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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 17-cv-2563-REB
SAVE THE COLORADO, et al.
Petitioners,
v.
UNITED STATES BUREAU OF RECLAMATION, et al.
Respondents.
RESPONDENTS’ RESPONSE TO MOTION TO SUPPLEMENT
Petitioners bring claims under the Administrative Procedure Act (“APA”)
challenging approvals by the Bureau of Reclamation (“Reclamation”) and the United
States Army Corps of Engineers (“Corps”) of the privately constructed Windy Gap
Firming Project (“Firming Project” or “Project”). See Am. Pet. (ECF No. 8). The Firming
Project is intended to produce reliable, annual water supplies – hence the term “firming”
– from the existing Windy Gap Project, owned and operated by the Municipal Subdistrict
of the Northern Colorado Water Conservancy District (Subdistrict). BOR0017706-07.
After an “independent evaluation,” BOR0015256, the federal agencies concluded the
Firming Project is needed to meet a portion of the existing and future water needs of the
growing east slope municipalities within the Subdistrict, and the other Project
beneficiaries, including west slope water users. See BOR0015250.
The main feature of the Firming Project will be Chimney Hollow Reservoir, which
will be entirely funded by the Project participants, see BOR0015247, and built by the
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Subdistrict on land primarily owned by the Subdistrict. See BOR0017709-10. The
Firming Project involves a major federal action subject to the National Environmental
Policy Act (“NEPA”) because the reservoir will be part of the Subdistrict’s Windy Gap
Project, which is integrated into Reclamation’s Colorado-Big Thompson Project (“CBT”). BOR0017709-10. Federal permits are required to use C-BT facilities,
BOR0017719, and because construction of Chimney Hollow Reservoir will permanently
impact three acres of waters of the United States. COE0018552.
The agencies’ decisions to grant those approvals are supported by an
administrative record for each agency (collectively “record”). See ECF Nos. 27-32. As
Petitioners note, Respondents have agreed that sixteen documents that were not listed
in one or both of the agencies’ indices are part of the record. Once the indices are
corrected to include those documents, the whole record – everything directly or
indirectly considered by the agencies’ decision-makers – will be before this Court.
Petitioners now move the Court to supplement the record with the “Buchanon
Report,” a new document prepared for this litigation and unseen by the agencies’
decision makers, which asserts the agencies “overestimated” demand for water from
the Project and offers competing estimates of demand for some of the Project
participants. 1 Pet’rs Mot. to Suppl. the Administrative Recs. (ECF No. 33) at 2 (“Mot.”);
Ex. A to Mot. at i. (ECF No. 33-1) (“Buchanon Report” or “Report”). Petitioners’ Motion
should be denied for three independent reasons.

1

The Report makes projections for only eight of the then thirteen project
participants. See Report at 7-36. One, the City of Evans – the participant discussed at
greatest length in Petitioners’ Motion – has since withdrawn. See ECF No. 23-2 at 2.
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First, Petitioners are barred from submitting the Report to this Court because
they deprived the agencies of the opportunity to address the Report during the
administrative process, despite conceding that the underlying data was available to
them during the NEPA process, id at 3, and having submitted no less than six comment
letters addressing the Final EIS. Second, Petitioners offer the Report for a plainly
impermissible purpose: disputing the methodology used by the agencies experts. Third,
because the Report demonstrates the agencies considered the demand for water from
the Firming Project, the Report is not evidence of a gap in the NEPA process or of an
omitted relevant factor, and is not necessary for this Court’s review.
Factual Background
Each Firming Project participant evaluated its water needs based on factors
including: available supplies, population growth projections, development planning,
water planning requirements, and conservation efforts. See BOR0015256-58.
Reclamation and the Corps then “conducted an independent evaluation” of the
participants’ water requirements, BOR0015256; COE0001142, through the 2005
“Purpose and Need Report,” BOR0004505, BOR0004314 (report appendices).
The Purpose and Need Report projected long term water demand for each
Project participant through 2050, or the participant’s build-out, after accounting for future
water conservation improvements. See BOR0015258-66. The methods used to
determine water demand for each participant differed substantially, BOR0004506, but
generally were based on each participants’ planning processes (BOR0004503);
Reclamation’s assessment of the participants’ firm yield goals (BOR0004503-06);
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available water supplies (BOR 4508); and demographic trends (BOR 4512-15). The
report concluded that the East Slope Project participants would face shortages in firm
yield of 110,000 acre-feet in 2050. BOR0004549. The Firming Project is intended to
produce a portion of that needed water: 30,000 acre-feet of firm yield, while also
providing water needed on the west slope. BOR0004552.
Petitioners suggest that “commenters repeatedly urged Reclamation and the
Corps to look at” the Project participants’ “actual use” data now presented in the
Buchanon Report. Mot. at 11. In fact, none of the comments cited in Petitioners’
Motion alleged that data of Project participants’ actual use of water demonstrated that
the agencies’ projections of demand for water from the Project were flawed.
Instead, those comments included suggestions that Reclamation should have
used a different gallons per capita per day for comparative purposes (BOR004852), or
in its estimations (BOR0004812, BOR0012156); 2 made unsupported allegations that
there was no need for the Firming Project (BOR0009237, BOR0001559); or vaguely
suggested conservation efforts could reduce the need for water (BOR0009248-49).
One cited comment suggested that Reclamation had overestimated population
growth rates and did not adequately integrate water conservation and efficiency

