Peper v. United States Department of Agriculture

FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
April 27, 2012
FOR THE TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court

KENNETH E. PEPER,

Plaintiff-Appellant,

v. Nos. 08-1131 & 11-1237
(D.C. No. 1:04-CV-01382-ZLW-KLM)
UNITED STATES DEPARTMENT (D. Colo.)
OF AGRICULTURE; THOMAS
VILSACK, Secretary, in his official
capacity; FOREST SERVICE OF THE
UNITED STATES OF AMERICA;
THOMAS J. TIDWELL, as Chief, in
his official capacity, *

Defendants-Appellees.

ORDER AND JUDGMENT **

Before O’BRIEN and McKAY, Circuit Judges, and BRORBY, Senior Circuit
Judge.

*
Pursuant to Fed. R. App. P. 43(c)(2), Thomas Vilsack is substituted for
Mike Johanns and Thomas J. Tidwell is substituted for Dale Bosworth as
appellees in this appeal.
**
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
these consolidated appeals. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G).
The cases are therefore ordered submitted without oral argument. This order and
judgment is not binding precedent, except under the doctrines of law of the case,
res judicata, and collateral estoppel. It may be cited, however, for its persuasive
value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
 Kenneth E. Peper, proceeding pro se, 1 appeals from the district courts’

orders dismissing his claims under the Quiet Title Act (QTA), 28 U.S.C. § 2409a,

and entering judgment on his claim under the Administrative Procedure Act

(APA), 5 U.S.C. §§ 500-706. We affirm.

BACKGROUND

Mr. Peper owns a patented mining claim, the May Queen Lode, which is an

inholding 2 located within the Roosevelt National Forest in Colorado. In

November 2001, he sought an easement from the Forest Service, an agency of the

United States Department of Agriculture, pursuant to 36 C.F.R. § 251.54, to

access his land via an existing road. In particular, Mr. Peper sought motorized

access so that he could build and access a cabin on the land.

The Forest Service advised Mr. Peper to submit a modified special use

application after forming a home- or landowners’ association. In April 2003,

Mr. Peper provided the Forest Service notice of the formation of the Middle

Boulder Creek Road Association. The Forest Service thereafter notified

Mr. Peper that, due to backlogs and staffing issues, he could expect to receive

special use authorization in two to four years.

1
We liberally construe Mr. Peper’s pro se filings. See Haines v. Kerner,
404 U.S. 519, 520 (1972) (per curiam).
2
“Inholdings constitute property completely surrounded by property owned
by the United States.” United States v. Jenks, 22 F.3d 1513, 1515 n.1 (10th Cir.
1994) (Jenks I).

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 On July 7, 2004, Mr. Peper filed a verified complaint under the QTA

against the Department of Agriculture, its Secretary, the Forest Service, and its

Chief. He asserted three easement rights for which he sought to quiet title: (1) a

common law easement by necessity; (2) a public road easement under R.S. 2477; 3

and (3) a statutory easement under the Alaska National Interest Lands

Conservation Act (ANILCA), 16 U.S.C. § 3210(a). 4 Defendants moved to dismiss

for lack of subject-matter jurisdiction and for failure to state a claim upon which

relief may be granted. See Fed. R. Civ. P. 12(b)(1), (6). In addition, in

September 2004, the Forest Service indicated to the court that it would require

3
Before being repealed in 1976, R.S. 2477 permitted rights of way to
construct highways on public lands not reserved for public use. Lyon v. Gila
River Indian Cmty., 626 F.3d 1059, 1076 (9th Cir. 2010) (citing 43 U.S.C. § 932
(repealed 1976)); see also S. Utah Wilderness Alliance v. Bureau of Land Mgmt.,
425 F.3d 735, 740-41 (10th Cir. 2005). “The law repealing R.S. 2477 expressly
preserved any valid, existing right-of-way.” Lyon, 626 F.3d at 1076; see also
S. Utah Wilderness Alliance, 425 F.3d at 741.
4
Section 3210(a) provides:

Notwithstanding any other provision of law, and subject to
such terms and conditions as the Secretary of Agriculture may
prescribe, the Secretary shall provide such access to nonfederally
owned land within the boundaries of the National Forest System as
the Secretary deems adequate to secure to the owner the reasonable
use and enjoyment thereof: Provided, That such owner comply with
rules and regulations applicable to ingress and egress to or from the
National Forest System.

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two to three more years, until September 2006 or 2007, to complete the

administrative process.

Adopting in part the magistrate judge’s recommendations, the district court

granted in part defendants’ motion to dismiss. The court decided that it lacked

subject-matter jurisdiction under Rule 12(b)(1) over the claim based on

R.S. 2477, because merely being a member of the public did not give Mr. Peper

title to public roads allowing him to bring a quiet title suit under R.S. 2477.

