Sabin v. Butz

• Decision Date: 11 July 1975
• Docket Number: No. 74-1060,74-1060
• Citation: 515 F.2d 1061
• Parties: 1975-1 Trade Cases 60,262 Don SABIN et al., Plaintiffs-Appellants, v. Earl H. BUTZ, Secretary of Agriculture, and Edward P. Cliff, Chief, U. S. Forest Service, Defendants-Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1061

515 F.2d 1061

1975-1 Trade Cases 60,262

Don SABIN et al., Plaintiffs-Appellants, v. Earl H. BUTZ, Secretary of Agriculture, and Edward P. Cliff Chief, U. S. Forest Service, Defendants-Appellees.

No. 74-1060.

United States Court of Appeals Tenth Circuit.

Argued Sept. 13, 1974.

Decided April 9, 1975.

Rehearing Denied July 11, 1975.

Carl R. Nutzhorn, Aspen, Colo., for plaintiffs-appellants.

John J. Zimmerman, Atty., Dept. of Justice, Washington, D. C. (Wallace H. Johnson, Asst. Atty. Gen., George R. Hyde, Atty., Dept. of Justice, Washington, D. C., and James L. Treece, U. S. Atty., Denver, Colo., on the brief), for defendants-appellees.

Before HOLLOWAY and McWILLIAMS, Circuit Judges, and CHRISTENSEN, ^* District Judge.

HOLLOWAY, Circuit Judge.

This suit challenges the denial by the Forest Service of a special use permit to allow an independent ski instructor to teach downhill skiing in the Aspen, Colorado, area of the White River National Forest. Plaintiff Lemos, an admittedly qualified ski instructor, sought the permit and plaintiffs Sabin, Young, and Paul were prospective students desiring his instruction. The permit was denied pursuant to a Forest Service policy against authorizing individuals to operate concessions or ski schools on a ski area under permit to another party, without his consent. ¹ In effect, permittees operating winter sports areas are thus granted an exclusive right to control instruction in the area covered by their permit. ² It is this policy and its application to Lemos which plaintiffs challenge.

The facts are essentially without dispute. Lemos is admittedly a certified ski instructor (Brief for Appellees at 4). The Forest Service has raised no question as to his qualifications. In April, 1971, he sought a special use permit under 16 U.S.C.A. § 497 to teach downhill or Alpine, skiing for hire on forest lands in the White River National Forest. These particular lands were already under permit for operation as winter sports areas, i. e., Aspen Mountain, Aspen Highlands, Buttermilk and Snowmass. ³ The special use permits held by the area operators gave them the right to conduct ski instruction on lands covered by their permits. The District Ranger denied a permit to Lemos. As stated, he did so on the basis ". . . that the Forest Service will not authorize individuals to operate concessions or ski schools on a ski area under permit to another party without that party's consent." See n. 1, supra.

Lemos filed a request for reconsideration of his application, being joined by plaintiffs Sabin, Young and Paul, the three prospective students. Lemos and the students submitted separate written statements ⁴ in support of the request for reconsideration. Lemos proposed alteration of the Forest Service policy on conditions suggested to meet objections by the Forest Service. The request for reconsideration was denied. Similar requests for reconsideration of the policy and of the denial of Lemos' application were subsequently urged through higher administrative levels and ultimately denied by the Secretary of Agriculture in March, 1972.

In April, 1972, this suit was filed seeking reversal of the denial of the permit, a declaratory judgment that the policy in question was unlawful, and an injunction against its continued enforcement. ⁵ Jurisdiction was claimed under the Administrative Procedure Act, 5 U.S.C.A. § 706(2), and 28 U.S.C.A. § 2201.

The complaint alleged four claims: (1) that the Forest Service policy was arbitrary, capricious, and contrary to law, and its enforcement was an abuse of discretion (2) that the denial of a permit to Lemos was arbitrary, capricious and contrary to law and an abuse of discretion in that it was a result of the unlawful Forest Service policy; (3) that the policy denied First Amendment freedom of expression rights to both Lemos and his would-be pupils; and (4) that the policy violates Section 1 of the Sherman Act, 15 U.S.C.A. § 1.

After answer and filing of answers to interrogatories and admissions, all parties moved for summary judgment. An extensive Order by the District Court analyzed the record and authorities and granted summary judgment for the defendants, relying primarily on Heath v. Aspen Skiing Corp., 325 F.Supp. 223 (D.Colo.). In essence the court held that the Forest Service Manual provisions and the policy of the Forest Service governing ski schools are reasonable, authorized, lawful and in the public interest, and rejected the various contentions of plaintiffs.

This appeal presents essentially the same claims as were made in the District Court. We will first treat a jurisdictional question raised by the Government, and will then turn to appellants' propositions.

1. Jurisdiction to review the administrative action

The Government argues that the agency action challenged is not subject to review (Brief for Appellees at 15 n. 2). It says that the discretion vested in the Secretary by 16 U.S.C.A. §§ 497 and 551 is so broad as to place the agency action within the class of unreviewable action committed to agency discretion by law under 5 U.S.C.A. § 701(a)(2), relying on Hi-Ridge Lumber Co. v. United States, 443 F.2d 452 (9th Cir.), and Mollohan v. Gray, 413 F.2d 349 (9th Cir.).