2

Western Resources Advocates suggested the per capita water use should be
reduced by 25%. BOR0012156. That figure was drawn from a presentation by the
Colorado Water Conservation Board, not consideration of the participants’ actual water
use. Id. In any event, Reclamation explained that number was not practical for the
Firming Project because it was based on a single, high use, year and included use by
water providers without water conservation plans. BOR0015209.
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measures. 3 BOR0015127. Among the points made in Reclamation’s response were
that short term results do not necessarily undermine long term projections:
The recession has indeed had an impact on growth . . . However,
recessions are short-term economic phenomena, similar to economic
boom growth. Long-term growth projections are normalized to “smooth
out” cyclical high and low-growth periods. Id.
Contrary to Petitioners’ assertion, EPA’s comments on the Draft Environmental
Impact Statement (“DEIS”) did not “urge Reclamation to re-evaluate its demand
projections.” Mot. at 8. Rather, “[b]ecause demand projections are difficult to estimate,”
EPA recommended an independent review by the Corps’ Institute for Water Resources
of the Project participants’ future water requirements. BOR0014821. EPA also
suggested that “the recent downturn in the real estate market” could slow the Project
participants’ growth. Id. Reclamation’s response explained why the Project
participant’s actual water use might lag the projected use:
While the timing of Participant future water needs may vary from
projections because of changing economic conditions or other variables,
all available evidence, including recent reports from the State Water
Supply Initiative, indicates that water demand for the WGFP Participants,
as well [as] other water users along the Colorado Front Range, will
continue to increase in the future as the population grows.
BOR14822. In light of that, Reclamation concluded that “no additional reviews or
studies are necessary to evaluate future water requirements or supplies.” Id.
In the Final EIS, Reclamation affirmed that the projections presented in the DEIS
“provide a reasonable representation of the water needs for the [Project] participants.”

3

The letter did not explain how conservation could be better integrated. Instead, it
focused on water demand for the Platte River Power Authority (“PRPA”). BOR0015127.
The Buchanon Report does not discuss the water needs of the PRPA. Report at 1.
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BOR0015267. In reaching that conclusion, Reclamation emphasized that the Firming
Project is intended “to meet the long-term future needs” of the participants. Id.
(emphasis added).
Petitioners cite only one of the comments on the FEIS. That comment
addressed population growth, not the Project participants’ recent water use. See
COE0018630. Even more telling are the comments Petitioners did not cite – their own.
Starting the same month the FEIS was released (COE0012325) and ending just
two months before the Corps’ Record of Decision (COE0018486), Petitioners sent the
agencies no less than six formal comment letters. Those letters offered “serious
concerns” with the Project (COE0012325), repeatedly requested the FEIS be
supplemented (COE14531, BOR0016788, COE0015274) and contended the FEIS was
“fatally flawed” in twenty-two different ways. COE0016310-13. What Petitioners’
comments did not do was allege that actual use data for the Project participants showed
that the agencies’ projections of demand were flawed.
Legal Background
I.

