Everett v. U.S., 97-5282

• Decision Date: 30 October 1998
• Docket Number: No. 97-5282,97-5282
• Citation: 158 F.3d 1364
• Parties: , 29 Envtl. L. Rep. 20,278 Frank E. EVERETT, III, Appellant, v. UNITED STATES of America, et al., Appellees.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 1364

158 F.3d 1364

332 U.S.App.D.C. 458, 29 Envtl. L. Rep. 20,278

Frank E. EVERETT, III, Appellant, v. UNITED STATES of America, et al., Appellees.

No. 97-5282.

United States Court of Appeals District of Columbia Circuit.

Argued Sept. 28, 1998.

Decided Oct. 30, 1998.

Appeal from the United States District Court for the District of Columbia (No. 95cv00769).

Roger J. Marzulla argued the cause for appellant. With him on the briefs was Nancie G. Marzulla.

Rudolph Contreras, Assistant U.S. Attorney, argued the cause for appellees. With him on the brief were Wilma A. Lewis, U.S. Attorney, and R. Craig Lawrence, Assistant U.S. Attorney.

Before: EDWARDS, Chief Judge, WALD and SENTELLE, Circuit Judges.

EDWARDS, Chief Judge:

This case involves a claim by appellant Frank E. Everett ("Everett") that he has a right to land his personal helicopter on National Forest lands. The United States Forest Service ("Service") denied Everett a permit to land his helicopter and forbade him to land without a permit. Everett's attempt to overturn the Service's action was rejected by the District Court and he now appeals.

Service regulations designate "[a]ll uses of National Forest System lands" as "special uses," with the exception of those uses provided for in the regulations governing the disposal of timber and minerals and the grazing of livestock. 36 C.F.R. § 251.50(a) (1998). Under the regulations, "[b]efore engaging in a special use, persons or entities must ... obtain a special use authorization from the authorized officer unless that requirement is waived by paragraph (c) of this section." Id. The regulations exempt from this permit requirement "noncommercial recreational activities such as camping, picnicking, hiking, fishing, hunting, horseback riding, and boating." 36 C.F.R. § 251.50(c).

Everett seeks to land his private helicopter on a three-and-one-half acre parcel of Sawtooth National Forest ("Sawtooth") land that abuts his vacation property in rural Idaho. Everett argues that he is not required to obtain a permit for this use of National Forest System ("NFS") land, because § 251.50(c) exempts his proposed use from the permit requirement. Alternatively, assuming he is required to obtain a permit, Everett argues that the Service's denial of his permit request was arbitrary and capricious, because the decision rested on inappropriate criteria. The Service contends that helicopter landing bears little resemblance to the uses expressly exempted under § 251.50(c) and is, therefore, prohibited without a permit under § 251.50(a). The Service denied the permit request in this case based on its determination that Everett's helicopter landing could be accommodated on non-NFS lands, Everett had adequate alternative access to his property, and Everett's proposed use would inure solely to his own benefit at the expense of other uses of the same parcel. Because we find that the Service reasonably interpreted and applied its regulations, we affirm the District Court's grant of summary judgment in favor of the Service.

I. BACKGROUND

Everett owns a vacation home in the Barlow Subdivision in Blaine County, Idaho. His property lies directly adjacent to a three-and-one-half acre parcel of Sawtooth land that is separated from other NFS land by the Big Wood River. A road across Everett's property provides access to this Sawtooth parcel, and the public routinely engages in picnicking and fishing activities there. Everett is a licensed pilot and he would like to land his private helicopter on this piece of land in order to access his property. He initially intended to land the helicopter on his own property; however, county officials notified him in 1993 that use of the property as a private airfield violated a local zoning ordinance. The county suggested that he use Freedman Airport, located 20 miles away, as a landing site. Instead, Everett chose to land his helicopter on the adjacent NFS land that is not directly governed by the zoning ordinance.

On October 16, 1994, Everett's immediate neighbor contacted the Service's Ketchum Ranger District to complain about Everett's helicopter landings on Sawtooth land. Several days later, the Ketchum Ranger District Lands Forester, Carol Brown, informed Everett that he was not authorized to land his helicopter on NFS land. District Ranger Alan Pinkerton then wrote to the Sawtooth Forest Supervisor, Jack E. Bills, expressing concern over "the potential for uncontrolled use of private aircraft" in the NFS and urging Bills to take control of this activity, as the Service had done with respect to the Sawtooth National Recreation Area. See Appendix ("App.") 131.

