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Breaker v. United States

United States District Court, D. Minnesota

September 30, 2013

Martin Breaker, Heidi Breaker, and Marty Breaker Enterprises, Inc., Plaintiffs,
United States of America; Tom Vilsack, in his official capacity as Secretary of Agriculture of the United States Agriculture Department; Thomas Tidwell, Chief of the Forest Service of the United States Department of Agriculture; James W. Sanders, Forest Supervisor; and Nancy Larson, District Ranger, Defendants

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James A. Yarosh, Jennifer Kolias, and Mark H. Thieroff, Siegel Brill P.A., Minneapolis, MN, for Plaintiffs.

David W. Fuller and Bahram Samie, United States Attorney's Office, Minneapolis, MN, for Defendants.

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SUSAN RICHARD NELSON, United States District Court Judge.


This matter is before the Court on the parties' cross motions for summary judgment and Defendants' motion to dismiss. (Pl.'s Mot. for Summ. J. [Doc. No. 34]; Def.'s Mot. to Dismiss or for Summ. J. [Doc. No. 44].) Both parties ask the Court to grant judgment as a matter of law upon a review of an administrative decision by the United States Forest Service. Defendants also seek dismissal based on lack of jurisdiction. For the following reasons, the Court finds that the Forest Service's decision was arbitrary and capricious, remands the case to the Forest Service for further consideration, denies Plaintiffs' request for declaratory and injunctive relief, and denies Defendants' motion to dismiss.


A. The Property

1. General Background

Plaintiffs Martin and Heidi Breaker own an eighty-acre parcel of undeveloped land (" the Property" ), located approximately twenty-five miles northwest of Ely, Minnesota. (AR 42-43; SAR 2378.) Situated between the Moose River on the west and the Portage River on the east, the Property lies entirely within the Boundary Waters Canoe Area Wilderness (" BWCAW" ), which is part of the Superior National Forest. [1] (AR 221.) The Portage River crosses a portion of the Property at the northeast corner. (Id.)

The Property has been owned privately since 1908, when the United States General Land Office patented it to an individual named W. Alfred Kiley. (AR 206.) The parcel was ultimately obtained by John Salvi in 1949, (AR 55-58), and passed to his successor Charles Salvi sometime between 2001 and 2003. (SAR 2009-10.) The record does not show that the Property was ever developed by anyone, or that any motorized vehicle has been there.

2. Sale of the Property to Plaintiffs

Around 2000, the Salvi family wrote a representative of the Superior National Forest, offering the Property for sale. (AR 228-29.) The Forest Service conducted an appraisal and made an offer for the Property. (AR 211.) The Salvis rejected this offer, instead selling the Property to Marty Breaker Enterprises, Inc., a company created for commercial and investment purposes. (AR 215; SAR 138, 141-43.) Mr. Breaker " made it very clear" to the realtors that he wanted the Property for use in a land exchange with the Forest Service. (SAR 742-43.) Mr. Breaker's other potential use for the Property was to build a private home. (SAR 160-61, 172.) Neither Mr. Breaker nor any representative of Marty Breaker Enterprises, Inc. visited the Property before the purchase. (SAR 188, 745.) On August 13, 2009, Marty Breaker Enterprises, Inc. conveyed the

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Property to Martin and Heidi Breaker. (SAR 2023.)

3. Access to the Property

No road provides ingress or egress to the Property. (AR 43.) The closest public road, Forest Service Road 206A (" FR 206A" ), is between 1.25 to 1.50 miles from the Property. (SAR 587-88.) An old road connects to FR 206A and runs northeasterly into the BWCAW toward the Property. (SAR 560-61, 1176.) This road is a narrow, faint trail that is overgrown with trees and brush. (AR 3; SAR 1176, 1821-26.) It continues for approximately one mile, reaching county-owned property that lies adjacent to the west side of the Breakers' property. (SAR 587, 1176.) At that point, the road ends and one must walk through the forest approximately a quarter to a half mile to reach the Property. (SAR 587-88, 1176.)

