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Everett v. United States

ELR Citation: 29 ELR 20278
Nos. 97-5282, 158 F.3d 1364/(D.C. Cir., 10/30/1998)

The court upholds the U.S. Forest Service's denial of a special use permit to land a private helicopter on a parcel of the Sawtooth National Forest that abuts the permit applicant's vacation property in rural Idaho. The court first holds that the Forest Service reasonably interpreted 36 C.F.R. §251.50(a) and (c) to require a special use permit to land a helicopter on National Forest System (NFS) land. In the Forest Service's view, the listed exemptions in 36 C.F.R. §251.50(c) for noncommercial recreational activities do not encompass helicopter use. Section 251.50(c) can easily be read to create only a limited exemption for noncommercial activities of a similar character to those activities specifically listed. It was clearly reasonable for the Forest Service to draw a distinction between helicopter use and the various recreational uses—camping, fishing, and the like—ordinarily contemplated on NFS land. The court next notes that even assuming the existence of a 36 C.F.R. §251.50(a) blanket exemption for noncommercial recreational activities, the applicant's proposed use of NFS land does not fall within the exemption. The proposed helicopter landings would not be recreational uses of NFS land; rather, the landings would be for the sole purpose of facilitating the applicant's transportation to his private home off of NFS land. Although certain regulations provide that landowners shall be authorized access adequate for reasonable use and enjoyment of their land, where there is existing access or an adequate right-of-access, there is no obligation to grant additional access through NFS lands. The applicant can land his helicopter at a local airport and can also reach his property via public roads. Thus, the Forest Service resolution of the situation was perfectly consistent with the general regulatory scheme covering uses of NFS land.

The court next holds that the Forest Service did not need to hold notice-and-comment rulemaking to expressly designate helicopter landing a special use. The applicant's proposed helicopter use is already regulated under a reasonable interpretation of existing rules, and the Forest Service need not promulgate a new regulation to cover the activity. The court then holds that the Forest Service did not have a consistent and long-standing practice of allowing aircraft use of the Sawtooth National Forest. The court further finds that the applicant's reliance on a 1994 Forest Service order, which prohibited aircraft from landing on the Sawtooth National Forest, is misguided because it had been rescinded and was not the agency's final disposition of the applicant's claim. The court also holds that the Forest Service did not arbitrarily and capriciously deny the applicant's request for a special use permit. Contrary to the applicant's assertions, the Forest Service properly considered criteria in both the regulations and the Forest Service Manual when it denied the applicant's request.

Counsel for Appellant
Roger J. Marzulla
Akin, Gump, Strauss, Hauer & Feld
1333 New Hampshire Ave. NW, Washington DC 20036
(202) 887-4000

Counsel for Appellees
Rudolph Contreras, Ass't U.S. Attorney
U.S. Attorney's Office
5806 Judiciary Center Bldg.
555 4th St. NW, Washington DC 20001
(202) 514-7566

Before Wald and Sentelle, JJ.