THE NATIONAL ENVIRONMENTAL POLICY ACT.
The National Environmental Policy Act (“NEPA”), 42 U.S.C. § 4321 et seq.,

“requires federal agencies to integrate environmental values into their decision-making
process. . .” Wyoming v. USDA, 661 F.3d 1209, 1236 (10th Cir. 2011). The statute has
two aims: ensuring that an agency consider the environmental impact of a proposed
action and informs the public of that consideration.” See id. at 1236-37 (citation

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omitted). NEPA accomplishes those aims through purely procedural means; “it does
not mandate substantive results.” Id. at 1237 (citation omitted).
NEPA’s formal public comment process gives the public the opportunity to inform
the agency and improve the agency’s decision-making, but also imposes an obligation
on the public. As a matter of “simple fairness” and judicial respect for agency functions,
members of the public wanting to challenge an agency's compliance with NEPA are
obligated to raise their contentions with the agency and allow the agency an opportunity
to give those contentions meaningful consideration. Wilson v. Hodel, 758 F.2d 1369,
1372 (10th Cir.1985); Dept. of Transp. v. Pub. Citizen, 541 U.S. 752, 764 (2004)
(quoting Vt. Yankee Nuclear Power Corp. v. Nat. Res. Def. Council, Inc., 435 U.S. 519,
553 (1978)). Failure to do so may forfeit any right to pursue issues on judicial review.
Wilson, 758 F.2d at 1373; Pub. Citizen, 541 U.S. at 764-65.
II.

THE CLEAN WATER ACT.
The Clean Water Act establishes a comprehensive program designed to “restore

and maintain the chemical, physical, and biological integrity of the Nation’s waters.” 33
U.S.C. § 1251(a). Section 404(a) of the Clean Water Act authorizes the Secretary of
the Army, acting through the Corps, to issue individual permits for the discharge of
certain pollutants, specifically “dredged or fill material.” 33 U.S.C. § 1344(a). The
Corps considers a Section 404 permit application under NEPA regulations promulgated
by the Council on Environmental Quality (“CEQ”), set forth in 40 C.F.R. Part 1500, and
the Corps’ own NEPA guidelines in 33 C.F.R Part 325, App. B. The Corps also
undertakes a public interest review of the application, which balances the “benefits
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which reasonably may be expected to accrue from the proposal” against the proposal’s
“reasonably foreseeable detriments.” 33 C.F.R. § 320.4(a)(1). Section 404 permits
must also comply with “404(b)(1) Guidelines” issued by the United States Environmental
Protection Agency. Id. § 323.6(a).
III.

JUDICIAL REVIEW UNDER THE ADMINISTRATIVE PROCEDURE ACT.
The APA requires a reviewing court to affirm an agency decision unless it is

“arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.”
5 U.S.C. § 706(2)(A). Under this standard, the scope of judicial review is narrow and
deferential. See Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416
(1971), abrogated on other grounds, Califano v. Sanders, 430 U.S. 99 (1977).
A fundamental principle of judicial review pursuant to the APA is that “[t]he focal
point for judicial review should be the administrative record already in existence, not
some new record made initially in the reviewing court.” Camp v. Pitts, 411 U.S. 138, 142
(1973). Under this record rule, “[j]udicial review of agency action is normally restricted
to the administrative record.” Citizens for Alts. to Radioactive Dumping v. U.S Dept. of
Energy, 485 F.3d 1091, 1096 (10th Cir. 2007) (citation omitted).
To enforce that general rule, the Tenth Circuit has instructed that a reviewing
court may supplement the record with material not seen by the agency only in
“extremely limited circumstances, such as where the agency ignored relevant factors it
should have considered or considered factors left out of the formal record.” Lee v. U.S.
Air Force, 354 F.3d 1229, 1242 (10th Cir. 2004) (internal punctuation and citation
omitted); accord Citizens for Alts., 485 F.3d at 1096. Because an agency is entitled to
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rely on its own experts’ analysis, those “extremely limited circumstances” do not exist
when the extra-record materials demonstrate that an expert disagrees with an agency’s
methods. E.g., Lee, 354 F.3d at 1243-44; Coal. of Concerned Citizens To Make Art
Smart v. Fed. Transit Admin., 843 F.3d 886, 899 (10th Cir. 2016).
Argument
I.

