Initiative v. Thomas L. Tidwell, U.S. Forest Serv. & Aspen Skiing Co., 13–5103.

• Decision Date: 29 April 2014
• Docket Number: No. 13–5103.,13–5103.
• Citation: 749 F.3d 1071
• Parties: ARK INITIATIVE and Donald Duerr, Appellants v. Thomas L. TIDWELL, U.S. Forest Service and Aspen Skiing Company, Appellees.
• Court: U.S. Court of Appeals — District of Columbia Circuit

749 F.3d 1071

ARK INITIATIVE and Donald Duerr, Appellants

v.Thomas L. TIDWELL, U.S. Forest Service and Aspen Skiing Company, Appellees.

No. 13–5103.

United States Court of Appeals, District of Columbia Circuit.

Argued Feb. 18, 2014.

Decided April 29, 2014.

Appeal from the United States District Court for the District of Columbia (No. 1:12–cv–01467).

William S. Eubanks II argued the cause for appellants. With him on the briefs was Eric R. Glitzenstein.

Nicholas A. DiMascio, Trial Attorney, U.S. Department of Justice, argued the cause for appellees. With him on the brief were Robert G. Dreher, Acting Assistant Attorney General, and Allen M. Brabender, Attorney.

Ezekiel J. Williams, Steven K. Imig, and Benjamin H. Kass were on the brief for intervenor-appellee Aspen Skiing Company.

Before: ROGERS, GRIFFITH and SRINIVASAN, Circuit Judges.

Opinion for the court by Circuit Judge ROGERS.

ROGERS, Circuit Judge:

Responding to a petition by the State of Colorado, the U.S. Forest Service in the Department of Agriculture promulgated a final rule revising its inventory of protected “roadless” land in Colorado. Special Areas; Roadless Area Conservation; Applicability to the National Forests in Colorado, 77 Fed.Reg. 39,576 (July 3, 2012) (“2012 Colorado Rule”). Two weeks later, The Ark Initiative, a non-profit environmental group (“Ark”), sent an Emergency Petition to the Forest Service seeking “roadless” designation for roughly 1,000 acres on Burnt Mountain in the Snowmass ski area and suspension of the Aspen Skiing Company's authorization to cut trees on that land. The Service denied the petition and Ark filed suit, alleging that the Service had inadequately explained its denial and failed to address relevant evidence. The district court granted summary judgment to the Forest Service and the Company, and denied reconsideration. Ark appeals. Although we reject the challenge by the Service and the Company to Ark's standing, we agree that Ark's challenges lack merit and we therefore affirm.

I.

“Roadless areas are, among other things, sources of drinking water, important fish and wildlife habitat, semi-primitive or primitive recreation areas, including motorized and nonmotorized recreation opportunities, and natural-appearing landscapes.” 2012 Colorado Rule, 77 Fed.Reg. at 39,577. It is the Department's view that “tree cutting, sale or removal, and road construction/reconstruction have the greatest likelihood of altering and fragmenting landscapes, resulting in immediate, long-term loss of roadless area values and characteristics, and there is a need generally to prohibit these activities in roadless areas.” Id. But acknowledging that the State of Colorado “has indicated flexibility is needed to accommodate State-specific situations and concerns in Colorado's roadless areas,” including “accommodating existing permitted or allocated ski areas,” the Department concluded that accurate mapping and effective management of Colorado roadless areas were appropriate. Id. After considering numerous comments and alternative proposals, the Department, acting through the Forest Service, selected one of the alternatives that it concluded would “provide long-term management of [these areas] to ensure roadless area values are passed on to future generations, while providing for Colorado-specific situations and concerns that are important to the citizens and economy of Colorado.” Id. Succinctly put, the 2012 Colorado Rule established “a high level of conservation of roadless area characteristics on approximately 4.2 million acres,” designating as roadless 409,500 acres that were not previously protected as “roadless,” while removing protection for 459,100 acres that “ha [d] been determined to be substantially altered” and 8,300 acres “for ski area management.” Id. at 39,577–78.

The present dispute centers around an undeveloped slope on Burnt Mountain that is within the eastern perimeter of the Snowmass permitted ski area near Aspen, Colorado. Although some portion of the Snowmass resort is privately owned, most of it is situated on public lands in the White River National Forest. Since the resort's opening in 1967, the Forest Service has granted special use permits and approved master development plans allowing the Aspen Skiing Company to maintain and improve the ski terrain, including cutting trees and building ski lifts. The disputed portion of Burnt Mountain has been slated for additional ski run development for nearly two decades. In 2001, the Forest Service designated a small portion of Burnt Mountain as “roadless,” thereby “prohibit[ing] road construction, reconstruction, and timber harvest in inventoried roadless areas” in order to preserve “large unfragmented tracts of land” for long-term stewardship and conservation. Special Areas; Roadless Area Conservation, 66 Fed.Reg. 3244, 3244, 3245 (Jan. 12, 2001) (“2001 Rule”).

