United States District Court, E.D. Oklahoma
HONORABLE RONALD A. WHITE UNITED STATES DISTRICT JUDGE.
filed his Amended Complaint on April 1, 2016 for injunctive
and other appropriate relief under the Administrative
Procedures Act, 5 U.S.C. §§701, et seq.
(herein the "APA"). The subject of this appeal
under the APA is a Decision Notice issued by the Regional
Forester on September 26, 2013 (herein the "Final
Decision"). Before the court are the briefs filed by the
parties [Docket Nos. 45, 46 and 47]. Plaintiff argues that
the Final Decision is arbitrary, capricious, and not
supported by substantial evidence. He requests that the court
reverse and remand this action with instructions to the
Forest Service to grant his requested special use permit to
construct a road to his property. Defendants argue that the
court should deny Plaintiffs request, maintaining that the
Forest Service complied with its required procedures for
making a determination on a special use permit and that the
Final Decision is supported by substantial evidence and is
not arbitrary or capricious.
owns a 160-acre tract of land located approximately one-half
mile south of the Talimena Scenic Drive and three miles east
of Highway 259 in southern LeFlore County. Plaintiffs
property is completely surrounded by the Upper Kiamichi
Wilderness. Plaintiff desires to build a residence on the
tract, but there is no existing road access to the property.
The only current access to the property is via remnants of an
old foot trail or cross country.
February 28, 2007, Plaintiff submitted his formal application
for a special use permit to construct a gravel road for
motorized access to his property. AR at 191. Plaintiffs
proposed road would be approximately 5, 300 feet long with a
10-12 foot running surface. AR at 12. The total area of soil
directly affected by the road construction would be
approximately 5 acres. Id. Specifically, 5 acres of
soils would no longer be suitable for vegetative production.
AR at 36. The average clearing limits would be 40 feet, but
due to steep terrain and slopes exceeding 20 percent, the
clearing width would extend up to 100 feet. AR at 12-13.
of the road would require the use of heavy equipment,
including one or more bulldozers, dump trucks, and either a
'hammer-hoe' ... or explosives to dislodge areas of
solid sandstone ledge and bedrocks along the proposed
route." AR at 19. Building the road would result in an
estimated 41.54 tons of sediment the first year. AR at 36.
Plaintiffs proposed action would result in a 178% increase
over the annual sediment delivered in an undisturbed
watershed condition. AR at 37.
November 9, 2008, while his application was pending,
Plaintiff attempted to access his property by hiking through
a trail. AR at 51, 478. He fell in a dangerous section of the
trail, breaking his leg and tearing several ligaments in his
ankle. id. He crawled back to his vehicle and drove
to a nearby hospital for treatment. Id.
29, 2012, the Regional Forester issued a "Decision
Notice and Finding of No Significant Impact" (herein
"First Decision"). AR at 1229-35. Relying on an
Environmental Assessment and a Biological Evaluation, the
First Decision selected a "no action alternative"
and denied Plaintiffs request to construct, maintain and use
a permanent road. AR at 1230. Plaintiff was notified of the
First Decision by letter dated July 19, 2012. AR at 1241.
Plaintiff appealed, and in November of 2012, the Forest
Service withdrew the First Decision. AR at 7.
August 2013, the Forest Service issued an amended
Environmental Assessment, adding a non-motorized alternative
to be considered for access to Plaintiffs property
-"Alternative C." AR at 9-49. On September 26,
2013, the Regional Forester issued the Final Decision. AR at
76-83. Again, relying on the amended Environmental Assessment
and the Biological Evaluation, the Regional Forester selected
the "no action alternative, " denying Plaintiffs
request to construct, maintain and use a permanent road. AR
January 24, 2014, Plaintiff appealed the Final Decision to
the Chief of the Forest Service. AR 108-120. On March 10,
2014, the Appeal Deciding Officer affirmed the Final
Decision, exhausting Plaintiffs administrative remedies. AR
at 137. On March 30, 2016, Plaintiff filed this action
pursuant to the APA, challenging the Final Decision.
