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High Country Citizens Alliance v. U.S. Forest Serv.

Citation: 30 ELR 20320
No. No. 97-1373, 202 F.3d 835/(10th Cir., 02/07/2000)

The court affirms the U.S. Forest Service's approval of a special use permit that allows landowners with property surrounded by the Gunnison National Forest in Colorado to snowplow two miles of Forest Service road so that they can reach their residence by automobile in winter. The court first holds that the Forest Service did not act arbitrarily in granting the permit. The Forest Service properly took into account a county resolution stating that the residence at issue was not intended for year-round occupation. While "not intended for year-round occupation" generally means "not intended for wintertime residence," it is not clear from the resolution how much wintertime use is prohibited. Thus, if the landowners use the residence for one day in the winter, or one week, or two months out of three, the resolution does not specify which of these uses, if any, would be prohibited. Further, the environmental group challenging the special use permit has itself suggested that the resolution is unclear. Moreover, the resolution may be reasonably read to allow some use of the property in the wintertime. Thus, it was reasonable for the Forest Service to interpret the resolution to allow the landowners to use their residence during winter. In addition, the Forest Service did not err in failing to consider contemporaneous uses of similarly situated lands in the area of the residence. Although the Forest Service did not consider lands by which access was allowed by over-the-snow methods, the Forest Service has considerable discretion in determining the particular properties that should be taken into account in deciding whether to issue special use permits. Similarly, the Forest Service did not err in failing to consider the public interest regarding the snowplowing of the road. The Forest Service considered comments submitted by citizens regarding the adverse impacts of snowplowing on various winter activities and the environment and found that they could be controlled by mitigating measures.

The court next holds that the Forest Service did not commit reversible error when it found that the snowplowing fell within a categorical exclusion to the National Environmental Policy Act's (NEPA's) environmental assessment requirements. The Forest Service handbook excludes repair and maintenance of roads from NEPA's requirements. The presence of steep slopes on the road did not constitute extraordinary circumstances that nullified the exclusion.

Counsel for Plaintiff
John A. Banker
Law Offices of John A. Banker
1100 E. Deuce of Clubs, Show Low AZ 85901
(520) 537-4483

Counsel for Defendant
Henry Solano
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Before Tacha and McWilliams, JJ.