Ark Initiative v. Thomas Tidwell
816 F.3d 119
D.C. Cir.2016Background
- The Forest Service adopted a Colorado-specific roadless rule in 2012 that removed ~8,300 acres from Colorado’s inventoried roadless areas where those acres overlapped with designated ski-area permit boundaries or forest-plan ski allocations.
- The practical effect of the exclusion is to allow future ski-area developments on those acres (still subject to site-specific NEPA review), while the 2012 rule otherwise adds acreage and creates more protective “upper-tier” designations to offset limited exceptions.
- Aspen Skiing Company sought to build a ~3,000-foot egress ski trail across once-inventoried roadless land at Snowmass (Burnt Mountain); the Service completed a new EA after the 2012 rule and approved the project.
- Ark Initiative, Rocky Mountain Wild, and two individuals sued, arguing (1) the Service acted arbitrarily and capriciously by excluding ski-area lands without applying on-the-ground inventory criteria (relying on the agency Handbook), and (2) the Service failed to provide individualized NEPA/rulemaking notice.
- The District Court granted summary judgment to the Service and Aspen Skiing Company; the D.C. Circuit affirmed, holding the Service supplied adequate reasons for the ski-area exclusion and complied with NEPA notice rules.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| APA arbitrary-and-capricious challenge to ski-area exclusion in 2012 Colorado Rule | Ark: exclusion deviated from prior roadless policy and Handbook inventory criteria; agency failed to consider on-the-ground, undeveloped conditions | Service: lawful policy change based on Colorado’s request, management-conflict avoidance, limited acreage affected, and offsetting protections in the rule | Court: Held exclusion lawful; agency provided adequate reasons and did not make new contradictory factual findings requiring heightened justification |
| Whether Handbook inventory criteria (Chapter 70) bind roadless-management decisions | Ark: Handbook’s objective inventory rules require keeping such lands in the roadless inventory | Service: Handbook governs wilderness inventory procedure, not ongoing roadless management; Handbook disclaims equivalence with roadless criteria | Court: Held Handbook does not control this management decision; Ark’s reliance on it fails |
| Arbitrary disparate-treatment claim (ski-area vs oil-and-gas exclusions) | Ark: Service unjustifiably favored ski industry while denying oil-and-gas exclusions | Service: ski exclusion was minimal (~8,300 acres) and offset; oil-and-gas exclusion would have been far larger and more impactful | Court: Held distinction rational and not arbitrary |
| NEPA/rulemaking notice requirements — individualized notice | Ark: entitled to individualized notice due to prior administrative victory and interest in Burnt Mountain | Service: extensive public outreach and regulation only requires mailing to requesters or national orgs for general notice; individualized notice not mandated here | Court: Held Service’s broad outreach satisfied NEPA scoping/notice; individualized notice not required |
Key Cases Cited
- Wyoming v. U.S. Dep’t of Agric., 661 F.3d 1209 (10th Cir. 2011) (discusses Forest Service roadless inventory and management authorities)
- Montanans for Multiple Use v. Barbouletos, 568 F.3d 225 (D.C. Cir. 2009) (multiple-use mandates and Forest Service discretion)
- Cal. ex rel. Lockyer v. U.S. Dep’t of Agric., 575 F.3d 999 (9th Cir. 2009) (invalidated State Petitions Rule and reinstated 2001 Roadless Rule)
- Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29 (1983) (standard for arbitrary-and-capricious review)
- FCC v. Fox Television Stations, 556 U.S. 502 (2009) (standard for reviewing agency changes in policy)
- Organized Village of Kake v. U.S. Dep’t of Agric., 795 F.3d 956 (9th Cir. 2015) (discussed regarding when policy changes require heightened justification)