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EVERETT v. UNITED STATES

August 3, 1997

FRANK E. EVERETT, III, Plaintiff,
v.
UNITED STATES OF AMERICA; UNITED STATES DEPARTMENT OF AGRICULTURE; UNITED STATES FOREST SERVICE, Defendants.



The opinion of the court was delivered by: SULLIVAN

 EMMET G. SULLIVAN, United States District Judge

 I. INTRODUCTION

 Frank E. Everett, III ("plaintiff"), seeks a declaratory judgment and injunctive relief against the United States of America, the United States Department of Agriculture, and the United States Forest Service ("defendants"), because he contends defendants acted arbitrarily and capriciously in violation of the Administrative Procedure Act ("APA") when they (1) issued a Special Order barring aircraft landings in the Sawtooth National Park in violation of 36 C.F.R. § 251.50 and (2) denied plaintiff a special use permit to land his helicopter in the Sawtooth National Forest.

 On September 3, 1996, the Court directed the parties to submit supplemental briefs on the following two issues: (1) whether Forest Service regulation, 36 C.F.R. § 251.50(a), *fn1" requires plaintiff to obtain a special use permit before he can land his helicopter in the Sawtooth National Forest and (2) whether the Forest Service acted arbitrarily and capriciously under the APA when it denied plaintiff's special use permit application. With the issues presented as such, plaintiff now moves for summary judgment on count III.

 Upon consideration of the parties' supplemental memoranda, the Court holds that, under 36 C.F.R. § 251.50(a), a special use permit is required for plaintiff to land his helicopter in the Sawtooth National Park. The Court further holds that the Forest Service did not act arbitrarily and capriciously in violation of the APA when it denied plaintiff's special use permit application. Accordingly, the Court GRANTS defendants' motion for summary judgment as to count III, and DENIES plaintiff's motion for summary judgment as to count III. Therefore, this case is DISMISSED WITH PREJUDICE.

 II. FACTUAL BACKGROUND

 Plaintiff is a licensed, commercial helicopter pilot who owns a vacation home in Blaine County, Idaho. Plaintiff uses his helicopter for recreational purposes and wants to land near his vacation home. This vacation property is the end lot in the Barlow Subdivision and sits adjacent to a parcel of land that is administered by the Forest Service as part of Sawtooth National Forest. This three and one-half acre parcel is separated from other Forest Service property by the Big Wood River.

 A Blaine County Zoning Ordinance prohibits aircraft landings on the Barlow Subdivision, and consequently makes it unlawful for plaintiff to land his helicopter on his property. The parties do not dispute that, notwithstanding this Ordinance, plaintiff can land his helicopter at the Freedman Airport located 20 miles from plaintiff's house. Plaintiff contends that the law supports his use of a more feasible alternative -- to land his helicopter in the Sawtooth National Forest on the parcel of land adjacent to his home.

 On October 16, 1994, plaintiff's adjoining neighbor, Joan Anwalt, complained to the District Ranger on the Ketchum Ranger District at Sawtooth National Forest about plaintiff's helicopter landings on the Sawtooth Forest land. As a result of Anwalt's complaint, the Sawtooth Forest Supervisor, Jack E. Bills, issued a Special Order, pursuant to 36 C.F.R. § 261.50(a), *fn2" that barred aircraft landings in the Sawtooth National Forest. On December 19, 1994, plaintiff appealed to the U.S. Department of Agriculture. In response to this appeal, plaintiff was informed by a Deputy Regional Forester, on February 3, 1995, that the Special Order was not subject to appeal under any Forest Service regulation.

 On March 16, 1995, plaintiff filed an application for a special use permit with the District Ranger of the National Forest System. Plaintiff specifically requested authorization to land his helicopter in the Sawtooth National Forest for only two or three times a month during the daylight hours. In a letter dated March 27, 1995, District Ranger Alan Pinkerton denied plaintiff's application for special use authorization to land his helicopter in the Sawtooth National Forest. Plaintiff subsequently commenced this action.

 III. STANDARD OF REVIEW

 Pursuant to section 706(2)(A) of the APA, this Court is authorized to review an agency decision of the United States Forest Service ("Forest Service"). See 5 U.S.C. § 706(2)(A). In doing so, the Court should afford "considerable weight" to the Forest Service's findings and its construction of the "statutory scheme it is entrusted to administer." See Chevron U.S.A., Inc. v. National Resources Defense Council, 467 U.S. 837, 844-45, 81 L. Ed. 2d 694, 104 S. Ct. 2778 (1984). Thus, the Court will set aside an agency determination only if it is arbitrary, capricious, an abuse of discretion, or ...


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