United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 28, 1998 Decided October 30, 1998
No. 97-5282
Frank E. Everett, III,
Appellant
v.
United States of America, et al.,
Appellees
Appeal from the United States District Court
for the District of Columbia
(No. 95cv00769)
Roger J. Marzulla argued the cause for appellant. With
him on the briefs was Nancie G. Marzulla.
Rudolph Contreras, Assistant U.S. Attorney, argued the
cause for appellees. With him on the brief were Wilma A.
Lewis, U.S. Attorney, and R. Craig Lawrence, Assistant U.S.
Attorney.
Before: Edwards, Chief Judge, Wald and Sentelle,
Circuit Judges.
Opinion for the Court filed by Chief Judge Edwards.
Edwards, Chief Judge: This case involves a claim by appel-
lant Frank E. Everett ("Everett") that he has a right to land
his personal helicopter on National Forest lands. The United
States Forest Service ("Service") denied Everett a permit to
land his helicopter and forbade him to land without a permit.
Everett's attempt to overturn the Service's action was reject-
ed by the District Court and he now appeals.
Service regulations designate "[a]ll uses of National Forest
System lands" as "special uses," with the exception of those
uses provided for in the regulations governing the disposal of
timber and minerals and the grazing of livestock. 36 C.F.R.
s 251.50(a) (1998). Under the regulations, "[b]efore engaging
in a special use, persons or entities must ... obtain a special
use authorization from the authorized officer unless that
requirement is waived by paragraph (c) of this section." Id.
The regulations exempt from this permit requirement "non-
commercial recreational activities such as camping, picnick-
ing, hiking, fishing, hunting, horseback riding, and boating."
36 C.F.R. s 251.50(c).
Everett seeks to land his private helicopter on a three-and-
one-half acre parcel of Sawtooth National Forest ("Saw-
tooth") land that abuts his vacation property in rural Idaho.
Everett argues that he is not required to obtain a permit for
this use of National Forest System ("NFS") land, because
s 251.50(c) exempts his proposed use from the permit re-
quirement. Alternatively, assuming he is required to obtain a
permit, Everett argues that the Service's denial of his permit
request was arbitrary and capricious, because the decision
rested on inappropriate criteria. The Service contends that
helicopter landing bears little resemblance to the uses ex-
pressly exempted under s 251.50(c) and is, therefore, prohib-
ited without a permit under s 251.50(a). The Service denied
the permit request in this case based on its determination
that Everett's helicopter landing could be accommodated on
non-NFS lands, Everett had adequate alternative access to
his property, and Everett's proposed use would inure solely
to his own benefit at the expense of other uses of the same
parcel. Because we find that the Service reasonably inter-
preted and applied its regulations, we affirm the District
Court's grant of summary judgment in favor of the Service.
I. Background
Everett owns a vacation home in the Barlow Subdivision in
Blaine County, Idaho. His property lies directly adjacent to
a three-and-one-half acre parcel of Sawtooth land that is
separated from other NFS land by the Big Wood River. A
road across Everett's property provides access to this Saw-
tooth parcel, and the public routinely engages in picnicking
and fishing activities there. Everett is a licensed pilot and he
would like to land his private helicopter on this piece of land
in order to access his property. He initially intended to land
the helicopter on his own property; however, county officials
notified him in 1993 that use of the property as a private
airfield violated a local zoning ordinance. The county sug-
gested that he use Freedman Airport, located 20 miles away,
as a landing site. Instead, Everett chose to land his helicop-
ter on the adjacent NFS land that is not directly governed by
the zoning ordinance.
On October 16, 1994, Everett's immediate neighbor contact-
ed the Service's Ketchum Ranger District to complain about
Everett's helicopter landings on Sawtooth land. Several days
later, the Ketchum Ranger District Lands Forester, Carol
Brown, informed Everett that he was not authorized to land
his helicopter on NFS land. District Ranger Alan Pinkerton
then wrote to the Sawtooth Forest Supervisor, Jack E. Bills,
expressing concern over "the potential for uncontrolled use of
private aircraft" in the NFS and urging Bills to take control
of this activity, as the Service had done with respect to the
Sawtooth National Recreation Area. See Appendix ("App.")
131.
