High Country Citizen v. U.S. Forest Service ( 2000 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
FEB 7 2000
TENTH CIRCUIT
PATRICK FISHER
Clerk
HIGH COUNTRY CITIZENS’
ALLIANCE,
Plaintiff-Appellant,
Case No. 97-1373
v.
(D. C. No. 96-WY-2009-CB)
UNITED STATES FOREST SERVICE, (District of Colorado)
Defendant-Appellee
ORDER AND JUDGMENT*
Before TACHA, McWILLIAMS, and HENRY, Circuit Judges.
High Country Citizens’ Alliance (HCCA), an environmental organization located
in Crested Butte, Colorado, appeals the district court’s order affirming a decision of the
United States Forest Service. In particular, HCCA challenges the issuance of a special
permit to Craig and Judy Pauly, who own property surrounded by the Gunnison National
Forest. The permit allows the Paulys to snowplow approximately two miles of a Forest
*
This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. The court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 36.3.
Service road so that they can reach their residence by automobile in winter. We conclude
that the granting of the special use permit was neither arbitrary nor capricious nor
contrary to applicable law. We therefore affirm the district court’s decision.
I. BACKGROUND
In June 1994, the Paulys purchased a 113-acre parcel of land in Gunnison County,
Colorado surrounded by the Gunnison National Forest. Located seven miles from the
nearest paved road, the Paulys’ property contains a single family residence and can be
reached from the Cement Creek Road, a graveled forest development road located on
Forest Service property.
When the Paulys purchased the property, Gunnison County provided snowplowing
services for only the first five miles of the Cement Creek Road, from Highway 135 to the
Cement Creek Ranch, another private inholding. Neither Gunnison County nor the Forest
Service snowplowed the two mile section from the Cement Creek Ranch to the Paulys’
property, and the unplowed section of the road was used for cross-country skiing and
snowmobiling. Thus, during periods of heavy snowfall, the Paulys could not reach their
property by automobile.
In July 1994, the Paulys applied for a special use permit allowing them (at their
own expense) to snowplow the two mile section of the Cement Creek Road from the
Cement Creek Ranch to their property. The Forest Service solicited public comments
2
about the Paulys’ application and received over 100 responses.
Many local residents opposed the application, raising recreational, safety, and
environmental concerns. In particular, they contended that the issuance of the permit
would deprive the public of the opportunity to ski and snowmobile on the section of the
Cement Creek Road leading to the Paulys’ inholding. Other citizens argued that the
issuance of the permit would establish a precedent of allowing snowplowing in remote
locations, thereby interfering with their enjoyment of other areas of the Forest. Still
others maintained that the snowplowing would increase the risk of avalanches and
collisions involving automobiles, snowmobiles, and skiers, and would damage the trees
surrounding the road.
HCCA expressed many of these concerns in a letter received by the Forest Service
on September 12, 1994:
Snowplowing and upgrading of rough roads has negative
impacts to local economies, traditional lifestyles, public safety,
environment, and development patterns. Weighing against these
critical public concerns is only one value, the desire of private
individuals to subdivide and live deeper in the backcountry. It
is not the responsibility of the government to maximize profit
opportunities for individuals. Your job is to protect the public
interest. Sometimes the public interest coincides with private
interests. But on this matter, the public interest . . . completely
conflicts with private.
Aplt’s App. at 862.
The Board of County Commissioners of Gunnison County also opposed the
Paulys’ permit application. The Commissioners asserted that the requested snowplowing
3
was inconsistent with a resolution that the Board had passed in December 1996. That
resolution, number 86-42, approved the construction of a single family residence that was
“not intended for year-round occupation.” See id. at 791. By seeking to snowplow
Cement Creek Road so that they could drive to their property, the County argued, the
Paulys were attempting to use their property “year-round” in violation of the resolution.
