Luciano v. United States of America, et al.,

Filing 76

ORDER signed by District Judge Troy L. Nunley on 8/15/2013 ORDERING The express statutory language and abundance of case law reviewing land exchange proposals necessitate the conclusion that Plaintiffs APA claims are judicially reviewable. Accordingly, this Court finds there IS subject matter jurisdiction.(Waggoner, D)

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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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ROBERT A. LUCIANO, JR., Trustee Of
The Robert A. Luciano Jr. Revocable Trust
Dated February 27, 1995,
Plaintiff,

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No. 2:11-cv-01831-TLN-KJN

ORDER

v.
UNITED STATES OF AMERICA;
UNITED STATES DEPARTMENT OF
AGRICULTURE; TOM VILSACK,
Secretary of Agriculture; UNITED
STATES FOREST SERVICE; TOM
TIDWELL, Chief Forester; RANDY
MOORE, Regional Forester of the Pacific
Southwest Region; EARL FORD, Forest
Supervisor of the Plumas National Forest;
and, DEB BUMPUS, District Ranger,
Beckworth Ranger District,
Defendants.

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This matter is before the Court pursuant to the Honorable Judge Garland E. Burrell’s
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March 28, 2013 Order requiring that both parties file supplemental briefing addressing whether
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Plaintiff’s claims under the Administrative Procedures Act (“APA”) challenging Defendants’
decisions to deny Plaintiff’s land exchange proposals are judicially reviewable. (ECF 63.) For
the reasons set forth below, the Court finds that it has subject matter jurisdiction over Plaintiff’s

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claims.1

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BACKGROUND

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In February 1874, Ezra Culver moved to Plumas County, California on Lot 2 of the NE
1/4 of Section 1, T22N, R12E (hereinafter, “Lot 2”) and subsequently received Homestead Patent
No. 1523 for 40.70 acres on Lot 2 on May 10, 1882. (Compl., ECF 1 at ¶ 23.) Lot 2 contains a
framed dwelling (cabin and root cellar) built and previously occupied by Ezra Culver. (ECF 1 at
¶ 27.) In 1993, a resurvey of the land by Defendants altered the southern boundary line of Lot 2.
(ECF 1 at ¶ 24.) As a result of the resurvey, Defendants claim that the boundary of Lot 2 bisects
the framed dwelling and therefore the dwelling “encroaches” on its land. (ECF 1 at ¶¶ 25, 27.)
Plaintiff alleges to have purchased Lot 2 in 1995 in reliance upon the longstanding boundaries
and with no actual knowledge that the 1993 resurvey by Defendants purported to shift the
southern boundary of Lot 2 to divide the original dwelling in half. (ECF 1 at ¶ 26.) Plaintiff
further alleges to have attempted to resolve the boundary dispute with Defendants through several
Small Tracts Act (“STA”) applications and other land exchange proposals. (ECF 1 at ¶ 28.)
Plaintiff claims to have purchased additional private lands that were proposed to be exchanged for
the federal land adjoining his property. (ECF 1 at ¶ 30.) Defendants have denied all of Plaintiff’s
proposals and refused to consider any future proposals. (ECF 1 at ¶ 29.) Defendants have
demanded Plaintiff remove the dwelling under threat of prosecution for trespass. (ECF 1 at ¶ 27.)

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Plaintiff filed this action for declaratory relief pursuant to the provisions of the APA, 5
U.S.C. §§ 701-706. (ECF 1 at ¶ 3.) Plaintiff claims that a land exchange to resolve the boundary
dispute represents the most straightforward means to remedy the alleged encroachment caused by
the moving of the southern boundary of Plaintiff’s property. (ECF 1 at ¶ 28.) Plaintiff alleges
that Defendants’ decision to deny his land exchange proposals were arbitrary and capricious and
were in violation of, and in excess of, Defendants’ authority under the National Forest
Management Act (“NFMA”), 16 U.S.C. § 1600 et seq., the Federal Land Policy and Management

