December 2009 Raffle Prizes

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You can order your tickets for the new PLP December 18, 2009 Winter Raffle here


WINTER 2009 RAFFLE -----December 18, 2009----------Raffle New Prize List






1. 4" Proline Dredge--Proline Mining Equiptment.....................................................$ 3575.00


2. 4" Keene Dredge 4400PH--Keene Engineering....................................................$ 3000.00


3. 1 oz Placer Gold--North Fork Dredger Assn........................................................$ 900.00


4. Garrett Scorpion Gold Stinger Metal Detector--Randy Myers................................$ 550.00


5. 3 Day Gold Trip-Oregon Gold Trips--Dave Ratan..................................................$ 500.00


6. Gold Nugget Jewelry 6.1dwt--Armadillo Mining Shop...........................................$ 300.00


7. Deluxe Blue Bowl Kit--Pioneer Mining Supplies..................................................$ 209.00


8. 1/10 oz Gold American Eagle--Ronald Martin.....................................................$ 150.00


9. GPAA Buzzard Special+Clean-up Kit--GPAA.....................................................$ 150.00


10. HystWare Mines & Mineral V1.0--Gary Hiestand.................................................$ 100.00



TICKETS; $ 1.00 ea. or a book of 12 for $ 10.00


CONTACT; Jim Lewis
655 E. La Loma Ave
Somis, CA
93066
(805) 485-7513

e-mail goldcado 1 @ aol.com

[maksutaSTAR]

PLP filed this lawsuit on the Eldorado National Forest Travel Management Plan on 6/24/2009.

As many of you already know the Forests around the country are closing
1000's of miles of roads. The purpose of this lawsuit is to stop those roads from being closed. Since Eldorado NF was the first to complete their Environmental Impact Study and make their Record of Decision, we are hopeful that we can stop the closures and influence the problem in all National Forest from not doing their road closures.

We have an early jump on this situation and feel confident the we can make a major difference in the the FS policies of closing the roads.

We are looking for some help in raising funds to support this lawsuit and we feel that all of those who have supported un in the past will continue that support. Tell your freinds that they need to support us as well.

Donations can be handled through paypal on the front page of this website or mail to:

PLP
c/o Barret Wetherby
3700 Santa Carlotta
La Crescenta, Ca. 91214

Contact for questions:
Jerry Hobbs
jerhobbs2@verizon,net
909-889-3039



LAW OFFICES OF DAVID YOUNG
David Young, SBN 55341
11150 Olympic Blvd., Suite 1050
Los Angeles, CA 90064
Telephone: (310) 575-0308 Facsimile: (310) 575-0311
E-mail: dyounglaw@verizon.net

Attorney for Plaintiffs



UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF CALIFORNIA


PUBLIC LANDS FOR THE PEOPLE, INC., a California 501 C-3, non-profit corporation; GERALD E. HOBBS, an individual; ROBERT HAIDUCK, an individual; BRYAN BUNTING, an individual; HILLARIE BUNTING, an individual; STEVE WANDT, an individual; GENE E. BAILEY, an individual; RICHARD NUSS, an individual; and RANDY BURLESON, an individual;

Plaintiffs.
v.

UNITED STATES DEPARTMENT OF AGRICULTURE; UNITED STATES FOREST SERVICE; TOM VILSACK, in his official capacity as Secretary Of Agriculture; TOM TIDWELL, in his official capacity as the Chief Forester Of The USDA Forest Service; RANDY MOORE, in his official capacity as Regional Forester USDA Forest Service Regional Office R5; and RAMIRO VILLALVAZO, in his official capacity as Forest Supervisor Of The Eldorado National Forest; Does 1-10.

Defendants.







CIVIL ACTION NO.
COMPLAINT FOR:
VIOLATIONS OF THE NATIONAL ENVIRONMENTAL POLICY ACT, 43 U.S.C. § 4321; TRANSFER ACT, 16 U.S.C. § 472; NATIONAL FOREST MANAGEMENT ACT,16 U.S.C. §§ 1600 et seq.; WILDERNESS ACT, 16 U.S.C. § 1131 et seq.; MULTIPLE USE SUSTAINED YIELD ACT, 16 U.S.C. § 528; MULTIPLE SURFACE USE ACT, 30 U.S.C. §§ 612 et seq.; FEDERAL LAND POLICY AND MANAGEMENT ACT, 43 U.S.C. §§ 1701 et seq.; RS 2477, 43 U.S.C. § 942; ADMINISTRATIVE PROCEDURE ACT, 5 U.S.C. § 706 et. seq.; MINING AND MINERALS POLICY ACT OF 1970, 30 U.S.C. § 21a; VIOLATION OF OTHER FEDERAL STATUTES; AND REQUEST FOR
DECLARATORY JUDGMENT; INJUNCTIVE RELIEF; QUIET TITLE; AND DAMAGES.


DEMAND FOR JURY TRIAL


JURISDICTION AND VENUE
1. Jurisdiction is proper in this Court under 28 U.S.C. § 1331 because this action arises under the laws of the United States. The conduct complained of creates an actual, justiciable controversy and is made reviewable under the Administrative Procedures Act (“APA”), 5 U.S.C. § 701 et seq. (1966).
2. This Court has jurisdiction, among other matters, pursuant to 28 U.S.C. § 1331 (federal question), §§ 2201, 2202 (declaratory relief), § 2202 (injunctive relief), and § 2409(a) (quiet title). Judicial review is also sought pursuant to § 10 of the APA, 5 U.S.C. §§ 701-706.
3. This action arises under the various acts, regulations, laws, and constitutions, as set forth in paragraph 8.
4. This Court has the power to grant declaratory and injunctive relief pursuant to 28 U.S.C. §§ 2201 and 2202.
5. This lawsuit requests judicial review of final agency actions taken by the Defendants (or their predecessors in interest). Defendants’ actions unlawfully abrogate, proscribe, and/or prohibit Federal statutorily prescribed rights of miners, prospectors, the off-road community, and other recreational users of the ENF, as well as violating Federal statutorily prescribed procedures relating to forest management and planning decisions in the ENF and on National Forest lands.
6. Defendants are attempting to unlawfully alter the entire Federal regulatory framework for miners and prospectors in the Eldorado National Forest (“ENF”) by adopting a rigid, narrow, and single-focus policy regarding closure of roads, rights of way, and haul roads in the ENF to motorized vehicles. This policy was originally meant to be applied primarily to recreational off-road vehicle users, without any meaningful consideration as to its impact on miners, prospectors and other citizens who are potential miners and prospectors in the ENF. Defendants’ actions not only fail to address, but actually exacerbate, pervasive National Forest environmental problems and risks. Defendants failed to consider any meaningful alternatives which could be applied specifically to miners, prospectors, and other citizens who are potential miners and prospectors.
7. This is an action for declaratory judgment, injunctive relief (Rule 65, Federal Rules of Civil Procedure) and administrative review of agency action, as well as for damages incurred by Plaintiffs. The Plaintiffs request the Court to declare unlawful, enjoin implementation of, and set aside the promulgation and adoption of the ENF Travel Management Plan closing roads, rights of way, and haul roads in the ENF, not only as it applies to miners and prospectors, other members of the public who are potential miners and prospectors, but also off-road recreational users, and other recreational users of the ENF.
8. The Plaintiffs seek an Order from this Court declaring that Defendants’ actions in adopting and implementing the Travel Management Plan as applied to miners and prospectors, and those who intend to become miners and prospectors in the ENF, and off-road recreational users, and other recreational users, violated the following:
A. National Environmental Policy Act (“NEPA”), 42 U.S.C. § 4321 et seq. (1969); and Executive Orders: EO 12291 and EO 12866.
B. National Forest Management Act (“NFMA”), 16 U.S.C. § 1600 et seq. (1976);
C. The Wilderness Act, 16 U.S.C. § 1131, et seq. (1964); The California Wilderness Act of 1984, PL98-425, Sec. 111 (b) (6); the California Wilderness Act, Cal. Public Resources Code § 5093.30 et seq.; and the California Recreational Trails Act, Cal. Public Resources Code §§ 5070 through 5077.8;
D. Multiple Use Sustained Yield Act (“MUSYA”), 16 U.S.C. § 528 et seq. (1960);
E. Administrative Procedures Act (“APA”), 5 U.S.C. § 701 et seq. (1966);
F. Numerous Sections of the Code of Federal Regulations (“CFR”), as set forth in 36 CFR 212 et seq.; 36 CFR 215.1 et seq; 36 CFR 228 et seq.; and 36 CFR 261 et seq.
G. RS 2477 – Rights of Way
H. The Federal Lands Policy and Management Act (“FLPMA”) 43 U.S.C. § 1701 et seq., including without limitation §§ 1732(b), 1761 and 1769;
I. PL No. 104-208, 110 Stat.3009 § 108 (Omnibus Consolidated Appropriations Act of 1997)
J. 30 U.S.C. §§ 21-54 (Mining Act), including without limitation the Mining and Minerals Policy Act of 1970, 30 U.S.C. § 21(a);
K. 30 U.S.C. § 612, 613, 615 (Multiple Surface Use Act);
L. 16 U.S.C. § 472 (Transfer Act) (The Organic Act of 1897);
M. 42 U.S.C. § 12132 (Americans with Disabilities Act); by adversely affecting numerous citizens with disabilities by limiting easy access to general areas and dispersed camping sites;
N. 5 U.S.C. §§ 601, 602, 603(b) and (c) (Regulatory Flexibility Act As Amended By The Small Business Regulatory Enforcement Fairness Act of 1996 (5 U.S.C. §§ 801-808) [SBREFA]);
O. 18 U.S.C. § 666 (Misappropriation of Federal Funds)
P. California Civil Code § 3479;
Q. California Code of Civil Procedure § 731;
R. The 5th and 14th Amendments to the Constitution of the United States; and
S. Article 1 § 7(a) of the Constitution of California.
9. Venue is proper in this Court pursuant to 28 U.S.C. §§ 1331, 1391(b) and (e), and because the events and omissions giving rise to Plaintiffs’ claims occurred within this judicial district. This case is connected and related to “Center for Sierra Nevada et al. vs. John Berry, Eldorado National Forest Supervisor et. al.”, United States District Court, Eastern District of California, CIV-S-02-0325 LKK/JFM” and originates from the Order dated Aug. 16, 2005, of the Honorable Lawrence K. Karlton.