PETITIONERS WAIVED THEIR OPPORTUNITY TO RELY ON THE
BUCHANON REPORT.
A party’s obligation to present material to an administrative agency has been a

principal of NEPA jurisprudence since the Supreme Court’s seminal decision in Vermont
Yankee, four decades ago. For almost as long, the Tenth Circuit has instructed that a
party asserting an agency should have considered particular information “had a
responsibility to place such information in the record.” N.M. Env't Improvement Div. v.
Thomas, 789 F.2d 825, 835 (10th Cir.1986) (“NMEID”).
Petitioners abdicated their responsibility. Despite submitting extensive
comments over a six year period, Petitioners never suggested that “actual demand
data” undercut the agencies’ projections of water demand. Petitioners cannot now put
that data before this Court because courts “will not review information that [a party]
failed to include in the administrative record or present before [the agency].” 4 Id. at 83536; Holy Cross Wilderness Fund v. Madigan, 960 F.2d 1515, 1528 n.18 (10th Cir.

4

Applying this prohibition is particularly appropriate here because Petitioners are
belatedly attempting to supplement the record with a report they commissioned
especially for this litigation. See Gulf Coast Rod Reel & Gun Club v. U.S. Army Corps
of Eng’rs, 2015 WL 1883522 at *6 (S.D. Tex. Apr. 20, 2015) (courts applying the APA
have long declined to consider materials created for litigation).
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1992); see also Vill. of Logan v. U.S. Dep’t. of Interior, 2013 WL 12149188, at *3 (D.
N.M. Apr. 26, 2013) (citing NMEID in declining to supplement record with material the
plaintiff had the opportunity to put before the agency).
II.

EVEN ABSENT A WAIVER, PETITIONERS HAVE NOT JUSTIFIED THIS
COURT DEPARTING FROM THE RULE OF RECORD REVIEW.
Courts are “generally reluctant to allow parties to supplement the record with

evidence not considered by the agency in reaching its challenged decision.” Colo. Wild
v. Vilsack, 713 F. Supp. 2d 1235, 1239 (D. Colo. 2010). That reluctance stems from the
judicial desire to avoid being tempted to second-guess the agency, San Luis Obispo
Mothers for Peace v. NRC, 751 F.2d 1287, 1325-26 (D.C. Cir. 1984), aff'd on reh'g en
banc, 789 F.2d 26 (D.C. Cir. 1986); to avoid “requiring administrators to be prescient or
allowing them to take advantage of post hoc rationalizations,” Colo Wild, 713 F. Supp.
2d at 1239; and to avoid being unfair to the agency. Wilson, 758 F.2d at 1372.
In light of those considerations and the deference accorded administrative
agencies under the APA, Petitioners are required to prove that not including the
Buchanon Report in the record would “effectively frustrate[] judicial review.” Rags Over
the Ark. River, Inc. v. Bureau of Land Mgmt., 2014 WL 12741064, at *1 (D. Colo. Mar.
28, 2014) (“ROAR”) (quoting Animal Def. Council v. Hodel, 840 F.2d 1432, 1437 (9th Cir.
1988), amended, 867 F.2d 1244 (9th Cir. 1989)).
A. Petitioners May Not Supplement the Record with Material Disputing an
Agency’s Methodology.
Petitioners’ Motion must be denied because “disagreement regarding the reliability
of the methodology [the agency used] is an insufficient basis for admitting extra-record
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evidence....” Lee, 354 F.3d at 1243–44; see also ROAR, 2014 WL 12741064, at *1
(“[E]vidence showing that a plaintiff’s expert disagrees with an agency expert is not a
basis to admit extra-record evidence.”).
This is a text book case of a Petitioner seeking to introduce a competing expert
report for the purpose of challenging the agencies’ expert conclusions. Rather than
contending that the agencies failed to estimate demand for water from the Project, the
Buchanon Report contends the agencies erred and produced demand projections that
are “overstated.” 5 Report at i.
Because Petitioners seek to use the Buchanon Report to challenge the agencies’
methodology, there is no basis for this Court to supplement the record and Petitioners’
Motion must be denied. Lee, 354 F.3d at 1243–44; ROAR, 2014 WL 12741064, at *2;
see also Colo. Wild, 713 F. Supp. 2d at 1241 (there is no basis for a court to admit
“[e]xtra-record evidence which is actually a competing expert opinion.”).
B. The Buchanon Report Does Not Present the “Extremely Limited
Circumstances” Necessary to Justify Consideration of Extra-Record
Material.
Petitioners first suggest the Buchanon Report can be reviewed pursuant to the
so-called “NEPA exception,” which some courts have used to fill “gaps or inadequacies
in the NEPA process.” Mot. at 5-6 (quoting Colo. Wild, 713 F.Supp. 2d at 1241).
Petitioners further contend the record should be supplemented because the agencies