Although recognizing jurisdiction under the QTA over an easement-by-necessity

claim, the court decided it was preempted by the ANILCA and the Federal Land

Policy and Management Act (FLPMA), 43 U.S.C. §§ 1701-1784. Thus, the court

dismissed the easement-by-necessity claim for failure to state a claim upon which

relief can be granted under Rule 12(b)(6). Lastly, the court recognized that the

application for a special use authorization under the ANILCA was still pending

with the Forest Service. But because the Forest Service estimated an

unreasonably long time to complete the administrative process, the court ordered

it to expedite and complete the administrative process on or before December 1,

2006. Upon the government’s motion, the district court later extended the

deadline to May 15, 2007.

On May 14, 2007, the Forest Service granted the Middle Boulder Creek

Road Association special use authorization under the FLPMA, 43 U.S.C. § 1761,

by offering a forest road easement and a private road easement, subject to various

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conditions, including (1) construction of an armored ford, a bridge, and a road

before motorized use would be allowed and (2) imposition of an annual fee.

Upon notifying the court that administrative processing of Mr. Peper’s application

for a special use authorization was complete and two easements had been issued,

defendants requested dismissal of Mr. Peper’s remaining ANILCA claim.

Mr. Peper responded and filed an amended complaint challenging the

administrative decision under the APA, asserting a new QTA claim for the right

to an easement by prescription under state law, and again asserting QTA rights

based on easements by necessity, under R.S. 2477, and under the ANILCA. The

district court struck the amended complaint as untimely. Also, the court granted

defendants’ request to dismiss the remaining ANILCA claim. The court,

however, gave Mr. Peper permission to file an amended complaint setting forth

only a claim to review the agency decision under the APA.

Mr. Peper filed a second amended complaint, alleging claims under both

the QTA and the APA. Under the QTA, he asserted rights to an easement under

four theories: (1) by necessity; (2) by prescription under state law; (3) under

R.S. 2477; and (4) under the ANILCA. With respect to the APA, he asserted that

(1) defendants violated 36 C.F.R. § 251.114(f)(1) 5 by failing to consider his

5
Section 251.114(f)(1) provides that “the authorizing officer, prior to issuing
any access authorization, must . . . ensure that [t]he landowner has demonstrated a
lack of any existing rights or routes of access available by deed or under State or
(continued...)

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pre-existing interest in access to the property before granting a special use permit

under the ANILCA; and (2) because the special use permit contained

unreasonable and arbitrary and capricious rules, regulations, limitations, and

restrictions on the use of his property, the Forest Service in effect denied him an

easement in violation of the ANILCA.

After Mr. Peper filed the second amended complaint, the district court

entered final judgment under Fed. R. Civ. P. 54(b) on the QTA claims it had

previously dismissed. Mr. Peper filed his first notice of appeal, No. 08-1131.

After the parties completed briefing on the second amended complaint, the

magistrate judge recommended dismissal of the QTA claims, because the

easement-by-necessity, R.S. 2477, and ANILCA claims had been dismissed

previously and the easement-by-prescription claim had been asserted without

leave of the district court. The magistrate judge recommended remand to the

Forest Service for further proceedings on the APA claims, because the Forest

Service had not complied with § 251.114(f)(1)’s requirement that it consider

during its administrative review whether Mr. Peper had “existing rights or routes

of access available by deed or under State or common law.” Further, the

5
(...continued)
common law.”

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magistrate judge recommended that, on remand, the Forest Service again consider

the terms and conditions of any special use authorization or easement.

After both parties filed objections to the magistrate judge’s

recommendations, the district court entered final judgment in favor of defendants.

In doing so, the court adopted the magistrate judge’s recommendation that the

QTA claims be dismissed with prejudice. The court, however, rejected the

magistrate judge’s recommendation concerning the APA claims, determining that

“it is clear that to the extent that review of pre-existing rights and routes of access

is necessary under [§ 251.114(f)(1)], that review occurred since [Mr. Peper] filed

the present lawsuit specifically to address his claims of pre-existing access.”

Suppl. R., Vol. 1 at 346; see also id. at 347 (“Since the [Forest Service] has been

a Defendant in this case from the beginning, all events that took place in this case

must be considered part of the administrative record. Thus, discussion of the

existence of pre-existing access occurred within this case during the

administrative review of [Mr. Peper’s] application. Whatever the level of review

necessary under subsection (f), this Court concludes that the [Forest Service],

through the lengthy litigation that has occurred in this case, has met its burden

under subsection (f)(1).” (footnote omitted)).

The court then proceeded to review the conditions imposed on the

easements offered by the Forest Service and concluded they were not arbitrary,

capricious, or an abuse of discretion. In reaching this conclusion, the court found

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that Mr. Peper “obtained exactly what he applied for: vehicular access to his

property.” Id. at 351. The court was convinced that the Forest Service

satisfactorily balanced Mr. Peper’s statutory right of access to the land with the

regulatory requirements. Furthermore, the court decided that Mr. Peper did not

prove that the terms of the easements were unreasonable.