Subsequently, on November 2, 1994, Bills issued Special
Order No. 04-14-00-002 ("Order"), pursuant to his authority
under 36 C.F.R. s 261.50(a). The Order prohibited the
"[l]anding of aircraft, or dropping or picking up any materials,
supplies, or person by means of aircraft, including helicopters,
except at established airfields," on all Sawtooth land. App. 9.
The Order, which purported to amend certain existing regula-
tions, explicitly exempted from the prohibition persons with
permits. Everett attempted to appeal the Order to the Chief
of the Service, Jack Ward Thomas. However, on February 3,
1995, a Deputy Regional Forester, Jack A. Blackwell, in-
formed Everett that the Order was not subject to appeal
under any Service regulations and advised him instead to
apply for a special use permit.
On March 16, 1995, Everett submitted an application to the
Ketchum Ranger District for a special use permit to "occa-
sionally land his private helicopter on Federal land next to his
property in order to access his vacation home." App. 17.
Everett's request anticipated use of the Sawtooth parcel
immediately adjacent to his property two to three times per
month for several minutes at a time. By letter dated March
27, 1995, District Ranger Pinkerton notified Everett that his
application was denied for the following reasons: (1) the
proposed use could be reasonably accommodated on non-NFS
lands, i.e., the local airport; (2) Everett had adequate alterna-
tive access to ensure the reasonable use and enjoyment of his
land; and (3) the application did not demonstrate how the
proposed use would benefit anyone other than Everett. See
App. 25. Pinkerton derived these factors from provisions of
Service regulations and the Forest Service Manual ("Manu-
al"). See 36 C.F.R. s 251.54(i)(2) (1998); U.S. Forest Ser-
vice, Forest Service Manual, Special Uses Management
s 2703.2 (effective Jan. 25, 1994), reprinted in App. 152.
Pinkerton did not cite Bills's 1994 Order in denying Everett's
request for a special use permit.
Everett then filed a complaint against the Service in Dis-
trict Court, alleging that the 1994 Order issued by Bills was a
new regulation that could not be issued without notice and
comment, and that denial of his permit request was arbitrary
and capricious. At a hearing on cross-motions for summary
judgment, the District Court strongly encouraged the Service
to rescind the Order, particularly in light of the Service's
position that Everett's proposed helicopter landing was pro-
hibited without a permit regardless of the Order. On August
27, 1996, the Service withdrew the Order "predicated on the
fact that the [Service] has sufficient authority to regulate
aircraft and helicopter landings on the Sawtooth National
Forest without relying on a special order." App. 269.
The withdrawal of the Order mooted Everett's challenge
thereto. Accordingly, the District Court requested supple-
mental briefing on two issues, which became the focus of this
litigation: (1) whether or not a special use permit was re-
quired for Everett to land a helicopter on Sawtooth land; and
(2) whether the Service's denial of Everett's special use
permit was arbitrary and capricious. The parties then re-
submitted cross-motions for summary judgment.
The District Court granted the Service's motion for sum-
mary judgment as to all claims. See Everett v. United States,
980 F. Supp. 490, 491 (D.D.C. 1997). The court found that
s 251.50(a) required Everett to obtain a special use permit.
See id. at 493. The court also found that the Service consid-
ered appropriate factors set forth in the regulations and the
Manual in denying Everett's application. See id. at 494-96.
This appeal followed.
II. Analysis
A. Standard of Review
We review a grant of summary judgment de novo, applying
the same legal standard that governed the District Court's
determination. See Troy Corp. v. Browner, 120 F.3d 277, 281
(D.C. Cir. 1997). Summary judgment is appropriate where
the record presents "no genuine issue as to any material fact"
and the moving party is entitled to judgment as a matter of
law. See id. (quoting Fed. R. Civ. P. 56(c)). We find no
genuinely disputed material facts that would preclude sum-
mary judgment in this case.
The Service's action can be overturned only if it is found to
be "arbitrary, capricious, an abuse of discretion, or otherwise
not in accordance with law." 5 U.S.C. s 706(2)(A) (1994).
"[I]n a competition between possible meanings of a regula-
tion, the agency's choice receives substantial deference."
Rollins Environmental Serv. Inc. v. Environmental Protec-
tion Agency, 937 F.2d 649, 652 (D.C. Cir. 1991). Accordingly,
the Service's interpretation of its own regulations will prevail
unless it is "plainly erroneous or inconsistent" with the plain
terms of the disputed regulations. Auer v. Robbins, 519 U.S.