Subsequently, on November 2, 1994, Bills issued Special Order No. 04-14-00-002 ("Order"), pursuant to his authority under 36 C.F.R. § 261.50(a). The Order prohibited the "[l]anding of aircraft, or dropping or picking up any materials, supplies, or person by means of aircraft, including helicopters, except at established airfields," on all Sawtooth land. App. 9. The Order, which purported to amend certain existing regulations, explicitly exempted from the prohibition persons with permits. Everett attempted to appeal the Order to the Chief of the Service, Jack Ward Thomas. However, on February 3, 1995, a Deputy Regional Forester, Jack A. Blackwell, informed Everett that the Order was not subject to appeal under any Service regulations and advised him instead to apply for a special use permit.

On March 16, 1995, Everett submitted an application to the Ketchum Ranger District for a special use permit to "occasionally land his private helicopter on Federal land next to his property in order to access his vacation home." App. 17. Everett's request anticipated use of the Sawtooth parcel immediately adjacent to his property two to three times per month for several minutes at a time. By letter dated March 27, 1995, District Ranger Pinkerton notified Everett that his application was denied for the following reasons: (1) the proposed use could be reasonably accommodated on non-NFS lands, i.e., the local airport; (2) Everett had adequate alternative access to ensure the reasonable use and enjoyment of his land; and (3) the application did not demonstrate how the proposed use would benefit anyone other than Everett. See App. 25. Pinkerton derived these factors from provisions of Service regulations and the Forest Service Manual ("Manual"). See 36 C.F.R. § 251.54(i)(2) (1998); U.S. FOREST SERVICE, FOREST SERVICE MANUAL, Special Uses Management § 2703.2 (effective Jan. 25, 1994), reprinted in App. 152. Pinkerton did not cite Bills's 1994 Order in denying Everett's request for a special use permit.

Everett then filed a complaint against the Service in District Court, alleging that the 1994 Order issued by Bills was a new regulation that could not be issued without notice and comment, and that denial of his permit request was arbitrary and capricious. At a hearing on cross-motions for summary judgment, the District Court strongly encouraged the Service to rescind the Order, particularly in light of the Service's position that Everett's proposed helicopter landing was prohibited without a permit regardless of the Order. On August 27, 1996, the Service withdrew the Order "predicated on the fact that the [Service] has sufficient authority to regulate aircraft and helicopter landings on the Sawtooth National Forest without relying on a special order." App. 269.

The withdrawal of the Order mooted Everett's challenge thereto. Accordingly, the District Court requested supplemental briefing on two issues, which became the focus of this litigation: (1) whether or not a special use permit was required for Everett to land a helicopter on Sawtooth land; and (2) whether the Service's denial of Everett's special use permit was arbitrary and capricious. The parties then resubmitted cross-motions for summary judgment.

The District Court granted the Service's motion for summary judgment as to all claims. See Everett v. United States, 980 F.Supp. 490, 491 (D.D.C.1997). The court found that § 251.50(a) required Everett to obtain a special use permit. See id. at 493. The court also found that the Service considered appropriate factors set forth in the regulations and the Manual in denying Everett's application. See id. at 494-96. This appeal followed.

II. ANALYSIS

A. Standard of Review

We review a grant of summary judgment de novo, applying the same legal standard that governed the District Court's determination. See Troy Corp. v. Browner, 120 F.3d 277, 281 (D.C.Cir.1997). Summary judgment is appropriate where the record presents "no genuine issue as to any material fact" and the moving party is entitled to judgment as a matter of law. See id. (quoting FED.R.CIV.P. 56(c)). We find no genuinely disputed material facts that would preclude summary judgment in this case.

The Service's action can be overturned only if it is found to be "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2)(A) (1994). "[I]n a competition between possible meanings of a regulation, the agency's choice receives substantial deference." Rollins Environmental Serv. Inc. v. Environmental Protection Agency, 937 F.2d 649, 652 (D.C.Cir.1991). Accordingly, the Service's interpretation of its own regulations will prevail unless it is "plainly erroneous or inconsistent" with the plain terms of the disputed regulations. Auer v. Robbins, 519 U.S. 452, 461, 117 S.Ct. 905, 137 L.Ed.2d 79 (1997) (citation omitted). Moreover, the Service's decision to deny the special use permit will survive arbitrary and capricious review unless the agency committed a clear error of judgment or failed to consider appropriate criteria in reaching its decision. See Marsh v. Oregon Natural Resources Council, 490 U.S. 360, 378, 109 S.Ct. 1851, 104 L.Ed.2d 377 (1989).

B. The Service's Interpretation of the Regulation

The principal questions at issue here focus...