Park Lake Resources Ltd. Co. v. US. Dept., 98-1020

• Decision Date: 19 November 1999
• Docket Number: No. 98-1020,98-1020
• Citation: 197 F.3d 448
• Parties: (10th Cir. 1999) PARK LAKE RESOURCES LIMITED LIABILITY COMPANY; PARK COUNTY MINING ASSOCIATION, Plaintiffs-Appellants, v. UNITED STATES DEPARTMENT OF AGRICULTURE; UNITED STATES FOREST SERVICE; DANIEL GLICKMAN, Secretary of Agriculture; MICHAEL P. DOMBECK, Chief, United States Forest Service; ELIZABETH A. ESTILL, Regional Forester, Region II, United States Forest Service, Defendants-Appellees
• Court: U.S. Court of Appeals — Tenth Circuit

Page 448

197 F.3d 448 (10th Cir. 1999)

PARK LAKE RESOURCES LIMITED LIABILITY COMPANY; PARK COUNTY MINING ASSOCIATION, Plaintiffs-Appellants, v. UNITED STATES DEPARTMENT OF AGRICULTURE; UNITED STATES FOREST SERVICE; DANIEL GLICKMAN, Secretary of Agriculture; MICHAEL P. DOMBECK, Chief, United States Forest Service; ELIZABETH A. ESTILL, Regional Forester, Region II, United States Forest Service, Defendants-Appellees.

No. 98-1020

UNITED STATES COURT OF APPEALS TENTH CIRCUIT

November 19, 1999

Appeal from the United States District Court for the District of Colorado. D.C. No. 96-Z-1838

William Perry Pendley of Mountain States Legal Foundation, Denver, Colorado, for Plaintiffs-Appellants.

Andrew C. Mergen, Attorney (Lois J. Schiffer, Assistant Attorney General; Ellen Durkee and John A. Bryson, Attorneys, with him on the brief), Department of Justice, Environment and Natural Resources Division, Washington, D.C., for Defendants-Appellees.

Before SEYMOUR, Chief Judge, PORFILIO and KELLY, Circuit Judges.

SEYMOUR, Chief Judge.

Park Lake Resources, LLC, and Park County Mining Association (collectively Park Lake) filed this action challenging the United States Forest Service's designation of 695 acres straddling Hoosier Ridge in Colorado as a Research Natural Area (RNA) pursuant to 36 C.F.R. § 251.23 (1998).¹ Park Lake contends the designation is arbitrary, capricious and contrary to plain regulatory language in violation of the Administrative Procedure Act (APA), 5 U.S.C. §706(2). Because we conclude Park Lake has failed to establish that this issue is ripe for review, we dismiss the appeal and vacate the judgment below. See Sierra Club v. Yeutter, 911 F.2d 1405, 1421 (10th Cir. 1990) (holding case not ripe, dismissing appeal, and vacating judgment below).

I.

A research natural area (RNA) is selected by the Chief of the Forest Service to "illustrate adequately or typify for research or educational purposes, the important forest and range types in each forest region" and must be "retained in a virgin or unmodified condition." 36 C.F.R. § 251.23. The Hoosier Ridge area contains a unique alpine ecosystem that includes ten rare and threatened plant species, one of which is protected under the Endangered Species Act. Because of these unique features, the Forest Service initially recommended this area for RNA designation in 1984. After completing the necessary administrative requirements, the Forest Service designated the area an RNA in 1991.

Several mining groups, including Park County Mining Association, filed an administrative appeal challenging the RNA designation, claiming it would foreclose any current and future mining activities in the area. In light of these appeals, the Chief of the Forest Service withdrew the RNA designation and ordered its reevaluation by the Regional Forester. During the reevaluation process, the Bureau of Land Management (BLM) segregated the proposed RNA area for two years from location and entry under the public mining laws. This segregation period expired in May 1995, at which time Park Lake entered the area and located mineral claims there. Those claims were recorded and filed with the State of Colorado in October and with the BLM in November.

The Forest Service issued an Environmental Assessment (EA) for the proposed Hoosier Ridge RNA in May 1995 and adopted Alternative 2, which recommended the establishment of an RNA. Accordingly, on December 5, the Forest Service issued another final Designation Order designating Hoosier Ridge as an RNA. The adopted Alternative 2 of the EA required road closures and barricades to prevent motorized access in the RNA. These requirements were consistent with the Forest Service's RNA Management Area Prescription for the Rocky Mountain Region, which states that "motorized use is prohibited, except when necessary to provide research or educational access." See Aplt. App. at 134.

The Forest Service was unaware of Park Lake's recent mining claims on Hoosier Ridge at the time it made the designation order. Park Lake filed an unsuccessful administrative appeal with the Forest Service, claiming it acted arbitrarily and capriciously in making such a designation without evaluating the presence of Park Lake's mining claims. Park Lake then filed this complaint in federal district court. See Park Lake Resources v. United States Dep't of Agric., 979 F. Supp. 1310 (D. Colo. 1997).