INTRODUCTION

10. Pursuant to 36 CFR 215, Public Lands for the People, Inc. (“PLP”), a California 501 c-3 non profit Corporation, for itself and for all of its members; as well as PLP representative members Bryan and Hillarie Bunting, hereafter individually and collectively referred to as “The Buntings”; and Steve Wandt, on or about May 15, 2008, appealed to Randy Moore, Regional Forester, USDA Forest Service (“FS”), from the Final Environmental Impact Statement (“FEIS”) and Record of Decision (“ROD”) regarding the Eldorado National Forest, (“ENF”) Public Wheeled Motorized Travel Management Plan Final Environmental Impact Statement (“FEIS”), officially released April 2, 2008, and signed by ENF Supervisor Ramiro Villalvazo. Appeals were also made by Randy Burleson and other PLP members.
11. The ROD, among other matters set forth and approved the closure of roads and rights of way for motorized vehicles in the ENF to the general public, including without limitation, off-road vehicles, prospectors, and miners holding valid mineral estates and claims in the ENF. The FEIS and the ROD were originally and primarily aimed at recreational off-road vehicles and users. However, the FEIS and the ROD also hit hard and impacted prospectors and miners in the ENF. This had the effect of severely limiting and/or prohibiting prospecting, mining, and associated mining activities in the ENF. The closure of roads in the ENF was part of a much larger scheme to close roads in all National Forests throughout the Western United States to motorized vehicles; thus affecting, restricting, and prohibiting off-road vehicles, and mining and prospecting throughout the Western United States. The closing of the numerous existing routes which are contemplated by the ROD and FEIS will result in the overuse and abuse of those routes, roads and rights of way not so closed. Modern prospectors and miners must have access to motorized vehicles in order to move their equipment necessary for such prospecting and mining.
12. The end result of such closures would be to take vast tracks of the National Forests in the Western United States and turn them into roadless areas, and de facto wilderness areas, all without any authorization from Congress. Only Congress can create roadless and wilderness areas in the National Forests. The Wilderness Act of 1964, 16 U.S.C. § 1131 et seq. Wyoming v. United States Department of Agriculture et al. 570 F.Supp.2d 1309, 1346 (D. Wyoming 2008); Parker v. United States, 309 F.Supp. 593, 597 (D.Colo.1970) aff’d, 448 F.2d 793 (10th Circ.1971) “ …no Federal lands shall be designated as ‘wilderness areas’ except as provided for in this chapter or by a subsequent Act.” 16 U.S.C. § 1331 (a). “…the primary purpose of the Wilderness Act was to provide: [a] statutory framework for the preservation of wilderness [that] would permit long-range planning and assure that no further administrator could arbitrarily or capriciously either abolish wilderness areas that should be retained or make wholesale designations of additional areas in which use would be limited.” Wyoming, supra, 570 F.Supp.2d at 1346. “In this regard, the Wilderness Act functions as a ‘proceed slowly order’ until Congress-through the democratic process rather than by administrative fiat-can strike the proper balance between multiple uses and preservation. Parker, 448 F.2d at 795. This statutory framework necessarily acts as a limitation on agency action. Id. at 797.” Wyoming, supra, 570 F.Supp.2d at 1347.
13. For over thirty years there has been tremendous interest in and frequent disagreement over, management of “roadless areas” within the National Forest System. See, generally, Kootenai Tribe v. Veneman, 313 F.3d 1094 (9th Cir. 2002); State of Wyoming v. U.S. Dept. of Agric., 277 F.Supp.2d 1197 (Wyo. 2003) declared moot and vacated by, 414 F.3d 1207 (10th Cir. 2005); State of California ex rel Lockyer v. U.S. Dept. of Agric., 459 F.Supp.2d 874 (N.D.Cal. 2006) (appeals docketed). At the time the ENF ROD was issued, the 2001 Roadless Rule was in effect, although that Rule had previously been declared illegal in 2003, was reinstated in 2006, and was recently declared illegal again on August 12, 2008, in Wyoming v. U.S. Dept. of Agric., supra. The ENF Travel Management Plan is but a variation on a theme of the Roadless Rule. “As one scholar has explained, roads, which necessarily facilitate human disturbance and activities, ‘are the coarse filter in identifying and defining wilderness.’ Michael J. Mortimer, The Delegation of Law-Making Authority to the United States Forest Service: Implications in the Struggle for Nat’l Forest Mgmt., 54 Admin. L.Rev. 907, 959 (2002).” Wyoming, supra, 570 F.Supp.2d at 1347.
14. In California, the Forest Service is specifically prohibited from creating roadless and wilderness areas without express Congressional approval. The “California Wilderness Act of 1984,” PL98-425, Sec. 111 (b) (6) states: “unless expressly authorized by Congress, the Department of Agriculture shall not conduct any further statewide roadless area review and evaluation of National Forest System lands in the State of California for the purpose of determining their suitability for inclusion in the National Wilderness Preservation System.” This mandate cannot be evaded by creating de facto roadless and wilderness areas in the ENF, or any other National Forest, from areas where none previously existed. The creation of these de facto roadless and wilderness areas was never discussed in the DEIS or FEIS or the ROD, and consequently the public never had a chance to adequately comment on them. The Congress has never authorized the FS to create any roadless and wilderness areas in the ENF, or any other National Forest in California.
15. This much larger scheme to effectuate multiple road closures, not only in the ENF, but throughout the National Forests in the Western United States, thereby creating unauthorized roadless and wilderness areas, was not disclosed to the general public in the DEIS or FEIS, or the ROD by Defendants; and was not dealt with in the ROD and FEIS, and thus not commented upon by the general public. For example, the Tahoe National Forest, among numerous other National Forests, is in the process of implementing a Travel Management Plan which will close roads, rights of way, and haul roads to motorized vehicles, and consequently restrict and/or prohibit off-road vehicles, and prospecting and/or mining in the Tahoe National Forest.
16. The closure of roads in ENF to motorized vehicles serves as the template for the same and similar closures in all other National Forests in the Western United States. The closure of roads in the ENF to motorized vehicles affects access to numerous adjacent National Forests and Management Units in the Western United States. The closure of roads in ENF to motorized vehicles affects the ability of prospectors and miners in other National Forests and Management Units to utilize their right to prospect, and to access their mining claims and mineral estates in these National Forests and Management Units. The closure of roads in the ENF to motorized vehicles affects the recreational use by the off-road community and the general public in other National Forests and Management Units in the Western United States.
17. Neither the DEIS, FEIS, or ROD discussed the impact of the closure of roads in the ENF to motorized vehicles or access to, and impact in, other National Forests and Management Units in the Western United States. Consequently, the public never had the opportunity to comment on these issues, or were ever made aware of the full impact and effects of the closure of roads to motorized vehicles in the ENF on other National Forests and Management Units.
18. The National Forests constitute “one integral system.” 16 U.S.C. § 1609. The Travel Management Plan for the ENF is part and parcel of “national prescription” for all National Forests, and especially the National Forests in the Western United States. National Prescriptions are prohibited. S. Rep. No. 893, 94th Cong. 26 (1976); reprinted in 1976 U.S.C.C.A.N. 6685; S. Rep. No.893, 94th Cong. 46 (1976) reprinted in 1976 U.S.C.C.A.N. 6705. See ¶122. The closure of roads to motorized vehicles in the ENF cannot be discussed in isolation, but must be dealt with in the totality of all National Forests and Management Units in the Western United States. It must be addressed as part of “one integral system”, and as part of one total integral study, not in a piecemeal fashion designed to minimize the cumulative environmental and economic impact of such closures. The FS having set up road closures to motorized vehicles as part of a “national prescription” has set the boundaries of its own playing field. At the very least, those boundaries include the totality of the National Forests and management units in the Western United States. Various National Forests are adjacent to each other. Unless the road closures are examined in their totality and cumulative affect, one National Forest does prevent access to an adjacent National Forest. Redacted to absurdity, adjacent National Forests could, in a piecemeal fashion, close in their entirety all these National Forests to access by the public.
19. In addition, the ENF and the FS are closing roads, rights of way, and haul roads that are not FS recognized and numbered roads, but are roads, rights of way, and haul roads customarily and traditionally used by miners and prospectors in the ENF, and all other National Forests; and are recognized and authorized by the Mining Acts of 1866 (RS 2477; 43 U.S.C. § 932; repealed prospectively in 1976, 43 U.S.C. § 1701, et seq.) and 1872. RS 2477 constitutes a grant to all citizens of the United States, and applies not only to miners and prospectors, but also the off-road community, and all other recreational users of the National Forests who are citizens of the United States. 16 U.S.C. § 478 gives to all citizens of the United States the right to access their mining claims, mineral estates, and granted rights of way.
20. Many of these roads predate the establishment of the National Forest System. These roads, rights of way, and haul roads that are subject to closure were not addressed in the ROD, the DEIS or the FEIS, as required by the National Environmental Policy Act 42 U.S.C. § 4321, et seq. These roads are still actively used by miners and prospectors, and are also rightfully used and maintained by owners and operators of off-road vehicles, and other recreational users, who as citizens of United States have the right to become miners and prospectors on Federal lands. These roads are erroneously described by the FS as being “unauthorized” when in fact they are recognized and authorized by the mining laws and the rules, customs and usage of miners and prospectors.
21. The FEIS and the ROD were engendered pursuant to an Order dated Aug. 16, 2005 by the Honorable Lawrence K. Karlton in Center for Sierra Nevada et. al. vs. John Berry, Eldorado National Forest Supervisor et. al., United States District Court, Eastern District of California, CIV-S-02-0325 LKK/JFM”. The Order of Judge Karlton prohibited the Forest Service from restricting “other permitted uses, or uses under valid pre-existing rights”.
22. For Plaintiff Public Lands for the People, Inc. (“PLP”), and its members, prospecting and mining in the ENF and other National Forests is not recreational. It is an important economic endeavor that has a direct economic impact on family finances, business finances, and in these hard economic times, often is the difference between having to choose whether to put gas in the car, or buy food or medicine for the family. For PLP and its members, prospecting and mining in the ENF is not merely a question of having “fun”. Closing roads to miners, who are mineral estate grantees and prospectors in the ENF, forces them to face serious economic hardship. With a perilous economy, being able to sell even an ounce of gold for almost $900 an ounce makes a substantial difference as to the economic choices a family has regarding basic necessities.
23. Prospecting and mining, as well as off-road riding, in the ENF beneficially affects the physical and mental health and well-being of the public, and is beneficial to the human environment. This is a legitimate concern of the government. California Recreational Trails Act: Cal. Public Resources Code § 5070, et seq.; United States Outdoor Recreation Programs Act of 1963, 16 U.S.C. § 460, et seq., § 460 l-4 “preserving…outdoor recreation resources;” 16 U.S.C. § 4601 (b)(1)(A): “to instill in the public the importance of the appropriate use of, and appreciation for Federal, State, and local lands, facilities, and natural and cultural resources.” An analysis of the physical and mental health benefits, and economic benefits, to prospectors, miners, and off-road riders of being able to access the ENF and all other National Forests, by roads, and the detriment caused by the closure of such roads in the ENF and all other National Forests, was not adequately made.
24. Having created numerous de facto roadless and wilderness areas affecting not only mining and prospecting, but off-road recreational activities as well, the FEIS recognizes that this will have affects throughout the whole ENF. “---impacts to the recreation systems in one area of the forest can affect the continuity of the system and public access opportunities in other areas.” [FEIS 3-307]
25. Both the ROD and the FEIS focus almost exclusively on the use of the ENF for recreational purposes, especially its use by the off-road community. The ROD does not even mention mining and prospecting. The FEIS recognizes that: “Surface uses under the mining laws, include motor vehicle access to and across NFS lands that are open to mineral entry are regulated under the provisions of the FS regulations at 36 CFR 228 Subpart A.” [FEIS p. xxxix] The FEIS in Chapter 3, Section L, Mineral Resources, does in a cursory way deal with mining and prospecting, but what it states is often just plain wrong.
26. Section L, and the FEIS in general makes no distinction between the environmental impact caused by the general public, and the limited use of the roads by miners and prospectors. It lumps the limited use by miners and prospectors who have pre-existing rights, including pre-existing property rights granted by Congress, in with the general public whose primary interest is in recreation.
27. Consequently, there is no consideration or analysis, or has there been any consideration or analysis, of the economic harm caused to miners and prospectors by closure of roads in the ENF to motorized vehicles in the FEIS, although miners and prospectors use of the roads, and their environmental impact, is minimal. This is so even though Section L recognizes that; “Miners, prospectors and owners of unpatented mining claims have a statutory right of reasonable access under the mining law”. That reasonable “right to access” is then negated by Section L when it states:
“Those alternatives with reduced public wheeled motor vehicle access, particularly within the western portion of the forest where mineral resources are more likely to occur, may have the effect of reducing access for prospecting or exploration, with the subsequent effect of reduction of discovery of new mineral resource commodities.”---“Individuals or Companies that conduct prospecting and exploration activities are not usually required to obtain a permit or other form of authorization pursuant to 36 CFR 228…” [FEIS p. 3-312]

28. Section L of the FEIS recognizes that “Of most important to the management of the ENF is gold.” But then the FS tends to the “management” of gold by closing roads, thereby making prospecting and mining for gold unduly burdensome, if not impossible. This prohibition is prohibited by Judge Karlton’s Order, as well as the pre-existing rights of miners and prospectors, and users of rights of ways, the Code of Federal Regulations (“CFR”), the mining laws, and other Acts of Congress, including those acts recognizing the right of the public to utilize the National Forests for mental and physical health. 16 U.S.C. § 460l-4.
29. Section L of the FEIS states that: “Very little locatable extraction and development has occurred on the Forest in the last decade and there are no actively producing mines at this time.” This is not accurate.
30. The Bureau of Land Management (“BLM”) lists three hundred sixty five (365) valid existing mining estates and claims in the ENF. Many, if not most, of these claims are active. Substantial gold production takes place in the ENF. The ENF in its own literature distributed to the general public emphasizes gold production in the ENF. It invites prospectors and miners to enter the ENF in order to engage in exploration and mining.
31. Prospecting, placer mining, suction dredge mining, and granted rights of way, all of which are mining operations pursuant to the mining laws and the Code of Federal Regulations (“CFR”), and all of which have valid pre-existing rights pursuant to the mining laws and CFRs, are traditionally common in the ENF, and done in accordance with the rules and customs of miners.
32. On or about June 27, 2008, Tina Terrell, Appeal Reviewing Officer, Forest Supervisor, Sequoia National Forest, rejected in all respects the appeal of PLP and its members. Plantiffs are informed and believe, and thereon allege, that Ms. Terrell rejected all other appeals.
33. On or about June 27, 2008, James M. Pena, Appeal Deciding Officer, Deputy Regional Forester, upheld the decision of Ms. Terrell, rejecting the appeal of PLP and its members. Plantiffs are informed and believe, and thereon allege, that Mr. Pena rejected all other appeals.
34. Plaintiffs are informed and believe, and thereon allege, that closure of roads to motorized vehicles in the ENF has already taken place and is being implemented. This has direct and immediate effect upon prospectors and miners in the ENF, in that they need motorized vehicles in order to prospect, mine, and engage in other associated mining activities in the ENF. This also has an immediate and direct affect upon the off-road community in that it denies them recreational opportunities which they previously enjoyed.
35. Plaintiffs are informed and believe, and thereon allege, that the Tahoe National Forest is participating in a nationwide plan to close numerous roads and trails to motorized vehicles, including roads and trails used for mining and prospecting in the Tahoe National Forest. ENF is adjacent to and affects the Tahoe National Forest, and all other adjacent National Forests.
36. Plaintiffs are informed and believe, and thereon allege, that the closure of roads in the ENF to motorized vehicles affects approximately 87% of the total area of the ENF, and undetermined amounts of adjacent forest and monuments, which exceeds the scope of the FEIS for the ENF.
37. Plaintiffs are informed and believe, and thereon allege, that the closure of roads, rights of way, and haul roads in the ENF to motorized vehicles affects over 50% of the total roads and rights of way in the ENF; and will affect millions of acres in National Forests throughout the Western United States.
38. The FS did not consider any meaningful alternatives to the closure of roads and rights of way to motorized vehicles for citizens of the United States, including the off-road community, miners and prospectors in the ENF in violation of the ENF Land Resource Management Plan (“LRMP”). The FS did not recognize valid existing rights of access and the rights of use of FS roads and trails under 36 CFR part 212.6 (b) and (c). [FEIS pg. xii]
39. The “no action” alternative did not consider and address all forest uses. The closure of the so called “unauthorized roads” was not addressed. The FS treated these roads and rights of way as nonexistent. Consequently, there could be no valid comparison between the “no action” alternative and any other alternative, where this issue was addressed. In addition, there could be no valid public comment on the “no action” alternative or any of the other alternatives that had to be compared to the “no action” alternative. In addition, the DEIS never adequately dealt with climate change, but the FEIS did substantially address this issue, precluding public comment on the issue, in violation of 43 FR 55997 (Nov. 29, 1978) Sec. 1503.1.

