Lodge Tower Condominium Ass'n v. Lodge Properties, Inc.

PUBLISH

UNITED STATES COURT OF APPEALS
Filed 6/3/96 TENTH CIRCUIT

LODGE TOWER CONDOMINIUM )
ASSOCIATION, TOWN OF VAIL, )
)
Plaintiffs-Appellants, )
)
v. ) No. 95-1223
)
LODGE PROPERTIES, INC., WESTERN )
LAND EXCHANGE COMPANY, )
CLAYTON YEUTTER, Secretary, U.S. )
Department of Agriculture; F. DALE )
ROBERTSON, Chief, U.S. Forest Service; )
GARY CARGILL, Regional Forester; NEIL F. )
MORCK, State Director, Bureau of Land )
Management; DELOS CY JAMISON, Director )
of Bureau of Land Management; MANUAL )
LUJAN, Secretary, U.S. Department of the )
Interior, )
)
Defendants-Appellees. )

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
(D.C. No. 89-N-1098)

Charles B. White, (Christopher J. Melcher, Brownstein, Hyatt, Farber & Strickland,
Denver, Colorado, with him on the brief), Petros & White, Denver, Colorado, for
Plaintiffs-Appellants.

James S. Bailey, Jr., (Randall M. Livingston with him on the brief), Bailey, Harring &
Peterson, Denver, Colorado, for private Defendant-Appellees.

Jacques B. Gelin, (Lois J. Schiffer, Assistant Attorney General, Albert M. Ferlo, Jr.,
Attorney, Department of Justice, Washington, D.C., Henry J. Solano, United States
Attorney, William R. Lucero, Assistant United States Attorney, Denver, Colorado, with
him on the brief), Attorney, Department of Justice, Washington, D.C., for federal
Defendants-Appellees.

Before BALDOCK, LOGAN, and BRISCOE, Circuit Judges.

BALDOCK, Circuit Judge.

Plaintiffs Lodge Tower Condominium Association and the Town of Vail,

Colorado appeal a district court order rejecting their administrative challenges to a

decision by the United States Forest Service to exchange federal land located in Vail for

private land located in a wilderness area. We exercise jurisdiction under 28 U.S.C.

§ 1291 and affirm.

Section 1716 of the Federal Land Policy and Management Act (“FLPMA”)

authorizes the Department of Interior and the Forest Service to exchange public lands for

private lands if “the public interest will be well served by making that exchange.” 43

U.S.C. § 1716(a). Pursuant to this statute, the Forest Service agreed to exchange a

two-acre parcel of federal land--administered by the Forest Service but located within the

boundaries of the Town of Vail--for a 385-acre parcel of privately-owned land located

within the Eagles Nest Wilderness Area. The exchange proponent--Lodge Properties,

Inc.--proposed building an hotel expansion on the two-acre parcel. Western Land

Exchange Company assisted Lodge Properties, Inc. in the administrative proceedings

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prior to the exchange.

Lodge Tower Condominium Association, an unincorporated association of owners

of condominiums constructed on land adjacent to the two-acre parcel, and the Town of

Vail opposed the exchange at the administrative level. After the Forest Service rejected

Plaintiffs’ objections and approved the exchange, the Bureau of Land Management issued

a patent to the two-acre parcel to Lodge Properties, Inc.

Plaintiffs filed a complaint in the district court seeking judicial review under § 706

of the Administrative Procedure Act (“APA”), of the agency proceedings which

culminated in the land exchange. See 5 U.S.C. § 706. Plaintiffs named as defendants

federal officials who made the administrative decisions which led to the issuance of the

patent to the two-acre parcel. Plaintiffs also named the private exchange proponents as

defendants. Plaintiffs contended that the district court should set aside the exchange

because it violated FLPMA and the National Environmental Policy Act (“NEPA”). The

district court reviewed Plaintiffs’ contentions under the standards governing judicial

review of agency action set forth in § 706 of the APA and concluded that there was “no

basis for setting aside any agency action in this case.” Lodge Tower Condominium Ass’n

v. Lodge Properties, Inc., 880 F. Supp. 1370, 1387 (D. Colo. 1995). Consequently, the

district court dismissed Plaintiffs’ case.

On appeal, Plaintiffs contend the district court erred in dismissing their complaint

because the exchange was arbitrary, capricious, and contrary to law. Specifically,

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Plaintiffs argue: (1) the exchange was not in the public interest as required under

FLPMA, 43 U.S.C. § 1716(a); (2) the exchange violated NEPA because it was premised

on an inadequate environmental assessment; and (3) the Forest Service and the Bureau of

Land Management violated regulations governing administrative stays and issued the

patent to the two-acre parcel in violation of an administrative stay. Plaintiffs request this

court to reverse the district court, rescind the patent to the property, order the Forest

Service to quitclaim the wilderness property back to the private owner, and remand the

case to the agency for further proceedings under FLPMA and NEPA.

We review Plaintiffs’ challenges to the land exchange under the deferential

standard set forth in the APA: “The reviewing court shall . . . hold unlawful and set aside

agency action, findings, and conclusions found to be . . . arbitrary, capricious, an abuse of

discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). “Review

under § 706(2)(A) is narrow, and the agency need only demonstrate that it considered

relevant factors and alternatives after a full ventilation of issues and that the choice it

made was reasonable based on that consideration.” Mount Evans Co. v. Madigan, 14

F.3d 1444, 1453 (10th Cir. 1994).

We have considered the district court’s order, the briefs of the parties, the parties’

oral arguments, and reviewed the entire record on appeal. After examining the applicable

law and applying the deferential standards governing judicial review of agency action set

forth in § 706(2)(A) of the APA, we find no reversible error and affirm.

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AFFIRMED.

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