The Portage River crosses into the northeast corner of the Property. (AR 221; SAR 1176.) Shallow and rocky, the Portage River is not navigable for most of the year. (AR 214.) Employees of the Forest Service with knowledge of the Property have confirmed the difficulty of reaching the Property via the Portage River. (AR 212.) Mr. MacMillan, the lessee of the county property, described the Portage River as a " very bad route" to the Property. (SAR 833.) He does not know anyone who uses that river. (Id.)

B. Plaintiffs' Request for Access to the Property and the Forest Service's Subsequent Investigation

When he purchased the Property, Mr. Breaker believed that the old logging road continued all the way to the Property rather than ending on the county land. (SAR 229, 744, 774.) Around June 2005, Mr. Breaker contacted Nancy Larson, [2] then District Ranger for the LaCroix Ranger District, to request a special use permit application for motorized access to the parcel by reopening the old road. (AR 4; SAR 2386.) Mr. Breaker did not mention any intent to build a home on the Property. (AR 7-8, 11-12; SAR 2386-87.)

From June to July of 2005, District Ranger Larson evaluated Mr. Breaker's request. The Forest Service's investigation consisted in part of District Ranger Larson's conversations with employees at the Superior National Forest headquarters, who had been employed at the Forest Service for many years. (SAR 2387, 2393-94.) One employee was Barb Soderberg, Wilderness Program Manager, who had responded to prior requests for access from other landowners whose property was similarly surrounded on all four sides by wilderness. (SAR 2393.) Ms. Soderberg indicated that she was not aware of any situations, either in the Superior National Forest or elsewhere, in which the Forest Service had granted motorized access through federally designated wilderness where such access did not exist before the wilderness designation. (Id.) Another employee was Diana Solund, Superior National Forest's Land Program Manager, who mentioned that Mr. MacMillan had leased a hunting cabin for years on the county-owned land adjacent to the Property. District Ranger Larson

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learned from Ms. Solund that in 1982, a prior District Ranger had asked Mr. MacMillan to stop accessing his cabin with a motor vehicle in light of the 1978 BWCAW Act. (SAR 2394; AR 33-39.)

In addition, District Ranger Larson asked Tim Engrav, Natural Resource Recreation Manager of the LaCroix Ranger District, to gather information about the nature of access to the Property. (SAR 558, 2387.) Mr. Engrav and a fellow Ranger District employee, Mark Toot, flew over the area to examine access points for river and walking access to the Property. (SAR 558-59.) Mr. Engrav memorialized his observations in a field report dated July 13, 2005. (AR 3.) The report noted seven to eight sets of rapids to the Breaker property, the challenge of portaging or pulling over the rapids, and the absence of maintained portages around the rapids. (Id.) To access the Property by walking, Mr. Engrav reported the existence of FR 206A and that it " dead ends at a berm/closure and turnaround area." (Id.) Evidence of the road, according to Mr. Engrav's report, was faint. (Id.) Based on reports from other Forest Service staff, Mr. Engrav noted that the road went as far as the county property that lay west of the Property. (Id.) From the air, Mr. Engrav observed a faint line of the road for a short distance north of the turnaround. (Id.)

At District Ranger Larson's request, Mr. Engrav researched access to private inholdings in the wilderness. (SAR 2392-93.) Based on a search of the website, Mr. Engrav found an article on wilderness inholdings. (AR 190-95; SAR 561-62, 2392-94.) Mr. Engrav also retrieved summaries of court decisions showing that motorized access had not been granted where it did not exist before its wilderness designation. (AR 181-89, 196-98; SAR 561-62.) Mr. Engrav provided his research findings to District Ranger Larson, but he did not give her a summary, conclusion, or recommendation as to how she should proceed with Mr. Breaker's request. (SAR 562-63.)

