Ark Initiative, et al v. Thomas Tidwell, et al

Filing

OPINION filed [1490469] (Pages: 14) for the Court by Judge Rogers [13-5103]

USCA Case #13-5103

Document #1490469

Filed: 04/29/2014

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued February 18, 2014

Decided April 29, 2014

No. 13-5103
ARK INITIATIVE AND DONALD DUERR,
APPELLANTS
v.
THOMAS L. TIDWELL, U.S. FOREST SERVICE AND ASPEN
SKIING COMPANY,
APPELLEES

Appeal from the United States District Court
for the District of Columbia
(No. 1:12-cv-01467)

William S. Eubanks II argued the cause for appellants. With
him on the briefs was Eric R. Glitzenstein.
Nicholas A. DiMascio, Trial Attorney, U.S. Department of
Justice, argued the cause for appellees. With him on the brief
were Robert G. Dreher, Acting Assistant Attorney General, and
Allen M. Brabender, Attorney.
Ezekiel J. Williams, Steven K. Imig, and Benjamin H. Kass
were on the brief for intervenor-appellee Aspen Skiing
Company.

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Before: ROGERS, GRIFFITH and SRINIVASAN, Circuit
Judges.
Opinion for the court by Circuit Judge ROGERS.
ROGERS, Circuit Judge: Responding to a petition by the
State of Colorado, the U.S. Forest Service in the Department of
Agriculture promulgated a final rule revising its inventory of
protected “roadless” land in Colorado. Special Areas; Roadless
Area Conservation; Applicability to the National Forests in
Colorado, 77 Fed. Reg. 39,576 (July 3, 2012) (“2012 Colorado
Rule”). Two weeks later, The Ark Initiative, a non-profit
environmental group (“Ark”), sent an Emergency Petition to the
Forest Service seeking “roadless” designation for roughly 1,000
acres on Burnt Mountain in the Snowmass ski area and
suspension of the Aspen Skiing Company’s authorization to cut
trees on that land. The Service denied the petition and Ark filed
suit, alleging that the Service had inadequately explained its
denial and failed to address relevant evidence. The district court
granted summary judgment to the Forest Service and the
Company, and denied reconsideration. Ark appeals. Although
we reject the challenge by the Service and the Company to
Ark’s standing, we agree that Ark’s challenges lack merit and
we therefore affirm.
I.
“Roadless areas are, among other things, sources of
drinking water, important fish and wildlife habitat, semiprimitive or primitive recreation areas, including motorized and
nonmotorized recreation opportunities, and natural-appearing
landscapes.” 2012 Colorado Rule, 77 Fed. Reg. at 39,577. It
is the Department’s view that “tree cutting, sale or removal, and
road construction/reconstruction have the greatest likelihood of
altering and fragmenting landscapes, resulting in immediate,

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long-term loss of roadless area values and characteristics, and
there is a need generally to prohibit these activities in roadless
areas.” Id. But acknowledging that the State of Colorado “has
indicated flexibility is needed to accommodate State-specific
situations and concerns in Colorado’s roadless areas,” including
“accommodating existing permitted or allocated ski areas,” the
Department concluded that accurate mapping and effective
management of Colorado roadless areas were appropriate. Id.
After considering numerous comments and alternative
proposals, the Department, acting through the Forest Service,
selected one of the alternatives that it concluded would “provide
long-term management of [these areas] to ensure roadless area
values are passed on to future generations, while providing for
Colorado-specific situations and concerns that are important to
the citizens and economy of Colorado.” Id. Succinctly put, the
2012 Colorado Rule established “a high level of conservation of
roadless area characteristics on approximately 4.2 million
acres,” designating as roadless 409,500 acres that were not
previously protected as “roadless,” while removing protection
for 459,100 acres that “ha[d] been determined to be substantially
altered” and 8,300 acres “for ski area management.” Id. at
39,577–78.
The present dispute centers around an undeveloped slope on
Burnt Mountain that is within the eastern perimeter of the
Snowmass permitted ski area near Aspen, Colorado. Although
some portion of the Snowmass resort is privately owned, most
of it is situated on public lands in the White River National
Forest. Since the resort’s opening in 1967, the Forest Service
has granted special use permits and approved master
development plans allowing the Aspen Skiing Company to
maintain and improve the ski terrain, including cutting trees and
building ski lifts. The disputed portion of Burnt Mountain has
been slated for additional ski run development for nearly two
decades. In 2001, the Forest Service designated a small portion