PARTIES
40. Plaintiff Public Lands for the People, Inc. is a California 501 c-3 non-profit corporation (“PLP”). PLP is a nationwide organization of miners, who are mineral estate grantees, and prospectors. With its constituent members PLP constitutes approximately 40,000 people. Its President is Gerald E. Hobbs of San Bernardino, California. PLP, has among its membership, miners and prospectors with mining claims and estates in the ENF, and throughout the United States, who are directly affected in their mining, prospecting and associated operations by the closure of roads, rights of way, and haul roads to motorized vehicles in the ENF, and other National Forests in the Western United States.
41. Gerald E. Hobbs is a member of and President of PLP. Mr. Hobbs has mining claims and mineral estates in three National Forests. They are: Angeles National Forest; Tahoe National Forest; and Six Rivers National Forest. Mr. Hobbs has expressed interest and desire to prospect and mine in the ENF.
42. Robert Haiduck is a prospector and miner with mining claims and mineral estates in the Sequoia National Forest, Trinity National Forest, Cleveland National Forest, and other National Forests. Mr. Haiduck has expressed interest and desire to prospect and mine in the ENF. Mr. Haiduck is a member of PLP.
43. Plaintiffs Bryan Bunting and Hillarie Bunting, of Fairfield, California, have mining claims and estates in the ENF, prospect and mine in the ENF to supplement their incomes, and are directly affected in their mining, prospecting, and associated operations by the closure of roads, rights of way, and haul roads to motorized vehicles in the ENF. The Buntings are members of PLP. The Buntings list on their mining claims their minor children Drew and Cole Bunting, because they wish to pass on to their children the history and traditions of mining in the Western United States.
44. Plaintiff and PLP member Steve Wandt of Foresthill, California, until June 12, 2009 had a mining claim in the ENF. He was and is directly affected in his mining, prospecting and associated operations by the closure of roads and rights of way to motorized vehicles in the ENF. As a prudent man, Mr. Wandt sold his mining claim because of a general policy of the ENF to close roads to motorized vehicles, affecting access to his mining claim. The ENF Travel Management Plan is a continuation of that policy. In addition, Mr. Wandt is a 100% disabled American veteran, which because of his disabilities required full vehicular access to his mining claim, and his present prospecting endeavors in the ENF. To deny motorize vehicular access to Mr. Wandt in the ENF was to prohibit his ability to mine his claim and mineral estate, and to presently prospect for mining claims in the ENF. Mr. Wandt intends to continue to prospect in the ENF. This is a violation of the Americans with Disabilities Act (“ADA”), 42 U.S.C. §§ 12101, 12132, and the Mining Act, 30 U.S.C. §§ 21 through 54; as well as the Multiple Use Sustained Yield Act, 16 U.S.C. § 528 prohibiting the Forest Service from affecting “the use or administration of the mineral resources of national forest lands”; Section 532 setting forth a declaration of policy to build roads for “recreation and other uses of such lands”; and Section 535 authorizing the acquisition, construction, and maintenance of “forest development roads” to permit the maximum economy in utilizing the natural resources thereof, not to close roads. Mr. Wandt is a member of PLP.
45. Plaintiff and PLP member Randy Burleson is both a prospector and off-road enthusiast who actively utilizes the ENF.
46. Plaintiff Gene E. Bailey of Sacramento, California, has mining claims and estates in the ENF, and is directly affected in his mining and associated operations by the closure of roads and rights of way to motorized vehicles in the ENF. Mr. Bailey is a 40% disabled American veteran. Mr. Bailey prospects and mines in the ENF to supplement his income. Mr. Bailey intends to continue to mine and prospect in the ENF. To deny motorized vehicular access to Mr. Bailey in the ENF is to prohibit his ability to mine his claim and mineral estate, and to presently prospect for mining claims in the ENF. This is a violation of the Americans with Disabilities Act (“ADA”), 42 U.S.C. §§ 12101, 12132, and the Mining Act, 30 U.S.C. §§ 21 through 54; as well as the Multiple Use Sustained Yield Act, 16 U.S.C. § 528 prohibiting the Forest Service from affecting “the use or administration of the mineral resources of national forest lands”; Section 532 setting forth a declaration of policy to build roads for “recreation and other uses of such lands”; and Section 535 authorizing the acquisition, construction, and maintenance of “forest development roads” to permit the maximum economy in utilizing the natural resources thereof, not to close roads. Mr. Bailey is a member of PLP.
47. Plaintiff Richard Nuss of Canyon Country, California is a sixth generation miner who has had mining claims and estates in the ENF for fourteen years. Over the years, the FS has continually threatened to close roads to his claims. If the ENF continues with their road closures pursuing to the Travel Management Plan, the road to his claims will be closed. Mr. Nuss and his partners have used this road as a haul road for equipment and ore removal for many years. Mr. Nuss prospects and mines in the ENF to supplement his income. Mr. Nuss is a member of PLP.
48. Defendant United States Department of Agriculture (“USDA”) is the department of the executive branch that is responsible for overseeing the activities of the Defendant United States Forest Service (“FS”), the agency charged with the administration of the National Forests. Defendant FS is charged with the administration of the ENF.
49. Defendant Tom Vilsack is the Secretary of Agriculture and is sued in his official capacity as Secretary of Agriculture. The FS is an agency of the USDA and is subject to the direction and control of Defendant Vilsack in his official capacity.
50. Defendant Tom Tidwell is the Chief Forester of the FS and is sued in his official capacity. Defendant Tidwell, or his predecessors in interest, is responsible for the operations and activities of the FS on National Forest System lands.
51. Defendant Randy Moore is the Regional Forester, who has responsibility for supervising the ENF, and is sued in his official capacity as Regional Forester. Plaintiffs are informed and believe, and thereon allege, that Mr. Moore approved of and authorized the DEIS, FEIS, and the ROD which led to the closure of roads, rights of way, and haul roads to motorized vehicles in the ENF.
52. Defendant Ramiro Villalvazo is the Forest Supervisor of the ENF and is sued in his official capacity. Defendant Villalvazo, on or about April 2, 2008, signed the FEIS and the ROD relating to the closure of roads, rights of way, and haul roads to motorized vehicles in the ENF.
53. The true names and capacities, whether individual, corporate, associate, or otherwise, of Defendants DOE 1 through DOE 10 are unknown to Plantiffs at this time, who therefore sue said Defendants by such fictitious names and will ask leave of Court to amend this Complaint to show their true names and capacities when the same are ascertained. Said Defendants are sued as principals and/or agents, servants, and employees of said principals, and all of the acts performed by them as agents, servants, and employees were performed within the course and scope of their authority and employment. Each of the Defendants is in some way responsible for the injuries sustained by the Plantiffs.
54. At all times herein, all named Defendants and Defendants DOES 1 though 10 inclusive, and each of them, were the agents and employees of each of the remaining Defendants and were at all times acting within the purpose and scope of said agency and employment and each Defendant ratified and approved the acts of its agent.
STATEMENT OF FACTS
55. Improperly using an Order dated August 16, 2005, by the Honorable Lawrence K. Karlton in “Center for Sierra Nevada et al. vs. John Berry, Eldorado National Forest Supervisor et al.”, United States District Court, Eastern District of California, CIV-S-02-0325 LKK/JFM”, on or about March 31, 2008, Ramiro Villalvazo, Forest Supervisor of the ENF, issued the Record of Decision relating to the Final Environmental Impact Statement of the ENF for “Public Wheeled Motorized Travel Management”. The Order of Judge Karlton prohibited the FS from restricting “other permitted uses, or uses under valid pre-existing rights”.
56. The ROD and FEIS had the effect of closing numerous roads, rights of way, and haul roads in the ENF to motorized vehicles. The primary object of such closure was the off-road community using the roads, rights of way, and haul roads of the ENF for recreational purposes. No consideration in the ROD, and very little consideration in the FEIS, was given to the impact on miners and prospectors in the ENF.
57. On or about June 4, 2008, a public meeting was held in Placerville, California, relating to the ROD and FEIS. PLP and some of its members were at that meeting, including PLP’s President Gerald E. Hobbs. Mr. Hobbs represented all members of PLP. Numerous comments in opposition were made regarding the ROD and FEIS by the public and representatives of organizations at that meeting.
58. On or about June 5, 2008, Mr. Hobbs and other representatives of PLP met in private session with representatives of ENF in Placerville, California. Mr. Hobbs expressed his opposition to the ROD and FEIS as it applied to miners, prospectors, future miners and prospectors, and other users of the ENF. Representatives of the ENF made clear that miners and prospectors would be affected by the proposed closures. Mr. Hobbs expressed his concern that the ENF was interfering with their rights to mine and prospect in the ENF.
59. On or about June 17, 2008, a conference call was held with Mr. Hobbs and representatives of the ENF. At the end of the conference call, there was no doubt but that the ENF would go forward with its proposed closures of roads, rights of way, and haul roads to motorized vehicles. Mr. Hobbs again expressed his opposition to its application to miners, prospectors, and other users in the ENF, and those who intend to become miners and prospectors.
60. On or about June 27, 2008, James M. Pena as Appeal Deciding Officer approved the implementation of the ROD and FEIS as related to the closure of roads, rights of way, and haul roads to motorized vehicles in the ENF. Mr. Pena in his letter-decision stated: “I affirm the Forest Supervisor’s decision to implement Alternative Modified B. The project may be implemented on, but not before, the 15th business day following the date of this letter (36 CFR 215, 9(b)). My decision constitutes the final administrative determination of the Department of Agriculture [36 CFR 215.18(c)].”
61. Plaintiffs are informed and believe, and thereon allege, that the ENF has implemented the closure of roads, rights of way, and haul roads to motorized vehicles in the ENF. This has affected miners and prospectors, and other users with granted rights, in their lawful access to their mineral estates for purposes of prospecting, exploration, mining, and associated mining activities. This has also affected the off-road community in their rights of recreational use of the ENF without any subsequent benefit to the ENF. The closure of roads to motorized vehicles in the ENF is part of a much wider plan to close all national forests in the Western United States to motorized vehicles. To date, the Tahoe, Inyo, and Plumas National Forests are implementing plans to close these forests to motorized vehicles. The Inyo National Forest has in written communication to PLP’s Treasurer B.H. Wetherby stated: “We want to clarify that the Motorized Travel Management project is focused on designating a system of roads and trails for public recreational use. Access for non-recreational uses such as mining will not be directly affected by this project because such access is, and will continue to be, authorized through separate processes.” (Emphasis in original) The ENF has made no such statement.
CLAIMS FOR RELIEF
62. The ENF failed and refused to describe the interdependent and cumulative nature of its rulemaking leading to closure of roads, rights of way, and haul roads in the ENF on miners, prospectors, and recreational users, including the off-road community. Therefore, public comments of any one individual were based on an incomplete cumulative scheme. The FS failed to assess and document the cumulative environmental, including human environmental impact, social, and economic effects of the closure of roads, rights of way, and haul roads in the ENF as it affects miners, prospectors and recreational users. Hence, the cumulative effect of the aforesaid closure remained undisclosed and undiscussed. None of the cumulative effects mentioned in the FEIS deals with the closure of roads in the ENF or in the National Forests throughout the Western United States. [FEIS p. 3-64; p. 3-116] The cumulative affect of the closure of roads in the ENF and the National Forests throughout the Western United States would exceed $100,000,000. This would require an economic analysis by the FS before it could implement any such closures. An economic analysis would be required by the National Environmental Policy Act, 42 U.S.C. §§ 4321, et seq., and Executive Orders: EO 12291 and EO 12866.
63. The foregoing interrelated and cumulative actions imposed a dramatically new framework for the ENF as it relates to miners, prospectors, the off-road community and other recreational users. Despite these dramatic changes, the Defendants insisted upon pushing forward with the aforesaid closure, thereby diminishing the ability of miners, prospectors, the off-road community, and other recreational users to adequately address and respond in a meaningful way to the aforesaid closure.
64. While the general public were forced to provide comments on a vast array of rulemakings and draft plans within a short period of time, the FS personnel at the local level were equipped to fully inform the public of the details related to the cumulative affect of each of the aforesaid rulemaking and initiatives described above as it relates to miners, prospectors, the off-road community, and other recreational users in the ENF and the National Forests in the Western United States. The ENF did not personally notify persons with preexisting rights, including miners holding claims and mineral estates in the ENF, of the aforesaid road closures in violation of procedural and substantive due process. The names, addresses and locations of these mineral estate grantees are a matter of public record, and can be easily be obtained from the Bureau of Land Management (“BLM”), a sister Federal agency.
65. The Defendants’ treatment of the Plaintiffs and other miners, prospectors, and recreational users in the ENF is unjustified and contrary to law, including those disabled and less-abled individuals who have been and will be denied access to the ENF for mining, prospecting and recreational pursuits as a result of the aforesaid closures.
66. The ROD and FEIS is vague and superficial in both content and analysis as it relates to miners, prospectors, and those who intend to become miners and prospectors. The comments submitted by Plaintiffs were ignored by the Defendants.
67. Defendants’ improper promulgation of the aforesaid closures in the ENF and other National Forests in the Western United States will continue to cause immediate and irreparable harm to Plaintiffs. Access to the ENF for statutorily mandated and approved mining and prospecting will be severely limited or prohibited. That access, without the necessity of FS and ENF approval, is guaranteed by Federal statutes, and the customs and usage of miners and prospectors. 30 U.S.C. §§ 21-54 and 43 U.S.C. § 1701, et seq., including without limitation §§ 1732(b) and 1769. The potential to develop mining claims and initiate new discoveries in the ENF will be negatively impacted. Mining and prospecting on the public lands of the Western United States, including the ENF, is a self-initiating process that does not need government permitting, and will be negatively impacted by the closures. The aforesaid closures will deny the reasonable right of access to miners and prospectors, including the Plaintiffs, for statutorily approved mining, prospecting, and associated mining activities. The aforesaid closures will cause a dramatic and unreasonable, and in some cases terminal decline in mining and prospecting activities in the ENF, and other National Forests in the Western United States.
68. The aforesaid closure, without full disclosure of its cumulative impact, was prematurely pushed through the NEPA process, and is in violation of Federal law and other agency regulations, and may have numerous unforeseeable and potentially devastating impacts upon mining and prospecting in the ENF, and other National Forests throughout the Western United States.
69. NFMA, 16 U.S.C. § 1600, et seq. (1976), establishes the statutory framework for management of the National Forest System. In NFMA and other statutes, “Congress has consistently acknowledged that the Forest Service must balance competing demands in managing National Forest System lands. Indeed, since Congress’ early regulation of the national forests, it has never been the case that “the national forests were…to be ‘set aside for non-use.’”” The Lands Council v. McNair, 537 F.3d 981, 990 (9th Cir. 2008) (citations omitted). Additional guidance, incorporated expressly within NFMA, is offered in the Multiple-Use Sustained Yield Act (“MUSYA”), which provides that the various surface resources be managed “so that they are utilized in the combination that will best meet the needs of the American people” and to “achieve[ ] and maintain[ ] in perpetuity [ ] a high-level annual or regular periodic output of the various renewable resources of the national forests without impairment of the productivity of the land.” 16 U.S.C. § 531(a) (definition of “multiple use”) and (b) (definition of “sustained yield”); 16 U.S.C. § 1604(g) (incorporating MUSYA provisions in NFMA). Mineral resources constitute a “renewable resource.” The NFMA defines “renewable resources” as “those matters within the scope of responsibilities and authorities of the Forest Service…” 16 U.S.C. § 1610. The FS claims responsibility and authority over mineral activities within the National Forests, including the ENF, through authority over surface disturbance. (See also 16 U.S.C. §§ 607, 609.) Through prospecting, which leads to discovery of additional mineral resources which may have been depleted, the mineral reserves available for mining activity is constantly renewed. Defendants must take this into consideration when drafting their aforesaid plans. 16 U.S.C. § 1607.
70. The Multiple Surface Use Act, 30 U.S.C. §§ 612, 613, 615, requires the FS to assure “that any use of the surface of any mining claim by the United States, its permittees or licensees, shall be such as not to endanger or materially interfere with prospecting, mining or processing operations or uses reasonably incident thereto…” 30 U.S.C. § 612(b). The FS may not limit or restrict, or authorize the limitation or restriction of any existing rights of any claimant under any valid mining claim previously located. 30 U.S.C. § 615. The closure of roads in the ENF to motorized vehicles for prospectors and miners constitutes such a restriction.
71. NFMA procedurally requires the FS to prepare and revise a “forest plan.” 16 U.S.C. § 1604. A forest plan lays out broad guidelines to advance numerous goals and objectives, including to “insure consideration of the economic and environmental aspects of various systems of renewable resource management, including the related systems of silviculture and protection of forest resource, to provide for outdoor recreation (including wilderness), range, timber, watershed, wildlife, and fish…” Id. at (g)(3)(A). These plans contain desired conditions, objectives and guidance for project and activity decision-making, but do not approve or execute projects and activities. 36 C.F.R. § 219.3 (2007). The guidance in the Forest Plan is subject to change through plan amendment in site-specific or project-level planning, or through revision of the Forest Plan itself. 36 C.F.R. § 219.12 (2007). Additional guidance and criteria are presented in activity-specific rules, such as the Travel Management Rule regarding motorized access to the Forest System.
72. On November 9, 2005, the Forest Service published in the Federal Register a Final Rule entitled “Travel Management; Designated Routes and Areas for Motor Vehicle Use.” 70 Fed.Reg. 68264-68291 (Nov. 9, 2005) (the “Travel Management Rule”). The Travel Management Rule was issued following publication of and receipt of public comment upon, a proposed rule and was otherwise promulgated in accordance with notice-and-comment rulemaking procedures of the APA. As such, the Travel Management Rule carries force and effect of law and the procedures and provisions therein are binding upon the Forest Service.
73. The Travel Management Rule generally “requires designation of those roads, trails and areas that are open to motor vehicle use…and will prohibit the use of motor vehicles off the designated system, as well as use of motor vehicles on routes and in areas that is not consistent with the designations.” 70 Fed.Reg. 68264 (Nov. 9, 2005).
74. The Travel Management Rule requires the agency to apply “general criteria” when designating roads, trails and areas for vehicle use, which include effects on natural and cultural resources, public safety, provision of recreational opportunities, access needs, conflicts among uses of National Forest System lands, the need for maintenance and administration of roads, trails and areas, and the availability of resources for maintenance and administration. 36 C.F.R. § 212.55(a) The Travel Management Rule further includes “specific criteria” which must be considered, “with the objective of minimizing” effects on specified resources including soils, watersheds, wildlife and associated habitats and conflicts between vehicle and other uses and within vehicle use types. Id. at (b).
75. Congress has declared that the construction and maintenance of an adequate system of roads and trails within and near the National Forests is essential if the natural resources and recreational potential of the National Forests are to be met. 16 U.S.C. §§ 532, 533.
76. The FS cannot unilaterally close roads without giving personal notice to those utilizing such roads. 16 U.S.C. § 534. It is the primary intention of Congress that roads in the National Forests be acquired, constructed, and maintained for recreational and resource development, not closed to such development. 16 U.S.C. § 1608, 16 U.S.C. §§ 535, 535a, 537, 538.

