Mount Evans Co. v. Madigan

• Citation: 14 F.3d 1444
• Decision Date: 20 January 1994
• Docket Number: No. 92-1251,92-1251
• Parties: 24 Envtl. L. Rep. 20,883 MOUNT EVANS COMPANY, a Colorado corporation; Mount Evans Company (II), a Colorado corporation; Clear Creek County, Clear Creek County, Colorado, Plaintiffs-Appellants, v. Edward R. MADIGAN, Secretary, United States Department of Agriculture; F. Dale Robertson, Chief, U.S. Forest Service; Gary Cargill, Regional Forester; United States Department of Agriculture, named as "United States Department of Agriculture Forest Service," Defendants-Appellees. Sierra Club, Amicus Curiae.
• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)

Page 1444

14 F.3d 1444

24 Envtl. L. Rep. 20,883

MOUNT EVANS COMPANY, a Colorado corporation; Mount Evans Company (II), a Colorado corporation; Clear Creek County, Clear Creek County, Colorado Plaintiffs-Appellants, v. Edward R. MADIGAN, Secretary, United States Department of Agriculture; F. Dale Robertson, Chief, U.S. Forest Service Gary Cargill, Regional Forester; United States Department of Agriculture, named as "United States Department of Agriculture Forest Service," Defendants-Appellees Sierra Club, Amicus Curiae.

No. 92-1251.

United States Court of Appeals Tenth Circuit.

Jan. 20, 1994.

Joanne Herlihy (William Perry Pendley with her on the brief), of Mountain States Legal Foundation, Denver, CO, for plaintiffs-appellants.

Michael E. Hegarty, Asst. U.S. Atty. (Michael J. Norton, U.S. Atty., with him on the brief), Denver, CO, for defendants-appellees.

Carl G. Stevens, Lakewood, CO, for amicus curiae.

Before BALDOCK, BRIGHT ^* and McWILLIAMS, Circuit Judges.

BALDOCK, Circuit Judge.

Plaintiffs Mount Evans Companies ("Mount Evans I" and "Mount Evans II") and Clear Creek County ("the County") appeal the district court's order affirming a United States Forest Service ("Forest Service") decision not to rebuild a structure located on Forest Service lands which was destroyed by fire.

The Crest House was constructed under a Forest Service "term permit" in 1941 at the summit of Mount Evans, Colorado, and was operated for forty-two years by Mount Evans I. The Crest House provided shelter, toilets, first aid, access to medical and rescue teams, and food and souvenir sales for the accommodation of the public visiting the summit of Mount Evans. In 1968, as required by the term permit, Mount Evans I conveyed title to the Crest House to the Forest Service but continued to operate the Crest House under a special use permit. Mount Evans II, which was established by two directors of Mount Evans I in October 1983, is the successor to the interests of Mount Evans I. The Crest House was widely used by Clear Creek County residents and generated revenue to the County through a twenty-five percent revenue sharing program the Forest Service maintains with counties in which Forest Service facilities are located as well as through sales taxes collected by the County from sales at the Crest House.

The Crest House was destroyed by fire on September 1, 1979. The Forest Service received money in settlement of the destruction but on March 1, 1990, after several years and four different decisions, elected not to rebuild the Crest House. On May 27, 1980, the Forest Supervisor issued a Decision Notice ("First Decision Notice"), accompanied by an Environmental Assessment, which recommended reconstruction of the Crest House. Without withdrawing the First Decision Notice and before any action on that notice was implemented, the Regional Forester, in November 1983, requested a new Environmental Assessment so that he could decide whether to rebuild the Crest House. On June 28, 1984, the Regional Forester issued a Decision Notice ("Second Decision Notice"), accompanied by another Environmental Assessment, again recommending replacement of the Crest House. On July 10, 1986, the Regional Forester issued a third Decision Notice ("Third Decision Notice"), this time recommending that the Crest House not be restored and that a non-manned wind shelter and viewing platform be installed. The Mount Evans Companies appealed the third decision, and the Forest Service withdrew the third decision on October 22, 1986 to reevaluate its decision not to rebuild the Crest House. On March 1, 1990, the Forest Service issued its last Decision Notice ("Fourth Decision Notice"), signed by the Forest Supervisor and accompanied by an Environmental Assessment and Economical Analysis, which recommended installation of an unstaffed viewing platform and information station which incorporated the Crest House ruins. Mount Evans Companies again appealed, thus exhausting their administrative remedies, and their appeal was denied on August 15, 1990.

On April 16, 1991, Plaintiffs filed this action in federal district court. In their complaint, they alleged that the Forest Service violated 16 U.S.C. Sec. 579c by failing to use settlement funds and insurance money received as a result of the fire to restore the Crest House and also alleged that the series of Forest Service decisions culminating in its decision not to restore the Crest House were arbitrary, capricious and not in accordance with law under the Administrative Procedure Act ("APA"), ¹ specifically violating 5 U.S.C. Sec. 706(2)(A). On July 1, 1992, the district court granted summary judgment to the Forest Service, stating "[t]he extensive record in this matter provides substantial evidence to support the agency's decision."