The Forest Service also received several letters in support of the Paulys’
application. See, e.g., id. at 883-85. One citizen, who owned property adjoining the
Paulys’ inholding, stated that the denial of the permit “would impose severe and
unnecessary hardships” upon them. See id. at 883. Additionally, a lawyer retained by the
Paulys sent two letters to the Forest Service. See id. at 533-43. Invoking a federal statute
providing owners of property within the boundaries of a National Forest with access
adequate for “reasonable use and enjoyment,” see id. at 533 (quoting 16 U.S.C. § 3210),
the Paulys’ lawyer contended that the permit should be granted.
On September 26, 1994, District Ranger James R. Dawson sent a letter to the
Paulys informing them that he had denied their application for a special use permit
because the permit was “not in the public interest.” Id. at 532. Ranger Dawson explained
that similar properties in the area had “not necessarily included winter access by other
than over-the-snow types of transportation.” Id. He also noted the Board of County
Commissioner’s position that snowplowing was inconsistent with Resolution 86-42.
The Paulys then pursued an administrative appeal of Ranger Dawson’s decision.
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See id. at 515-43. They argued that snowplowing of the two mile section of Cement
Creek Road was necessary in order to provide them with reasonable access to their
property. They also argued that Ranger Dawson’s denial of the permit violated their Fifth
Amendment rights by taking their property without just compensation and depriving them
of equal protection of the law. See id. at 522-23.
On December 21, 1994, Forest Supervisor Robert L. Storch responded to the
Paulys’ appeal by ordering reconsideration of the decision to deny the snowplowing
permit. See id. at 509-510. Mr. Storch explained that in his view reasonable access to the
Paulys’ inholding included access by automobile in the winter. He noted the opposition
to the permit application from the public and from Gunnison County officials but said that
the Paulys’ right of access outweighed those considerations.
On September 27, 1995, Mr. Storch issued a decisional memorandum granting the
Paulys a one year permit to snowplow the two mile section of the Cement Creek Road.
Mr. Storch’s memorandum again explained that, in spite of local opposition, granting the
permit was necessary to insure the Paulys’ reasonable access to their property in the
wintertime. See id. at 545-47. He added that he had considered the environmental impact
of allowing snowplowing on the road and had concluded that the resources of the
National Forest would not be adversely affected. See id. at 546.
Subsequently, the Paulys sought renewal of the special use permit for the winter of
1996-97. The Forest Service again afforded the public an opportunity to comment on the
5
Paulys’ application. It received twenty letters in opposition to the Paulys’ application and
sixteen supporting it. See id. at 175. Many of the letters opposing the application raised
the same recreational, environmental, and safety concerns that had been advanced in
opposition to the Paulys’ initial application.
On February 14, 1997, Mr. Storch issued a decisional memorandum granting the
special use permit for a five year period. See id. at 166-74. Mr. Storch began by
explaining the history of the dispute over the Pauly’s request to snowplow Cement Creek
Road. He noted the considerable opposition to the request, from both the public and from
Gunnison County officials. See id. at 166 (observing “[m]ost of the public input can be
characterized as solidly against allowing snow plowing and, in effect, opening up Cement
Creek Valley in the winter,” and “Gunnison County came out strongly against the request
to plow snow above Cement Creek Ranch”). Mr. Storch then explained why he believed
that the county land use restrictions did not preclude the granting of the Paulys’
application. He reported that he “took into account the 1986 resolution of the Board of
County Commissioners which restricted the former owners of the Pauly property from
year-round occupancy. That resolution was evidently not of public record at the time the
Paulys purchased the property and the resolution did not specifically eliminate winter-
time use of the residence.” Id. at 167.
The memorandum then explained Mr. Storch’s view of the applicable law. It
rejected the Paulys’ contention that the Forest Service lacked discretion and was required
6
to grant the permit application. Instead, while “[i]nholders do have a statutory right of
access under ANILCA [the Alaska National Interest Lands Conservation Act of 1980, 16
U.S.C. § 3210], . . . that right is clearly subject to reasonable regulation.” Id. at 169. Mr.