COUNT I: Violation of the National Environmental Policy Act
77. Plaintiffs repeat and incorporate by reference the allegations of Paragraphs 1 through 76 of this Complaint.
78. The National Environmental Policy Act (“NEPA”), 42 U.S.C. §§ 4321, et seq., establishes a national policy to “prevent or eliminate damage to the environment and biosphere.” NEPA recognizes “the critical importance of restoring and maintaining environmental quality,” declares that the Federal government has a continuing responsibility to use “all practicable means” to minimize environmental degradation, and directs that “to the fullest extent possible…the policies, regulations and public laws of the United States shall be interpreted and administered in accordance with the policies set forth in this chapter.” 42 U.S.C. §§ 4331(a) and 4332(1). NEPA further recognizes the right of each person to enjoy a healthful environment. 42 U.S.C. § 4331(c). This includes a healthful environment for a person’s mental and physical well-being, which mining, prospecting, and off-roading recreational activities in the ENF normally would provide, along with the economic benefits incident to prospecting and mining.
79. Mining, prospecting and recreation provides an invaluable bond to California’s historic past.
“Historic activities, such as mining, logging, homesteading, recreation, and ranching, also left an imprint on the landscape within the project area. Linked to these activities, access to and through the region had a great impact on the development of California. Some of the most important historic transportation corridors, such as the Carson Emigrant Trail, Pony Express Trail, and the Lincoln Highway, passed directly through what is now the Eldorado National Forest.” [FEIS 3-267] … “As the momentum of people entering California increased, so did the efforts to discover the lowest, easiest, and most direct route to the gold fields and surrounding towns. A series of roads following approximately the alignment of today’s U.S. 50, named Johnson’s Cut-off, was picked as the favorable passage into the California gold fields (U.S. 50 went through Johnson’s Pass until the present highway over Echo Summit, about a mile to the south was completed some time before 1950).” [FEIS 3-267 to 3-268]

80. NEPA represents “our basic national charter for protection of the environment.” 40 C.F.R. § 1500.1. NEPA’s protections of the “environment” refer to the “human environment” which “shall be interpreted comprehensively to include the natural and physical environment and the relationship of people with that environment.” 40 C.F.R. § 1508.14. Thus, the agency’s duty to analyze impacts does not end with impacts to the physical environment, because “[w]hen an [EIS] is prepared and economic or social and natural or physical environmental effects are interrelated, then the [EIS] will discuss all of these effects on the human environment.” Id. Among its numerous purposes, NEPA procedures are designed to foster informed agency decisionmaking based upon informed public participation and coordination.
“The ENF Land and Resource Management Plan (LRMP) provides direction for performing on-the-ground activities, such as the Travel Management project. This management direction is used to achieve the desired future condition of the ENF. …The Forest recreation goal is to provide a wide range of developed and dispersed recreation opportunities that meet the projected demand. …Nearly all forest visitors, regardless of the purpose for their visit, use the motorized transportation system to reach their destination. Making changes to the existing forest transportation system to prohibit or allow motorized use has the potential to affect the majority of Forest visitors, including those participating in motorized recreation and those intending to access trailheads, facilities, destinations, or geographic areas that are utilized for non-motorized recreational activities.” [FEIS 3-276]

81. The Council for Environmental Quality (“CEQ”) NEPA Regulations (see 40 C.F.R. § 1501.2), which are binding on the FS, establish a complex system to ensure that the government considers the environmental impacts of its actions before taking those actions. This system requires notice to, and comments from an informed public and other affected parties who provide the government with information about the potential environmental impacts the actions may have.
82. NEPA requires “responsible [federal] officials” to prepare an Environmental Impact Statement (“EIS”) on proposals for legislation and “other major Federal actions significantly affecting the quality of the human environment.” Under NEPA, an agency must prepare an EIS when an action may have a significant environmental effect. 42 U.S.C. § 4332.
83. Federal agencies are required to begin the scoping process as soon as they determine that they will prepare an EIS. 40 C.F.R. § 1501.7. Under these regulations, federal agencies must invite the meaningful participation of interested agencies. This requirement expressly includes the appropriate States and State agencies, including State counties, for among other matters meaningful and substantial coordination of policies. The purpose of the scoping process is to identify those issues that the agency should address in the EIS. A failure to conduct the scoping process in a manner that includes all interested parties and identifies all relevant issues is a violation of NEPA. There was no personal notice to holders of prior existing rights in the ENF, including miners with claims and mineral estates in the ENF, in violation of both procedural and substantive due process; there was no disclosure that the closure of roads, rights of way, and haul roads in the ENF was but the tip of the iceberg, and part of a much larger scheme to close roads, rights of way, and haul roads in all National Forests throughout the Western United States, and thus to hinder, restrict, and prohibit mining and prospecting throughout the Western United States.
84. NEPA requires agencies to include a discussion of “alternatives to the proposed action” in the EIS. 42 U.S.C. § 4332(2)(C)(iii). NEPA also requires the agencies to “study, develop, and describe appropriate alternatives to recommended courses of action in any proposal that involves unresolved conflicts concerning alternative uses of available resources.” 42 U.S.C. § 4332(2)(E). CEQ NEPA regulations also require that agencies consider “reasonable alternatives not within the jurisdiction of the lead agency,” together with the “no-action” alternative. 40 C.F.R. § 1502.14. No such alternative was ever meaningfully considered as it relates to mining and prospecting in the ENF.
85. The Omnibus Consolidated Appropriations Act of 1997 (P.L. No. 104-208, 110 Stat. 3009, Section 108) prohibits the FS from enacting any final rule or regulation affecting the “recognition, management, or validity of a right-of-way pursuant to Revised Statute 2477 (43 U.S.C. 932) --- unless expressly authorized by an act of Congress ---" The FS by considering and closing so-called “unauthorized roads”, the overwhelming majority of which have for years been used by prospectors and miners, and other citizens, pursuant to RS 2477, has violated the aforesaid Omnibus Consolidated Appropriations Act of 1997.
86. When an agency undertakes a major Federal action that constitutes an irretrievable commitment of resources, it is required to prepare a detailed EIS relating to its intention to act upon each particular site that will be impacted. In addition, the EIS must “succinctly describe the environment of the area(s) to be affected by the alternatives under consideration.” 40 C.F.R. § 1502.15. Furthermore, the EIS must describe the direct and indirect environmental effects of the regulation. 40 C.F.R. § 1508.8. The ENF never dealt with the issue of the closure being part of a nationwide scheme to close the National Forests to motorized vehicles, especially in the Western United States, including, without limitation, the National Forests, monuments and management units adjacent to the ENF.
87. CEQ NEPA regulations mandate that agencies “make diligent efforts to involve the public in preparing and implementing their NEPA procedures.” 40 C.F.R. § 1506.6. Each agency “shall…[r]equest comments from the public, affirmatively soliciting comments from those persons or organizations who may be interested or affected.” 40 C.F.R. § 1503.1(a)(4). In addition, an agency’s final EIS must make meaningful reference to all responsible opposing viewpoints. ENF failed to comply with these requirements as it affects miners and prospectors, and associated mining activities, as well as recreational uses, in the ENF. It failed to place in context the closure of roads, rights of way, and haul roads in the ENF to the closure of roads, rights of way, and haul roads in all the National Forests in the Western United States, thus hindering, restricting, and prohibiting mining, prospecting and recreational activities, including off-roading activities, on millions of acres throughout the Western United States.
88. NEPA requires that a Supplemental Environmental Impact Statement (“SEIS”) be prepared whenever “[t]here are significant new circumstances or information relevant to environmental concerns and bearing on the proposed action or its impacts.” 40 C.F.R. § 1502.9(c)(1)(ii). An SEIS may also be prepared when “the purposes of the Act will be furthered by doing so.” Id. Defendants did not issue any SEIS relating to mining, prospecting, incidental, and associated mining activities, or recreational activities, including off-roading activities, in the ENF, and how they relate to the National Forests throughout the Western United States. The Council on Environmental Quality (“CEQ”) regulations regarding NEPA implementation provide that a supplement to a draft or final EIS is required if “(i) the agency makes substantial changes in the proposed action that are relevant to environmental concerns; or (ii) [t]here are significant new circumstances or information relevant to environmental concerns and bearing on the proposed action or its impacts.” 40 C.F.R. § 1502.9.
89. The Tahoe, Inyo, Plumas and other National Forests in the Western United States were and are actively in the process of implementing Travel Management Plans to restrict the use of motorized vehicles. All these National Forests constitute an integrated system that must be analyzed, discussed, and commented on as a totality. Plaintiffs are informed and believe, and thereon allege, that the cumulative affect of the closure of roads in the ENF and the adjoining National Forests, monuments, and management areas, even without the other National Forests, monuments and management areas in the Western United States, would in economic terms exceed $100,000,000. With all other National Forests in the Western United States the cumulative economic effect far exceeds $100,000,000. This requires an economic analysis by the FS before it could implement any such closures in the ENF. An economic analysis would be required by the National Environmental Policy Act, 42 U.S.C. §§ 4321, et seq., and Executive Orders: EO 12291 and EO 12866.
90. The occurrence, magnitude, and impact of the proposed aforesaid closures in National Forest throughout the Western United States constituted “significant new circumstances” requiring the Defendants to issue an SEIS to evaluate the proposed closure on mining, prospecting, and recreation in the ENF, as it relates to the closures in all other National Forests throughout the Western United States. The comments of PLP and its members, as well as the general public, would provide “information relevant to environmental concerns and bearing on the proposed action or its impacts.” Defendants never issued an SEIS related to said mining, prospecting, and off-roading activities not only in the ENF, but its relationship to similar closures in numerous other National Forests in the Western United States. This refusal was in direct violation of NEPA.
91. Plaintiffs, and other miners and prospectors, are entitled under NEPA to have the Defendants analyze reasonable alternatives, conduct a meaningful and complete notice and comment period, and to fully analyze cumulative impacts on mining and prospecting, as well as off-roading activities in the ENF, and other National Forests in the Western United States, before they make decisions affecting the proposed closure, and the environment. Defendants have denied Plaintiffs, and other miners and prospectors, and members of the off-road community, these entitlements and protections afforded by NEPA.
“There are currently 15 open motorized NFS routes that connect the Eldorado with adjacent Forests…there are currently 7 open motorized NFS routes that connect to the Tahoe National Forest. To the east, the ENF boundary is primarily adjacent to the Lake Tahoe Basin Management Unit and the Humboldt Toiyabe National Forest. Currently, there are 3 open motorized NFS routes that connect to the Lake Tahoe Basin Management Unit and 2 open motorized NFS routes that connect to the Humboldt Toiyabe. To the south, the ENF boundary is primarily adjacent to the Stanislaus National Forest. There are currently 3 open motorized NFS routes that connect to the Stanislaus National Forest. These routes are used by the public to travel among the four National Forests and one Management Unit.” [FEIS 3-216-3-217]