As part of the investigation, the Forest Service did not:

o Walk to the Property or the old road toward the Property;
o Canoe the Portage River from the Echo Trail to the Property;
o Investigate the use or access of the other privately owned properties within the BWCAW;
o Create a list of the privately owned properties within the BWCAW;
o Ask Mr. Breaker his intended use of the Property;
o Review the Saint Louis County zoning code to see the legal uses of the Property; or
o Determine what would constitute reasonable use and enjoyment of the Property.

(SAR 2385-94.)

C. District Ranger Larson's Response to Plaintiffs' Request

In responding to Mr. Breaker's request for a special use permit, District Ranger Larson was required by law to consider, at a minimum, certain pre-application, initial screening criteria. See 36 C.F.R. § 251.54. These nine criteria include: (1) whether the proposed use was " consistent with the laws, regulations, orders, and policies establishing or governing" this part of the BWCAW, and (2) whether the proposed use was " consistent or can be made consistent with standards and guidelines in the applicable [Forest Plan]." [3] Id.

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§ 251.54(e)(1)(i-ii). Only a special use request that met all nine of the initial criteria could proceed to a second-level screening. Id. § 251.54(e)(5.) If the second-level criteria were met, there was then a separate test to determine adequate access on the merits. Id. § 251.54(g). If District Ranger Larson determined that the proposal failed any one of the nine initial criteria, she was to reject and not consider it further. Id. § 251.54(e)(2). District Ranger Larson did not make a reasonable use determination of the Property or balance the competing interests of private landowner rights and wilderness preservation. The parties dispute whether District Ranger was required to do so at the initial stage.

After the investigation, District Ranger Larson concluded that allowing Mr. Breaker to construct a road for motorized travel to the Property failed two of the initial screening criteria, because the proposed use: (1) was not " consistent with the laws, regulations, orders, and policies governing" this part of the BWCAW, and (2) was not " consistent or [able to] be made consistent with standards and guidelines in the applicable [Forest Plan]." (SAR 2389.) District Ranger Larson determined that granting motorized access would be inconsistent with applicable laws, regulations, orders, and policies because:

(a) road access had not been granted to other similarly situated landowners within Superior National Forest;
(b) historical access to this particular property did not include a road;
(c) constructing and maintaining a road would be inconsistent with the wilderness value of opportunities for solitude; and
(d) constructing and maintaining a road would be inconsistent with the need to allow wilderness to remain " untrammeled," or generally free from sights and sounds made by man.

(SAR 2390.) In addition, District Ranger Larson determined that granting motorized access would not be consistent with standards and guidelines contained in the 2004 Forest Plan for the Superior National Forest because, " among other reasons, this part of the BWCAW was managed as a semi-primitive wilderness area, which does not allow motorized vehicles." (Id.) Consequently, District Ranger Larson did not send Mr. Breaker an application for a special use permit.

On July 28, 2005, District Ranger Larson sent Mr. Breaker two letters: one informing him of her decision not to issue the requested special use permit, and the other granting him permission to access his private property in the BWCAW, using non-motorized or non-mechanized methods,

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without a visitor's permit. (AR 5-6.) The longer letter stated that Mr. Breaker already had reasonable access to his Property because there were possible ways to reach it from public beginning points. (AR 5.) The first access point was the pull-off located south of the Echo Trail where it crosses the Portage River. (Id.) District Ranger Larson indicated that the site was used by the " general public for dispersed camping and Portage River access." (Id.) District Ranger Larson further stated that the existing parking site and the Portage River " provide reasonable access to your property." (Id.) The second public access point was the small turnaround area by FR 206A that leads to the " old logging road." (Id.) District Ranger Larson stated that " this old road corridor, along with a place to park a vehicle in the turnaround provide reasonable access to your property." (Id.)

On August 3, 2005, Mr. Breaker responded with objections to District Ranger Larson's letter. (AR 7-8.) These objections suggested that water access was not feasible and the parking locations were unsafe. Mr. Breaker also stated that the " only access" to the Property he would " deem adequate would be ...

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