United States Tenth Circuit

In a petition for review of a Notice of Noncompliance that the United States Forest Service (FS) issued to petitioner concerning its pumice mining activities, the denial of the petition is affirmed where: 1) the expiration of petitioner's plan of operations completely and irrevocably eradicated the effects of the plan modification requirement set forth in the Notice of Noncompliance; 2) it was not plainly erroneous or inconsistent for the FS to conclude from its regulations that an "uncommon variety" mineral becomes a common variety mineral when it is no longer used in an application that emphasizes its distinct and special value; and 3) the administrative record simply did not support petitioner's assertion that it was unaware of the FS-s requests for verification.

Appellate Information

• Decided 04/19/2010
• Published 04/19/2010

Judges

• BRISCOE, Circuit Judge., Before HENRY, Chief Judge, HOLLOWAY, and BRISCOE, Circuit Judges.

Court

• United States Tenth Circuit

Counsel

• For Appellant:
  
• Joseph E. Manges of Comeau, Maldegen, Templeman & Indall, LLP, Santa Fe, NM, for Plaintiff-Appellant.


• For Appellees:
  
• Elizabeth Ann Peterson, Attorney, Environment and Natural Resources, United States Department of Justice, Washington, D.C. (John C. Cruden, Acting Assistant Attorney General, Environment & Natural Resources Division, United States Department of Justice, Washington, D.C.; William B. Lazarus, Attorney, Department of Justice, Washington, D.C.; Patricia Leigh Disert, Of Counsel, Office of General Counsel, United States Department of Agriculture, Albuquerque, NM; Andrew R. Varcoe, Of Counsel, Office of the General Counsel, Litigation Division, United States Department of Agriculture, Washington, D.C., with her on the brief), for Defendants-Appellees.