Robert Luciano, Jr. v. United States

FILED
NOT FOR PUBLICATION
JUN 24 2016
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

ROBERT A. LUCIANO, Jr., Trustee of No. 14-16167
The Robert A. Luciano Jr. Revocable Trust
Dated February 27, 1995, D.C. No. 2:11-cv-01831-TLN-KJN

Plaintiff - Appellant,
MEMORANDUM*
v.

UNITED STATES OF AMERICA; et al.,

Defendants - Appellees.

Appeal from the United States District Court
for the Eastern District of California
Troy L. Nunley, District Judge, Presiding

Submitted June 14, 2016**
San Francisco, California

Before: CLIFTON and IKUTA, Circuit Judges and LAMBERTH,*** Senior
District Judge.

*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Royce C. Lamberth, Senior District Judge for the U.S.
District Court for the District of Columbia, sitting by designation.
Plaintiff Robert Luciano, Jr. appeals the district court’s summary judgment

in favor of the United States and various other federal defendants. We affirm.

Luciano first argues that the Forest Service’s denial of his 2007 Small Tract

Act Application for a boundary adjustment was arbitrary and capricious. The

Forest Service is authorized by 16 U.S.C. § 521d(1) to exchange National Forest

lands in certain circumstances, including “parcels of ten acres or less which are

encroached upon by improvements occupied or used under claim or color of title.”

16 U.S.C. § 521e. The party seeking the boundary adjustment must have had “no

advance notice . . . that the improvements encroached or would encroach upon”

National Forest land. Id. The Forest Service determined that Luciano had advance

notice of the encroachment as a result of a 1993 boundary survey that was recorded

in Plumas County approximately two years before Luciano purchased his property.

The Forest Service’s denial of his application was neither arbitrary nor capricious.

Second, Luciano argues that the Forest Service’s denial of his proposal to

exchange a parcel of land located in the Middle Fork of the Feather River was

arbitrary and capricious. The Forest Service has broad discretion to reject land

exchange proposals:

The Secretary is not required to exchange any Federal lands. Land
exchanges are discretionary, voluntary real estate transactions
between the Federal and non-Federal parties. Unless and until the

2
parties enter into a binding exchange agreement, any party may
withdraw from and terminate an exchange proposal at any time during
the exchange process.

36 C.F.R. § 254.3(a). The Forest Service determined that it was not interested in

giving up acreage that it already owned in exchange for Luciano’s land for

multiple non-arbitrary reasons: (1) The land was not very accessible, (2) it was

littered with old cars, trucks, bulldozers, mining equipment, and likely hazardous

materials, (3) it would require extensive environmental impact analyses, and (4)

the agency did not have the funding or the human resources to complete the

exchange. Luciano’s arguments and the Forest Service’s scrivener’s error in

referencing the incorrect land exchange regulation do not undercut these legitimate

reasons, nor do they persuade us that the Forest Service failed to consider any

factors that it had a duty to consider before rejecting a land exchange proposal.

The Forest Service’s rejection of Luciano’s proposal was not arbitrary and

capricious.

Third, Luciano argues that the Forest Service’s denial of his land exchange

proposal violated the National Forest Management Act, the National Wild and

Scenic Rivers Act, the Sierra Nevada Forest Plan, the Plumas National Forest Land

Resource Management Plan, and the Forest Service’s manual. Although these

sources provide broad policy directives that might align with a decision to acquire

3
land in the Middle Fork of the Feather River, Luciano points to no mandatory

language that would require the Forest Service to give up existing federal lands in

exchange.

Fourth, Luciano argues that the district court abused its discretion when it

struck extra-record evidence from the record. “As a general matter, judicial review

of agency decisions is limited to the record considered by the agency in making its

decision. A court may consider extra-record documents, however, if necessary to

determine whether the agency has considered all relevant factors and has explained

its decision.” Humane Soc’y of U.S. v. Locke, 626 F.3d 1040, 1058 (9th Cir. 2010)

(internal citation and quotation marks omitted). Because the existing record

showed that the Forest Service adequately explained its decision and based its

decision on the relevant factors, there was no need for the district court to consider

the extra-record evidence. The district court did not abuse its discretion when it

struck the challenged evidence.1

AFFIRMED.

1
Luciano’s request for judicial notice, addressed to this court, is granted in
part and denied in part. The request regarding Exhibit A is denied as unnecessary.
Federal statutes, in this instance the Small Tracts Act, are before the court as law
and need not be submitted as evidence. The request regarding Exhibit B, pages
from the Plumas National Forest Land and Resource Management Plan, is granted.