Park Lake's complaint sought review of a "final agency action" pursuant to the APA, 5 U.S.C. § 704. Park Lake requested a declaration that the RNA designation was arbitrary, capricious, and not in accordance with the law, a permanent injunction enjoining the Forest Service from implementing the RNA designation, and a permanent injunction enjoining the Forest Service from denying Park Lake motorized access to its mining claims or otherwise restricting Park Lake's mining activities within the Hoosier Ridge. The district court held that the RNA designation met the regulatory criteria as set forth in 36 C.F.R. §§ 219.25 and 251.23. See Park Lake, 979 F. Supp. at 1314. The court further concluded that the Forest Service was aware of and considered existing mining activities in the area before determining that the mining modifications were not sufficiently extensive to interfere with the RNA designation. See id. The district court therefore held that the designation of the RNA was not arbitrary and capricious. See id. at 1315. Park Lake appeals that decision.

The Forest Service argues for the first time on appeal that Park Lake's claim is not yet ripe because it has failed to show any present injury caused by the RNA designation. Although this issue was not raised in the district court, we consider its merits because ripeness affects this court's subject matter jurisdiction, see Ohio Forestry Ass'n v. Sierra Club, 523 U.S. 726, 732 (1998) (case not justiciable if not ripe for review); see also Ash Creek Mining Co. v. Lujan, 934 F.2d 240, 243 (10th Cir. 1991) (whether claim is ripe for review bears on court's subject matter jurisdiction under Article III of Constitution), and may be raised at any time, see Keyes v. School Dist. No. 1, 119 F.3d 1437, 1444 (10th Cir. 1997).

II.

We initially note that the burden is on the plaintiff to provide evidence establishing that the issues are ripe for review. See CSG Exploration Co. v. FERC, 930 F.2d 1477, 1486 (10th Cir. 1991). Whether or not an agency decision is ripe for judicial review is determined by examining the fitness of the issues for judicial decision and the hardship caused to the parties if review is withheld. See Ohio Forestry, 523 U.S. at 733 (quoting Abbott Labs. v. Gardner, 387 U.S. 136, 149 (1967)); Mobile Exploration & Producing U.S., Inc. v. Dep't of Interior, 180 F.3d 1192, 1197 (10th Cir. 1999). In this case, Park Lake has failed to convince us that the issue is fit for review or that immediate review is necessary to avoid injury.

A. Fitness of the issues for judicial review

A vital aspect of the requirement that issues be fit for review is that the suit challenge "final agency action." See, e.g., Mobil Exploration, 180 F.3d at 1197 (citing APA, 5 U.S.C. § 704, and Abbott Labs., 387 U.S. at 149-54). Although the RNA designation at issue here is deemed a final administrative action by regulation, see 36 C.F.R. § 217.17(g), it is nevertheless still subject to agency activity with regard to Park Lake's mining activities.

It is important to note that mining activities may occur on RNA land. See 36 C.F.R. §§ 251.23, 251.50. Anyone wishing to conduct mining activities on any national forest land "which will likely cause a significant disturbance of surface resources" must first file a proposed plan of operations with the Forest Service. 36 C.F.R. § 228.4(a). Park Lake has not yet submitted a proposed plan of operations, claiming that it attempted to do so but the district ranger would not accept it while this litigation was in progress.

The Forest Service has several alternatives available to it when faced with a proposed plan of operations for mining activities conducted on RNA land. See 36 C.F.R. § 228.5; Supp. App. of Fed. Aplee. at 76 (Forest Service Manual, Standards and Policy Guidelines for RNAs). Once presented with Park Lake's proposed plan of operations, the Forest Service may approve it, may require modification, or may even modify or withdraw the RNA designation.² Moreover, the Forest Service may restrict Park Lake's mining activities for reasons unrelated to the fact that the mining claim is on RNA land.

Disregarding the land's RNA designation, the Forest Service has a plethora of statutory and regulatory provisions governing national forests upon which it might rely when and if it requires modifications prior to its aproval of Park Lake's plan of operations. See, e.g., 16 U.S.C. § 551 (Forest Service must protect national forest land from destruction and depredation); 16 U.S.C. § 478 (miners must comply with rules and regulations covering national forests); 16 U.S.C. § 1604(i) (permits relating to use and occupancy of national forest system lands must be consistent with the land management plan for that specific forest); 36 C.F.R. § 228.4(f) (mining operations may require environmental analysis considering varying environmental impacts); 36 C.F.R. § 228.5 (Forest Service may require changes in plan necessary to "meet the purpose of the regulations in this part"); 36 C.F.R. § 228.8 (mining operations on forest land must be conducted to minimize adverse environmental impacts); 36 C.F.R. § 228.12 (when reviewing means of access to mining claims in proposed plans, Forest Service must specify all "conditions reasonably necessary to protect the environment and forest surface resouces"). See generally Joel A. Ferre, Forest Service Regulations Governing Mining: Ecosystem Preservation versus Economically Feasible Mining in the National Forests, 15 J. Energy Nat. Resources & Envtl. L. 351 (1995). Indeed, the Forest...