92. Plaintiffs, and other miners and prospectors, have a real and concrete interest to secure a maximum long-term sustainable financial return on their mineral claims and estates in the ENF, and their statutory rights to mine and prospect in the ENF, and other National Forests throughout the Western United States. Plaintiffs, and other miners and prospectors, and members of the off-road community, have a real and concrete interest to prevent harm that will result from the implementation of the aforesaid closure of roads, rights of way, and haul roads in the ENF.
93. The closures will cause harm to Plantiffs, and result in a decline of mining and prospecting in the ENF, as well as other National Forests in the Western United States, along with recreational opportunities, and be detrimental to the security of the United States, the economic and environmental well-being of miners and prospectors, and off-roaders, and the surrounding communities that depend on such mining, prospecting and recreational activities in the ENF. Such injury would not have occurred but for Defendants’ decision to ignore the mandates of NEPA and impose the closure in violation of Plaintiffs, and other miners, prospectors, and off-roaders rights and interests.
94. Plaintiffs and others have made attempts to obtain information concerning the location of the roads and rights of way subject to closure, not only in the ENF, but also in other National Forests throughout the Western United States, and their impact on the substantial mining, prospecting, and recreational activities in the ENF and other National Forests throughout the Western United States. The Defendants have not identified areas that may be subjected to such closure as it impacts mining, prospecting, and recreational activities in the ENF and other National Forests throughout the Western United States. This has prevented Plaintiffs, as well as other miners, prospectors and off-roaders, from meaningful participation in the NEPA process. To this day, despite requests, there is no listing that has been provided to Plantiffs as to which roads are open, and which roads are closed, in the ENF pursuant to the ENF Travel Management Plan. Plantiffs have no knowledge of which roads the ENF considers to be “unauthorized” have been closed. Plaintiffs have been informed by representatives of the ENF that as of at least April 3, 2009, only paved roads are open in the ENF, all other roads being closed.
95. 16 U.S.C § 1609(a) states: “Congress declares that the National Forest System consists of units of federally owned forest, range, and related lands throughout the United States and its territories, united into a nationally significant system dedicated to the long-term benefit for present and future generations, and that it is the purpose of this section to include all such areas into one integral system.” See also, 16 U.S.C. §§ 1603 and 1604(a) and (b). NEPA regulations promulgated by CEQ require that when two or more proposed Federal actions may “have cumulatively significant impacts [they] should therefore be discussed in the same impact statement.” 40 C.F.R. § 1508.25(a)(2). The closure of roads in National Forests, monuments and management areas adjacent to the ENF, as well as other National Forests, monuments, and management areas in the Western United States should all have been discussed in the same impact statement.
96. The proposed closures of roads, rights of way, and haul roads to motorized vehicles in the National Forests throughout the Western United States addressed separate but interrelated and interdependent components. They are “connected actions”. 40 C.F.R. § 1508.25(a)(1), and part of “one integral system.” 16 U.S.C. § 1609(a). Taken together, these components had the cumulative effect of severely limiting and/or prohibiting mining, prospecting, and recreational activities in the ENF, and other National Forests throughout the Western United States. The limitations, prohibitions, and restrictions of these traditional mining, prospecting, and recreational activities in the ENF, and other National Forests throughout the Western United States, were never in any meaningful way considered by Defendants, whether in the ROD, FEIS, or in any other manner.
97. Defendants violated NEPA by segmenting the various aspects of the proposed closures and thus failed to consider and articulate to the public the connected and cumulative impacts of the related actions. By segmenting the rule-making process that relates to mining, prospecting, and recreational activities in the ENF, and other National Forests throughout the Western United States, the Defendants avoided their obligations under NEPA to fully analyze and disclose the combined and cumulative impacts of the proposed closures. The closures in the ENF are but the tip of the iceberg. The ENF closures are the model and forerunner for closures in the National Forests throughout the Western United States. The total amount of closures and the total impact on mining, prospecting, and recreational activities throughout the Western United States resulting from said closures were never considered in any NEPA analysis. The total environmental effects throughout the Western United States resulting from such closures are massive. The total economic effects are in the many millions (would well exceed $100,000,000), if not hundreds of millions of dollars.
98. Defendants failed to analyze a reasonable range of alternatives as it relates to mining, prospecting, and recreational activities in the ENF, and other National Forests throughout the Western United States. Defendants predetermined the outcome of the alternative analysis by failing to consider a broader range of alternatives for mining, prospecting, and recreational activities in the ENF, in reality and in relation to the total amount of closures in all National Forests throughout the Western United States. 40 C.F.R. § 1502.14 states that the “alternatives” section is the “heart” of any environmental impact statement. Defendants ignored any alternative that did not comport with their predetermined result, which was limited only to the ENF, although its affects were well beyond the boundaries of the ENF. The alternatives assessed by Defendants (or their predecessors) predetermined the outcome of the alternative analysis and were designed to justify a decision already made, which was in any case limited only to the ENF.
99. NEPA imposes a mandatory procedural duty on federal agencies to consider a reasonable range of alternatives in an EIS. 40 C.F.R. § 1502.14. A NEPA analysis is invalidated by the existence of a viable but unexamined alternative. This is especially true as it relates to miners, prospectors, and off-roaders when no viable alternatives as to their interests and activities were ever considered by the Defendants in relation to closures in all National Forests throughout the Western United States.
100. The FS excluded viable alternatives from the range of alternatives analyzed in detail and made available to public comment in the DEIS. Thus, the FS not only failed to foster and encourage, but in fact precluded, informed public comment on the DEIS and Travel Plan, because the FS withheld its ultimate decision affecting mining, prospecting, off-roading, and other recreational activities from public scrutiny during the planning process, especially by not discussing the proposed closures in the ENF as part of a wider scheme of closures in all National Forests throughout the Western United States.
101. Defendants’ actions in adopting and implementing the aforesaid closure, as it relates to mining, prospecting, off-roading, and other recreational activities in the ENF described above are made reviewable through the APA and are arbitrary, capricious, or otherwise not in accordance with law; contrary to constitutional right, power, privilege or immunity; in excess of statutory jurisdiction, authority, or limitations; without observance of procedure required by law; or otherwise in violation of the APA, 5 U.S.C. § 706 (2), and should therefore be declared unlawful and set aside by this Court. These actions have caused, and will continue to cause, immediate, direct, adverse, and irreversible harm to Plaintiffs, and other miners, prospectors, off-roaders, and other recreational users.

COUNT II: Violation of 16 U.S.C. § 472 (Transfer Act)
102. Plaintiffs repeat and incorporate by reference the allegations of Paragraphs 1 through 101 of this Complaint.
103. The 1905 Transfer Act, 16 U.S.C. § 472, transferring jurisdiction of forest reserves from the Department of Interior to the Department of Agriculture prohibits the Secretary of Agriculture from regulating or affecting, “the surveying, prospecting, locating, appropriating, entering, relinquishing, reconveying, certifying, or patenting of such lands.”
104. 16 U.S.C.A § 472 states in full:
“The Secretary of the Department of Agriculture shall execute or cause to be executed all laws affecting public lands reserved under the provisions of § 471 of this title, or sections supplemental to and amendatory thereof, after such lands have been so reversed, excepting such laws as affect the surveying, prospecting, locating, appropriating, entering, relinquishing, reconveying, certifying, or patenting of any such lands”.

105. The authority to manage the mineral estate on all federal land is vested in the Secretary of Interior, 16 U.S.C. § 472. The closure by the FS directly affects the management of the mineral estate in the ENF and is therefore beyond the FS’s authority and contrary to law.
106. The aforesaid closure is directly in opposition to the 1872 Mining Law, 30 U.S.C. § 21-54, and frustrates the longstanding mandate of Congress, and over 137 years of miners’, prospectors’, and the public’s rights-of-way across Federal Land.
107. The actions of the ENF as set forth above in closing and prohibiting motorized access or prospecting and developing of mining claims in the ENF violates the purpose of the aforesaid Act.
108. Defendants’ actions in violating 16 U.S.C. § 472 (Transfer Act) were arbitrary and capricious and an abuse of discretion. These actions have caused and will continue to cause immediate, direct, adverse and irreversible harm to Plaintiffs, other miners and prospectors, the United States, and the state of California.
COUNT III Violation of the National Forest Management Act
109. Plaintiffs repeat and incorporate by reference all the allegations of Paragraphs 1 through 108 of this Complaint.
110. In 1976, Congress passed the National Forest Management Act, 16 U.S.C. § 1600 et seq. (“NFMA”), requiring the Forest Service to conduct strategic planning for the management of the National Forests. NFMA directs the Forest Service to develop Land and Resource Management Plans (“LRMP”) for each National Forest or group of National Forests, with public participation in the “development, review, and revision” of each Plan. 16 U.S.C. § 1604. NFMA’s planning provisions incorporate the multiple-use mandate of the MUSYA and provide that:
In developing, maintaining, and revising plans for units of the National Forest System pursuant to this section, the Secretary shall assure that such plans—

(1) “provide for multiple use and sustained yield of the products and services obtained therefrom in accordance with the Multiple Use Sustained-Yield Act of 1960 [16 U.S.C.A. §§ 528-531], and in particular, include coordination of outdoor recreation, range, timber, watershed, wildlife and fish, and wilderness; and

(2) determine forest management systems, harvesting levels, and procedures in the light of all of the uses set forth in subsection (c)(1) of this section, the definition of the terms ‘multiple use’ and ‘sustained yield’ as provided in the Multiple Use Sustained-Yield Act of 1960, and the availability of lands and their suitability for resource management.” 16 U.S.C. § 1604(e).

111. 16 U.S.C. § 1607 mandates that “The Secretary of Agriculture shall take such action as will assure that the development and administration of the renewable resources of the National Forest System are in full accord with the concepts of multiple use in sustained yield of products and services as set forth in the Multiple Use Sustained-Yield Act of 1960 [16 U.S.C.A. §§ 528 – 531]”

112. The MUSYA 16 U.S.C. § 528 states:
“Nothing herein shall be construed so as to affect the use or administration of the mineral resources of national forest lands or to affect the use or administration of Federal lands not within national forests.”