We cannot agree. There is a basic presumption of judicial review for one suffering legal wrong because of, or adversely affected or aggrieved by, agency action. Abbott Laboratories v. Gardner, 387 U.S. 136, 140, 87 S.Ct. 1507, 18 L.Ed.2d 681. The cited exception for discretionary action is a very narrow one, applicable in those rare instances where statutes are drawn in such broad terms that in a given case there is no law to apply. Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 410, 91 S.Ct. 814, 28 L.Ed.2d 136; see National Helium Corp. v. Morton, 455 F.2d 650, 655 n. 12 (10th Cir.); Parker v. United States, 448 F.2d 793, 795 (10th Cir.), cert. denied sub nom. Kaibab Industries v. Parker, 405 U.S. 989, 92 S.Ct. 1255, 31 L.Ed.2d 455.

Here 16 U.S.C.A. § 497, which grants the Secretary broad authority to issue permits for the use of land in the National Forests, also expressly provides that such authority ". . . shall be exercised in such manner as not to preclude the general public from full enjoyment of the natural, scenic, recreational, and other aspects of the national forests." In view of this provision and the nature of the authority granted we do not feel that the issuance of such permits is within the class of unreviewable actions committed to agency discretion. There is law to apply and there are substantial issues raised as to whether the agency action was arbitrary or unlawful. See Parker v. United States, 448 F.2d 793 (10th Cir.), cert. denied sub nom. Kaibab Industries, Inc. v. Parker, 405 U.S. 989, 92 S.Ct. 1255, 31 L.Ed.2d 455; East Oakland-Fruitvale Planning Council v. Rumsfeld, 471 F.2d 524, 531-35 (9th Cir.); but see Ness Investment Corp. v. United States Department of Agriculture, Forest Service, 360 F.Supp. 127 (D.Ariz.). Thus plaintiffs present a case within the grant of subject matter jurisdiction conferred by the Administrative Procedure Act. Bard v. Seamans, 507 F.2d 765 (10th Cir.).

2. The First Amendment claim

Appellants contend that the administrative action infringed their First Amendment rights. They rely primarily on United States v. Gourley, 502 F.2d 785 (10th Cir.), and Overseas Media Corp. v. McNamara, 128 U.S.App.D.C. 48, 385 F.2d 308 as support for the proposition.

Lemos' application was not specific as to the communications or expressions proposed, and we can assume only that communications necessary for ordinary skiing instructions would be involved. Nothing more is claimed by the briefs or in the record to be infringed by the administrative actions.

In this setting we are not persuaded by the constitutional claim. Such communication would not convey information, express opinion, recite grievances, protest claimed abuses or seek financial support for a movement of public interest and concern within the meaning of New York Times Co. v. Sullivan, 376 U.S. 254, 266, 84 S.Ct. 710, 11 L.Ed.2d 686. Instead, in essence the communications would do no more than carry out a commercial transaction. See Pittsburgh Press Co. v. Pittsburgh Commission on Human Relations, 413 U.S. 376, 384-85, 93 S.Ct. 2553, 37 L.Ed.2d 669; Valentine v. Chrestensen, 316 U.S. 52, 54, 62 S.Ct. 920, 86 L.Ed. 1262; Howard v. State Department of Highways of Colorado, 478 F.2d 581, 585 (10th Cir.); Hood v. Dun & Bradstreet, Inc., 486 F.2d 25, 29-30 (5th Cir.), cert. denied, 415 U.S. 985, 94 S.Ct. 1580, 39 L.Ed.2d 882; Banzhaf v. F. C. C., 132 U.S.App.D.C. 14; 405 F.2d 1082, 1101-02, cert. denied, 396 U.S. 842, 90 S.Ct. 50, 24 L.Ed.2d 93; cf. Kansas Electric Supply Co. v. Dun and Bradstreet, Inc., 448 F.2d 647, 649 (10th Cir.), cert. denied, 405 U.S. 1026, 92 S.Ct. 1289, 31 L.Ed.2d 486.

Moreover no recognized "First Amendment forum" is involved. See Lehman v. City of Shaker Heights, 418 U.S. 298, 301, 94 S.Ct. 2714, 41 L.Ed.2d 770 (plurality opinion) Nor is the challenged governmental policy arbitrary in its impact on the exercise of First Amendment rights. Id.; see also United States v. Cassiagnol, 420 F.2d 868, 874-76 (4th Cir.), cert. denied, 397 U.S. 1044, 90 S.Ct. 1364, 25 L.Ed.2d 654.

We believe that United States v. Gourley, 502 F.2d 785 (10th Cir.) does not support appellants' First Amendment claim. It involved activities clearly within the protection of the Amendment passing out anti-war pamphlets and the like in contrast to the commercial activities involved here. And we likewise feel that reliance on Overseas Media Corp. v. McNamara, 128 U.S.App.D.C. 48, 385 F.2d 308 is misplaced. Its reversal of summary judgment for the defendant was based on other grounds the presence of factual questions calling for an evidentiary hearing on claims that unfavorable administrative action was arbitrary and taken without reference to established...