implementation” management plan).
However, under NEPA and the APA, BLM cannot rely on the development of a future
management plan to eliminate known adverse impacts to the Harrington’s penstemon. The
grazing management plan contemplated under the conservation easement has not been
developed. The record thus contains no evidence regarding the efficacy of this nonexistent plan
and could not support the finding that there will be no significant impacts on the Harrington’s
penstemon from livestock grazing. Moreover, the conservation easement does not require
development of a grazing plan by a date certain and does not include any specific management
requirements that address impacts to the Harrington’s penstemon. See Final EA, App. A at A-3 –
A-4. In sum, BLM’s findings and FONSI relating to grazing impacts on the Harrington’s
penstemon is without support.
2. An Undeveloped Plan For Sutey Ranch Does Not Support BLM’s FONSI
In BLM’s NEPA review, the agency anticipated new environmental impacts on Sutey
Ranch from recreation activities. Final EA at 3-29 – 3-30. As BLM concedes, “new
management requirements would be incurred as a result of the Proposed Action.” BLM’s
Response to Comments at 59.
To address and reduce these impacts, BLM relied on a future management plan. Final EA
at 3-29 – 3-30 (“It is reasonable to assume additional recreation and human presence on the Non-
Federal Parcels as a direct effect of the proposed land exchange would increase the management
responsibilities for the CRVFO. However, the amount of increased management responsibilities
would be addressed in the subsequent, site-specific management plan for the Non-Federal
Parcels should the land exchange be approved.”); id. at 2-4 – 2-5; see also BLM Response to
Comments at 59 (“the amount of increased management responsibilities would be addressed in
the subsequent, site-specific management plan for the Non-Federal Parcels should the land
exchange be approved”); id. at 67 (BLM relying on “site-specific management plan that would
address all BLM planning concerns such as recreation, trail building, public access, wildlife,
water rights and usage and parking, among others”); Final EA at 2-14 (“The … site-specific
management plan that would be implemented under the Proposed Action are expected to
maintain or improve conformance with [public lands’] standard[s].”). Through a future
management plan, which will be funded by the Wexners’ donation, BLM could address impacts
from increased recreation use, impacts to wildlife and water rights. Wexners’ Land Exchange
Proposal (Feb. 11, 2011) (“the donation is meant to insure that the Sutey property in particular
has sufficient management funding: … (2) to allow for expansion of the adjoining Red Hill
Special Management Area’s non-motorized trail network onto the Sutey Ranch in a manner that
is sensitive to wildlife values”); id. at 6 (noting financial donation to be used for “management
costs associated with wildlife and resource protection and public recreational use”); Exh. 3
(December 2011 Feasibility Report) at 6 (donation needed “to complete management plans for
the lands acquired as well as to fund ongoing management costs associated with wildlife and
resource protection and public recreation use of these properties”); id. (underscoring costs for
“management of the water rights associated with the Sutey Ranch”).
However, like the grazing management plan contemplated by the conservation easement,
BLM had no support to conclude that impacts from recreational use of Sutey Ranch will result in
no significant impacts. There is no management plan, and thus the adequacy of a future plan is
unknown. Indeed, BLM concedes that “[t]he future, site-specific management plan is only a
concept at this time and therefore it is not, and cannot be, analyzed in detail in the EA.” BLM
Response to Comments at 60; id. at 9 (“Should the Land Exchange be approved, a separate
Environmental Assessment and site-specific management plan would be developed with public
involvement to address resource management and public use.”).20
BLM notes the management plan for the Red Hill Special Recreational Management
Area provides a template for the Sutey property. Final EA at 2-5. However, notably absent from
BLM’s EA is an analysis of the adequacy of the Red Hill plan. Indeed, the Red Hill
Implementation Plan was prepared in 1999, over 15 years ago, and BLM has not shown the Plan
contains objectives and management actions applicable to Sutey Ranch, or that the objectives
and actions identified in 1999 continue to be relevant and applicable. See Wexners Stay Opp.,
Exh. B at 2 (“CPW still recommends that the Sutey Ranch not be managed under the Red Hill
20 Similarly, BLM also violated NEPA because CWPL was unable to review and provide
comments on an undeveloped management plan for the Sutey Ranch parcels.