Storch therefore considered the adverse effects of allowing access to inholdings and the
possibility of mitigating those effects. See id.The memorandum considered the safety risks and environmental concerns
associated with snowplowing. As to safety concerns, it noted that even after the granting
of the permit, the general public would still be prohibited from using wheeled vehicles on
the section of the road in question. It reasoned that this prohibition would lessen the risk
of people being stranded by heavy snowfall and of vehicles colliding. See id. at 172.
As to environmental effects, the memorandum concluded that snowplowing “will
be of limited context and intensity and will result in little or no environmental effects to
either the physical or biological components of the environment.” Id. at 173. Because of
this minimal effect on the environment, the snowplowing permit fell within a categorical
exclusion from the requirements of the National Environmental Policy Act (NEPA), 42
U.S.C. § 4321-4370. Mr. Storch also concluded that the following required mitigating
measures would limit the adverse effects: (1) plowing would not be allowed after
approximately April 1 of each year, to prevent damage to the road from wheeled vehicles
as the snow thawed; (2) the permit required the plowing to be directed away from a
certain area (“the Ptarmigan habitat”); (3) the permit required at least a four inch layer of
7
snow to be left on the road after plowing to facilitate travel by cross country skiers and
snowmobiles; and (4) the permit required the full width of the road to be plowed, in order
to facilitate passing of vehicles and skiers. See Aplt’s App. at 173. Mr. Storch’s
memorandum added that Forest Service personnel had visited the Cement Creek plowing
location four times since the temporary permit was issued and “no measurable impacts to
the environment or health and safety have been identified as a result of plowing the road.”
Id. at 168.
The memorandum also considered ten other roads in the Gunnison National Forest
on which snowplowing had been authorized by the Forest Service. Nine of these
snowplowed roads served residences in winter and one of them was used for hauling
timber. See id. at 170-71. It concluded that the impact of snowplowing the section of the
Cement Creek Road at issue would resemble the impact of snowplowing these other
roads. The memorandum did acknowledge that there were a number of roads in the
Gunnison National Forest that were not snowplowed but that provided access to winter
residences by “over-snow methods.” Id. at 171. It explained that roads were not
considered in conducting the analysis because the Forest Service had received no requests
to plow them. Mr. Storch also noted that “when we discussed snowplowing with other
National Forests and Regions, we found they allow the plowing of snow in many places
for many reasons. The consensus was that plowing is routinely allowed.” Id. at 172.
The memorandum summarized the reasons for granting the snowplowing permit as
8
follows:
(1) the lack of environmental or safety risks; (2) the fact the
private land needing access has a residence used during the
winter season; (3) the fact that the road being plowed is an
existing Forest Development Road; (4) the fact that the permit
merely extends an existing use since the County has plowed the
lower 5-mile section of the Cement Creek Road from Colorado
Highway 135 for the last 11 years; and (5) a determination that
the Cement Creek Ranch and nine others were similarly situated
properties. The nine similarly situated properties were
persuasive in my analysis but the adjacent plowing of the same
road to Cement Creek Ranch was compelling. It only seemed
reasonable to allow the short extension of plowing to the
adjacent Pauly inholding.
Id.II. DISCUSSION
On appeal, HCCA advances four challenges to the Forest Service’s issuance of
the special use permit allowing snowplowing on the Cement Creek Road. It contends
that: (1) the Forest Service erred in failing to consider the Gunnison County land use
restriction providing that the Paulys’ residence was “not intended for year-round
occupation,” id. at 791; (2) the Forest Service acted arbitrarily in analyzing the access
afforded to other properties by only considering instances in which snowplowing had
been requested; (3) the Forest Service failed to adequately consider the public interest in
leaving the road unplowed; and (4) the Forest Service erred in concluding that the
snowplowing permit was categorically excluded from an environmental analysis under
NEPA.