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of Burnt Mountain as “roadless,” thereby “prohibit[ing] road
construction, reconstruction, and timber harvest in inventoried
roadless areas” in order to preserve “large unfragmented tracts
of land” for long-term stewardship and conservation. Special
Areas; Roadless Area Conservation, 66 Fed. Reg. 3244, 3244,
3245 (Jan. 12, 2001) (“2001 Rule”).
In 2006, in accord with the Company’s master development
plan, the Forest Service authorized the Company to clear ski
runs on Burnt Mountain by selectively removing trees and
brush. Ark and others challenged the Service’s authorization of
new ski runs on the ground that the area was, in fact, roadless,
and therefore protected, even though it was not included in the
“roadless” inventory. See Notice of Appeal at 56–67 (Apr. 10,
2006). Their administrative appeal of the decision authorizing
the 2006 Snowmass Ski Area Improvement Project was largely
unsuccessful, see Forest Serv. Reg. Appeal Decision at 1–2
(May 22, 2006), and their efforts in court to overturn the
decision failed, see Ark Initiative v. U.S. Forest Serv., 2010 WL
3323661 (D. Colo. Aug. 18, 2010); Ark Initiative v. U.S. Forest
Serv., 660 F.3d 1256 (10th Cir. 2011).
When the 2012 Colorado Rule redrew the roadless area
boundaries in the State to exclude permitted ski areas and to add
nearly 410,000 acres to the Colorado “roadless” inventory, the
disputed parcel was not added to the inventory. The previously
listed “roadless” portion of Burnt Mountain, which is also within
the permitted ski area, was removed from the “roadless”
inventory. The rulemaking proceedings generated substantial
public participation, but Ark did not choose to comment.
Instead, less than two weeks after the 2012 Colorado Rule was
promulgated, Ark submitted an “Emergency Petition” to the
Forest Service claiming that the disputed parcel had been
omitted from the Colorado roadless inventory due to “a factual
error.” Emerg. Pet. at 9 (July 16, 2012). Alternatively, if no

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factual or “administrative error” were found, the Forest Service
“should consider whether ‘changed circumstances’ exist.” Id.
n.2.
The Emergency Petition requested that “the Service invoke
its authority [under] 36 C.F.R. § 251.60, to temporarily suspend,
on an emergency basis, the narrow authorization to proceed with
activities within this parcel until such time as the Service can
assess this parcel and make a final determination concerning the
roadlessness of this tract.” Id. at 8. The regulation authorizes
emergency suspension of a special use permit “for specific and
compelling reasons in the public interest” or when suspension is
“necessary to protect the public health or safety or the
environment.” 36 C.F.R. § 251.60(a)(2)(i)(D), 251.60(f). The
petition argued that the disputed parcel’s omission from the
“roadless” inventory was a “factual error” because the Burnt
Mount parcel was roadless, as indicated by “the best available
evidence,” namely, sworn testimony, on-the-ground conditions,
satellite imagery, mapping, and aerial photography. Emerg. Pet.
at 8. “[B]ecause the Service has never taken a ‘hard look’ at the
precise impacts of cutting trees for new ski runs and a traverse
trail on this parcel’s roadless characteristics, nor even disclosed
such impacts to the public,” the petition stated, “it is imperative
that the Service revisit this issue, both from a roadless inventory
and [National Environmental Policy Act (“NEPA”)]
standpoint.” Id. at 10. The petition requested the Service to
designate the disputed parcel as “roadless” and, pending its
decision, to suspend the Company’s 2006 authorization to cut
trees there.
The Forest Service denied the Emergency Petition by two
letters, one from a Service Supervisor and the other from the
Chief of the Service. Both letters referenced the prior
unsuccessful litigation concerning the 2006 Improvement
Project and the recent conclusion of the 2012 Colorado