Special Recreation Management Plan.”) (emphasis added). Further, although the 1999
Implementation Plan adopts deadlines for completing certain management actions, BLM has
provided no information or supporting documentation detailing whether these actions were
implemented in a timely fashion, if at all, and their efficacy. Notably, the Colorado Parks and
Wildlife (CPW) Department criticized reliance on the 1999 management plan because that plan
only concerns recreational impacts (id.) and does not address “the importance of the Sutey
property as winter range to both deer and elk.” BLM Response to Comments at 68 (arguing for
winter closure of Sutey property); id. at 69 (same critique from Garfield County: “recreation
access must be compatible with wildlife conservation”). In sum, BLM lacked record support for
relying an undeveloped management plan for adverse impacts to Sutey Ranch.
As set forth above, the IBLA should reverse BLM’s approval of the Land Exchange.
February 3, 2015
By: /s/ Neil Levine
1127 Auraria Parkway, Suite 106
Denver, CO 80204
Attorney for Appellant
Colorado Wild Public Lands
CERTIFICATE OF SERVICE
I, Neil Levine, hereby certify that I served the foregoing STATEMENT OF REASONS
upon the following individuals via electronic mail per the parties’ agreement, on this 3rd day of
Ann C. Umphres
Regional Solicitor’s Office
U.S. Department of the Interior
755 Parfet St., Ste. 151
Lakewood, CO 80215
Thomas W. Korver
Charles B. White
Petros & White
1999 Broadway, Ste. 3200
Denver, CO 80202
Gideon I. Kaufman
Kaufman, Dischler & Mcallister
315 E. Hyman, Ste. 305
Aspen, CO 81611
_/s/ Neil Levine_______
1127 Auraria Parkway, Suite 106
Denver, CO 80204
Attorneys for Appellant
Colorado Wild Public Lands Inc.
UNITED STATES DEPARTMENT OF THE INTERIOR
OFFICE OF HEARINGS AND APPEALS
INTERIOR BOARD OF LAND APPEALS
COLORADO WILD PUBLIC LANDS INC.,
U.S. BUREAU OF LAND MANAGEMENT,
RUTH WELCH, Colorado State Director
STEVE BENNETT, Field Manager, Colorado
River Valley Field Office,
DECLARATION OF MAX AUERBACHER
I, Max Auerbacher, declare as follows:
1. My Name is Max Auerbacker and I live in Basalt, Colorado, less than 15 miles
from Parcel A, the BLM land at the foot of Mount Sopris that the Sutey Land Exchange
will make private. I am a member of Colorado Wild Public Lands
2. The Sutey Land Exchange will hurt me because it helps to destroy the tradition of
what hunting and fishing is and will cut off future generations from such wonderful
traditions by making hunting no longer a connection with the great outdoors. To
simply enjoy the peaceful woods is now only a frenry of orange and gunshots on a
single swarmed government ilail.
My dad moved to the Rockies from the big city. He loved the space and the sport of
hunting and the delicious meat that comes along with it. Why did he raise rne here in
the roaring fork valley? The saure reasons, the space for me to explore my valley and
to connect with the outdoors. Growing up, my dad would come home and have good
story of an arnazing shot and downfall of aremirkable beast. He’d come home with
enough meat to last a year. Every time he came home I knew I wanted to experience
the rush of hunting.
I got my hunter safety course completed and my dad took me to Parcel A below
Mt.Sopris. He had a fantastic camp st up, had the knowledge of every bush and tee
location, and acquired a quarter century of experience in this exact location alone to
pass down to me.
When the people tading see 1268 acres of land, I see a landscape gorgeous with red
and orange leaves and the remarkable surrounding mountains that teach you why it’s
called the great outdoors. The setting you wake up to as you pop your head out of a
tent has what made me proud to call myself a Colorado native. The challenge of
hiking, the autumn smell that runs across your nose, and the relarcation of not having
cell service for a relative to bug us. It mentally becomes the most peaceful place on
earttr. Problems that seem big get small as your eyes gaze at Sopris, the sheer size of
Sopris makes your problems seem puny and easy to fix, But you gotta keep your eyes
on the prize of why you’re out here on Parcel A, hunting.
6. I got my first bull that year. A small bull whose rack I sleep across every night in
remembrance of the sense of accomplishment and the happiness poured into my soul
for achieving such a goal. I could do it for years and I know Parcel A where my dad
takes me is a special location.