16 U.S.C. § 532 mandates the construction and maintenance of an adequate system of roads and trails within the National Forest for resource development and recreational use. This is further mandated by 16 U.S.C. § 1608.
113. NFMA also requires the FS to adopt regulations that “set out the process and development and revisions” of LRMPs to ensure consistency with NEPA (42 U.S.C. § 4321, et seq.), and to “specify guidelines for land management plans.” 16 U.S.C. §§ 1604(g)(1) and (3). These regulations are set forth at 36 C.F.R. § 219.
114. Under NFMA, the Forest Plan is the focal point for managing each National Forest. A Forest Plan allocates lands to a specific set of multiple uses and essentially provides the zoning regulations for each management area. All “[r]esource plans and permits, contracts, and other instruments for the use and occupancy of National Forest System lands shall be consistent” with the Forest Plan. 16 U.S.C. § 1604(i). If a proposed resource plan or use would be inconsistent with the governing Forest Plan, NFMA requires analysis of a proposed plan amendment and the opportunity for public comment before the amendment could be adopted and before the resource plan could be implemented. 16 U.S.C. §§ 1604(d) and (f)(4). “The Secretary shall provide for public participation in the development, review, and revision of land management plans…” 16 U.S.C. § 1604(d) (emphasis added).
115. NFMA provides that a Forest Plan shall be “one integrated plan” that incorporates in “one document…all of the features required” on multiple use direction, and contain “maps and descriptive documents” on the activities allowed in each Forest management area. 16 U.S.C. § 1604(f)(1). These features include the “multiple use” coordination between outdoor recreation, range, timber, watershed, wildlife and fish, and wilderness. 16 U.S.C. § 1604(e)(1). The ENF violated this mandate in that there is not one integrated plan resulting from the closure of roads to motorized vehicles for adjoining National Forests, monuments, and management areas adjacent to the ENF, as well as for the National Forests in the Western United States. This is in violation of 16 U.S.C. § 1609 declaring “The National Forest System” to be “one integral system.”
116. In furtherance of Congress’ intent that a Forest Plan be the governing document for management of each National Forest, NFMA only allows the implementation of resource plans and activities that are consistent with the governing Forest Management Plan. 16 U.S.C. § 1604(i).
117. The proposed closure violated NFMA by circumventing the requirement that each individual National Forest make land management decisions in coordination with State and local governments and an informed public.
118. NFMA restricts the implementation of resource plans and actions to those that have been determined to be “consistent” with the governing Forest Plan. 16 U.S.C. § 1604(i).
119. The proposed closure and accompanying regulations and policies adopted to implement that closure violate 16 U.S.C. § 1604(i) because they are inconsistent with the governing Forest Plans for the respective National Forests within California.
120. NFMA provides that “a significant change” in a Forest Plan is subject to the provisions of 16 U.S.C. § 1604(e) and (f) governing the development of Forest Plans, and is also subject to “public involvement comparable to that required” by 16 U.S.C. § 1604(d) for Plan development.
121. The proposed closure constitutes a “significant” change to existing Forest Management Plans. The proposed closure, in changing or limiting existing active management in the National Forests in California, drastically alters the status quo, prevents the implementation of the current Land and Resource Management Plans, and dramatically impacts the National Forest lands. In developing and adopting the proposed closure in the ENF, without reference to similar closures in the National Forests throughout the Western United States, defendants did not allow “public involvement comparable to that required” by 16 U.S.C. § 1604(d), especially those of miners and prospectors in the ENF and other National Forests in the Western United States.
122. Defendants unlawfully adopted the proposed closure without complying with the procedures for significant Forest Plan amendment as required by 16 U.S.C. §§ 1604(e) and (f)(4), and the Forest Service’s implementing regulations and directives.
123 The closure reduces drastically and/or eliminates entirely the production of valuable minerals from the ENF, and in National Forests throughout the Western United States, in violation of NFMA’s requirements that such information be set forth in the Forest Plan for each National Forest. In addition, the closure drastically reduces the recreational activities in the ENF as set forth in its Forest Plan.
124. The closure of roads in the ENF to motorized vehicles is part of a national prescription for all National Forests, and especially those National Forests in the Western United States. This results in a cumulative impact on all National Forests, especially National Forests in the Western United States, resulting from closure of roads to motorized vehicles. However, no ENF EIS or ROD, ever discusses such closure as part of a national prescription with a cumulative impact. The ENF discusses only its piece-meal part of the national prescription, without discussing the cumulative impact of such a national prescription. Consequently, no member of the public could ever comment on a national prescription, and its cumulative impact, of road closures to motorized vehicles in the National Forests of the Western United States.
125. National prescriptions for the National Forests are prohibited. Congress concluded in the NFMA that it was “unwise to legislate national prescriptions” for all National Forests because of the “wide range of climatic conditions, topography, geologic and soil types,” and different perspectives on appropriate land uses in a particular National Forest. S. Rep. No. 893, 94th Cong., 26 (1976), reprinted in 1976 U.S.C.C.A.N. 6685. The Forest Service itself acknowledged and repeated Congress’ conclusions by stating that “we do not believe it is desirable or practical to legislate national prescriptions” due to the “wide range of climatic conditions, topography, geologic and soil types, vegetative covers, and wildlife.” S. Rep. No. 893, 94th Cong., 46 (1976) reprinted in 1976 U.S.C.C.A.N. 6705. Defendants have “legislated” a national prescription, by adoption and imposition of the proposed closures, and they have definitely “regulated” such an outcome, not only in the ENF but in all National Forests in the Western United States. Contrary to NFMA’s design, and the Forest’s Service’s stated policy, the proposed closure imposes a “one-size-fits-all” mandate or a “national prescription.” This is especially harmful to prospecting for and mining valuable minerals in the National Forests in the Western United States, and for recreational activities in such forests.
126. The closure of roads and rights of way to motorized vehicles in the overwhelming majority of the ENF violates the requirement that the Forest Service carry forward in time “the installation of a proper system of transportation to service the National Forest System…to meet anticipated needs on an economical and environmentally sound basis…” 16 U.S.C. § 1608(a). This also violates 16 U.S.C. §§ 532-538, including without limitation § 535 relating to the building and maintenance of roads and trails in the National Forests.
127. The Defendants’ actions in preparing, adopting and implementing the proposed closure and other rules and policies was arbitrary and capricious, an abuse of discretion, and in direct violation of NFMA. As a result, the FS is attempting to implement unlawful Forest Management Plans. Such actions have caused and will continue to cause immediate, direct, adverse and irreversible harm to the Plaintiffs, and other miners, prospectors, off-roaders, and other recreational users of the National Forests.
COUNT IV: Violation of the Wilderness Act (16 U.S.C. § 1131, et al.); California Wilderness Act of 1984 (Public Law 980-425 – September 28, 1984; 98 STAT. 1619);
State of California Wilderness Act (Cal. Public Resources Code § 5093.30)
128 Plaintiffs repeat and incorporate by reference the allegations of Paragraphs 1 through 127.
129. The Wilderness Act, 16 U.S.C. § 1131, et seq., is designed to preserve in perpetuity those unroaded Federal lands that are “untrammeled by man” that Congress has chosen to designate as components of the National Wilderness Preservation System. The Wilderness Act requires the Forest Service to adopt a process for reviewing administratively-designated “wild” areas for possible recommendation to Congress for designation as Wilderness Areas, and for providing interim protection to such lands until Congress makes the decision as to whether a particular area should be designated as “wilderness” pursuant to the Wilderness Act. See 16 U.S.C. § 1132.
130. The Wilderness Act reserves to Congress the exclusive authority to create and designate “wilderness” areas. While the Executive Branch recommends to Congress areas to be considered for the “wilderness” designation, such lands are designated as “wilderness” “only if so provided by an Act of Congress.” 16 U.S.C. § 1132(b). According to 16 U.S.C. § 1131(a), “no Federal lands shall be designated as “wilderness areas” except as provided for in this chapter or by a subsequent Act.”
131. The Act defines wilderness areas as:
“…underdeveloped Federal land retaining its primeval character and influence, without permanent improvements or human habitation, which is protected and managed so as to preserve its natural conditions and which (1) generally appears to have been affected primarily by the forces of nature, with the imprint of man’s work substantially unnoticeable; (2) has outstanding opportunities for solitude or primitive and unconfined type of recreation; (3) has at least five thousand acres of land or is of sufficient size as to make practicable its preservation and use in an unimpaired condition; and (4) may also contain ecological, geological, or other features of scientific, educational, scenic, or historical value.” 16 U.S.C. § 1131(c).

132. Once land is designated as “Wilderness”, commercial enterprise and permanent or temporary roads generally are prohibited. “A wilderness, in contrast to those areas where man and his own works dominate the landscape, is hereby recognized as an area where the earth and its community of life are untrammeled by man, where man himself is a visitor who does not remain.” 16 U.S.C. § 1131(c).
133. After Congress designates in a particular Statewide Wilderness Act the specific roadless areas that will become part of the Wilderness System, it includes language “releasing” all other National Forest lands in that State for the multiple-use management provided for in the Forest Plans and as mandated by MUSYA.
134. The California Wilderness Act of 1984 (“CWA 1984”), designated over 3,000,000 acres of Wilderness areas in California. The remaining National Forest lands in California are for multiple use management in accordance with each specific Forest Management Plan, and other National Forest management laws including, without limitation, the Forest and Rangeland Renewable Planning Act of 1974, as amended by the National Forest Management Act of 1974. CWA 1984, Sec. 111(b)(4). [98 Stat. at 1628]
135. Proposed closures within the National Forest System were legally eliminated in California with few exceptions when Congress enacted the CWA 1984. The USDA is prohibited from evaluating other National Forest lands within California’s borders without the express permission of Congress: “unless expressly authorized by Congress, the Department of Agriculture shall not conduct any further statewide roadless area review and evaluation of National Forest System lands in the State of California for the purpose of determining their suitability for inclusion in the National Wilderness Preservation System.” CWA 1984 § PL 98-425, Sec. 111(b)(6) [98 Stat. at 1629].
136. The CWA 1984 also did not authorize the creation of buffer zones adjacent to wilderness areas: Congress did not intend that the designation of wilderness areas in the State of California lead to the creation of protective perimeters or buffer zones around each wilderness area. The fact that nonwilderness activities or uses can be seen or heard from within any wilderness area does not, of itself, preclude such activities or uses up to the boundary of the wilderness area.
137. Defendants’ actions violate the CWA 1984’s prohibitions against buffer zones by creating both year around and seasonally, road closures as a buffer zone consisting of newly created and unauthorized de facto wilderness areas as boundaries to congressionally authorized and established wilderness areas.
138. No component of the proposed closures recognizes the limitations mandated by the Wilderness Act and the CWA 1984. Defendants have attempted to circumvent the Wilderness Act and the CWA 1984. The ENF Travel Management Plan and the closures of roads to motorized vehicles in the ENF, constitutes the creation of a de facto wilderness in violation of both the Wilderness Act and the CWA 1984.
139. The ENF Travel Management Plan mandates management of inventoried roadless areas as de facto wilderness areas, without an act of Congress, in violation of the Wilderness Act, and the CWA 1984.
140. The State of California establishes wilderness and roadless areas pursuant to the State California Wilderness Act, California Public Resources Code § 5093.30, et al. The State of California has not created pursuant to the aforesaid State statute, or designated as wilderness or roadless areas, any lands which are the subject of the closures by the FS as set forth in this Complaint. The State of California has not released any federal lands to the FS for designation by the FS as wilderness or roadless areas, which are the subject of the closures by the FS as set forth in this Complaint.
141. Defendants’ conduct in adopting and implementing the proposed closures were arbitrary and capricious, an abuse of discretion and not in accordance with the Wilderness Act or the CWA 1984. These actions have caused and will continue to cause immediate, direct, adverse and irreversible harm to the Plaintiffs, and other miners, prospectors, off-roaders, and other recreational users of the National Forests.

COUNT V: Violation of Multiple Use Sustained Yield Act
142. Plaintiffs repeat and incorporate by reference the allegations of Paragraphs 1 through 141 of this Complaint.
143. Congress has directed that the National Forest System be actively managed under sustained yield principles for the purpose of achieving a wide variety of multiple uses. The Multiple-Use Sustained-Yield Act of 1960 (“MUSYA”) provides that National Forests “shall be administered for outdoor recreation, range, timber, watershed, and wildlife and fish purposes---[and not] to affect the use or administration of the mineral resources of the national forest lands or to affect the use or administration of Federal lands not within national forests.” 16 U.S.C. § 528. The allowed multiple uses were restated in the NFMA to be “outdoor recreation, range, timber, watershed, wildlife and fish, and wilderness.” 16 U.S.C. § 1604(e). Outdoor recreation and mineral resources are specifically protected by MUSYA.
144. MUSYA and NFMA envision and prescribe active management of National Forest resources. MUSYA directs management of “national forests for multiple use and sustained yield of the several products and services obtained therefrom.” 16 U.S.C. § 529. For these purposes it is necessary to construct and maintain an adequate system of roads and trails within the National Forests. 16 U.S.C. § 532.
145. The “multiple use” standard requires the Forest Service to manage the various National Forest resources to maximize their combined utility, without impairment of the land’s productivity. “Multiple use” entails the “harmonious and coordinated management of the various resources,” and requires that the Secretary manage forest resources “in the combination that will best meet the needs of the American people; making the most judicious use of the land for some or all of these resources or related services over areas large enough to provide sufficient latitude for periodic adjustments in use to conform to changing needs and conditions…” 16 U.S.C. § 531(a). The “sustained yield” standard requires the Forest Service to maintain at least a regular periodic output from the renewable Forest resources without impairment of the land’s productivity. “Sustained yield” refers to “achievement and maintenance in perpetuity of a high-level annual or regular periodic output of the various renewable resources of the national forests without impairment of the productivity of the land.” 16 U.S.C. § 531(b). Newly discovered metals and minerals, which can only be sustained and renewed through prospecting, constitute a renewable resource in the National Forests, as well as matters within the scope, responsibility, and authority of the FS. 16 U.S.C. §§ 1607 and 1610.
146. The fulfillment of MUSYA’s harmonious and coordinated management imperatives, which require balanced application of multiple-use and sustained-yield mandates, is compromised in our National Forests because of limitation, restriction, and/or prohibition of mining and prospecting due to the closure of roads, rights of way, and haul roads to motorized vehicles. This directly impacts the economic and strategic well-being of the United States in that precious and strategic metals and minerals cannot be adequately accessed or discovered.
147. Adoption of the aforesaid closure to miners, prospectors, off-roaders, and other recreational users in the ENF conflicts with active management contemplated and mandated by the MUSYA and the NFMA and will exacerbate, rather than ameliorate, any concerns which are allegedly the reasons for the road closures in the ENF. Miners and prospectors’ use of the roads and rights of way in the ENF is minimal, having little or no environmental impact that could possibly justify a closure, but does impact substantially the economic, physical, and mental well-being of Plaintiffs, and other miners and prospectors, and the economic and strategic well-being of the United States with the loss of crucial metals’ and minerals’ production and discovery.
148. MUSYA provides that “[i]n the administration of the national forests due consideration shall be given to the relative values of the various resources in particular areas.” 16 U.S.C. § 529. MUSYA’s legislative history shows that “[o]ne of the basic concepts of multiple use is that all of the resources in general are entitled to equal consideration,” and that “[i]n practice, the priority of the resource use will vary by locality and case by case.” H.R. Rep. No. 1551 (1960) reprinted in 1960 U.S.C.C.A.N. 2377. The aforesaid closure violates these principles by taking the overwhelming majority of ENF lands out of use for mineral and metal production and discovery. This has withdrawn lands from use that Congress has not authorized to be withdrawn.
149. The aforesaid closures violate the MUSYA directives that locally-desired uses, and the relative values of allowing other uses in various areas, be considered. Defendants have violated MUSYA by failing to provide an area-by-area analysis of resource values and by failing to consider local economic and environmental conditions, as well as the economic, physical, and mental well-being of miners and prospectors. These local and human economic and environmental conditions would in no way justify the closure of roads and rights of way to miners and prospectors in any area of the ENF. Since the aforesaid closures are part of a scheme of closing the National Forests in the Western United States, these local affects create a national cumulative impact. No analysis of the national cumulative impact has been made or considered by the FS.
150. Defendants’ actions in adopting and implementing the aforesaid closures are arbitrary and capricious, an abuse of discretion and not in accordance with MUSYA. These actions have caused, and will continue to cause, immediate, direct, adverse, and irreversible harm to Plaintiffs, other miners and prospectors, and the economic and strategic interest of the United States and the state of California.
COUNT VI: Violation of 30 U.S.C. §§ 612-615 (Multiple Surface Use Act)
151. Plaintiffs repeat and incorporate by reference the allegations of Paragraphs 1 through 150 of this Complaint.
152. 30 U.S.C. § 612(b) clearly states:
“Rights under any mining claim hereafter located under the mining laws of the United States shall be subject, prior to issuance of patent therefore, to the right of the United States to manage and dispose of the vegetative surface resources thereof and to manage other surface resources thereof (except mineral deposits subject to location under the mining laws of the United States). Any such mining claim shall also be subject, prior to issuance of patent therefore, to the right of the United States, its permittees, and licensees, to use so much of the surface thereof as may be necessary for such purposes or for access to adjacent land: Provided, however, that any use of the surface of any such mining claim by the United States, its permittees or licensees, shall be such as not to endanger or materially interfere with prospecting, mining or processing operations or uses reasonably incident thereto:”

153. 30 U.S.C. § 615, Limitation of existing rights states:
“Nothing in this subchapter and §§ 601 and 603 of this title shall be construed in any manner to limit or restrict or to authorize the limitation or restriction of any existing rights of any claimant under any valid mining claim heretofore located, except as such rights may be limited or restricted as a relinquishment pursuant to § 613 of this title, or as a result of a waiver and relinquishment pursuant to § 614 of this title; and nothing in this subchapter and §§ 601 and 603 of this title shall be construed in any manner to authorize inclusion in any patent hereafter located, of any reservation, limitation, or restriction not otherwise authorized by law, or to limit or repeal any existing authority to include any reservation, limitation, or restriction in any such patent, or to limit or restrict use of the lands covered by any patented or unpatented mining claim by the United States, its lessees, permittees, and licenses which is otherwise authorized by law.”