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rulemaking. The Chief’s letter stated that the Service was
“satisfied that the Burnt Mountain [‘roadless’] boundary is
appropriate,” Forest Serv. Ltr., Sept. 7, 2012, and the Supervisor
advised that the Service was already “working with [the
Company] on the implementation schedule for the activities,”
Forest Serv. Ltr., Aug. 17, 2012.
Ark challenged the Forest Service’s decision in federal
district court and sought an injunction against the Company’s
planned tree-cutting in the Burnt Mountain parcel. Following
the grant of summary judgment to the Forest Service and the
Company, see Ark Initiative v. Tidwell, 895 F. Supp. 2d 230, 241
(D.D.C. 2012), the Company carried out its planned project and
advised the district court that it may carry out further activities
in the future pursuant to the 2006 authorization. See Aspen
Skiing Co. Br. Regarding Whether the Controversy is Moot at
1–2. The district court denied Ark’s motion for reconsideration.
See Ark Initiative v. Tidwell, No. 12-1467 (D.D.C. Feb. 14,
2013).
Ark appeals, and this court reviews the grant of summary
judgment de novo. See Dunning v. Quander, 508 F.3d 8, 9
(D.C. Cir. 2007). The court may affirm the grant of summary
judgment on any ground properly raised and supported by the
record. See Jones v. Bernanke, 557 F.3d 670, 676 (D.C. Cir.
2009); EEOC v. Aramark Corp., Inc., 208 F.3d 266, 268 (D.C.
Cir. 2000). Where, as here, there is a challenge to agency action
under the Administrative Procedure Act (“APA”), this court will
uphold the agency’s decision unless it is “arbitrary, capricious,
an abuse of discretion, or otherwise not in accordance with law.”
5 U.S.C. § 706(2)(A). This court’s review of the denial of
reconsideration is typically limited to abuse of discretion
because reconsideration “need not be granted unless the district
court finds that there is an intervening change of controlling law,
the availability of new evidence, or the need to correct a clear

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error or prevent manifest injustice.” Ciralsky v. CIA, 355 F.3d
661, 671 (D.C. Cir. 2004) (quoting Firestone v. Firestone, 76
F.3d 1205, 1208 (D.C. Cir. 1996)); see also FED. R. CIV. P.
59(e).
II.
As a threshold matter, the court addresses the objection by
the Service and the Company that Ark lacks standing under
Article III of the Constitution to challenge the Forest Service’s
final action denying the Emergency Petition. Because Ark is the
party invoking the court’s jurisdiction, it bears the burden of
demonstrating that it satisfies the “irreducible constitutional
minimum” of standing: (1) an “injury in fact” that is “concrete
and particularized” as well as “actual or imminent”; (2) a
“causal connection” between the injury and the challenged
conduct; and (3) a likelihood, as opposed to mere speculation,
“that the injury will be redressed by a favorable decision.”
Lujan v. Defenders of Wildlife, 504 U.S. 555, 560–61 (1992)
(internal quotation marks omitted).
Only the second and third elements are at issue. Ark has
clearly demonstrated a cognizable injury-in-fact: its founder’s
declaration in the district court stated that the Company’s treecutting would “permanently reduce the places [he] enjoy[s]
going to appreciate nature” and would “irreparably impair [his]
ability to observe wildlife . . . in this area.” Duerr Decl. ¶ 14.
Such aesthetic injuries constitute injury-in-fact. See Defenders
of Wildlife, 504 U.S. at 562–63. The Forest Service and the
Company contend, however, that Ark cannot show causation
and redressability because the grandfathering provision in the
2012 Colorado Rule preserves the Company’s prior 2006
authorization to cut trees on the Burnt Mountain parcel
regardless of the area’s “roadless” status.

