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

ELR Citation: 26 ELR 20095
Nos. No. 89 N 1098, 880 F. Supp. 1370/(D. Colo., 03/31/1995)

The court holds that the U.S. Forest Service complied with the Federal Land Policy and Management Act (FLPMA) and the National Environmental Policy Act (NEPA) in exchanging Forest Service land in Vail, Colorado, for private land in the Eagles Nest Wilderness Area. The court first holds that it will treat the motions for partial summary judgment made by Vail and the owners of land neighboring the Vail parcel as requests to set aside the agency action, and conversely, that it will treat the Forest Service's and developer's motions as requests not to set aside the agency action. A motion for summary judgment, especially a motion for partial summary judgment, makes no procedural sense when a district court is asked to undertake judicial review of administrative action. The issue is not whether the material facts are disputed, but whether the agency properly dealt with the facts. Reviewing the land exchange under the arbitrary and capricious standard, the court next turns to plaintiffs' argument that the land exchange is not in the public interest, as FLPMA §206 requires. The court holds that plaintiffs may raise this issue now, because they sufficiently raised this issue during the administrative proceedings. While plaintiffs' materials did not use the verbal talisman, "public interest," they address or reflect some of the matters that §206(a) expressly requires the agency to consider in deciding whether an exchange is in the public interest. The court next holds that the determination of whether the exchange is in the public interest is subject to judicial review, because FLPMA expressly provides for judicial review of public land adjudication decisions. The court holds that the agency properly considered better federal land management, a factor enumerated in §206(a), and that the record discloses that this consideration weighed heavily in the agency decision. The court holds that the Forest Service also weighed other §206(a) factors, including recreational and wildlife concerns. The court holds that the record, when viewed as a whole, abundantly supports the agency's conclusion that this land exchange is in the public interest; that the agency adequately considered the public interest criteria; and that its decision that the land exchange was in the public interest was not arbitrary, capricious, or an abuse of discretion. Further, the court holds that the contradiction between a suggestion in the environmental assessment (EA) that development of a hotel site was a potential benefit and the assumption in an appraisal that the Vail parcel's most likely use would be low-density residential development is not fatal in view of the agency's clear awareness that hotel use depended on the agreement of apparently hostile town officials and the qualified prediction that development of the site as a hotel was only a potential benefit. The Forest Service did not fail or refuse to consider the needs of local people or local economic impact. Even if the agency's assumption concerning the use of the relinquished land were erroneous, there is no significant chance that but for the errors the agency might have reached a different result.

The court next holds that plaintiffs lack standing to argue that the agency's determination that the Vail parcel and the wilderness parcel plus $145,000 cash were of equal value. The court holds, however, that the appraisal process was not arbitrary, capricious, or an abuse of discretion. The record clearly shows that the Forest Service considered its own appraisal guidelines and §206(b). Plaintiffs have failed to demonstrate that the agency made a clear mistake in judgment in handling the appraisal process, and their challenge to the appraisal supplies no reason to set aside agency action. The court further holds that the Forest Service was not required to reappraise the wilderness parcel when it performed a second appraisal of the Vail parcel. The agency guidelines state that an appraised value is only valid for one year unless fixed by an exchange agreement, and here, the exchange agreement fixed the value of the wilderness parcel. That the Vail parcel had to be reappraised did not require reappraisal of the wilderness parcel. The court next holds that the Forest Service took the requisite "hard look" at the exchange under NEPA, and that the exchange was not arbitrary, capricious, or an abuse of discretion. The EA discussed the anticipated uses, their environmental consequences, cumulative effects of the land exchange, and mitigation of problems associated with it. The court notes that an EA need only briefly provide evidence and analysis sufficient to determine whether an environmental impact statement is necessary, and holds that the EA fulfills these requirements. The court holds that the Forest Service had an affirmative duty to consider the plans of the developer before the exchange. Although the EA found no significant impact from future use of the land as a hotel, the agency was not required to supplement the EA by including another section that analyzed use of the property for construction of two residences. It is extremely unlikely that this less intensive use would cause greater impact or raise separate, new environmental issues. Further, any future use of the land is heavily dependent on local zoning and land use decisions. The court holds that the EA's conclusion that any environmental impact of the proposed use could be adequately addressed through local land use decisions was not a mistake. Also, the EA's failure to evaluate the impact of relocating an existing roadway easement does not render the finding of no significant impact arbitrary and capricious. Relocation of the road is speculative, and the agency's reconsideration of the relocation issue would be highly unlikely to result in a finding of significant impact and thereby necessitate preparation of an environmental impact assessment.

Turning to plaintiffs' final claims, the court holds that the Forest Service did not deny plaintiffs their right of administrative review even though, in order to expedite the land exchange, it certified that the land exchange met the requirements of law before the Associate Deputy Chief and Assistant Secretary of Agriculture had ruled on plaintiffs' appeal. The administrative review continued, and the patent was not delivered and the escrow was not closed until after the agency's decision had become final. The actions relating to the escrow and the issuance of the patent were distinct from the continuing administrative review. The court next holds that the federal and private defendants did not violate a stay providing that the deeds would not be exchanged until the agency had ruled on the merits of the appeals. The stay was in effect until days after the agency's final determination, and it was on that day that the exchange was closed and the documents recorded. The court further holds that the issuance of the land patent did not violate 43 U.S.C. §1718, which discusses the issuance of patents by the Secretary of the Interior. The patent was not issued until after the Assistant Secretary of Agriculture had declined to review the decision. The court also holds that Vail's special use permit for a bike path was not unlawfully terminated. The patent did not terminate the permit until six months after the title company delivered the document requesting Vail to surrender its interests; thus, Vail had notice and ample opportunity to contest the proposed termination of its rights. The court next holds that these final claims are ancillary to their primary claims. The court upholds the agency's decision to proceed with the land exchange and its subsidiary determinations that the exchange is in the public interest, that land values have been equalized, and that the exchange has no significant environmental impact. The court holds that the determination that the land exchange decision was proper effectively moots these final arguments. Finally, the court holds moot the developer's argument that the court cannot divest it of the land patent that it has already received.

Counsel for Plaintiffs
Charles White
Brownstein, Hyatt, Farber & Strickland
410 17th St., 22d Fl., Denver CO 80202
(303) 534-6335

Counsel for Defendants
Pauline Milius
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000