Everett v. U.S., Civ.A.No. 95-0769(EGS).
| Decision Date | 05 August 1997 |
| Docket Number | Civ.A.No. 95-0769(EGS). |
| Citation | 980 F.Supp. 490 |
| Parties | Frank E. EVERETT, III, Plaintiff, v. UNITED STATES of America; United States Department of Agriculture; United States Forest Service, Defendants. |
| Court | U.S. District Court — District of Columbia |
Roger J. Marzulla, Evangeline Paschal, Akin, Gump, Strauss, Hauer & Feld, Washington, DC, for Plaintiff.
Rudolph Contreras, Assistant United States Attorney, Washington, DC, for Defendants.
Frank E. Everett, III ("plaintiff"), seeks a declaratory judgment and injunctive relief against the United States of America, the United States Department of Agriculture, and the United States Forest Service ("defendants"), because he contends defendants acted arbitrarily and capriciously in violation of the Administrative Procedure Act ("APA") when they (1) issued a Special Order barring aircraft landings in the Sawtooth National Park in violation of 36 C.F.R. § 251.50 and (2) denied plaintiff a special use permit to land his helicopter in the Sawtooth National Forest.
Plaintiff moved for summary judgment on counts I and II and argued that the issuance of the Special Order was arbitrary and capricious, in violation of the APA. Defendants moved for summary judgment on all counts and argued that the denial of the special use permit was not arbitrary and capricious within the meaning of the APA. At a hearing before the Court on August 23, 1996, defendants agreed to rescind the Special Order, thereby rendering counts I and II of plaintiff's complaint moot. The Court then reserved its ruling on defendants motion for summary judgment as to count III, i.e., that the Forest Service's denial of plaintiff's special use permit application was arbitrary and capricious.
On September 3, 1996, the Court directed the parties to submit supplemental briefs on the following two issues: (1) whether Forest Service regulation, 36 C.F.R. § 251.50(a),1 requires plaintiff to obtain a special use permit before he can land his helicopter in the Sawtooth National Forest and (2) whether the Forest Service acted arbitrarily and capriciously under the APA when it denied plaintiff's special use permit application. With the issues presented as such, plaintiff now moves for summary judgment on count III.
Upon consideration of the parties' supplemental memoranda, the Court holds that, under 36 C.F.R. § 251.50(a), a special use permit is required for plaintiff to land his helicopter in the Sawtooth National Park. The Court further holds that the Forest Service did not act arbitrarily and capriciously in violation of the APA when it denied plaintiff's special use permit application. Accordingly, the Court GRANTS defendants' motion for summary judgment as to count III, and DENIES plaintiff's motion for summary judgment as to count III. Therefore, this case is DISMISSED WITH PREJUDICE.
Plaintiff is a licensed, commercial helicopter pilot who owns a vacation home in Blaine County, Idaho. Plaintiff uses his helicopter for recreational purposes and wants to land near his vacation home. This vacation property is the end lot in the Barlow Subdivision and sits adjacent to a parcel of land that is administered by the Forest Service as part of Sawtooth National Forest. This three and one-half acre parcel is separated from other Forest Service property by the Big Wood River.
A Blaine County Zoning Ordinance prohibits aircraft landings on the Barlow Subdivision, and consequently makes it unlawful for plaintiff to land his helicopter on his property. The parties do not dispute that, notwithstanding this Ordinance, plaintiff can land his helicopter at the Freedman Airport located 20 miles from plaintiff's house. Plaintiff contends that the law supports his use of a more feasible alternative — to land his helicopter in the Sawtooth National Forest on the parcel of land adjacent to his home.
On October 16, 1994, plaintiff's adjoining neighbor, Joan Anwalt, complained to the District Ranger on the Ketchum Ranger District at Sawtooth National Forest about plaintiff's helicopter landings on the Sawtooth Forest land. As a result of Anwalt's complaint, the Sawtooth Forest Supervisor, Jack E. Bills, issued a Special Order, pursuant to 36 C.F.R. § 261.50(a),2 that barred aircraft landings in the Sawtooth National Forest. On December 19, 1994, plaintiff appealed to the U.S. Department of Agriculture. In response to this appeal, plaintiff was informed by a Deputy Regional Forester, on February 3, 1995, that the Special Order was not subject to appeal under any Forest Service regulation.