Discussing a few of the arguments made by Mr. Peper, the court found that

(1) the termination provisions are an acceptable component of the FLPMA

easements; (2) the specifications for the new bridge are reasonable and consistent

with bridge standards required for Forest Service lands, and Mr. Peper declined to

provide input on the bridge design during the administrative proceedings; (3) the

Forest Service properly issued the easements to the Middle Boulder Creek Road

Association, rather than to Mr. Peper; (4) because Mr. Peper indicated he did not

seek special snow removal, the Forest Service had no obligation to perform

environmental analysis for winter access or to provide winter access in the

easements; and (5) the Forest Service was authorized to impose an annual fee for

the easements, and the fee charged was reasonable. Mr. Peper appealed,

No. 11-1237. This court consolidated the two appeals.

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 DISCUSSION

I. Quiet Title Act Claims

Mr. Peper argues that the district court erred in dismissing his QTA claims

as preempted by the ANILCA. 6 We review the district court’s dismissals under

Rule 12(b)(1) and (6) de novo. See Smith v. United States, 561 F.3d 1090,

1097-98 (10th Cir. 2009); Trackwell v. U.S. Gov’t, 472 F.3d 1242, 1243 (10th Cir.

2007).

The district court correctly determined that an easement by necessity was

preempted by the ANILCA. See United States v. Jenks, 129 F.3d 1348, 1353-54

(10th Cir. 1997) (Jenks II). We agree with that determination for the reasons

stated by the court in its order of September 5, 2006, adopting the magistrate

judge’s recommendation dated March 25, 2005. See R., Vol. I at Docs. 19 & 28.

Mr. Peper continues to assert an easement-by-prescription claim. He first

asserted the claim in an amended complaint he filed after the Forest Service’s

permit process was over. We conclude the district court did not abuse its

discretion in denying him leave to assert this untimely claim. See Pater v. City of

6
Because Mr. Peper did not challenge the district court’s determination of
his QTA claim under R.S. 2477 until his reply brief, we deem any claim to an
easement under R.S. 2477 to be waived. Even if he had continued to assert a
claim under R.S. 2477 throughout the appeal, we would affirm the district court’s
decision rejecting an easement under R.S. 2477 for the reasons stated by that
court in its order of September 5, 2006, adopting the magistrate judge’s
recommendation of March 25, 2005. See R., Vol. I at Docs. 19 & 28.

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Casper, 646 F.3d 1290, 1299 (10th Cir. 2011). Untimeliness alone is sufficient to

deny amendment, especially since Mr. Peper has no explanation for his delay in

asserting the new claim. Id. Furthermore, allowing amendment would have

prejudiced defendants, since extensive and final agency review had been

completed. See id.

II. Administrative Procedure Act Claims

Mr. Peper argues that the Forest Service failed to comply with proper

procedures when reaching its decision to grant the two easements with conditions,

and that the decision is arbitrary and capricious. We will “hold unlawful and set

aside agency action, findings, and conclusions [that are] arbitrary, capricious, an

abuse of discretion, or otherwise not in accordance with law.” Utahns for Better

Transp. v. U.S. Dep’t of Transp., 305 F.3d 1152, 1164 (10th Cir. 2002) (citing

5 U.S.C. § 706(2)(A)). “The APA’s arbitrary and capricious standard is a

deferential one; administrative determinations may be set aside only for

substantial procedural or substantive reasons, and the court cannot substitute its

judgment for that of the agency.” Id. Our review of the district court’s decision

is de novo, and we do not give it any deference. See S. Utah Wilderness Alliance

v. Office of Surface Mining Reclamation & Enforcement, 620 F.3d 1227, 1233

(10th Cir. 2010).

Mr. Peper disputes the legality of the Forest Service’s issuance of

easements under the ANILCA without first deciding if he owned rights of access

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under state or common law. He contends the Forest Service’s failure to consider

his State and common law access rights violated 36 C.F.R. § 251.114(f)(1). In

addition, he maintains that because he had pre-existing access to Forest Service

land, § 251.114(f)(1) provides that he did not need a statutory right-of-way under

the ANILCA. He further contends that failure to follow § 251.114(f)(1) violated

the APA, either as a failure to comply with procedures or as an arbitrary and

capricious decision imposing unreasonable conditions for access.