5

Apart from the report’s inadmissibility under the APA, it is not clear the report
would be admissible in any forum. The report does not explain how Dr. Buchanon’s
“linear” projections of demand were done, why they are an appropriate methodology or
even how Dr. Buchanon is qualified to offer expert opinion. Cf. Fed. R. Evid. 702.
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“ignored relevant factors [they] should have considered in making [their] decision[s].” Id.
(quoting Custer Cty. Action Ass’n v. Garvey, 256 F.3d 1024, 1027 n. 1 (10th Cir. 2001)).
Finally, Petitioners suggest the “‘agency action is not adequately explained and cannot
be reviewed properly without considering the [Buchanon Report].” Id. at 6 (citations
omitted). Petitioners have failed to prove that the Buchanon Report presents the
extremely limited circumstances which may justify invoking any one of these exceptions.
1. The NEPA Exception does not justify admitting the Buchanon
Report.
Although no Tenth Circuit decision has expressly recognized it, Petitioners assert
supplementing the record is warranted pursuant to the so-called “NEPA exception.”
Mot. at 10. The “NEPA exception” is really no more than a case-specific application of
the “relevant factor” exception Petitioners also rely on. As courts have recognized, the
NEPA exception rests on the same basis as the relevant factors exception. See Gulf
Coast Rod Reel, 2015 WL 1883522, at *3 (“the rationale for the ‘NEPA exception’ [is]
determining whether the agency considered all of the relevant factors.”) (internal
punctuation omitted); ROAR, 2014 WL 12741064, at *2 (the “NEPA exception” is “a
variant of the ‘relevant factors’ test.”). And indeed, the Tenth Circuit has considered the
same factors which led the Second Circuit to conceive of the NEPA exception without
any indication that the court intended to create a new exception to the rule limiting
judicial review to the record. Compare Lee, 354 F.3d at 1242 and Citizens for Alts., 485
F.3d at 1096 with Cty. of Suffolk v. Sec’y of the Interior, 562 F.2d 1368, 1384-85 (2nd
Cir. 1977) (all stating that extra-record material may be considered when necessary for
the court to consider allegations that the agency failed to mention a serious
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environmental consequence or “otherwise swept stubborn problems or serious criticism
under the rug.”). Because the NEPA exception is better seen as an application of the
relevant factors exception, it provides no independent reason to supplement the record.
Even if the “NEPA exception” did stand on its own, it could not justify
supplementing the record with the Buchanon Report. First, the Tenth Circuit has been
emphatic – even in NEPA cases – that supplementation is only appropriate in
“extremely limited circumstances.”6 E.g., Lee, 354 F.3d at 1242; Citizens for Alts.,
485 F.3d at 1096. Second, the NEPA exception may be applied only where an
agency’s process is insufficient, so proffered extra-record material must “illuminate a
broad section of analysis that is wholly lacking in the record.” Colo Wild, 713 F.Supp.
2d at 1241-42 (emphasis added); see also San Luis Valley Ecosystem Council v. U.S.
Bureau of Land Mgmt., 2015 WL 13613523, at *5, 7 (D. Colo. Mar. 9, 2015)
(acknowledging NEPA exception but declining to add documents addressing subjects
already in the record); ROAR, 2014 WL 12741064, at *3 (NEPA exception cannot be
used to supplement record with material purporting to show inadequate agency
consideration of a subject).
Petitioners assert that the Buchanon Report fills “a major analysis gap: support
for the continued need of the project.” Mot. at 10. That is simply not the case. Far
from being “wholly lacking,” the FEIS and the record as a whole contain extensive
documentation of the need for the Firming Project to meet a portion of the participants’