9
In reviewing the Forest Service decision to grant the special use permit, we apply
the same standard as the district court. See Olenhouse v. Commodity Credit Corp., 42
F.3d 1560, 1580 (10th Cir. 1994). We consider whether the Forest Service acted
arbitrarily, capriciously, or contrary to law. See id. at 1573-74; see also Sabin v. Butz,
515 F.2d 1061, 1065 (10th Cir. 1975) (applying arbitrary and capricious standard of
review to Forest Service’s issuance of a special use permit). We must “ascertain whether
the agency examined all the relevant data and articulated a rational connection between
the facts found and the decision made.” Olenhouse, 42 F.3d at 1574 (footnote omitted)
(citing Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Ins. Co., 463 U.S. 29, 43 (1983)).
In order to affirm the the Forest Service’s decision, we must be assured that it
considered the relevant factors and made no clear errors in judgment. Id. at 1574. On the
other hand, the Forest Service’s decision should be set aside if it
relied on factors which Congress has not intended for it to
consider, entirely failed to consider an important aspect of the
problem, offered an explanation for its decision that runs
counter to the evidence before [it], or is so implausible that it
could not be ascribed to a difference in view or the product of
agency expertise.
See id. (quoting Motor Vehicle Mfrs. Ass’n , 463 U.S. at 43). If the Forest Service,
“failed to provide a reasoned explanation for its action, or if limitations in the
administrative record make it impossible to conclude that the action was the product of
reasoned decisionmaking, the reviewing court may supplement the record or remand the
case to the agency for further proceedings.” Id. at 1575.
10
Mindful of these principles, we being our analysis with a review of the applicable
statutes and regulations governing the issuance of special use permits to provide access to
inholdings in the national forests. Then, we consider each of HCCA’s challenges to the
granting of the permit.
A. Adequate Access to Inholdings
Access to private inholdings within Forest Service lands is governed by the
Federal Land Policy Management Act (FLPMA), 43 U.S.C. §§ 1701-1782, the Alaska
National Interest Lands Conservation Act, 16 U.S.C. §§ 3101-3233 (ANILCA), and
accompanying regulations. See generally United States v. Jenks, 22 F.3d 1513, 1514-16
(10th Cir. 1994) (discussing the enactment of the FLPMA and the ANILCA). Title V of
the FLPMA vests the Secretaries of Agriculture and the Interior with the authority to
“grant, issue, or renew rights-of-way over . . . [Forest Service and public lands] for . . .
roads, trails [and] highways.” 43 U.S.C. § 1761(a). Section 3210(a) of the ANILCA
specifically addresses the right of access to privately owned inholdings within Forest
Service lands:
Notwithstanding any other provision of law, and subject to such
terms and conditions as the Secretary of Agriculture may
prescribe, the Secretary shall provide such access to
nonfederally owned land within the boundaries of the National
Forest System as the Secretary deems adequate to secure to the
owner the reasonable use and enjoyment thereof: Provided,
That such owner comply with rules and regulations applicable
to ingress and egress to or from the National Forest System.
11
16 U.S.C. § 3210(a). The ANILCA thus grants inholders “a threshold ‘right of access to
their lands subject to reasonable regulation.’” Jenks, 22 F.3d at 1516 (quoting Adams v.
United States, 3 F.3d 1254, 1258-59 (9th Cir. 1993)).
Accompanying regulations establish a permit system under which owners of
inholdings must request permission for particular uses of Forest Service lands. See Jenks,
22 F.3d at 1517-18 (discussing permit system). Pursuant to the ANILCA regulations, the
Forest Service must provide property owners with access that is adequate to secure
reasonable use and enjoyment of their property. See 36 C.F.R. § 251.110(c). “Adequate
access” to an inholding is defined as “a route and method of access to non-Federal land
that provides for reasonable use and enjoyment of the non-Federal land consistent with
similarly situated non-Federal land and that minimizes damage or disturbance to National
Forest System lands and resources.” 36 C.F.R. § 251.111. The regulations further
provide that in determining what constitutes adequate access, the Forest Service should
consider the uses of other property in the relevant area:
In issuing a special-use authorization for access to non-Federal
lands, the authorized officer shall authorize only those access
facilities or modes of access that are needed for the reasonable
use and enjoyment of the land and that minimize the impacts on
the Federal resources. The authorizing officer shall determine
what constitutes reasonable use and enjoyment of the lands
based on contemporaneous uses made of similarly situated lands
in the area and any other relevant criteria.
