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Yerger v. Robertson

ELR Citation: 23 ELR 20584
Nos. No. 91-16361, 981 F.2d 460/(9th Cir., 12/15/1992)

The court affirms a district court's decision upholding the U.S. Forest Service's (Service's) decision not to renew a use permit that authorized an individual to operate a resort and food concession in the Prescott National Forest in Arizona. The Service issued an order granting the individual one year to remove structures at the resort and restore the site, subject to compliance with the National Historic Preservation Act (NHPA). The court holds that the Service's decision to terminate the individual's lease was not arbitrary and capricious. In two studies submitted to the Regional Forester, the Forest Supervisor cited ample and reliable data to support the decision. The court holds that even though the Service's findings were not based on statistics reflecting actual use of the resort, the Service acted reasonably in basing its decision on the available evidence, since the lack of more complete evidence is the plaintiff's fault. The court holds that the Service's decision was not arbitrary and capricious even if it used unreliable data to compare the occupancy rate of the plaintiff's resort with that of other resorts. The court also holds that campground-use comparisons and the statistics on local traffic patterns constitute sufficient support, particularly in the light of the resort's minimal revenues, for finding that public demand for the resort is low and that other facilities in the area can satisfy the public's need for the services that the resort provides. Although the resort may be turned into a profitable commercial enterprise, profitability is not the decisive factor in the Service's decision. Additionally, the court holds that the Service's decision was not made in bad faith, because its decision is supported by a satisfactory explanation and appears to have been made in consideration of all relevant facts, and the Service's officials at the regional and national levels reviewed and affirmed the local Forest Supervisor's decision.

The court next holds that the Service's decision is not arbitrary and capricious even though it was issued before the Service completed the consultation procedures required by the NHPA. Courts that have addressed the issue have held that the assumption of title or control over an eligible site is not a "federal undertaking" for purposes of the NHPA, because the mere exercise of ownership rights does not affect the historic character of the site, even when the assumption of control is clearly preparatory to action that will affect the site's historical aspects. Further, the Forest Supervisor's order provided that the buildings at the site should not be removed until the consultation process was complete.

Finally, the court holds that the Service should not be equitably estopped from declining to renew the plaintiff's use permit, because the plaintiff has failed to allege that the Service employees' assurances that the permit would be renewed were affirmative acts going beyond mere negligence. Also, he has not attempted to prove that in the absence of estoppel a serious injustice would result, or that the public would not be unduly burdened if the Service was estopped.

Counsel for Plaintiff-Appellant
Gary Verburg
Margrave, Celmins & Verburg
7201 E. Camelback Rd., Ste. 330, Scottsdale AZ 85251
(602) 994-2000

Counsel for Defendants-Appellees
James C. Hair Jr., Ass't U.S. Attorney
U.S. Attorney's Office
4000 U.S. CrtHse., 230 N. First St., Phoenix AZ 85025
(602) 514-7500