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Because oral argument will not be of material assistance, the court orders this matter submitted
on the briefs. E.D. Cal. L.R. 230(g).
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Act (“FLPMA”), 43 U.S.C. § 1701 et seq., the National Wild and Scenic Rivers Act (“WSRA”),
16 U.S.C. § 1271 et seq., the STA, 16 U.S.C. §§ 521c–521i, applicable regulations of the
Secretary of Agriculture, and the Plumas National Forest Land and Resource Management Plan.
(Pl.’s Supplemental Br. Regarding Jurisdiction, ECF 68 at 2.) Plaintiff further contends that the
United States Forest Service (“USFS”) has failed to act in accordance with applicable provisions
of the Forest Service Manual. (ECF 68 at 2.)

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STANDARD
Plaintiff ‘s suit is governed by the APA, 5 U.S.C. § 500 et seq. The APA confers a variety
of claims upon persons “adversely affected or aggrieved by agency action within the meaning of a
relevant statute.” 5 U.S.C. § 702. The APA dictates that certain conduct is unlawful when
“arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C.
§ 706(2)(A). However, the APA precludes judicial review of agency decisions when: (1)
“statutes preclude judicial review;” or (2) “agency action is committed to agency discretion by
law.” 5 U.S.C. § 701(a)(1)(2).
The APA creates a “presumption favoring judicial review of administrative action.”
Sackett v. E.P.A., 132 S. Ct. 1367, 1373 (2012). The APA exception from judicial review for
action “committed to agency discretion,” 5 U.S.C. § 701(a)(2), is a “very narrow exception.”
Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 410 (1971), abrogated on other
grounds by Califano v. Sanders, 430 U.S. 99 (1977). “The legislative history of the
Administrative Procedure Act indicates that it is applicable in those rare instances where ‘statutes
are drawn in such broad terms that in a given case there is no law to apply.’ S. Rep. No. 752, 79th
Cong., 1st Sess., 26 (1945).” Id.
ANALYSIS
In this action, Plaintiff challenges Defendants’ refusal to accept Plaintiff’s various
proposals for the exchange of Plumas National Forest land with Plaintiff’s private lands under
several statutes, most notably the STA and the FLPMA. (ECF 1 at ¶¶ 1, 30.) Defendants argue
that this claim is not judicially reviewable because “[t]he STA explicitly commits decisions

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regarding land transfers between the Forest Service and private parties to the discretion of the
Secretary of Agriculture.” (Defs.’ Supplemental Br. on the Issue of Agency Discretion, ECF 66
at 2.)

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In determining if an agency action is exempted from judicial review under 5 U.S.C. §
701(a)(2), a court must determine whether the discretionary power at issue is so broad “that the
court cannot discern from the language of the statute, or from legislative intent, a legal basis upon
which to review the Secretary’s exercise of his discretion . . . .” Strickland v. Morton, 519 F.2d
467, 468 (9th Cir. 1975). “Whether and to what extent a particular statute precludes judicial
review is determined not only from its express language, but also from the structure of the
statutory scheme, its objectives, its legislative history, and the nature of the administrative action
involved.” Block v. Cmty. Nutrition Inst., 467 U.S. 340, 345 (1984). Therefore, to determine if
the Defendants’ actions were committed to agency discretion by law this Court must analyze the
language and background of the statutes Plaintiff challenges.

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The statutory language of the STA provides that “[t]he Secretary is authorized, when the
Secretary determines it to be in the public interest . . . to sell, exchange or interchange . . . title . . .
of the United States in and to National Forest System Lands . . . .” 16 U.S.C. § 521d(1). The
statute also requires the Secretary to issue regulations establishing criteria for making public
interest determinations. 16 U.S.C. § 521h(1). The implementing regulations specifically define
criteria to assess whether or not encroachments might qualify for exchange under the STA, and
provide that “Forest Service officials shall consider . . . [5] factors when determining whether to
convey lands upon which encroachments exist.” 36 C.F.R. § 254.32(b).2 Accordingly, although
the Secretary has some discretion in determining whether or not to exchange lands under the
STA, the statute requires that the Secretary’s decision is consistent with the specific factors laid
out in 36 C.F.R. § 254.32(b).

