Lodge Tower Condominium v. Lodge Properties, Inc.

• Decision Date: 31 March 1995
• Docket Number: No. 89 N 1098.,89 N 1098.
• Citation: 880 F. Supp. 1370
• Court: U.S. District Court — District of Colorado
• Parties: LODGE TOWER CONDOMINIUM ASSOCIATION and Town of Vail, Plaintiffs, v. LODGE PROPERTIES, INC.; Western Land Exchange Company; Clayton Yeutter, Secretary, United States Department of Agriculture; F. Dale Robertson, Chief, United States Forest Service; Manual Lujan, Jr., Secretary, United States Department of the Interior; Gary E. Cargill, Regional Forester, Rocky Mountain Region, United States Forest Service; and Neil F. Morck, State Director, Bureau of Land Management, United States Department of the Interior, Defendants.

880 F. Supp. 1370

LODGE TOWER CONDOMINIUM ASSOCIATION and Town of Vail, Plaintiffs, v. LODGE PROPERTIES, INC.; Western Land Exchange Company; Clayton Yeutter, Secretary, United States Department of Agriculture; F. Dale Robertson, Chief, United States Forest Service; Manual Lujan, Jr., Secretary, United States Department of the Interior; Gary E. Cargill, Regional Forester, Rocky Mountain Region, United States Forest Service; and Neil F. Morck, State Director, Bureau of Land Management, United States Department of the Interior, Defendants.

No. 89 N 1098.

United States District Court, D. Colorado.

March 31, 1995.

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COPYRIGHT MATERIAL OMITTED

Charles White of Brownstein Hyatt Farber & Strickland, Denver, CO, Lawrence A. Eskwith, Town Atty., Town of Vail, Vail, CO, for plaintiffs.

James S. Bailey, Jr. of Bailey, Harring & Peterson, P.C., Robert D. Clark, U.S. Atty., Denver, CO, Pauline Milius, Dept. of Justice, Washington, DC, for defendants.

MEMORANDUM OPINION AND ORDER

NOTTINGHAM, District Judge.

This litigation arises from an effort by the United States Forest Service (an agency in the United States Department of Agriculture) to exchange a two-acre parcel of federal land — administered by the Forest Service but lying entirely within the boundaries of the Town of Vail (a Colorado municipal corporation) — for a 385-acre parcel of privately-owned land lying within the boundaries of the Eagles Nest Wilderness Area. Plaintiff Lodge Tower Condominium Association ("Lodge Tower") is an unincorporated association representing owners of condominiums constructed on land adjacent to the two-acre parcel. Lodge Tower and the Town of Vail ("Vail") initiated this action to review the agency proceedings which culminated in the land exchange and to rescind the United States' issuance of a patent conveying the two-acre parcel to a private owner, Defendant Lodge Properties, Inc. ("Lodge Properties"). A second defendant, Western Land Exchange Company ("Western Land"), acted as Lodge Properties' agent in pursuing negotiations and administrative proceedings leading to the land exchange. All remaining defendants are federal officials involved in issuing the patent to the two-acre federal parcel or in making the decisions which led to the issuance of the patent. They will be referred to, collectively, as "the federal defendants." Jurisdiction is premised upon 28 U.S.C.A. § 1331 (West 1993).

Procedurally, the matter is before the court on several motions. These motions were referred to a magistrate judge, 28 U.S.C.A. § 636(b)(1)(B) (West 1993), and the magistrate judge has made recommendations concerning the motions. The private defendants, Lodge Properties and Western Land, have filed a motion to dismiss and a motion for summary judgment. Plaintiffs and the federal defendants have filed motions for partial summary judgment. A motion for partial summary judgment suggests that, even if the court resolves the motion entirely in favor of the movant, some issues will remain for future adjudication. The parties who seek partial summary judgment here do not specify what those issues are or why, in a case seeking judicial review of administrative action, any issue should remain for future adjudication, at trial or otherwise. Before addressing the facts and merits of the case, I must therefore attempt to clarify the procedural posture of the case.

When a federal district court is asked to review agency action under the Administrative Procedure Act, 5 U.S.C.A. §§ 701-706 (West 1977), its function is different from the function it performs in most cases which come before it, for it does not sit as a finder of fact. Instead, it reviews the record compiled before the administrative agency under the standards articulated in 5 U.S.C.A. § 706. National Law Ctr. v. Department of Veteran Affairs, 736 F.Supp. 1148, 1152 (D.D.C.1990). See also Deukmejian v. Nuclear Regulatory Comm'n, 751 F.2d 1287, 1323-27 (D.C.Cir.1984). Although there may be unusual cases where the court will have to determine what was before the agency, e.g., Natural Resources Defense Council, Inc. v. Train, 519 F.2d 287, 291-92 (D.C.Cir.1975), that does not appear to be the case here. Despite some initial skirmishing concerning the adequacy of the administrative record before the court, the record has now been supplemented, and no party questions the content or completeness of that record in the latest round of briefing and objections.