452, 461 (1997) (citation omitted). Moreover, the Service's
decision to deny the special use permit will survive arbitrary
and capricious review unless the agency committed a clear
error of judgment or failed to consider appropriate criteria in
reaching its decision. See Marsh v. Oregon Natural Re-
sources Council, 490 U.S. 360, 378 (1989).
B. The Service's Interpretation of the Regulation
The principal questions at issue here focus on the meaning
of the regulations set forth at 36 C.F.R. s 251.50(a) and (c).
The Service's position is quite simple: s 251.50(a) requires a
private user of the NFS to obtain a special use permit before
engaging in any activity that is not exempted. The only
exemptions conceivably applicable to Everett's proposed use
are those set forth in subsection (c) of s 251.50, for "noncom-
mercial recreational activities such as camping, picnicking,
hiking, fishing, hunting, horseback riding, and boating." The
listed exemptions do not encompass helicopter use, in the
Service's view, because such use "bear[s] little semblance to
those limited recreational activities that are explicitly exempt-
ed." Brief for Appellees at 12. Everett, in turn, takes a far
more expansive view of s 251.50(c), arguing that it excuses all
"noncommercial" recreational activities from the permit re-
quirement, and that his proposed use falls within that ambit.
See Appellant's Brief at 13; Appellant's Reply Brief at 2.
We have little trouble concluding that the Service's position
reflects a reasonable interpretation of the regulations. Sec-
tion 251.50(c) can easily be read to create only a limited
exemption for noncommercial recreational activities of a simi-
lar character to those activities specifically listed. Under this
view, it was clearly reasonable for the Service to draw a
distinction between helicopter use and the various recreation-
al uses--camping, fishing, and the like--ordinarily contem-
plated on NFS land. Although helicopter use may facilitate
certain back-country recreational pursuits, it is, on its face,
readily distinguishable from traditional recreational activities.
For one thing, helicopter use is more likely to create a safety
hazard to third persons than is, for example, hiking or
camping. Moreover, unlike car or snowmobile use, which
allows for simultaneous enjoyment of the forest by many
users, helicopter use may quite directly displace other uses,
by requiring, for safety reasons, the designation of landing
sites and air traffic limitations. In short, there are ample
legitimate reasons for the Service, based on its expertise, to
manage different types of motorized and other forest uses in
different ways.
Even assuming the existence of a blanket exemption for
noncommercial recreational activities, we do not see how
Everett's proposed use of the Sawtooth land falls within that
exemption. Everett's proposed helicopter landings would not
be "recreational" uses of NFS lands; rather, the landings
would be for the sole purpose of facilitating Everett's trans-
portation to his private home off of NFS lands. Specific
regulations concerning the use of NFS land to access non-
federal land apply to this situation, providing, in relevant
part, that "landowners shall be authorized" access "adequate
to secure them the reasonable use and enjoyment of their
land," but that "[w]here there is existing access or a right of
access ... that is adequate or that can be made adequate,
there is no obligation to grant additional access through
[NFS] lands." 36 C.F.R. s 251.110(c), (g) (1998). Everett
can land his helicopter at an airport located only 20 miles
from his home and can also reach his property via public
roads. Thus, the Service's resolution of this situation was
perfectly consistent with the general regulatory scheme cov-
ering uses of NFS lands.
Everett presents several arguments to avoid the result that
we reach today. Only three warrant brief discussion here.
First, Everett suggests that, in order to impose a permit
requirement for helicopter landings on NFS land, the Service
had to proceed by notice-and-comment rule making to ex-
pressly designate helicopter landing as a "special use." Ever-
ett is obviously wrong in this view. As heretofore indicated,
Everett's proposed helicopter use is already regulated under
a reasonable interpretation of existing rules; thus, the Ser-
vice need not promulgate a new regulation to cover the
activity. Moreover, the Service engaged in an informal adju-
dication, pursuant to s 251.54 ("Special use applications"), in
reviewing Everett's request for a special use permit. Noth-
ing more was required under existing law or regulations.