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Those factors, explicitly laid out in the regulations, are: (1) The location of the property
boundaries based on historical location and continued acceptance and maintenance, (2) Factual
evidence of claim of title or color of title, (3) Notice given to persons encroaching on National
Forest System lands, (4) Degree of development in the encroached upon area, and (5) Creation of
an uneconomic remnant.
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These explicit statutory standards provide substantial law upon which a court can review
agency decisions and suggests that judicial review of the agency’s actions under the STA is
available. Indeed, at least one court has in fact reviewed a USFS’ decision to exchange land
under the STA. See Citizens’ Comm. to Save Our Canyons v. U. S. Forest Serv., 297 F.3d 1012
(10th Cir. 2002) (analyzing the statutory language and implementing regulations of the STA with
regards to exchange and valuation of a mineral-fraction exchange).
Similarly, the statutory language of the FLPMA expressly provides that Congress
intended “judicial review of public land adjudication decisions be provided by law.” 43 U.S.C §
1701(a)(6). This is underscored by section 1716 of the FLPMA, which governs “[e]xchanges of
public lands or interest therein with the National Forest System,” and provides specific criteria
that the Secretary “shall give full consideration to” in making land exchange determinations. 43
U.S.C § 1716(a). As with the STA, the statutory criteria in the FLPMA provides substantial law
upon which a court can review agency decisions. Indeed, numerous courts have reviewed federal
land management decisions regarding land exchange proposals under the FLPMA. See e.g.,
Greer Coal., Inc. v. U.S. Forest Serv., 470 F. App’x 630 (9th Cir. 2012); Nat’l Parks &
Conservation Ass’n v. Bureau of Land Mgmt., 606 F.3d 1058 (9th Cir. 2010); Ctr. for Biological
Diversity v. U.S. Dep’t of Interior, 623 F.3d 633 (9th Cir. 2010); Shasta Res. Council v. U.S.
Dep’t of Interior, 629 F. Supp. 2d 1045 (E.D. Cal. 2009); Desert Citizens Against Pollution v.
Bisson, 231 F.3d 1172 (9th Cir. 2000); Lodge Tower Condominium Ass’n v. Lodge Props., 85
F.3d 476 (10th Cir. 1996); N. Plains Res. Council v. Lujan, 874 F.2d 661 (9th Cir. 1989).
Defendant’s reliance on Ness Inv. Corp. v. U.S. Dept. of Agr., Forest Serv., 512 F.2d 706
(9th Cir. 1975) is misplaced. In Ness, the Ninth Circuit declined to exercise jurisdiction under the
APA over an action challenging the USFS’ denial of a special use permit, finding that the statute
authorizing the Secretary to issue permits was “drawn in such broad terms that there was no law
to apply.” Id. at 715. However, Ness was superseded by KOLA, Inc. v. United States, 882 F.2d
361 (9th Cir. 1989), in which the Ninth Circuit held that it did have subject matter jurisdiction to
review the USFS’ decisions because USFS regulations (promulgated after Ness) imposed specific

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obligations on USFS’ consideration of special use permits. Id. at 363–64. The regulations
governing land exchange proposals under the STA and FLPMA, as described supra, also provide
specific criteria upon which the Secretary shall make decisions, and thus, there are sufficiently
detailed standards upon which the court can review those decisions.

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CONCLUSION
The express statutory language and abundance of case law reviewing land exchange
proposals necessitate the conclusion that Plaintiff’s APA claims are judicially reviewable.
Accordingly, this Court finds there IS subject matter jurisdiction.
IT IS SO ORDERED.

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Dated: August 15, 2013

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