36 C.F.R. § 251.114(a). A regulation enacted pursuant to the FMLPA and in effect at the
12
time of the Paulys’ application provided that a permit for the use of Forest Service lands
may be denied if “[t]he use would otherwise be inconsistent with applicable Federal and
State laws.” 36 C.F.R. § 251.54(i)(4) (1996).
Accordingly, in deciding whether to issue a special use permit to the owner of an
inholding pursuant to the FMLPA, the ANILCA, and accompanying regulations, the
Forest Service must determine: (1) what uses of the property are reasonable; and (2) what
access is adequate to allow for those reasonable uses. We must affirm the Forest
Service’s decision to issue the permit unless those determinations are “arbitrary,
capricious, an abuse of discretion, or otherwise not in accordance with law.” See
Olenhouse, 42 F.3d at 1574 (quoting Citizens to Preserve Overton Park v. Volpe, 401
U.S. 402, 413-14 (1971)).
B. Gunnison County Land Use Restriction
“The crux of [HCCA’s] appeal,” Aplt’s Reply Br. at 1, is that the Forest Service
acted arbitrarily and capriciously by finding County Resolution 86-42 irrelevant to the
decision of whether to issue the special use permit to the Paulys. As noted above,
Resolution 86-42, adopted by the Board of County Commissioners of Gunnison County
on December 16, 1986, granted a land use change to the previous owners of the
inholding. The resolution authorized the construction of a single family residence in the
following terms: “Land Use Change Application No. 1986-27 is hereby approved as a
13
development of Minor Impact, not intended for year-round occupation.” Aplt’s App. at
791. It further provided, “T[his] R[esolution] and the approval granted hereby shall not
be effective unless and until a copy is recorded in the Office of the Clerk and Recorder of
Gunnison County at the expense of the applicant.” Id. In his decisional memorandum,
Mr. Storch reported that he took Resolution 86-42 into account. However, he made two
observations: the “resolution was evidently not of public record at the time the Paulys
purchased the property and the resolution did not specifically eliminate winter-time use of
the residence.” Id. at 167.
HCCA challenges both observations. As to Mr. Storch’s comment that the
resolution did not eliminate wintertime use, it contends that the phrase employed in the
resolution—“year-round”—is synonymous in Gunnson County with “used in wintertime.”
See Aplt’s Br. at 15. Thus, “[w]here winter dominates life for six months of the year,
‘year round’ is a common colloquialism—a road that is ‘open year-round’ is open in
winter; a house that has ‘year round access’ is one you can drive to in winter.” Id. It
points out that the Forest Service has often used the phrase “year-round” in the same way.
See id. at 16. Thus, HCCA maintains, when the County resolution provided that the
residence on the Paulys’ inholding was “not intended for year-round occupation,” it
meant that the house was not intended to be a wintertime residence.
As to Mr. Storch’s other observation—that the “resolution was evidently not of
public record at the time the Paulys purchased the property”—HCCA invokes Colorado
14
property law. It notes that “a property owner is subject to conditions or restrictions
imposed by a local development approval regardless of whether or not it was recorded.”
Aplt’s Br. at 14 (citing Southcree Assocs. v. Bixby & Assocs., 781 P.2d 1027 (Colo.
1989)). It adds that the resolution was in fact recorded by the time that the initial
snowplowing permit was issued in 1994. See Aplt’s Reply Br. at 6. It therefore
concludes that the Forest Service’s approval of the special use permit was based on a
misunderstanding of the applicable law.