Thus, the Service was not subject to Administrative Proce-
dure Act requirements covering notice-and-comment rule
makings or formal adjudications. See Pension Benefit Guar-
anty Corp. v. LTV Corp., 496 U.S. 633, 655 (1990); Zotos
Int'l, Inc. v. Young, 830 F.2d 350, 353 (D.C. Cir. 1987).
Second, Everett maintains that a "consistent and long-
standing practice of allowing recreational aircraft use of
[Sawtooth]" land precludes the Service's present interpreta-
tion of s 251.50(c). Appellant's Brief at 19. In support of
this contention, Everett cites isolated instances in which
helicopter pilots landed their aircraft on Sawtooth land, ap-
parently without special use permits. See App. 423-24, 427-
29. It simply cannot follow from this meager evidence,
however, that the Service is now foreclosed from enforcing
s 251.50. Such an argument is tantamount to saying that
police officers can no longer ticket drivers for speeding,
because many drivers speed and get away with it. The
Service has never established a regulatory position that con-
tradicts the interpretation it now relies upon; therefore, the
agency's position must be sustained.
Finally, Everett contends that the 1994 Order supports his
position, because it demonstrates the Service's own under-
standing that aircraft landings were unregulated prior to its
issuance. At oral argument, Everett's counsel made much of
the fact that the 1994 Order purported to "amend[ ]" existing
regulations. However, we find that Everett's reliance on the
1994 Order is wholly misguided. For one thing, the Order
was rescinded by the Service. For another, the 1994 Order
was not the agency's final disposition of Everett's claim. The
agency's final order in this case was issued in 1995 by District
Ranger Pinkerton. And Pinkerton did not rely on the 1994
Order in his 1995 disposition. Therefore, the issuance of the
1994 Order, later rescinded, is of no moment in our consider-
ation of this case, because it is not before us.
Based on the foregoing, we decline to overturn the Ser-
vice's manifestly reasonable interpretation of s 251.50(a) and
(c) to require a special use permit for helicopter landings on
NFS land. The agency's interpretation comports with the
language of the regulations and advances the legitimate regu-
latory goal of public safety.
C. The Service's Denial of Everett's Permit Request
Having concluded that the Service reasonably interpreted
its regulations to govern Everett's proposed use of the Saw-
tooth, we next confront Everett's argument that the Service
arbitrarily and capriciously denied his request for a special
use permit. The Service based its denial on considerations
supported by both the regulations and the Manual. See 36
C.F.R. s 251.54(i)(2); U.S. Forest Service, supra, s 2703.2.
Everett now contends that it was improper for the Service to
consider factors set forth in the Manual in rendering its
decision. We disagree.
Everett relies solely on Western Radio Services Co. v.
Espy, 79 F.3d 896 (9th Cir. 1996), in which a company
challenged the Service's issuance of a special use permit to a
competitor company, alleging, inter alia, that the Service
failed to follow the guidelines in its Manual. See id. at 900.
Western Radio, however, is inapposite. There, the court did
not find that the Manual was an inappropriate source of
guidance, but rather found that the Manual does "not have
the independent force and effect of law." Id. at 901. The
Ninth Circuit's holding that a third party cannot sue to
require the Service to comply with Manual criteria, see id. at
901-02, does not support Everett's position before this court.
To the contrary, Western Radio explicitly acknowledged the
Manual's role in establishing "guidelines for the exercise of
the Service's prosecutorial discretion." Id. at 901. Thus, in
denying Everett's permit request, the Service properly con-
sidered criteria articulated in both the regulations and the
Manual interpreting those regulations.
In a last ditch effort, Everett also contends that, even if the
Service applied the proper criteria in evaluating his permit
request, it applied those criteria "incorrectly." Appellant's
Brief at 23. This argument, however, is plainly without
merit. Everett cannot maintain in earnest that the factors
upon which the Service relied do not reasonably support its
denial of his application. At bottom, Everett seeks use of the
public lands for more convenient access to his own private
vacation home--a use that is neither necessary for his enjoy-
ment of his property nor in the public interest. Thus, the
Service's conclusion in this regard was not arbitrary and
capricious.
III. Conclusion
We hold that the Service's interpretation of 36 C.F.R.
s 251.50(a) and (c) is clearly reasonable, and that the Service
applied appropriate criteria in denying Everett's permit re-
quest. Accordingly, the District Court's grant of summary
judgment in favor of the Service is affirmed.
So ordered.