I.

The Forest Service first argues that its decision not to rebuild the Crest House is completely discretionary and not subject to judicial review. Because a determination of whether agency action is subject to judicial review under Sec. 701(a)(2) of the APA is a jurisdictional issue, Sierra Club v. Yeutter, 911 F.2d 1405, 1421 (10th Cir.1990), we must, as a threshold matter, address whether the Forest Service's actions taken pursuant to 16 U.S.C. Sec. 579c are subject to judicial review. See Bender v. Clark, 744 F.2d 1424, 1426 (10th Cir.1984); Citizens Concerned for Separation of Church and State v. City and County of Denver, 628 F.2d 1289, 1296-97 (10th Cir.1980), cert. denied, 452 U.S. 963, 101 S.Ct. 3114, 69 L.Ed.2d 975 (1981).

"The [APA] provides that '[a] person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof,' 5 U.S.C. Sec. 702, and [the Supreme Court has] read the Act as embodying a 'basic presumption of judicial review.' " Lincoln v. Vigil, --- U.S. ----, ----, 113 S.Ct. 2024, 2030, 124 L.Ed.2d 101 (1993) (quoting Abbott Laboratories v. Gardner, 387 U.S. 136, 140, 87 S.Ct. 1507, 1511, 18 L.Ed.2d 681 (1967)). "This is just a presumption, however, and under Sec. 701(a)(2) agency action is not subject to judicial review 'to the extent that' such action 'is committed to agency discretion by law.' " Id. (quoting 5 U.S.C. Sec. 701(a)(2)). "[Section] 701(a)(2) makes it clear that 'review is not to be had' in those rare circumstances where the relevant statute 'is drawn so that a court would have no meaningful standard against which to judge the agency's exercise of discretion.' " Id., --- U.S. at ----, 113 S.Ct. at 2030-31 (quoting Heckler v. Chaney, 470 U.S. 821, 830, 105 S.Ct. 1649, 1655, 84 L.Ed.2d 714 (1985)); Webster v. Doe, 486 U.S. 592, 600, 108 S.Ct. 2047, 2052, 100 L.Ed.2d 632 (1988). "In such a case, the statute [ ] can be taken to have committed the decisionmaking to the agency's judgment absolutely," and thus, administrative decisions made pursuant to the statute are precluded from judicial review. Id., --- U.S. at ----, 113 S.Ct. at 2032 (internal quotations omitted).

In its recent decision, Lincoln v. Vigil, the Supreme Court held that the allocation of funds from a lump-sum appropriation statute, when the statute does not restrict what can be done with those funds, is committed to agency discretion and unreviewable under 5 U.S.C. Sec. 701(a)(2). In Sierra Club v. Yeutter, we addressed an expenditure statute, 16 U.S.C. Sec. 526, and concluded that it was unreviewable as it "clearly [was] permissive and fail[ed] to provide the necessary law" to conduct meaningful review. 911 F.2d at 1413. Section 526, the statute at issue in Sierra Club, reads:

There are authorized to be appropriated for expenditure by the Forest Service such sums as may be necessary for the investigation and establishment of water rights including the purchase thereof of lands or interests in lands or rights-of-way for the use and protection of water rights necessary or beneficial in connection with the administration and public use of the national forests.

Sierra Club, 911 F.2d at 1413 (emphasis added) (quoting 16 U.S.C. Sec. 526). We concluded in Sierra Club that "[o]n its face [Sec. 526] merely authorize[d] appropriations for the Forest Service's use in investigating and establishing water rights" and "d[id] not command the agency to spend monies and certainly impose[d] no duty to actually investigate or establish water rights." Sierra Club, 911 F.2d at 1413. Under the Sierra Club statute, the Forest Service was not required to spend any money at all on water rights because the Forest Service was only required to spend sums as "may be necessary." Id. (emphasis added). Thus, Sierra Club is similar to Vigil in that the statutes in question in both cases did not restrict what the agency could do with its funds. As a result, neither statute is subject to judicial review.

In contrast to the lump-sum appropriations statute in Vigil and the discretionary expenditure statute in Sierra Club, 16 U.S.C. Sec. 579c, upon which Plaintiffs base their cause of action, limits the discretion of the Forest Service. Section 579c reads in relevant part:

Any moneys received by the United States with respect to lands under the administration of the Forest Service ... as a result of a judgment, compromise, or settlement of any claim, involving present or potential damage to lands or improvements, shall be covered into the Treasury and are hereby appropriated and made available until expended to cover the cost to the United States of any improvement, protection, or rehabilitation work on lands under the administration of the Forest Service rendered necessary by the action which led to the forfeiture, judgment, compromise, or settlement: Provided, That any portion of the moneys so received in excess of the amount expended in performing the work necessitated by the action which led to their receipt shall be transferred to miscellaneous receipts.

(emphasis on "provided" in original)....