UNITED STATES OF AMERICA,
Plaintiff-Appellant,
v.
MICHAEL D. LINICK, aka STRIDER, and HENRY G. BAILEY III,
Defendants-Appellees,
1/ Bailey has not filed an answering brief.
a violation of 36 C.F.R. 261.10(k) (ER 15, 16), which makes it an offense to
"[u]se or occup[y] * * * National Forest System land or facilities without special use authorization when such authorization is required."
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2/ 36 C.F.R. 251.56(a)(2)(vii) supplements the criteria in Section 251.56(a)(2)(i)-(vi) and authorizes a Forest Service official to impose terms or conditions that "otherwise protect the public interest." The Forest Service regulations have recently been recodified. Section 251.56(a)(2)(vii) is now Section 251.56(a)(1)(ii)(G); Section 251.56(a)(2)(i)-(vi) is now Section 251.56(a)(1)(ii)(A)(F); and Section 251.54(h) is now Section 251.54(g)(3)(ii). Because the district court and the parties have previously used the original designation of the regulations, we will continue to do so in this brief.
information. Opening Br. at 24-28. Moreover, the challenged provision does not grant a Forest Service official "unfettered discretion" to attach terms or conditions to a granted permit or to impose a personal interpretation of the meaning of "otherwise protect the public interest." Opening Br. at 28-36. Finally, even if 36 C.F.R. 251.56(a)(2)(vii) were unconstitutional, it is severable from the remainder of the regulatory scheme. Accordingly, the district court should have severed the provision and let the prosecution of Linick and Bailey proceed. Opening Br. at 36, 38.
challenges, these pre-Ward cases are inapposite. See discussion in Opening Br. at 18-20. Indeed, Linick's extensive reliance on Lakewood v. Plain Dealer Publishing Co, 486 U.S. 750 (1988), see Linick Br. at 14-15, is misplaced precisely because Lakewood was one of the cases specifically distinguished by the Ward Court. See 491 U.S. at 793. Ward observed that Lakewood was one of a number of cases that "involved licensing schemes that 'ves[t] unbridled discretion in a government official over whether to permit or deny expressive activity,"' which, the Ward Court further noted, "is of an entirely different, and [higher] order of magnitude" (491 U.S. at 793-794) than a challenge that focuses not on the grant or denial of expressive activity but, rather, on the terms or conditions circumscribing how the activity will be conducted.
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3/ Linick argues that our reliance on Ward is misplaced because, ultimately, Ward did not reject the facial challenge in that case but, rather, proceeded to the merits and found the regulations at issue constitutional. Linick Br. at 19. We acknowledged that point in our opening brief (at p. 20) but pointed out that, under this Court's jurisprudence, this Court would find it appropriate to apply the analysis of facial challenges to licensing schemes set forth in Ward. See Opening Br. at 20 & n. 11, citing United States v. Baird, 85 F.3d 450, 453 (9th Cir. 1996).
imposing terms and conditions). If, on the other hand, the permit application is not inconsistent with the criteria listed in 36 C.F.R. 251.54(h)(1), the permitting official must grant the permit and then determine whether and to what extent terms or conditions under 36 C.F.R. 251.56(a)(1) and (2) should be imposed. See Opening Br. at 21-22. Although the applicant may receive a single permit (or document) embodying both the grant and the terms or conditions, the logic of the regulatory scheme dictates that the two decisions (grant/denial versus terms/conditions) are decided separately under different criteria and in an ordered sequence in which the grant-or-denial criteria are examined first.
underscoring added). 4/ For example, the permitting
official could impose the condition that certain areas of a particular
national forest not be used because of environmental or archeological
reasons. On its face, there is nothing unconstitutional about
such a condition, and, apparently, that is not the essence of
Linick's complaint. Rather, his complaint is that a term-apparently
constitutional on its face-could be imposed because the permitting
official would know it would be impossible to comply with and
was imposed because of the official's distaste for the Rainbow
Family's message. But this is precisely the kind of complaint
that requires a record: to demonstrate both (a) that it is impossible
to comply with the term and (b) that its imposition was pretextual
and not for a valid environmental or archeological reason. And,
this is precisely why the Supreme Court disfavors facial challenges
and thus, in Ward, distinguished between the grant-or-denial
stage and the terms-and-conditions stage of the permitting process.
See Opening Br. at 21 n. 12. Because Linick's challenge is based
only on his speculation that
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4/ At issue in this appeal is only 36 C.F.R. 251.56(a)(2)(vii), which authorizes the permitting official to attach terms or conditions "otherwise in the public interest." However, Linick does not (and cannot) contend that every application of that subsection produces an unconstitutional result. Indeed, the district court invalidated an entire regulatory scheme because of a single subsection that has never been applied to Linick and that has never been shown to be applied in an unconstitutional manner but about which Linick speculates there might be a possible unconstitutional application. However, "the mere fact that one can conceive of some impermissible applications of a statute is not sufficient to render it susceptible to an overbreadth challenge. " City Council v. Taxpayers for Vincent, 466 U.S. 789, 800 (1984).