154. The aforesaid closure and its associate temporary and permanent forest orders will materially interfere with claimants’, and prospectors’ existing rights and means to access as provided by 16 U.S.C. § 478 which states in part: “…Nor shall anything in such sections prohibit any person from entering upon such national forests for all proper and lawful purposes, including that of prospecting, locating, and developing the mineral resources thereof”. The closure and its associate temporary and permanent forest orders have a prohibitive, not merely a regulatory, role. The closures are therefore unlawful.
155. The actions of the ENF as set forth above in closing and prohibiting motorized access or prospecting and developing of mining claims in the ENF violates the purpose of the aforesaid Act.
156. Defendants’ actions in violating 30 U.S.C. §§ 612-615 (Multiple Surface Use Act) were arbitrary and capricious and an abuse of discretion. These actions have caused and will continue to cause immediate, direct, adverse and irreversible harm to Plaintiffs, other miners and prospectors, the United States, and the State of California.
COUNT VII: Violation of the Federal Land Policy and Management Act,
43 U.S.C. §§ 1701; 1769
157. Plaintiffs repeat and incorporate by reference the allegations of Paragraphs 1 through 156 of this Complaint.
158. FLPMA is intended to accommodate “valid pre-existing rights” of access to ,-prospectors, miners, and other citizens in the ENF. 43 U.S.C. § 1732(b) states that: “--- no provision of this section or any other section of this Act shall in any way amend the Mining Law of 1872 or impair the rights of any locators or claims under that Act, including, but not limited to, rights of ingress and egress.”
159. The FEIS and the ROD prohibits such access, and does so without any notice or opportunity for a hearing. As a matter of fundamental Constitutional due process pursuant to the 5th and 14th Amendments of the Constitution of the United States, and Article 1 § 7(a) of the California Constitution, the FS must give personal individual notice (not just notice in the Federal Register), and the opportunity for a hearing to each individual holder of a mining claim and mineral estate in the ENF, before it can terminate a valid pre-existing right, especially valid pre-existing property rights, such as mining claims and mineral estates. This has not been done. § 701 of Public Law 94-579 states: “(h) All actions by the Secretary concerned under this Act (FLPMA) shall be subject to valid existing rights.” 43 U.S.C. § 1766 states: “Prior to commencing any proceeding to suspend or terminate a right-of-way the Secretary concerned shall give written notice to the holder of the grounds for such action…” This mandate the FS has unlawfully ignored.
160. The Federal Land Policy and Management Act of 1976 reiterates that the 1970 Minerals Policy Act shall be implemented and directs that public lands be managed in a manner which recognizes the Nation’s need for domestic sources of minerals and other resources. 30 U.S.C. § 615 states that there shall be no “limitation or restriction of any existing rights of any claimant under any valid mining claim heretofore located…”
161. Public Law No. 104-208, 110 Stat. 3009 § 108 (“Omnibus Consolidated Appropriations Act of 1997”) clearly states: “No final rule or regulation of any agency of the Federal Government pertaining to the recognition, management, or validity of a right of way pursuant to Revised Statute 2477 shall take effect unless expressly authorized by an Act of Congress subsequent to the date of enactment of this Act [Sept. 30, 1996]”. 43 U.S.C. § 1769(a) states: “Nothing in this subchapter shall have the effect of terminating any right-of-way or right-of-use heretofore issued, granted, or permitted. However, with the consent of the holder thereof, the Secretary concerned may cancel such a right-of-way and in its stead issue a right-of-way pursuant to the provisions of this subchapter.” Neither Congress nor any holder of a right of way has consented to the FS’s closure of any roads, trails, or rights of way to motorized vehicles pursuant to the ENF Travel Management Plan.
162. Members of the public at large, PLP members, as well as Plaintiffs, have been and desire to continue to exercise their RS 2477 grants, as well as the use of all other rights of way which they possess in the ENF. No Act of Congress has been passed authorizing any closure of roads and rights of way in the ENF to motorized vehicles. Plaintiffs, PLP and its members, and members of the public who are miners and prospectors, other mineral estate grantees, and recreational users have been and will continue to be unlawfully cited and prosecuted for exercising their RS 2477 rights of way, as well as utilizing rights of way which they previously possessed.
163. Defendants’ actions in violating the Federal Land Policy and Management Act, 43 U.S.C. §§ 1701, et al., were arbitrary and capricious and an abuse of discretion. These actions have caused and will continue to cause immediate, direct, adverse and irreversible harm to Plaintiffs, other miners and prospectors, recreational users, and other citizens of the United States, and the State of California.
COUNT VIII: Violation of Pre-existing RS2477 Rights of Way
164. Plaintiffs repeat and incorporate by reference the allegations of Paragraphs 1 through 163 of this Complaint.
165. Neither the FEIS or the ROD deal with the issue of what roads or rights of way are to be closed to miners, prospectors, and other citizens subject to the Act of Congress RS 2477. “The right of way for the construction of highways over public lands, not reserved for public uses, is hereby granted.” 43 U.S.C. § 932 (1866), repealed prospectively. These RS 2477 roads and rights of way constitute valid pre-existing rights and their use cannot be taken from miners, prospectors, or other citizens in the ENF by the FS, whether by the FEIS, ROD, or any other administrative action of the FS not specifically authorized by Congress. To the extent the FS close any RS 2477 roads and rights of way to miners, prospectors, and other citizens for their use in conducting any mining, prospecting, exploration, or any other incidental and associated mining operations, such closure is invalid and unlawful.
166. The Plaintiffs, as members of the public and as citizens of the United States, as well as the general public, have for years accepted the use and routine maintenance of all roads, rights of way, and trails within the ENF, whether they are actively maintained by the FS, State, or County. This use was, has been, and constitutes public acceptance of the ongoing and continual use and an easement of the aforesaid roads, rights of way, and trails. This public acceptance does not depend upon any action or approval by the FS, nor is this acceptance required to be recorded. Title to an RS 2477 right of way exists without any procedural formalities and without agency involvement.
167. Congress must expressly authorize any changes to a citizen’s right to use RS 2477 roads, highways, and trails. Public Law No. 104-208, 110 Stat. 3009 § 108. “No final rule or regulation of any agency of the Federal Government pertaining to the recognition, management, or validity of a right of way pursuant to Revised Statute4 2477 shall take effect unless expressly authorized by an Act of Congress subsequent to the date of enactment of this Act [Sept. 30, 1996].” This Congress has not done. The ENF Travel Management Plan, and the closures resulting therefrom affecting RS 2477 roads and rights of way are in violation of Public Law No. 104-208, 110 Stat 3009 § 108.
168. Congress repealed RS 2477 in 1976. However Congress specified that any valid rights of way “existing on the date of approval of this Act” (October 21, 1976) would continue in effect. This had the effect of freezing RS 2477 rights of way as they existed on October 21, 1976, as determined by the established and historical usage of the right of way as of that date.
169. The FS cannot use its authority to hinder, obstruct, take, or otherwise materially interfere with the routine maintenance of these roads and trails performed by the public who are the vested property holders of the RS 2477 rights of way. The FS has no authority to classify any road or right of way, authorized or unauthorized, as not being an RS 2477 road or right of way. Any acts on the part of the FS to obstruct or take these routes is a public nuisance and are actionable pursuant to California Civil Code § 3479 and California Code of Civil Procedure § 731, the Fifth Amendment of the Constitution of the United States, and Article 1 § 7(a) of the Constitution of California .
170. RS 2477 roads and rights of way are preserved by the Federal Land Policy and Management Act, 43 U.S.C. § 1701; 1769 (“FLPMA”). The FEIS and ROD are in violation of RS 2477 and FLPMA, including without limitation, 43 U.S.C. §§ 1701, 1702, 1707(12), 1712, 1761, 1762, 1763, 1766, 1769 and 1770.
COUNT IX: Violation of Public Law No. 104-208, 110 Stat. 3009 (Omnibus Consolidated Appropriations Act of 1997)
171. Plaintiffs repeat and incorporate by reference the allegations of Paragraphs 1 through 170 of this Complaint.
172. The Omnibus Consolidated Appropriations Act of 1997 (P.L. No. 104-208, 110 Stat. 3009 § 108) prohibits the FS from the “recognition, management, of validity of a right-of-way pursuant to Revised Statute 2477 --- unless expressly authorized by an act of Congress ---" Among other matters, the FS by considering and closing so-called “unauthorized roads”, the overwhelming majority of which have for years been used by prospectors and miners, and other citizens, pursuant to RS 2477, has violated the aforesaid Omnibus Consolidated Appropriations Act of 1997.
173. The actions of the ENF as set forth above in closing and prohibiting motorized access or prospecting and developing of mining claims in the ENF violates the purpose of the aforesaid Act.
174, Defendants’ actions in violating the Public Law No. 104-208, 110 Stat. 3009 § 108 were arbitrary and capricious and an abuse of discretion. These actions have caused and will continue to cause immediate, direct, adverse and irreversible harm to Plaintiffs, other miners and prospectors, the United States, and the State of California.
COUNT X: Violation of the Administrative Procedures Act
175. Plaintiffs repeat and incorporate by reference the allegations of Paragraphs 1 through 174 of this Complaint.
176. Under the Administrative Procedures Act, an agency action must be held unlawful and set aside if it is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law,” or “in excess of statutory jurisdiction [or] authority.” 5 U.S.C. §§ 706(2)(A) and (C).
178. The aforesaid closure is “arbitrary, capricious, an abuse of discretion [and] otherwise not in accordance with law” and is “in excess of statutory jurisdiction [and] authority” for the reasons described above, including, without limitation, refusal to give personal notice to holders of mining claims and mineral estates in the ENF, and refusal to consider the national economic impact of the closure to motorized vehicles of the National Forests in the Western United States, and must be set aside.
178. The APA requires that the Federal Register “notice of proposed rule making…shall include…either the terms or substance of the proposed rule or a description of the subjects and issues involved.” 5 U.S.C. § 553(b)(3). Two relevant aspects of the aforesaid closures were not adequately noticed in the proposed rules.
(a) The severe limitation, restriction, and prohibition on mining and prospecting of minerals and metals in the ENF, and in the National Forest throughout the Western United States, were not adequately noticed in the proposed rules. The ENF FEIS and ROD recognize that prospecting and mining in the ENF would be affected by the closures of roads to motorized vehicles. However, nowhere is any attempt made to quantify what that affect would be.
(b) The economic and strategic harm done by such limitation, restriction, and prohibition were not adequately noticed in the proposed rules.
179. The challenged actions are arbitrary agency actions, and could not have been informed decisions, 5 U.S.C. § 706, because the decisions were not “based on a consideration of relevant factors” and because there is no “rational connection between the facts found and the choice made.” Motor Vehicle Manufacturers Association v. State Farm Mutual, 463 U.S. 29, 43 (1983). For example:
(a) The proposed closures of roads and rights of way to motorized vehicles arbitrarily fail to address the minimal environmental impact miners and prospectors have on such roads and rights of way. Without any inventory of the actual roads to be closed to mining and prospecting, whether authorized, or supposedly unauthorized, no such impact analysis can be made.
(b) The aforesaid proposed closures arbitrarily failed to address the economic and strategic impact of such closures to the Plaintiffs, other miners, prospectors, off-roaders, and other recreational users, the United States, and the state of California.
(c) The aforesaid closures arbitrarily impose significant economic costs on the government as well as on other miners, prospectors, off-roaders, and other recreational users, including lost employment and lost income, without providing clearly overriding benefits. For example: (1) a reduction in jobs and income; (2) job and income losses in the mineral industry, and losses from reduced access to energy sources and strategic minerals; (3) costs of the aforesaid closures; (4) the affect on the local economy; and (5) the very limited cost savings resulting from the aforesaid closures. For the cost and reduced income effects of millions of dollars annually, the aforesaid closures achieve a minimal cost savings to the FS.
180. The aforesaid closures will unquestionably make it more difficult, if not prohibitory, and costly to maintain or obtain access to private mining claims and mineral estates.
181. Defendants’ actions in violating the APA were arbitrary and capricious and an abuse of discretion. These actions have caused and will continue to cause immediate, direct, adverse and irreversible harm to Plaintiffs, other miners, prospectors, off-roaders, and other recreational users, the United States, and the State of California.
COUNT XI: Violation of the Mining and Minerals Policy Act of 1970,
30 U.S.C. § 21a
182. Plaintiffs repeat and incorporate by reference the allegations of Paragraphs 1 through 181 of this Complaint.
183. The Mining and Minerals Policy Act of 1970, 30 U.S.C. § 21a, declares that it is the continuing policy of the Federal Government to foster and encourage private enterprise in the development of a stable domestic minerals industry and the orderly and economic development of domestic mineral resources. This act includes all minerals, including sand and gravel, geothermal, coals, and oil and gas. 30 U.S.C. § 615 prohibits the limitation or restriction of any existing rights of any mining claimant holding a valid mining claim in the ENF and other national forests.
184. The FS cannot foster, develop, and prohibit mining and mineral development at the same time. The actions of the ENF as set forth above, in closing and prohibiting motorized access for prospecting and developing of mining claims in the ENF violates the purpose of the Mining and Minerals Policy Act.
185. Defendants’ actions were arbitrary and capricious and an abuse of discretion. These actions have caused and will continue to cause immediate, direct, adverse an irreversible harm to Plaintiffs, other miners and prospectors, the United States and the State of California.
COUNT XII: Violation of 30 U.S.C. § 21-54 (Mining Act)
186. Plaintiffs repeat and incorporate by reference the allegations of Paragraphs 1 through 185 of this Complaint.
187. 30 U.S.C. § 22 states that: “Except as otherwise provided, all valuable mineral deposits in lands belonging to the United States, both surveyed and unsurveyed, shall be free and open to exploration and purchase, and the lands in which they are found to occupation and purchase, by citizens of the United States and those who have declared their intention to become such, under regulations prescribed by law, and according to the local customs or rules of miners in the several mining districts, so far as the same are applicable and not inconsistent with the laws of the United States”. 30 U.S.C. § 615 prohibits the limitation or restriction of any existing rights of any mining claimant holding a valid mining claim in the ENF and other national forests.
188. The ENF cannot be free and open to exploration if the historical means of access by prospectors and miners can be prohibited by FS obstructions and closures. The FEIS and ROD are prohibitive and not merely regulatory.
189. The actions of the ENF as set forth above in closing and prohibiting motorized access to prospecting and developing of mining claims in the ENF violates the purpose of the aforesaid Act.
190. Defendants’ actions in violating 30 U.S.C. § 21-54 (Mining Act) were arbitrary and capricious and an abuse of discretion. These actions have caused and will continue to cause immediate, direct, adverse and irreversible harm to Plaintiffs, other miners and prospectors, recreational users, citizens of the United States who wish to become prospectors and miners, the United States, and the State of California.
Count XIII: Violation of 42 U.S.C. § 12132 (Americans with Disabilities Act)
191. Plaintiffs repeat and incorporate by reference the allegations of Paragraphs 1 through 190 of this Complaint.
192. 42 U.S.C.A. 12132 states:
“Subject to the provisions of this subchapter, no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity”.