In 2006, in accord with the Company's master development plan, the Forest Service authorized the Company to clear ski runs on Burnt Mountain by selectively removing trees and brush. Ark and others challenged the Service's authorization of new ski runs on the ground that the area was, in fact, roadless, and therefore protected, even though it was not included in the “roadless” inventory. See Notice of Appeal at 56–67 (Apr. 10, 2006). Their administrative appeal of the decision authorizing the 2006 Snowmass Ski Area Improvement Project was largely unsuccessful, seeForest Serv. Reg. Appeal Decision at 1–2 (May 22, 2006), and their efforts in court to overturn the decision failed, see Ark Initiative v. U.S. Forest Serv., 2010 WL 3323661 (D.Colo. Aug. 18, 2010); Ark Initiative v. U.S. Forest Serv., 660 F.3d 1256 (10th Cir.2011).

When the 2012 Colorado Rule redrew the roadless area boundaries in the State to exclude permitted ski areas and to add nearly 410,000 acres to the Colorado “roadless” inventory, the disputed parcel was not added to the inventory. The previously listed “roadless” portion of Burnt Mountain, which is also within the permitted ski area, was removed from the “roadless” inventory. The rulemaking proceedings generated substantial public participation, but Ark did not choose to comment. Instead, less than two weeks after the 2012 Colorado Rule was promulgated, Ark submitted an “Emergency Petition” to the Forest Service claiming that the disputed parcel had been omitted from the Colorado roadless inventory due to “a factual error.” Emerg. Pet. at 9 (July 16, 2012). Alternatively, if no factual or “administrative error” were found, the Forest Service “should consider whether ‘changed circumstances' exist.” Id. n. 2.

The Emergency Petition requested that “the Service invoke its authority [under] 36 C.F.R. § 251.60, to temporarily suspend, on an emergency basis, the narrow authorization to proceed with activities within this parcel until such time as the Service can assess this parcel and make a final determination concerning the roadlessness of this tract.” Id. at 8. The regulation authorizes emergency suspension of a special use permit “for specific and compelling reasons in the public interest” or when suspension is “necessary to protect the public health or safety or the environment.” 36 C.F.R. § 251.60(a)(2)(i)(D), 251.60(f). The petition argued that the disputed parcel's omission from the “roadless” inventory was a “factual error” because the Burnt Mount parcel was roadless, as indicated by “the best available evidence,” namely, sworn testimony, on-the-ground conditions, satellite imagery, mapping, and aerial photography. Emerg. Pet. at 8. “[B]ecause the Service has never taken a ‘hard look’ at the precise impacts of cutting trees for new ski runs and a traverse trail on this parcel's roadless characteristics, nor even disclosed such impacts to the public,” the petition stated, “it is imperative that the Service revisit this issue, both from a roadless inventory and [National Environmental Policy Act (“NEPA”) ] standpoint.” Id. at 10. The petition requested the Service to designate the disputed parcel as “roadless” and, pending its decision, to suspend the Company's 2006 authorization to cut trees there.

The Forest Service denied the Emergency Petition by two letters, one from a Service Supervisor and the other from the Chief of the Service. Both letters referenced the prior unsuccessful litigation concerning the 2006 Improvement Project and the recent conclusion of the 2012 Colorado rulemaking. The Chief's letter stated that the Service was “satisfied that the Burnt Mountain [‘roadless'] boundary is appropriate,” Forest Serv. Ltr., Sept. 7, 2012, and the Supervisor advised that the Service was already “working with [the Company] on the implementation schedule for the activities,” Forest Serv. Ltr., Aug. 17, 2012.

Ark challenged the Forest Service's decision in federal district court and sought an injunction against the Company's planned tree-cutting in the Burnt Mountain parcel. Following the grant of summary judgment to the Forest Service and the Company, see Ark Initiative v. Tidwell, 895 F.Supp.2d 230, 241 (D.D.C.2012), the Company carried out its planned project and advised the district court that it may carry out further activities in the future pursuant to the 2006 authorization. See Aspen Skiing Co. Br. Regarding Whether the Controversy is Moot at 1–2. The district court denied Ark's motion for reconsideration. See Ark Initiative v. Tidwell, No. 12–1467 (D.D.C. Feb. 14, 2013).

Ark appeals, and this court reviews the grant of summary judgment de novo. See Dunning v. Quander, 508 F.3d 8, 9 (D.C.Cir.2007). The court may affirm the grant of summary judgment on any ground properly raised and supported by the record. See Jones v. Bernanke, 557 F.3d 670, 676 (D.C.Cir.2009); EEOC v. Aramark Corp., Inc., 208 F.3d 266, 268 (D.C.Cir.2000). Where, as here, there is a challenge to agency action under the Administrative Procedure Act (“APA”), this court will uphold the agency's decision unless...