On March 16, 1995, plaintiff filed an application for a special use permit with the District Ranger of the National Forest System. Plaintiff specifically requested authorization to land his helicopter in the Sawtooth National Forest for only two or three times a month during the daylight hours. In a letter dated March 27, 1995, District Ranger Alan Pinkerton denied plaintiff's application for special use authorization to land his helicopter in the Sawtooth National Forest. Plaintiff subsequently commenced this action.
Pursuant to section 706(2)(A) of the APA, this Court is authorized to review an agency decision of the United States Forest Service ("Forest Service"). See 5 U.S.C. § 706(2)(A). In doing so, the Court should afford "considerable weight" to the Forest Service's findings and its construction of the "statutory scheme it is entrusted to administer." See Chevron U.S.A., Inc. v. Natural Resources Defense Council, 467 U.S. 837, 844-45, 104 S.Ct. 2778, 2782-83, 81 L.Ed.2d 694 (1984). Thus, the Court will set aside an agency determination only if it is arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law. See International Bhd. of Teamsters v. United States, 735 F.2d 1525, 1534 (D.C.Cir.1984).
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. Rhoads v. McFerran, 517 F.2d 66, 67 (2d Cir.1975); see 6 JAMES WM. MOORE ET AL., MOORE'S FEDERAL PRACTICE ¶ 56.13, at 56-171 (2d ed.1994). The Court finds that the cross-motions for summary judgment present no genuinely disputed material facts which would preclude summary judgment.
Plaintiff's argument that 36 C.F.R. § 251.50 does not obligate him to obtain a special use permit to land his helicopter within the Sawtooth National Forest is essentially two-fold. First, he maintains that the Forest Service has not issued any regulations that are subject to notice and comment rule-making, which specifically proscribe non-commercial helicopter landings in the Saw-tooth National Forest. Second, plaintiff argues that his helicopter use has not been prohibited by section 251.50 because other non-commercial helicopters and aircrafts, i.e., seaplanes, repeatedly land without a permit in the Sawtooth National Forest. In essence, plaintiff's contentions are based on the premise that section 251.50 only exempts non-commercial recreational use of helicopters from permit authorization procedures. As explained in this Opinion, the Court is not persuaded by plaintiff's argument, and holds that under section 251.50, special use authorization is required for plaintiff to land his helicopter in the Sawtooth National Forest to access his vacation home.
Plaintiff first contends that the Forest Service has not promulgated a regulation, subject to notice and comment rulemaking, which specifically prohibits helicopter landings in the Sawtooth National Forest. He also alleges that defendants applied a novel interpretation of the regulations in this case to his detriment. Specifically, plaintiff argues that defendants' reliance on section 251.50 to prohibit recreational helicopter landings in the Sawtooth National Park is flawed because that regulation does not explicitly proscribe non-commercial recreational helicopter landings in the Sawtooth National Park. Plaintiff essentially challenges the Forest Service's authority under section 251.50(a) to require special use permits for the activity.
In response to plaintiff's contentions, defendants persuasively argue that Congress has delegated its power over public lands to the Secretary of Agriculture and to the Forest Service. See Kleppe v. New Mexico, 426 U.S. 529, 539, 96 S.Ct. 2285, 2291-92, 49 L.Ed.2d 34 (1976). Defendants contend that as an exercise of this power, they have promulgated regulations pertaining to appropriate usage of the National Forest System. See 36 C.F.R. § 251.50. That regulation provides that "[a]ll uses of National Forest System lands ... except those provided for in the regulations governing the disposal of timber and minerals and the grazing of livestock, are designated special uses." 36 C.F.R. § 251.50(a) (emphasis added). Further, a person must obtain a special use permit from an officer before engaging in a special use. Id. Section 251.50(c) exempts "noncommercial recreational activities such as camping, picnicking, fishing, horseback riding, and boating" from the special use permit requirement. 36 C.F.R. § 251.50(c). Section 261.70(a)(7) also provides that "each Regional Forester ... may issue regulations prohibiting acts or omissions within all or any part of the area over which he has jurisdiction for the following purpose[]: public safety." 36 C.F.R. § 261.70(a)(7).
Plaintiff's argument is flawed because he incorrectly interprets section 251.50 to mean that special use permits are only required for commercial recreational activities. Plaintiff relies on United States v. Patzer, 15 F.3d 934 (10th Cir.1993), to contend that the only reasonable understanding of 36 C.F.R. § 251.50 is that special use permits are...
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Everett v. U.S., 97-5282
...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 foun......