Of course it’s a hard blow when a billionaire decides to buy that happiness. They gave
me my bone and now they want to take it away. The land exchange cuts down a
tradition of hunting. It cuts down the ecosystem around you and crowds other public
lands making regular hunting spots impossible to enjoy.
Texas used to be a fun state for everyone, so many ranches have been built and all the
land has been bought up. Native Texans now have to come up here for fun. Not long
till Coloradans have to go to Wyoming. The very next thing you know Canada’s our
vacation reloration destination, not our own homes.
We tried to hunt an hour’s drive away in a somewhat unknown location. Hours of
hiking and scouting and all we see are hacks. Never even saw an elk. We check the
map and find what seerx like a good nail to follow on the map, well let’s say we look
really funny with our orange vest and 7 mils as a lady in jogging gear passes us with
her dog. It defeats the entire purpose of hunting to take away ahunters land.
10. With land bought up and owned, what do hunters need to hunt on familiar land? A
private land tag. Is that really the sport of hunting? You’re going to force me to shoot
an elk offof my friend’s porch? Too bad I can’t walk up that gorgeous mountain and
tag one because a billionaire had to buy it all. You take away the fadition of real
hunting and we get a $700,000 hail so we can walk orn hunting dogs for a
disappointing trip to a crowded area of hunters where my hunting dog is now useless.
11. l c
)ns why I was raised here (still being raised) and the issues quickly arising
‘rty line up. You defeat the purpose of living in Colorado. The Sutey Land
‘ will push me away from my home to hunt, and cause me to tavel to
rrreas of the state. You flood small public lands with hunters dressed in
rd all we hear are gun shots ringing through the teeming valleys’ Connecting
rr”rtdoors is diffrcult when the entire trip is talking to a man from Missouri
ich direction should we head for a hunt in our own state.
l8 U.S.C. $ 1746, I declare under penalty of perjury that the foregoing is tue
rl’January 2015, in Basalt, Colorado.
Dated this I h
1127 Auraria Parkway, Suite 106
Denver, CO 80204
Attorneys for Appellant
Colorado Wild Public Lands Inc.
UNITED STATES DEPARTMENT OF THE INTERIOR
OFFICE OF HEARINGS AND APPEALS
INTERIOR BOARD OF LAND APPEALS
COLORADO WILD PUBLIC LANDS INC.,
U.S. BUREAU OF LAND MANAGEMENT,
RUTH WELCH, Colorado State Director
STEVE BENNETT, Field Manager, Colorado
River Valley Field Office,
DECLARATION OF GLEN AUERBACHER
I, Glenn Auerbacher, declare as follows:
1. I am Glen Auerbacher and I live in Basalt, Colorado, very close to my
favorite public hunting land, Parcel A, that the Sutey Land Exchange would make
private. I joined Colorado Wild Public Lands hoping that Parcel A will stay public, so I
can keep hunting there.
2. My family and I are hurt by this land exchange. Area 43 (Parcel A) is a
unique hunting area; I often cross paths with herds of Elk, Bobcat, Mountain lions,
Turkeys and of course large-racked Mule Deer on my hikes and hunts there. Because of
its being so close to home, camping and hunting in there is like a vacation, only without
the expense or travel time. Then there is the meat that I harvest when hunting there. My
family and friends enjoy these nutritious meats all year long. It is a great big help
with my grocery bills having 200lbs of llk meat in my freezer ready ste\^’s’ for steak or Yearly since 1988 I have successfully harvestei*1rr”t 1300 acres between the Two shoes ranch. The last coupre years my 15 year old son has camped and hunted rvith me and has had a grand tirne harvesting his gu-. -r*. we went to other areas around the Roaring Fork valley to hunt thislear t”owins *e may lose our fantastic hunting spot between’the Two Shoes. These other r..orrir.nded areas were further away’ and over crowded, and we never saw any gzrme nor fresh signs. It was all very inter:esting but a waste.of time and gas and no i.rct. w” are upset about rosing our public lands and wish instead that more public access thr;ugi the private prri.ni., rvould be found.
PLr’suant to 28 u’S’c ‘ $ 1746,I declare under penalty of perjury that the foregoing is true
Dated this I grh day of January 20l5,in Basalt, Colorado.
n’\ ‘1 ‘ i!,.- A*kL[v–