The Save The Peaks Coalition v. U.S. Forest Service

 Feb 9: In the U.S. Court of Appeals, Ninth Circuit, Case No. 10-17896. On Appeal from the United States District Court for the District of Arizona. The Appeals Court does not hold back in expressing its displeasure with this case and its attorney and plaintiffs.

 

    The Appeals Court said, "This case represents a gross abuse of the judicial process. Just when Defendants-Appellees United States Forest Service and Joseph P. Stringer (USFS), and Intervenor-Defendant Arizona Snowbowl Resort Limited Partnership (ASRLP) had successfully defended an agency decision to allow snowmaking at a ski resort on Federal land all the way to the United States Supreme Court, 'new' plaintiffs appeared. Represented by the same attorney as the losing parties in the first lawsuit, the 'new' plaintiffs -- who had closely monitored and, in some cases, actively encouraged and helped finance the first litigation --brought certain environmental claims that were virtually identical to some that the attorney had improperly attempted to raise in the earlier lawsuit, for no apparent reason other than to ensure further delay and forestall development.

 

    "Years had passed since the original proposal had been made. According to the record, ASRLP, which operated the ski resort, faced a looming prospect of financial ruin without the ability to proceed with the plan to produce snow. Neither fact deterred the 'new' plaintiffs' lawsuit. Nor did the meritless nature of their claims under the National Environmental Policy Act (NEPA), 42 U.S.C. §§ 4321 et seq., and the Administrative Procedure Act (APA), 5 U.S.C. §§ 701-706.

 

    "Although it is apparent to us that the 'new' plaintiffs and their counsel have grossly abused the judicial process by strategically holding back claims that could have, and should have, been asserted in the first lawsuit (and would have been decided earlier but for counsel's procedural errors in raising those claims), we are compelled to hold that laches [an equitable defense that limits the time in which a party may bring suit] does not apply here because the USFS and ASRLP cannot demonstrate that they suffered prejudice, as defined by our case law. . . Nevertheless, we hold that the Save the Peaks Plaintiffs' claims fail under NEPA and the APA. Accordingly, we hold that the district court properly granted summary judgment to the USFS and ASRLP, and we affirm."

 

    Access complete opinion (click here). [#Land, #CA9]

 

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Adams v. U.S. Forest Service

Feb 9: In the U.S. Court of Appeals, Ninth Circuit, Case No. 10-16711. On Appeal from the United States District Court for the District of Arizona. The Federal Lands Recreation Enhancement Act (REA) prohibits the United States Forest Service from charging fees '[s]olely for parking, undesignated parking, or picnicking along roads or trailsides,' for 'hiking through . . . without using the facilities and services,' and '[f]or camping at undeveloped sites . . . .' 16 U.S.C. § 6802(d)(1)(A), (D) & (E). Despite these clear prohibitions, the Forest Service collects fees from all drivers who park their vehicles in a mile-wide piece of the Coronado National Forest running along the 28–mile Catalina Highway, the only paved road to the summit of Mount Lemmon, a heavily used recreational area an hour's drive from downtown Tucson, Arizona.

 

    Four recreational visitors sued, seeking a declaration that the Forest Service was exceeding the scope of its authority under the REA by charging fees to those who drive to Mount Lemmon, park their cars, then picnic, hike, or camp in nearby undeveloped areas. Plaintiffs also sought to enjoin the Forest Service from collecting such fees. The district court granted defendants' Rule 12(b)(6) motion to dismiss. Plaintiffs appealed. The Appeals Court ruled, "Because plaintiffs are correct that the Forest Service's fee structure contravenes the plain language of the REA, we reverse the district court's dismissal of Count I and remand to allow plaintiffs to pursue that claim."

 

    The Appeals Court said further, "In sum, the statutory language is clear. The Forest Service's interpretation is thus entitled to no deference. Chevron, 467 U.S. at 842-43. As alleged by plaintiffs, the Forest Service's fee structure at the Mount Lemmon HIRA [High Impact Recreation Area] does not comport with the REA's express prohibition on charging fees for parking and then hiking through the HIRA without using the facilities and services, camping in undeveloped areas, or picnicking on roads or trailsides. The district court thus erred in dismissing plaintiffs' claim. . .the REA unambiguously prohibits the Forest Service from charging

fees in the Mount Lemmon HIRA for recreational visitors who park a car, then camp at undeveloped sites, picnic along roads or trailsides, or hike through the area without using the facilities and services. We therefore reverse the district court's grant of defendants' motion to dismiss Count I and remand to the district court for further proceedings consistent with this opinion."

 

    Access complete opinion (click here). [#Land, #CA9]

 

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