Mr. Peper correctly asserts, and we have held, that § 251.114(f)(1) requires

a determination of his patent, State, or common law rights of access. See Jenks

II, 129 F.3d at 1351; see also Skranak v. Castenada, 425 F.3d 1213, 1221

(9th Cir. 2005) (holding that Forest Service violates its regulations if it fails to

make determination if prior easement existed); Fitzgerald Living Trust v. United

States, 460 F.3d 1259, 1264 (9th Cir. 2006) (discussing Skranak and determining

that “the existence of a preexisting easement, as claimed by the [appellants], is

relevant to the Forest Service’s issuance of a statutory easement under FLPMA”).

See generally Utahns for Better Transp., 305 F.3d at 1165 (“Agencies are under

an obligation to follow their own regulations, procedures, and precedents, or

provide a rational explanation for their departure.”).

Although the Forest Service decision did not specifically address State or

common law easements, the administrative record contains the district court

filings up to the time of the Forest Service’s decision. As the district court

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recognized, the Forest Service, as a defendant, was well aware of Mr. Peper’s

timely easement claims. Thus, we agree with the district court that the Forest

Service met the requirements of § 251.114(f)(1) to consider his claims to an

easement.

Mr. Peper also argues that the FLPMA supports the validity of his

common-law-easement claims and protects his pre-existing rights. Relying on

43 U.S.C. § 1769, he contends his right-of-way was not terminated. In granting

easements with conditions, the Forest Service noted that it had compiled with the

FLPMA. We cannot disagree. Under the FLPMA, the Forest Service has the

right to impose reasonable terms and conditions for access. See 16 U.S.C.

§ 3210(a). “With the passage of FLPMA, Congress believed inholders ‘had the

right of access to their [inholdings] subject to reasonable regulation . . . under []

FLPMA.’” Jenks I, 22 F.3d at 1516 (alteration in original) (quoting S. Rep. No.

413, 96th Cong., 2d Sess. 1, 310 (1980), reprinted in 1980 U.S.C.C.A.N. 5070,

5254, which reviewed access rights of inholders under FLPMA and explained

need for ANILCA); see also id. (“ANILCA guarantees to inholders a threshold

‘right of access to their lands subject to reasonable regulation [under FLPMA] by

. . . the Secretary of Agriculture in the case of national forest [lands].’” (alteration

in original) (quoting Adams v. United States, 3 F.3d 1254, 1258-59 (9th Cir.

1993)). Although Mr. Peper has the right to access his property, he must comply

with reasonable conditions imposed by the Forest Service easements.

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 His easements do not free him from any government regulation. See

Jenks II, 129 F.3d at 1354. Indeed, the Forest Service may impose conditions

regardless of any common law easement Mr. Peper may have. See Fitzgerald

Living Trust, 460 F.3d at 1263. But whether he has a common law easement is

relevant to whether the conditions imposed are reasonable. See id. at 1263-64.

And unreasonable conditions not related to, or disproportionate to, the public’s

benefit may be arbitrary and capricious. See Jenks II, 129 F.3d at 1354.

Mr. Peper objects to the conditions imposed by the easements as

unreasonable. His arguments, even though he is pro se, are inadequate.

He first argues that he “stands by his specific objections [made in the

district court] to the conditions imposed by the easements.” Aplt. Br. at 10.

Mr. Peper’s attempt to adopt by reference materials he filed in the district court

rather than to set forth his dispute with the district court’s reasoning is not

acceptable appellate argument. See Gaines-Tabb v. ICI Explosives, USA, Inc.,

160 F.3d 613, 623-24 (10th Cir. 1998).

He also argues “that any reasonable person who is informed of the history

of this road and the simple basis of the pending application would conclude that

this is government ‘over-kill’ at its finest.” Aplt. Br. at 10. This “perfunctory”

allegation of error “fail[s] to frame and develop [this] issue sufficient to invoke

appellate review.” Murrell v. Shalala, 43 F.3d 1388, 1389 n.2 (10th Cir. 1994).

We will not craft arguments for Mr. Peper. See Perry v. Woodward, 199 F.3d

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1126, 1141 n.13 (10th Cir. 1999). Thus, we consider the issue to be waived. See

Christian Heritage Acad. v. Okla. Secondary Sch. Activities Ass’n, 483 F.3d 1025,

1031 (10th Cir. 2007). 7

Mr. Peper’s further discussion of the reasonableness of the conditions in his

reply brief does not cure the waiver. Developing the issue in the reply brief

deprives defendants of an opportunity to address the issue. See Starkey ex rel.

A.B. v. Boulder Cnty. Soc. Servs., 569 F.3d 1244, 1259 (10th Cir. 2009).

CONCLUSION

The judgment of the district court is AFFIRMED.

Entered for the Court

Monroe G. McKay
Circuit Judge

7
Mr. Peper also suggests, without more, that the district court gave only a
cursory review to the easement conditions. We conclude that this, too, is an
insufficient development of the issue. In addition, he contends that the Forest
Service improperly treated his application as if he were requesting a new road.
He, however, cites no authority to support his contention. Thus, we consider it to
be inadequately developed.

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