Because a district court's function in reviewing administrative action is different from the function it usually performs as a trier of fact, some of the procedures designed to prepare a case for trial do not work well when the court is reviewing agency proceedings. Specifically, a motion for summary judgment under rule 56 of the Federal Rules of Civil Procedure — especially a motion for partial summary judgment — makes no procedural sense when a district court is asked to undertake judicial review of administrative action. Such a motion is designed to isolate factual issues on which there is no genuine dispute, so that the court can determine what part of the case must be tried to the court or a jury. Nickol v. United States, 501 F.2d 1389, 1392 (10th Cir.1974). Agency action, however, is reviewed, not tried. Factual issues have been presented, disputed, and resolved; and the issue is not whether the material facts are disputed, but whether the agency properly dealt with the facts. Only recently, the United States Court of Appeals for the Tenth Circuit has followed Nickol and cautioned, "When acting as a court of appeal, it is improper for a district court to use methods and procedures designed for trial." Olenhouse v. Commodity Credit Corp., 42 F.3d 1560, 1564 (10th Cir.1994).

In accordance with my understanding of Nickol and Olenhouse, I will disregard the procedural posture in which the parties have placed the case. Instead, I will treat plaintiffs' complaint, their motion, and all material filed in support thereof as argument in support of their position that the agency action here should be set aside. Conversely, I will treat the federal defendants' motion and materials in support thereof as argument in support of their position that the agency action should not be set aside. The private defendants' motions do not directly discuss the propriety of the agency's action here. These defendants, rather, question whether the court has jurisdiction to set aside or otherwise interfere with the land patent which Lodge Properties received in the exchange, even if the agency action were set aside. I will therefore deal with these motions after discussing the administrative proceedings.

I. FACTUAL BACKGROUND

Lodge Properties acquired, from unrelated third parties, a purchase option on 385 acres of privately-held land lying within the boundaries of the Eagles Nest Wilderness area (hereafter called "the wilderness land"). Lodge Properties then exercised the option and exchanged the wilderness land for 2.07 acres of federal land (hereafter called "the lodge parcel"). The lodge parcel is physically within Vail's town limits. It is next to land owned by plaintiff Lodge Tower and other land owned by defendant Lodge Properties. The lodge parcel was appraised and reappraised during the administrative process, and the appraisal which the United States Forest Service (the "agency") finally accepted set a value of $915,000. The wilderness land was appraised at $770,000, and Lodge Properties thus paid the United States $145,000 in cash to equalize the value of the exchange.

The land exchange was first proposed late in 1983. The agency thereafter conducted the required studies, made the required notifications, and received extensive public comment. Beginning on January 31, 1986, and continuing through November 8, 1988, the proposed land exchange was the subject of four successive notices of decisions by the agency's regional forester. Each decision was administratively appealed. The extensive administrative record, upon which the parties were finally able to agree, details this administrative process in punishing detail. The magistrate judge assigned to make recommendations on the motions in question has accurately outlined this record. See Recommendation of United States Magistrate Judge at 2-8. There is no need to repeat the magistrate judge's discussion here, and it is hereby adopted as a part of this Memorandum Opinion and Order. To capsualize the administrative history: the regional forester's first Decision Notice and Finding of No Significant Impact ("DN") was made on January 31, 1986. It was reversed because the agency perceived defects in the environmental assessment ("EA") on which it was based. The second DN, accompanied by another EA, was issued on June 19, 1986. On review, the agency determined essentially that the DN was premature because the lodge parcel had not been appraised. An appraisal was done, and the regional forester issued his third DN on September 17, 1987. On review, the agency concluded that the appraisal was inadequate, and a new appraisal was ordered. The reappraisal was done, and the regional forester issued his fourth (and last) DN on November 8, 1988. This decision was also appealed.

After these years of administrative review, the Associate Deputy Chief of the National Forest System approved the land exchange on June 16, 1989. R., Vol. I at 199. The Assistant Secretary of Agriculture declined further administrative review on June 26, 1989, at 10:20 a.m. (EST). R., Vol. II at 413. On the same day, at approximately 8:30 a.m. (MST), after the Assistant Secretary of Agriculture had declined further review of the Associate Deputy Chief of the National Forest System's approval of the land exchange, the United States placed its land patent to the lodge parcel into a prearranged escrow. The exchange of title to the lodge parcel and the wilderness land occurred at 8:38 a.m. (MST) and was recorded at...