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The grandfathering provision provides that the 2012
Colorado Rule “does not revoke, suspend, or modify any permit,
contract, lease, or other legal instrument authorizing or granting
rights to the occupancy and use of National Forest system land
issued prior to July 3, 2012[.]” 36 C.F.R. § 294.48(a). Even if
the disputed parcel were designated as “roadless,” the Service
and the Company maintain that Ark’s injury would persist
because the Company’s 2006 authorization to cut trees in that
area trumps any limitations the final rule might otherwise
impose. Likewise, they maintain, it is the 2006 authorization,
not the lack of “roadless” status, that causes Ark’s injury.
Ark, on the other hand, interprets the grandfathering
provision not to have the “sweeping . . . effect” of
“foreclos[ing], as a matter of law, the Service’s discretion in
modifying a pre-2012 project decision.” Reply Br. 14. It points
to another provision in the 2012 Colorado Rule stating that
“[n]othing in this subpart shall prohibit a responsible official
from further restricting activities allowed within Colorado
Roadless Areas.” 36 C.F.R. § 294.48(c).
Under Ark’s
interpretation, the grandfathering provision cannot operate as the
Service and the Company suggest because that would “read out
of the regulation the ‘changed circumstances’ and
‘administrative correction[s]’ provision of the [2012 Colorado
Rule, 36 C.F.R. § 294.47(a), (b)].” Reply Br. 15. Additionally,
noting that the Service relies on the grandfathering provision for
the first time on appeal, Ark references 36 C.F.R. § 294.42,
which provides that “[t]rees may not be cut, sold, or removed in
Colorado Roadless Areas” unless a “responsible official”
determines an exception applies. 36 C.F.R. § 294.42(a),
294.42(c); Reply Br. 8 n.1.
Absent another basis for Ark’s Article III standing, this
court’s jurisdiction turns on whether a proper interpretation of
the grandfathering provision precludes the relief Ark seeks. For

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purposes of demonstrating standing, Ark need not convince this
court that its interpretation is correct. Rather, Ark’s “standing
depends upon whether its interpretation of the [grandfathering
provision], under which th[e] [2012 Colorado Rule] . . . would
not preclude the relief it seeks, is non-frivolous.” United
Transp. Union – Ill. Legislative Bd. v. STB, 175 F.3d 163, 166
(D.C. Cir. 1999) (emphasis added). Ark has met its burden here.
The district court concluded, in rejecting the challenge to Ark’s
standing, that roadless designation would give Ark a procedural
right to have a “responsible official” determine whether treecutting may proceed on the disputed parcel. See Ark Initiative,
895 F. Supp. 2d at 240 (citing 36 C.F.R. § 294.42). The Service
contends that the grandfathering provision obviates that
procedural right. See Fed. Appellee’s Br. 29–30. Yet Ark
makes a plausible argument that even if an authorization to cut
trees has been “grandfathered” in a new roadless area, the
“responsible official” may override such authorization because
“[n]othing” in the final rule “prohibit[s] a responsible official
from further restricting activities allowed within Colorado
Roadless Areas.” 36 C.F.R. § 294.48(c); Reply Br. 14–15.
Having advanced a non-frivolous interpretation of the 2012
Colorado Rule under which the causation and redressability of
its injury are apparent, Ark has Article III standing to challenge
the Forest Service’s denial of the Emergency Petition.
III.
The Forest Service’s denial of Ark’s Emergency Petition
was neither unexplained, unreasonable, nor unduly brief under
the circumstances. Under the Administrative Procedure Act,
the Service was required to give a “brief statement of the
grounds” for its denial of Ark’s Emergency Petition, unless such
denial was “self-explanatory” or merely “affirming a prior
denial.” 5 U.S.C. § 555(e). “Although nothing more than a
brief statement is necessary, the core requirement is that the