6

Similarly, the prohibition on using extra-record material to offer competing expert
opinion applies just as strongly in a NEPA case as it does in any other case. See Colo.
Wild, 713 F. Supp. 2d at 1241 (citing Lee, 354 F.3d at 1242).
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water needs. E.g. BOR0004489-4555. Moreover, the Buchanon Report could not fill
any purported “gap” in the record because it only makes long term projections for about
half of the Project participants. Report at 7-36. Consequently, Petitioners cannot rely
on the NEPA exception to justify supplementing the record with the Buchanon Report.
2. The Buchanon Report does not demonstrate that a “relevant
factor” has been ignored.
Presumably because it is readily apparent the agencies did address demand for
water from the Project and thus that the Report is not evidence that the agencies
missed a relevant factor, Petitioners ask this Court to expand the “relevant factor”
exception endorsed by the Tenth Circuit in Lee, into a “relevant facts” exception. Mot.
at 12. Petitioners’ argument cannot succeed because “factor” must be construed as
synonymous with “topic;” to construe the term more broadly would eviscerate the Tenth
Circuit’s command that exceptions to the record rule are appropriate only in “extremely
limited circumstances.” Lee, 354 F.3d at 1242.
Indeed, Lee illustrates that the Tenth Circuit adheres to this narrow construction
of “factor.” There the appellants sought to supplement the administrative record with
the affidavit of a professional real estate appraiser, which contended the Air Force’s
program would lead to decreased land values. The Tenth Circuit found there were no
“gaps or inadequacies” that would justify admitting the material because the Air Force
had already addressed the potential for change in land values. Id.; see also San Luis
Valley, 2015 WL 13613523, at *6 (documents were not evidence an agency had ignored
a relevant factor because the documents addressed a subject already addressed in the
record); Friends of the Earth v. Hintz, 800 F.2d 822, 829 (9th Cir. 1986) (quashing
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depositions where the record addressed the subject matter). Likewise, here, where the
agencies did address the need for water from the Project, there is no gap in the record.
3. The Buchanon Report is not necessary for this Court’s review.
Petitioners contend the Buchanon Report is necessary for this Court’s review
because it provides “a more complete picture” of the need for the Firming Project. Mot.
at 13. Petitioners’ own argument proves the report is not necessary. As courts have
repeatedly recognized, material that helps present a more complete picture of an issue
already addressed in the record is not necessary for judicial review. See e.g., ROAR,
2014 WL 12741064, at * 1 (supplementation is not allowed “merely to bolster the record
or supply background information’) (quoting Ctr. for Biological Diversity v. Jewell, 2014
WL 116408 at *1 (D. Ariz. Jan. 13, 2014)); Vill. of Logan, 2013 WL 12149188 at * 3
(document not necessary for judicial review where agency had addressed subject
matter). Because there is an abundance of evidence on the subject of water demand in
the record, the Buchanon Report cannot be necessary for effective review.
Conclusion
Petitioners should not be allowed to rely on an expert document they deprived
the agencies of the ability to address. Even if that were not the case, their Motion must
be denied because the Buchanon Report is no more than dueling expert opinion.
Finally, Petitioners’ Motion must be denied because Petitioners have failed to
demonstrate this is one of the “extremely limited circumstances” appropriate for
supplementing the record. At bottom, the question before this Court is: does the
absence of the Buchanon Report “effectively frustrate[] judicial review.” E.g., ROAR,
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2014 WL 12741064 at * 1. Given the abundance of material in the record addressing
demand for water from the Project, the answer to that question can only be no.
Respectfully submitted this 24th day of May, 2018.
JEFFREY H. WOOD
Acting Assistant Attorney General
Environment and Natural Resources Division
/s/ David W. Gehlert
DAVID W. GEHLERT
Colorado Bar No. 21852
U.S. Dept. of Justice, ENRD
Natural Resources Section
999 18th Street
South Terrace, Suite 370
Denver, CO 80202
Tel.: (303) 844-1386
E-mail: David.Gehlert@usdoj.gov

DANIEL DERTKE
Senior Attorney
U.S. Dept. of Justice, ENRD
Environmental Defense Section
601 D. St. NW
Washington, D.C. 20004
Tel.: (202) 514-0994
E-mail: Daniel.Dertke@usdoj.gov

Attorneys for Respondents

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Certificate of Service
I hereby certify that on this 24th day of May 2018, I electronically filed the foregoing
with the Clerk of Court via the CM/ECF system, which will provide notice of this filing by email to all counsel record.

/s/ David W. Gehlert
David W. Gehlert
Attorney for Respondents

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