Although HCCA makes a strong linguistic point about the connotations of the
phrase “year-round” in Gunnison County, it has not established that Mr. Storch acted
arbitrarily or capriciously in considering Resolution 86-42. Significantly, many of
HCCA’s examples of the use of the phrase “year-round” do not involve the situation that
confronts us here—the interpretation of an enactment of a governmental body that
purports to restrict citizens’ use of property. Moreover, the wording of the resolution
still leaves many issues unresolved. For example, even if “year-round” generally means
“wintertime,” it is not clear from the resolution how much wintertime use is prohibited.
Thus, if the owners of the inholding use the residence for one day in the winter, or one
week, or two months out of three, the resolution does not specify which of these uses, if
any, would be prohibited.
Notably, HCCA itself has suggested that the resolution is somewhat unclear. In a
July 20, 1995 letter to the Regional Forester, HCCA’s President acknowledged:
15
[t]he restriction put on the Pauly (at that time Kolosta) house
was vague. It was a tentative step in a time when the County
was just beginning to emerge from the laissez-faire approach to
land use. Today, new homes proposed for construction in
Cement Creek and elsewhere receive much more thorough
scrutiny and restrictions.
What’s done is done and we will have to live with the
County’s earlier action. I believe it will be a tough case should
the County seek to enforce its “less than year-round occupancy”
restriction on the Pauly’s.
Aplt’s App. at 361-62.
The ambiguity of the resolution is further confirmed by evidence cited by the
district court. In particular, David Leinsdorf, one of the members of the Gunnison
County Board of Commissioners who voted to approve Resolution 86-42, responded to an
inquiry from the Paulys’ attorney by explaining that the resolution was not intended to
prohibit wintertime use of the residence on the inholding:
Although I had no specific recollection of this approval prior to
reviewing the Minutes and Resolution, I do know that, as
County Commissioner, I was always concerned that, when
people proposed construction in areas not served by a plowed
public road, they should not expect County plowing.
Therefore, I often had the record establish that the
County would not provide winter maintenance, as I did during
the meeting on December 9, 1986. The language “not intended
for year round occupation” in Resolution 42, Series 1986 was to
reflect the fact that the County, in approving the Land Use
Change, assumed no winter maintenance responsibility. I
certainly had no intention to prevent the owners from using the
house in winter as long as they did not expect the County to
plow.
Id. at 758.
16
Minutes from the meetings in December 1986 confirm Mr. Leinsdorf’s
recollection that the Board of County Commissioners was concerned about the costs of
winter road maintenance when it approved Resolution 86-42. When the resolution was
first proposed, Mr. Leinsdorf asked whether the owners of the inholding (the Kolostas)
understood “that the County has no foreseeable plans to provide winter maintenance.”
Aplt’s App. at 755 (minutes of Dec. 9, 1986 meeting). Another member of the board,
Rikki Santorelli, said, “It’s up to them if they want to get there let Id. (emphasis added). At the following meeting (when the resolution was
approved), another commissioner explained that Mr. Leinsdorf had been “concerned that
we make some sort of notation that this approval was not for year-round—it was not
intended for year-round occupation of the residents i.e. so we wouldn’t be in a road
maintenance situation.” Id. at 757 (minutes of Dec. 16, 1986 meeting).
In its appellate brief, HCCA criticizes the district court’s reliance on the comments
of Mr. Leinsdorf. It observes that these comments were not cited in Mr. Storch’s
decisional memorandum. Moreover, according to HCCA, Mr. Leinsdorf’s comments are
inconsistent with the Forest Service’s position in this case. HCCA observes that while
Mr. Leinsdorf appears to believe that Resolution 96-42 imposed no restrictions
whatsoever on the use of the inholding (as long as the residents themselves paid for
maintenance costs like snowplowing in winter), the Forest Service has repeatedly
acknowledged that the resolution does impose restrictions on use. See Aplt’s Reply Br. at
17
7-9. Because “an agency’s action must be upheld, if at all, on the basis articulated by the
agency itself,” Aplt’s Reply Br. at 2 (quoting Motor Vehicles Ass’n, 463 U.S. at 43),
HCCA maintains that the Forest Service may not now rely on Mr. Leinsdorf’s
interpretation of the ordinance.