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agency explain why it chose to do what it did.” Tourus Records,
Inc. v. Drug Enforcement Admin., 259 F.3d 731, 737 (D.C. Cir.
2001) (internal quotation marks omitted). That explanation
must evince reasoned decision-making. See Butte Cnty., Cal. v.
Hogen, 613 F.3d 190, 194 (D.C. Cir. 2010); 5 U.S.C.
§ 706(2)(A). The Service has satisfied these requirements.
The Chief of the Forest Service explained in his September
7, 2012 letter that the 2012 Colorado Rule revising roadless
boundaries had been finalized only weeks before the Emergency
Petition was submitted. In view of the “extensive public
involvement” in the rulemaking, including “[m]ore than 310,000
public comments, over a 6-year period,” the Chief wrote that the
Service was “satisfied that the Burnt Mountain [‘roadless’ area]
boundary is appropriate.” He noted that the disputed Burnt
Mountain parcel is “within [the Company’s] Master
Development Plan in the permitted boundary,” and that the
“roadless” area inventory for the 2012 Colorado Rule excluded
lands within ski area permitted boundaries. See 2012 Colorado
Rule, 77 Fed. Reg. at 39,576. The Chief further noted that “[i]n
addition, changes to the area were made based on site-specific
knowledge of White River National Forest personnel.” Both the
Chief’s and the Supervisor’s letters referred to Ark’s
unsuccessful challenge to the 2006 plan with respect to the same
parcel of land, the Chief observing in his letter that “[t]he
roadless area inventory that delineated the Burnt Mountain
roadless area” had previously been subject to “public review and
comment” and “was upheld by [the Service] during appeal.”
Therefore, the Chief stated the Service saw “no reason to revisit
that decision.”
Ark maintains the Forest Service cannot rely on the 2012
Colorado rulemaking because the final rule never
“contemplated, addressed, or analyzed” the disputed Burnt
Mountain parcel. Appellants’ Br. 30. Rather, Ark contends,

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“the [2012 Colorado Rule] applies only to the specifically
enumerated parcels that were removed from the roadless
inventory based on specific factual determinations as to their
roadless qualities” and “was never intended to permanently
foreclose roadless designation of any parcels within ski area
boundaries (including the disputed parcel).” Id. Ark elaborates
that “the Service made a threshold determination that certain
enumerated parcels totaling 8,260 acres are in fact degraded and
thus are no longer roadless,” and “then made a formal
decision . . . to remove these specifically enumerated acres from
the roadless inventory.” Id. at 30 n.5. In fact, the 8,260 acres
correspond to the “roadless” acreage that had overlapped with
permitted ski areas and was removed from the “roadless”
inventory for that reason. See 2012 Colorado Rule, 77 Fed. Reg.
at 39,578. Although conceding that the Forest Service decided
that all previously designated roadless parcels inside ski areas
should be removed from the roadless inventory, Ark contends
that the 2012 Colorado Rule did not address whether other
parcels inside ski areas that had not yet been designated as
roadless should be added to the inventory.
The preamble to the 2012 Colorado Rule stated that the
affected ski-area acres “include roadless acres with degraded
roadless area characteristics due to the proximity to a major
recreational development.” Id. (emphasis added). Contrary to
Ark’s view, there was no assertion that all 8,260 acres were
“degraded.” Rather, the Service explained that removing all skiarea acres from the roadless inventory would “ensure [that]
future ski area expansions within existing permit boundaries”
are “not in conflict” with the requirements for roadless lands,
and would “address one of the State-specific concerns identified
by the State of Colorado,” id. — namely, to “remove from
roadless inventory all areas allocated . . . in Colorado to ski area
special uses, including all areas inside special use permit
boundaries,” Colo. Roadless Area Recs. at 7 (Gov’r’s Ltr., Nov.