193. Plaintiff Steve Wandt, a PLP member, is a 100% disabled American Veteran and Plantiff Gene Bailey is a 40% disabled American Veteran; which by their actual disabilities requires them full vehicular access to their mining claims and their prospecting endeavors in the ENF. To deny vehicular access to Mr. Wandt and also to Mr. Bailey in the ENF, is to prohibit their ability to mine and to prospect in the ENF. Mr. Wandt and Mr. Bailey are representatives of all prospectors, miners, recreational users, and other citizens with disabilities that necessitate vehicular access in order for them to exercise their rights to mine, prospect, recreate, or otherwise use the ENF.
194. Many of PLP’s membership are made up of individuals with disabilities. These individuals have and wish to continue using these public rights-of-ways without discrimination. The aforesaid closures discriminate against these individuals by exclusion and classification, barring them from the customary usage of the Public rights-of-way in the ENF by disabled miners, prospectors, and other recreational users.
195. The actions of the ENF as set forth above in closing and prohibiting motorized access or prospecting and developing of mining claims in the ENF violates the purpose of the aforesaid Act.
196. Defendants’ actions in violating 42 U.S.C. § 12132 (Americans with Disabilities Act) were arbitrary and capricious and an abuse of discretion. These actions have caused and will continue to cause immediate, direct, adverse and irreversible harm to Plaintiffs, other miners, prospectors, and other recreational users the United States, and the state of California.
COUNT XIV: Violation of the Regulatory Flexibility Act (5 U.S.C. § 603(b)As Amended By The Small Business Regulatory Enforcement Fairness Act Of 1996) 5 U.S.C. §§ 801-808
197. Plaintiffs repeat and incorporate by reference the allegations of Paragraphs 1 through 196 of this Complaint.
198. Pursuant to 5 U.S.C. § 603(b), the ENF and FS service are required to prepare an “initial regulatory flexibility analysis” which contains:
a. a description of the reasons why action by the agency is being considered;
b. a succinct statement of the objectives of, and legal basis for, the proposed rule;
c. a description of and, where feasible, an estimate of the number of small entities to which the proposed rule will apply;
d. a description of the projected reporting, recordkeeping and other compliance requirements of the proposed rule, including an estimate of the classes of small entities which will be subject to the requirement and the type of professional skills necessary for preparation of the report or record;
e. an identification, to the extent practicable, of all relevant Federal rules which may duplicate, overlap or conflict with the proposed rule.
199. Pursuant to 5 U.S.C. § 603(c):
“Each initial regulatory flexibility analysis shall also contain a description of any significant alternatives to the proposed rule which accomplish the stated objectives of applicable statutes and which minimize any significant economic impact of the proposed rule on small entities. Consistent with the state objectives of applicable statutes, the analysis shall discuss significant alternatives such as:

1) the establishment of differing compliance or reporting requirements or timetables that take into account the resources available to small entities;

2) the clarification, consolidation, or simplification of compliance and reporting requirements under the rule for such small entities;

3) the use of performance rather than design standards; and

4) an exemption from coverage of the rule, or any part thereof, for such small entities.”

200. Defendants have failed to comply with 5 U.S.C. § 603(b) and (c). Defendants have further failed to comply with FLPMA, 43 U.S.C. § 1732(b) which mandates “the development of small trade or manufacturing concerns.”
201. The actions of the ENF as set forth above in closing and prohibiting motorized access or prospecting and developing of mining claims in the ENF violates the purpose of the aforesaid Act.
202. Defendants’ actions in violating 5 U.S.C. § 603(b) and (c) were arbitrary and capricious and an abuse of discretion. These actions have caused and will continue to cause immediate, direct, adverse and irreversible harm to Plaintiffs, other miners and prospectors, the United States, and the state of California.
COUNT XV: Violation of 18 U.S.C. § 666 (Misappropriation of Federal Funds)
203. Plaintiffs repeat and incorporate by reference the allegations of Paragraphs 1 through 202 of this Complaint.
204. Congress has specifically appropriated funds for the maintenance of roads and rights-of-way in the National Forests. Congress has not appropriated funds for the closure of specific roads and rights-of-way in the ENF, or any other National Forest. No further action regarding closure of roads and rights-of-way in the ENF can take place until said monies are in fact so specifically appropriated by Congress. To take funds appropriated by Congress for a specific purpose, and use them for another purpose, is a misappropriation of federal monies in violation of 18 U.S.C. § 666.
205. Plaintiffs are informed and believe, and thereon allege, that the FS is misappropriating funds out of its maintenance budget, and thus drying up available funds that were to be used for line item maintenance of National Forest roads and trails. Funds specified by Congress for maintenance of rights-of-way in the ENF are now being used by the ENF for closures of rights-of-way. These closures are contrary to law and unauthorized by Congress. The FS cannot arbitrarily use funds appropriated for a purpose of which it may not approve, and apply those funds for a purpose it unilaterally decides to implement.
206. The closure of roads and rights of way to motorized vehicles in a large proportion of the ENF violates the requirement that the Forest Service carry forward in time “the installation of a proper system of transportation to service the National Forest System…to meet anticipated needs on an economical and environmentally sound basis…” 16 U.S.C. § 1608(a). This also violates 16 U.S.C. §§ 532-538, including without limitation § 535 relating to the building and maintenance of roads and trails in the National Forests. 207. The actions of the ENF as set forth above in closing and prohibiting motorized access or prospecting and developing of mining claims in the ENF violates the purpose of the aforesaid Act.
208. Defendants’ actions in violating 18 U.S.C. § 666 (Misappropriation of Federal Funds) were arbitrary and capricious and an abuse of discretion. These actions have caused and will continue to cause immediate, direct, adverse and irreversible harm to Plaintiffs, other miners and prospectors, the United States, and the state of California.
COUNT XVI Violation of Plaintiffs’ Easement Rights
209. Plaintiffs repeat and incorporate by reference the allegations of Paragraphs 1 through 208 of this Complaint.
210. Plaintiffs have an implied easement by necessity over the roads, trails, and rights of way in the ENF, and in the National Forests of the Western United States to pursue prospecting, mining, and mineral development. Their mining claims and mineral estates give them such easements. Closure to motorized vehicles of the roads, trails, and rights of way in the ENF, and in the National Forests of the Western United States, adversely and unlawfully interfere with their implied easements, causing them harm and damages.
211. The actions of the ENF as set forth above in closing and prohibiting motorized access or prospecting and developing of mining claims in the ENF violates the aforesaid easement rights of Plaintiffs.
212. The Defendants’ actions in preparing, adopting and implementing the proposed closure and other rules and policies that interfere with the Plaintiffs’ easements were arbitrary and capricious, and an abuse of discretion. Such actions have caused and will continue to cause immediate, direct, adverse and irreversible harm to Plaintiffs and other miners and prospectors.
COUNT XVII: Violation of Plaintiffs’ Implied Right to Use Public Lands
213. Plaintiffs repeat and incorporate by reference the allegations of Paragraphs 1 through 212 of this Complaint.
214. The mining laws, and other statutes enacted by Congress, granting the right to prospect on the public lands, including the ENF, and other National Forests throughout the Western United States, as well as the granting of mining claims and mineral estates to Plaintiffs, and other miners and prospectors implies a right of access accompanying the grant, arising out of custom of prospectors and miners, to use such public roads as are available for prospecting and mining, and to access their mining claims and mineral estates in an unimpeded manner. Closure to motorized vehicles of the roads, trails, and rights of way in the ENF, and in the National Forests of the Western United States, adversely and unlawfully interfere with their implied right, causing them harm and damages.
215. The actions of the ENF as set forth above in closing and prohibiting motorized access or prospecting and developing of mining claims in the ENF violates the aforesaid implied right of Plaintiffs.
216. The Defendants’ actions in preparing, adopting and implementing the proposed closure and other rules and policies that interfere with the Plaintiffs’ implied right were arbitrary and capricious, and an abuse of discretion. Such actions have caused and will continue to cause immediate, direct, adverse and irreversible harm to Plaintiffs and other miners and prospectors.

COUNT XVIII: Violation of the Fifth Amendment to the United States Constitution and Article 1 § 7.(a) of the Constitution of California
217. Plaintiffs repeat and incorporate by reference the allegations of Paragraphs 1 through 216 of this Complaint.
218. Defendants’ decision to implement the Travel Management Plan banning motorized vehicles in the ENF has the effect of denying Plaintiffs their right to prospect and to access their mining claims and mineral estates in the ENF. As such, the decision constitutes a taking of their property without due cause and without just compensation, all in violation of the Fifth Amendment to the United States Constitution and Article 1 § 7.(a) of the Constitution of California.
219. The actions of the ENF as set forth above in closing and prohibiting motorized access or prospecting and developing of mining claims in the ENF violates the aforesaid Federal and State Constitutional Rights of Plaintiffs, all as set forth above.
220. The Defendants’ actions in preparing, adopting and implementing the proposed closure and other rules and policies that interfere with the Plaintiffs’ rights to prospect, and to access their mining claims and mineral estates in the ENF, were arbitrary and capricious, and an abuse of discretion. Such actions have caused and will continue to cause immediate, direct, adverse and irreversible harm to Plaintiffs and other miners and prospectors.
COUNT XIX: Injunctive Relief
221. Plaintiffs repeat and incorporate by reference the allegations of Paragraphs 1 through 220 of this Complaint.
222. Plaintiffs request injunctive relief, since the harm to them from the actions of the Defendants in implementing the Travel Management Plan in the ENF, which prohibits them from prospecting and accessing their mining claims and mineral estates, recreational use of the National Forests, and causes damage to them which is immediate and irreparable, since they must be able to use motorized vehicles in order to prospect and mine in the ENF, and for their lawful recreational use.
223. The actions of the ENF as set forth above in closing and prohibiting motorized access or prospecting and developing of mining claims in the ENF causes Plaintiffs irreparable harm and entitles them to immediate injunctive relief.
224. The Defendants’ actions in preparing, adopting and implementing the closure and other rules and policies that interfere with the Plaintiffs’ rights to prospect, and to access their mining claims and mineral estates in the ENF, and lawful recreational use of the National Forest, were arbitrary and capricious, and an abuse of discretion. Such actions have caused and will continue to cause immediate, direct, adverse and irreversible harm to Plaintiffs and other miners and prospectors, and other lawful recreational users of the National Forest.
COUNT XX: Damages
225. Plaintiffs repeat and incorporate by reference the allegations of Paragraphs 1 through 224 of this Complaint.
226. As a direct and proximate result of the aforesaid violations by Defendants as set forth in Counts I-XIX of this complaint, Plaintiffs have suffered present and future damages in an amount not presently ascertainable, the exact amount to be proven at trial.
DEMAND FOR JURY TRIAL
PRAYER FOR RELIEF
WHEREFORE, Plaintiffs respectfully pray that this Court:
1. Adjudge and declare that the challenged closure is arbitrary, capricious, an abuse of discretion, and unlawful pursuant to all acts, laws, and regulations as set forth in Counts I-XX of this Complaint, and that Defendants have acted beyond the scope of their legal authority in adopting those actions;
2. Enjoin and restrain Defendants, their agents, employees, successors, and all persons acting in concert or participating with them, from enforcing or implementing, and requiring others to enforce or implement, the aforesaid closure and related rules and policies; and issue a temporary, preliminary, and/or permanent injunction against Defendants pursuant to Rule 65, Federal Rules of Civil Procedure;
3. Declare unlawful and set aside the ROD and ENF Travel Management Plan;
4. Grant relief under the APA and hold unlawful and set aside the ENF Travel Management Plan, and all closures of roads, trails, and rights of way of any nature whatsoever.
5. Grant such damages as are proven at trial, with interest on the damages at the maximum annual rate as allowed by law, from such earliest date as allowed by law.
6. Remand the matters addressed in the ROD and ENF Travel Management Plan for further analysis and action in accordance with applicable law;
7. Award the Plaintiffs their reasonable attorney’s fees, costs, and expenses of litigation as allowed by law, including without limitation the Equal Access to Justice Act, 28 U.S.C. § 241 et seq. and other applicable laws or rules of Court; and
8. Grant such other and further relief as the Court deems just and proper, including an award of attorney’s fees, costs, and expenses.
Dated this 24th day of June, 2009

/S/David Young _
Attorney for Plaintiffs

11150 Olympic Blvd. Suite 1050
Los Angeles, CA 90064
Phone: 310-575-0308

[tekno]

this seems tobe our only route to go now! they dont seem tobe willing to reason or to use any logic with anyone in small scale mining!thankyou Jerry! it also seems that this will eventually become the norm now when dealing with these people! its just a shame that they are being lead by a tether by the wacoenviromentalists while demanding their tithe for their support for the election of o.

[Seamus]

"Eldorado Complaint Pleading Paper" (SHOWN ABOVE) (Lawsuit filing) is attached as a PDF file for downloading

[embollaro]

Two key points are 1) the closures are violations of ADA- Americans with Disabilities Act because the closures unfairly deny access to those with disabilities. 2) Many public roads and bridges in urban and suburban areas are not in the best repair or top shape but they are not closed because they are not perfectly maintained. These roads and trails need to remain open despite decreased maintenance by govt. just like in urban and exurban communities.

[Seamus]

The Raffle will be on Thursday December 17 2009

PLP Winter Raffle tickets
You can order your tickets for the new PLP December 17, 2009 Winter Raffle here


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CONTACT; Jim Lewis
655 E. La Loma Ave
Somis, CA 93066
(805) 485-7513

e-mail: goldcado1@aol.com