We are not convinced by HCCA’s challenge to this evidence. It is true that Mr.
Storch’s decisional memorandum discusses neither Mr. Leinsdorf’s interpretation nor the
Board of County Commissioner’s proceedings. However, that evidence illustrates a
larger point that the memorandum does address: that the resolution may be reasonably
read to allow some use of the property in the wintertime. As the Forest Service observes
in its appellate brief, Mr. Storch was not required to cite every item of evidence
supporting his view. See Bagdonas v. Department of Treasury, 93 F.3d 422, 426 (7th
Cir. 1996) (noting that “[t]he statement of reasons need not include detailed findings of
fact but must inform the court and the petitioner of the grounds of decision and the
essential facts upon which the administrative decision was based’”) (quoting Kitchens v.
Department of the Treasury, 535 F.2d 1197, 1200 (9th Cir.1976)). Accordingly, like the
district court, we conclude that the evidence surrounding the enactment of Resolution 86-
42, including the comments of Mr. Leinsdorf, may be considered in assessing the Forest
Service’s decision to issue the special use permit.
Mr. Leinsdorf’s interpretation, HCCA’s acknowledgment that the resolution was
“vague,” and the wording of the resolution itself, provide support for the Forest Service’s
18
view that, in spite of the resolution, it was still reasonable for the Paulys to use the
residence during winter. We therefore conclude that the Forest Service did not act
arbitrarily or capriciously in analyzing the resolution’s effect.1
C. Consideration of Similarly Situated Lands
Next, HCCA argues that the Forest Service erred in failing to consider
“contemporaneous uses made of similarly situated lands in the area.” 36 C.F.R. §
251.114(a). In particular, HCCA criticizes the Forest Service’s failure to consider lands
in which access was allowed by over the snow methods. It also notes that several of the
specific properties that the Forest Service did consider (i.e., properties on which access by
snowplowing was allowed) are not comparable to the Paulys’ inholding. For example,
HCCA observes, snowplowing of the road to one of these properties was only allowed
until Thanksgiving. In other instances, snowplowing of Forest Service roads also allowed
access to winter recreation trailheads. See Aplt’s Reply Br. at 11-12.
We are not persuaded. The regulation on which HCCA relies does not define what
constitutes “similarly situated” property, and it thus vests the Forest Service with
1
In light of that conclusion, we need not address the significance of the
timing of the recording of the resolution. We note in passing that Mr. Storch himself
reached no ultimate conclusions about the need for recording of the resolution. He
merely observed what both parties here concede: that the resolution was not recorded
when the Paulys purchased the inholding.
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considerable discretion in determining the particular properties that should be taken into
account in deciding whether to issue special use permits. Moreover, Mr. Storch’s
decisional memorandum provided an explanation for not considering properties for which
snowplowing had not been requested: there are over 100,000 acres of private land within
the Gunnison National Forest, decisions whether to allow snowplowing on Forest Service
Roads are made on a case by case basis, and, “[a]bsent an application to plow snow, it is
not reasonable to examine each such inholding on the Forest in detail.” Aplt’s App. at
171.
Accordingly, we conclude that the Forest Service did not act arbitrarily,
capriciously, or contrary to the law in considering “similarly situated” properties in
assessing the Paulys’ application for a special use permit.
D. Consideration of the Public Interest
HCCA also argues that the Forest Service erred in failing to consider the public
interest, thereby violating a regulation that required it to do so. See 36 C.F.R. §
251.54(i)(2) (1996). That argument is not supported by the record.
The record does indicate that citizens submitted comments regarding the adverse
impact of snowplowing on various winter activities and the environment. However, the
Forest Service did consider those comments. As Mr. Storch explained, he believed these
adverse effects could be controlled by mitigating measures. See id. at 173. Also,
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“plowing was tested twice. No adverse effects were identified which would preclude
plowing.” Id at 169.