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13, 2006).
The Chief’s letter is consistent with the view that the 8,260
acres were removed from the roadless inventory on the basis of
a state-wide policy decision that roadless areas not overlap with
ski areas. The letter explained that the Colorado roadless
inventory “excluded lands within ski area permitted
boundaries,” and that “[t]his change was applied to the Burnt
Mountain roadless area.” Forest Serv. Ltr., Sept. 7, 2012. It
then noted that “[i]n addition, changes to the area were made
based on site-specific knowledge of White River National Forest
personnel.” Id. (emphasis added). The fact that site-specific
knowledge was merely an “addition[al]” basis for removing the
ski-area acres from the roadless inventory, and not the primary
basis for doing so, further undermines Ark’s claim that all 8,260
ski-area acres were removed from the inventory based on sitespecific findings of degradation. Ark’s suggestion the court
cannot rely on the Chief’s letter because it is an inadequate posthoc rationalization lacks merit. Ark’s filing of its lawsuit on
September 5, 2012, only 19 days after the Service refused to
suspend the Company’s project, did not mean the letter is
properly characterized as a supplemental response; the Service’s
official denial of the Emergency Petition by letter within 21 days
of the refusal to suspend the Company’s 2006 authorization is
part of the Service’s final decision. Cf. Alpharma, Inc. v.
Leavitt, 460 F.3d 1, 6–7 (D.C. Cir. 2006).
Ark nonetheless contends that the Forest Service “never
took a hard look,” Appellants’ Br. 57, at the new evidence
presented in the Emergency Petition, which purported to show
that the Burnt Mountain parcel “does not contain any improved
roads maintained for passenger vehicles or other structures that
would otherwise disqualify this area from inventory
consideration,” Emerg. Pet. at 8. This ignores that the Service
did not deny the petition because the Burnt Mountain parcel had

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been degraded by disqualifying roads or structures. Rather, the
Service’s reason was a policy one: Less than two weeks before
Ark’s petition, the 2012 Colorado Rule had removed 8,260 skiarea acres from the roadless inventory in order to accommodate
“Colorado-specific concerns,” see 2012 Colorado Rule, 77 Fed.
Reg. at 39,578, and these concerns applied to the Burnt
Mountain parcel. Ark does not maintain that the Service
misjudged the boundary of the Snowmass permitted ski area in
relation to the Improvement Project’s boundary. And the record
shows the Service promulgated the final rule only after
considering over 300,000 comments received during the
rulemaking, balancing a range of competing interests regarding
“roadless area conservation” in the State, and explaining its
selection of one of the proposed alternatives. 2012 Colorado
Rule, 77 Fed. Reg. at 39,581. Given the recent promulgation of
the final rule after extended review, the Service responded
appropriately with a “brief statement” resting on the final rule’s
rationale.
Neither does Ark’s APA challenge gain traction by
characterizing the Forest Service’s land boundary decision in
denying the Emergency Petition as a “major federal action”
subject to NEPA. See Appellants’ Br. 10 (citing Lands Council
v. Martin, 529 F.3d 1219, 1230–32 (9th Cir. 2008)). Ark
contends that “the Service was required under federal law to
conduct NEPA review to publicly disclose and analyze the
inevitable impacts to this particular parcel’s roadless qualities,”
but only if “the Service permanently disqualified the Burnt
Mountain parcel from roadless designation” as part of the 2012
Colorado Rule. Appellants’ Br. 50, 53–54. Ark’s contention
fails because its premise is flawed. In denying the Emergency
Petition, the Service did not rely on a categorical rule that ski
areas could never be designated as roadless; rather, the Chief
refused to revisit a boundary purposefully drawn to exclude the
Snowmass Ski Area just two weeks before, and rejected the

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Emergency Petition as tardy and repetitive of Ark’s unsuccessful
earlier challenge. Consequently, the Service cannot be faulted
for failing to conduct a NEPA analysis of a “categorical rule”
that it did not adopt.
The Forest Service’s refusal to suspend the Company’s
2006 project authorization was also reasonable in view of the
denial of Ark’s “roadless” petition. The Emergency Petition
requested the suspension for the express and exclusive purpose
of allowing the Service “an opportunity to revisit [the Burnt
Mountain parcel] issue” and “make a final determination
concerning the roadlessness of this tract.” Emerg. Pet. at 2, 8.
In response, the Service stated that it remained “satisfied that the
Burnt Mountain [‘roadless’ area] boundary is appropriate” and
saw “no reason to revisit” its prior decision. Forest Serv. Ltr.,
Sept. 7, 2012. Therefore, the Service had no basis to suspend
the permit for the Company’s project, and its refusal to do so
was “self-explanatory.” 5 U.S.C. § 555(e).
Accordingly, we hold that Ark has Article III standing, and
we affirm the grant of summary judgment and the denial of
reconsideration because the Forest Service’s denial of the
Emergency Petition was not arbitrary or capricious or contrary
to law, and Ark fails to show an abuse of discretion on
reconsideration.

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