City of Williams v. Dombeck

• Decision Date: 30 March 2001
• Docket Number: No. CIV.A. 00-0066 CKK.,CIV.A. 00-0066 CKK.
• Citation: 151 F.Supp.2d 9
• Parties: CITY OF WILLIAMS, et al., Plaintiffs, v. Michael DOMBECK, et al., Defendants.
• Court: U.S. District Court — District of Columbia

Page 9

151 F.Supp.2d 9

CITY OF WILLIAMS, et al., Plaintiffs, v. Michael DOMBECK, et al., Defendants.

No. CIV.A. 00-0066 CKK.

United States District Court, District of Columbia.

March 30, 2001.

Geraldine Edens, Cadwalader, Wickersham & Taft, Washington, DC, for plaintiffs.

Wells Daniels Burgess, U.S. Department of Justice, Environment & Natural Resources Division, Washington, DC, Albert C. Lin, U.S. Department of Justice, Environment & Natural Resources Division, Washington, DC, for Michael Paul Dombeck, in his capacity as Chief of the United States Forest Service, Eleanor Towns, in her capacity as Regional Forester of the United States Forest Service, federal defendants.

Jay Kelly Wright, Arnold & Porter, Washington, DC, for Canyon Forest Village II Corporation.

David H. Getches, Boulder, CO, for Natural Resources Defense Council, Inc., National Parks and Conservation Association, and The Grand Canyon Trust.

Harry Rubenstein Sachse, Sonosky, Chambers, Sachse & Endreson, Washington, DC, for Havasupai Tribe and The Hopi Tribe.

MEMORANDUM OPINION

KOLLAR-KOTELLY, District Judge.

This case comes before the Court on cross-motions for summary judgment. Plaintiffs have brought this action against various government officials, challenging the decision of the United States Forest Service to approve a land exchange between itself and Canyon Forest Village, Inc. Plaintiffs' claims can be divided into two general categories: (1) claims under the Federal Land Policy and Exchange Management Act ("FLPMA"), 43 U.S.C. § 1701 et seq., and (2) claims under the National Environmental Policy Act of 1969 ("NEPA"), 42 U.S.C. § 4321 et seq. All the land involved is located on the outskirts of the Grand Canyon National Park in Northern Arizona. For reasons elaborated below, the Court finds that Plaintiffs' claims under FLPMA must be dismissed as they are not ripe for review. The Court further concludes that Defendants are entitled to summary judgment with respect to the NEPA claims set forth in Counts IV, V, and VII of Plaintiffs' Complaint. The Court correspondingly concludes that Plaintiffs are entitled to Summary Judgment with regard to the NEPA claims set forth in Count III of their Complaint.

I. BACKGROUND

Tusayan, Arizona is an unincorporated community of 144 acres in Coconino County that is surrounded by Kaibab National Forest. Compl. ¶ 29. Because Tusayan is located one mile south of Grand Canyon National Park, many National Park visitors use the Tusayan facilities while visiting the National Park. Id. ¶¶ 29, 30. In order to accommodate these visitors, the United States Forest Service created a Final Environmental Impact Statement ("FEIS") to evaluate the impact of various proposals to improve the Tusayan facilities. Id. ¶ 30. The FEIS focused on expanding the community by obtaining some of the 12 parcels of land in Kaibab National Forest, which are owned by Canyon Forest Village II Corporation ("CFV") and are surrounded by National Forest Service ("NFS") land. FEIS at 1. At least three of these parcels were considered "likely candidates for development." Id. Thus, the Forest Service sought to develop some sort of planned exchange and development to prevent the piecemeal development of parcels within the Kaibab National Forest that would likely have a negative impact on NFS land. Id.

In particular, the Forest Service studied eight alternatives that evaluated whether the Forest Service should use the National Forest Service land to expand the Tusayan community. Compl. ¶ 31. The alternatives varied as to quantity and location of the land which could potentially be used for the development and expansion. Id. ¶ 30. After scrutinizing all of the alternatives, the Forest Service chose to implement Alternative H. Id. ¶¶ 32, 33. Alternative H, which was created by CFV, proposed a land transaction between the Forest Service and CFV, with the Forest Service providing 272 acres of NFS land located north of Tusayan to CFV in exchange for twelve inholdings totaling approximately 2,118 acres. Id. ¶ 39. With the land it receives under this exchange, CFV proposes to construct a large shopping center, consisting of hotel, retail, food and beverage, and office space. Id. ¶ 40. The Forest Service chose this alternative because it determined that Alternative H served the public interest and met the objectives set forth in the Forest Plan. Id. ¶ 33.