We acknowledge that reasonable citizens could readily conclude that, given its
effects on winter recreational activities and the wilderness environment, snowplowing of
Cement Creek Road to the Paulys’ property was unwarranted. However, given the
Paulys’ right of reasonable access to their residence, the treatment of similarly situated
properties, and efforts to mitigate potentially adverse effects, the Forest Service did not
act arbitrarily or capriciously or contrary to law when it disagreed with those citizens in
assessing the public interest involved in the Paulys’ request.
E. NEPA Requirements
Finally, HCCA argues that the Forest Service erred in failing to require the
preparation of an environmental assessment under NEPA prior to granting the special use
permit. According to HCCA, because there are steep slopes near the Cement Creek
Road, snowplowing increases the risk of an avalanche. Therefore, an environmental
assessment was required, and the failure to prepare one should invalidate the special use
permit.
As the Forest Service notes, NEPA regulations provide that an agency may
exclude from the ordinary requirement of preparing an environmental assessment or an
environmental impact statement those “actions which do not individually or cumulatively
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have a significant effect on the human environment and which have been found to have
no such effect.” 40 C.F.R. § 1508.4. However, any such agency exclusion “shall provide
for extraordinary circumstances in which a normally excluded action may have a
significant environmental effect.” Id.Here, in his decisional memorandum Mr. Storch invoked an exclusion set forth in
section 31.1b (4) of the Forest Service Handbook 1909.15 (which concerns environmental
policies and procedures). See Aplt’s App. at 173. That section excludes from the NEPA
requirements the “[r]epair and maintenance of roads, trails, and landline boundaries.” Id.(quoting Forest Service Handbook 1909.15—Environmental Policy and Procedures
Handbook § 31.1b(4)).
One extraordinary circumstance overriding the NEPA exclusion is the “presence of
steep slopes.” See Forest Service Handbook 1909.15 § 30.3.2. In challenging the Forest
Service’s application of the exclusion, HCCA cites evidence from the record indicating
that Cement Creek Road passes through an avalanche zone. HCCA argues that in light of
this evidence, there are extraordinary circumstances requiring the preparation of an
environmental assessment under NEPA.
The Forest Service’s finding of no extraordinary circumstances is neither arbitrary
nor capricious nor contrary to law. In responding to a letter stating that an environmental
assessment might be required, the Forest Service noted that “[t]he only thing being
impacted is the surface of a two mile section of existing road. The rest of the valley
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remains in its natural condition.” Id. at 182.
More importantly, at Mr. Storch’s request, a forestry technician visited the Cement
Creek Road corridor in July 1995. See id. at 265-66. The technician acknowledged that
“there is terrain adjacent to the road that could pose a potential hazard to travelers from
snow avalanches.” Id. at 265. However, the technician explained that the snowplowing
of the section of the road leading to the Paulys’ inholding entailed no additional risk. See
id. (“I see no increase in hazard to the general public due to the proposed plowing due to
the fact that their exposure to the hazard is unchanged from the past.”). Additionally,
“[t]he exposure to the hazard for the land owner and the individuals accomplishing the
plowing could be lessened considerably by avoiding traversing the area during periods of
high or extreme hazard.” Id. Finally, evidence in the record indicates that even though
there were steep slopes near Cement Creek Road, the road itself is relatively flat. See
Aple’s Br. at 30-31 (citing Aplt’s App. at 680 (topographic map)).
Accordingly, the Forest Service did not commit reversible error in applying the
NEPA exception to conclude that an environmental assessment was not required.
III. CONCLUSION
For the reasons set forth above, we conclude that the Forest Service did not act
arbitrarily, capriciously or contrary to law in issuing the five-year special use permit to the
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Paulys. We therefore AFFIRM the district court’s decision.
Entered for the Court,
Robert H. Henry
United States Circuit Judge
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