to Private Property within the Wilderness
Upper Kiamichi Wilderness was established in 1988 and is
located within the Ouachita National Forest. The Upper
Kiamichi Wilderness is classified as:
Semi-Primitive Non-Motorized (SPNM): Area characterized by a
predominantly natural or natural appearing environment of 2,
500 or more acres. Interaction between users is low, but
there is often evidence of other users. The area is managed
in such a way that minimum on-site controls and restrictions
may be present but are subtle. Motorized use is not
permitted. There is a moderately high probability of
experiencing isolation from the sights and sounds of humans,
independence, closeness to nature, tranquility, and
self-reliance through the application of woodsman and outdoor
skills in an environment that offers challenge and risks.
AR at 29. Hikers are the largest user group. Id.
Hunters also use the wilderness during the fall deer season
and the spring turkey season. Id.
Upper Kiamichi Wilderness and is managed by the Forest
Service pursuant to the Wilderness Act of 1964, 16 U.S.C.
§1311, et seq. (herein "Wilderness
Act"). In managing the Upper Kiamichi Wilderness, the
Forest Service must also comply with the Alaska National
Interest Lands Conservation Act, 16 U.S.C. § 3101-3233
Wilderness Act requires that
In any case where ... privately owned land is completely
surrounded by national forest lands within areas designated
by this chapter as wilderness, such .. . private owner shall
be given such rights as may be necessary to assure
adequate access to such . . .
privately owned land . . . or the ... privately owned land
shall be exchanged for federally owned land in the same State
of approximately equal value ....
16 U.S.C. § 1134(a) (emphasis added). Furthermore, the
Forest Service must "permit ingress and egress to such
surrounded areas by means which have been or are being
customarily enjoyed with respect to other such areas
similarly situated.'" 16
U.S.C. § 1134(b) (emphasis added).
requires with regard to the reasonable
use and enjoyment of land within the boundaries
of the National Forest System:
Notwithstanding any other provision of law, and subject to
such terms and conditions as the Secretary of Agriculture may
prescribe, the Secretary shall provide such access
to nonfederally owned land within the boundaries of the
National Forest System as the Secretary deems
adequate to secure the owner the reasonable
use and enjoyment thereof: Provided,
That such owner comply with rules and regulation applicable
to ingress and egress to or from the National Forest System.
16 U.S.C. § 3210(a) (emphasis added).
regulations define "access" as "the ability of
landowners to have ingress and egress to their lands. It does
not include rights-of-ways for power lines or other
utilities." 36 C.F.R. § 251.111.
"Adequate access" is
defined as "a route and method of access to non-Federal
land that provides for reasonable use and enjoyment of the
non-Federal land consistent with
situated non-Federal land and that
minimizes damage or disturbance to National Forest System
lands and resources." Id. (emphasis added).
In issuing a special use-authorization for access to
non-Federal lands, the authorized officer shall authorize
only those access facilities or modes of access that are
needed for the reasonable use and enjoyment of the land that
minimize the impacts on the Federal resources. The
authorizing officer shall determine what constitutes
reasonable use and enjoyment of the lands based on
contemporaneous uses made of similarly
situated lands in the area and any other
36 C.F.R. § 251.114(a) (emphasis added).
the applicable law and regulations cited above, for purposes
of Plaintiff's application, the Environmental Assessment
(herein "EA") defined "similarly
situated''' as "private
inholdings within the wilderness on the Ouachita National
Forest." AR at 25. The EA defined "similar
purposes" as "residential use." Id.
The EA noted that: "No permits have been
granted to construct a road within any wilderness inside the
Ouachita National Forest." AR at 26
(emphasis added). One special use permit, the "Morrison
permit, " allows the land owner to maintain a
low-development road, but that permit existed prior to the
wilderness establishment and "is the sole permit in
place affecting wildernesses of the Ouachita National
Forest." Id. "A review of National Forests
included in the National Wilderness Preservation System found
that motorized vehicles were only allowed on roads that
existed prior to the area's wilderness designation."
Id. The EA determined that granting Plaintiffs