The Plaintiffs in this case—two municipal corporations, a non-profit corporation, a limited liability company, and several individuals residing in or near Tusayan— have filed suit under the Administrative Procedure Act seeking judicial review of the Forest Service's decision to proceed with Alternative H. Id. ¶¶ 3-28. The Plaintiffs claim that the selection of Alternative H violates the National Environmental Policy Act ("NEPA"), 42 U.S.C. § 4321 et seq., and the Federal Land Policy Exchange Management Act ("FLPMA"), 43 U.S.C. § 1701 et seq. Id. ¶¶ 92-156. CFV has been permitted to intervene in this action. See City of Williams, Arizona v. Dombeck, No. 00-66 (D.D.C. August 17, 2000) (order granting CFV's motion to intervene).

On March 15, 2000, the County Board of Supervisors for Coconino County approved a CFV-requested zoning ordinance. However, "the ordinance and the land transfer ... was [sic] stayed pending a referendum held in Coconino County on November 7, 2000." Pl. Supp. Reply Mem. in Supp. of Cross Mot. for Sum. J. (Pl.Supp.Reply.) at 1. The November 7, 2000, referendum stated that the ordinance "amend[ed] the county zoning map on application of the U.S. Forest Service by [CFV] for a zone change from `open space' to `planned community' on 272 acres located south of the Grand Canyon, allowing lodging, retail, employee housing, and community facility uses, with 63 conditions." Id. at 2 (quoting Sample Ballot, Ex. A). The ballot further stated:

A "Yes" vote shall have the effect of ALLOWING the Canyon Forest Village development on the subject property as approved by the County Board of Supervisors.

A "No" vote shall have the effect of REJECTING the rezoning request as approved by the County Board of Supervisors and retaining the "open space" designation for the subject property.

Id. (quoting Sample Ballot, Ex. A). The certified results of the above-described referendum ballot show that "No" defeated "Yes" by a total of 24, 417 to 13, 817 votes. Id. (citing Ex. B). "As a result, the Board of Supervisor's decision has been invalidated and there is no zoning for any aspect of the lands encompassed by Alternative H other than as `open space.'" Id. Coconino County Zoning Ordinances prohibit CFV from seeking rezoning on the same parcel for at least one year following the denial by the voters. Id. (citing Coconino Zoning Ordinance § 19.4-12).

II. SUMMARY JUDGMENT STANDARD

Summary judgment should be granted pursuant to Fed.R.Civ.P. 56 only if no genuine issues of material fact exist and the moving party is entitled to judgment as a matter of law. See Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). In ruling upon a motion for summary judgment, the Court must view the evidence in the light most favorable to the nonmoving party. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986); Bayer v. United States Dep't of Treasury, 956 F.2d 330, 333 (D.C.Cir.1992). Likewise, in ruling on cross-motions for summary judgment, the court shall grant summary judgment only if one of the moving parties is entitled to judgment as a matter of law upon material facts that are not genuinely disputed. See Rhoads v. McFerran, 517 F.2d 66, 67 (2d Cir.1975). Summary judgment is also appropriate where, as here, review is on the administrative record. See, e.g., Richards v. INS, 554 F.2d 1173, 1177 n. 28 (D.C.Cir.1977).

III. ANALYSIS

As mentioned above, Plaintiffs' claims can be divided into two general categories: (1) claims under FLPMA and (2) claims under NEPA. The Court will address each category in turn.

A. Claims under FLPMA

Counts I and II of Plaintiffs' Complaint present claims under 43 U.S.C. § 1716. Count I asserts that the Alternative H does not comport with the requirement in Section 1716(b) that the values of the lands exchanged by the Forest Service either "be equal, or if they are not equal, the values shall be equalized by the payment of money ... so long as the payment does not exceed 25 per centum of the total value of the lands or interests transferred out of Federal ownership." 43 U.S.C. § 1716(b). Pursuant to this provision, Plaintiffs attack the property appraisals relied upon by the Forest Service to value the relevant parcels of land. Compl. ¶¶ 95-101. Count II alleges that the Forest Service erroneously concluded that the "public interest will be served by making" the proposed land exchange and in doing so, violated 43 U.S.C. § 1716(a). Id. ¶¶ 105-10.

Although neither party addresses the issue in their filings, the Court is concerned that Plaintiffs' claims under FLPMA are not ripe for review. The Court's concern in this regard flows directly from the outcome of the November 7, 2000, referendum which denied the zoning necessary to fully implement the plans anticipated in Alternative H. Because ripeness is a jurisdictional requirement, it is entirely appropriate for the Court to raise this issue sua sponte. See Wyoming Outdoor Council v. United States Forest Service, 165 F.3d 43, 48 (D.C.Cir.1999) ("Just as the constitutional standing requirement for Article III jurisdiction bars disputes not involving injury-in-fact, the ripeness requirement excludes cases not involving present injury."); Metzenbaum v. FERC, 675 F.2d 1282, 1289-90 (D.C.Cir.1982) ("Ripeness doctrine is drawn both from Article III limitations on judicial power and discretionary reasons of policy for refusing to exercise existing power.").¹

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