J. Scott v. United States , 366 F. App'x 776 ( 2010 )

FILED
NOT FOR PUBLICATION FEB 22 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
J. B. SCOTT, No. 09-35222
Plaintiff - Appellant, D.C. No. 1:08-cv-00138-BLW
v.
MEMORANDUM *
UNITED STATES OF AMERICA;
UNITED STATES DEPARTMENT OF
AGRICULTURE; UNITED STATES
FOREST SERVICE,
Defendants - Appellees.
Appeal from the United States District Court
for the District of Idaho
B. Lynn Winmill, Chief District Judge, Presiding
Argued and Submitted February 4, 2010
Seattle, Washington
Before: W. FLETCHER and RAWLINSON, Circuit Judges, and LASNIK, **
Chief District Judge.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Robert S. Lasnik, Chief United States District Judge
for the Western District of Washington, sitting by designation.
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J.B. Scott (Scott) appeals the District Court’s entry of summary judgment in
favor of the Forest Service, which had previously denied Scott’s request for a
permit to land his helicopter on Forest Service lands.
The Forest Service’s denial of Scott’s request “may only be set aside under
the [Administrative Procedure Act] if it was arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with law.” Siskiyou Reg’l Educ. Project
v. U.S. Forest Service, 565 F.3d 545, 554 (9th Cir. 2009) (citations and internal
quotation marks omitted). Because the Forest Service’s 2003 closure order
required that Scott obtain a permit to land a helicopter in the forest, and because
the reasoning of the Forest Service can be discerned from its decision, its denial of
Scott’s request was not arbitrary, capricious, or contrary to law. See McFarland v.
Kempthorne, 545 F.3d 1106, 1113 (9th Cir. 2008).
Scott failed to exhaust his administrative remedies with respect to any NEPA
challenge to the 2003 closure order. See Great Basin Mine Watch v. Hankins, 456
F.3d 955, 967 (9th Cir. 2006). Because we resolve this case pursuant to the 2003
closure order, we need not, and do not, address whether Scott’s proposed use of his
helicopter constituted a non-commercial recreational activity.
AFFIRMED.
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