"impractica[l]" (Linick Br. at 14) or "infeasib[le]" (ibid.) terms or conditions might be imposed, Linick must first apply for a permit and then, if applicable, challenge any term or condition he considers "impractical" or "infeasible" and demonstrate how that term or condition was issued on a pretextual, unconstitutional basis. 5/
5/ See n.4, supra. Linick argues that a requirement that he first apply for a permit in order to challenge a term or condition "would create an unacceptable risk of the suppression of ideas." Linick Br. at 22 n.10 (citing City Council v. Taxpayers for Vincent, 466 U.S. 789, 799 (1984). City Council does not help Linick's cause because it (a) involved a criminal ordinance against the posting of notices on public property, not a licensing scheme as in the instant case and (b) is thus superseded by the later analysis in Ward applicable to facial challenges to licensing schemes.
6/ See Opening Br. at 5-6. An applicant for a noncommercial group use permit must deliver the application to the Forest Service at least 72 hours in advance of the beginning time of the proposed activity. 36 C.F.R. 251.54(f)(5). The Forest Service has 48 hours in which to issue a decision. If the Forest Service issues no decision within 48 hours of receiving the application, it is deemed granted, and the authorization must issue forthwith. 36 C.F.R. 251.54(f)(5). In the case of Rainbow Family Gatherings, Rainbow Family members know the planned time period well ahead of a particular event. For example, a national gathering is held annually at A chosen site within a 10-15 day period just before and after July 4th. See, e.g., Fed. Reg. 45,258, 45,262 (Aug. 30, 1995).
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7/ Similarly, a holder of a noncommercial group use
permit is not compelled to participate in an administrative appeals
process under 36 C.F.R. 251.86(b). That section makes administrative
remedies available to a permit holder seeking "relief from
a written decision related to that authorization." An applicant
for a noncommercial group use permit wishing to challenge a term
or condition in federal court may do so the moment he receives
the permit, since at that point there is no
"written decision" from which to appeal.
portion of the regulatory scheme to make administrative appeals
available only when the agency formally solicits applications.
See, e.g., In re Epley, # 97-04-12-06-01 (May 1, 1997),
discretionary review denied, # 97-04-00-0024 (July 15, 1997).
8/ The Forest Service never formally solicits applications
for noncommercial group use permits, and there is no evidence
of such a solicitation in this case. Accordingly, Linick and any
other applicants for noncommercial group uses may go directly
to court to challenge any terms or conditions the Forest Service
imposes. 9/
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8/ The administrative decisions in Epley may be judicially noticed, see Black v. Arthur, 18 F. Supp.2d 1127, 1132 (D. Or. 1998), appeal pending, Nos. 98-36044 & 98-36046 (9th Cir.), and are attached as Addendum A to this reply brief. In any event, the Court must give "controlling weight" to the Forest Service's interpretation of its own regulation "'unless [that interpretation] is plainly erroneous or inconsistent with the regulation."' United States v. Larionoff, 431 U.S. 864, 872 (1977) (quoting Bowles v. Seminole Rock Co., 325 U.S. 410, 414 (1945)); see also Thomas Jefferson University v. Shalala, 512 U.S. 504, 512 (1994) (holding that a court "must give substantial deference to an agency's interpretation of its own regulations").
9/ Even if the Court were to reject this argument and find that the administrative appeal process applies to noncommercial group uses (and thus prevents prompt judicial review), that Court should sever the appeals process from the noncommercial group use regulatory scheme for the reasons stated in part II of our opening brief (at pp. 36-38) and infra (at pp. 19-20). Pursuant to such a ruling, the Forest Service would simply be precluded from requiring exhaustion before an applicant for or holder of a noncommercial group use authorization brings a dispute to district court (which is what the Forest Service, as explained above, intends anyway).
forests, to allocate scarce resources, and to protect the physical safety of all those in the National Forest System. See 36 C.F.R. 251.56(a)(1) & (2); see also Black v. Arthur, 18 F. Supp.2d at 1134. Hence, the permitting official cannot use the provisions at 36 C.F.R. 251.56(a)(1) & (2) to impose onerous terms or conditions so as to, in effect, deny a permit to groups whose views or speech the official finds distasteful.
F.3d 1110, 1118 (9th Cir. 1996) ("in evaluating a facial challenge to a state law, the court should consider any limiting construction that a state court or enforcement agency has proferred"). See generally Opening Br. at 29-31. Moreover, a narrowing construction is actually the most natural reading of subsection (vii) since, otherwise, subsection (vii) would be broad enough to swallow up the rest of the criteria in subsection (a)(2), rendering subsections (i)-(vi) mere surplusage. Such a reading is inconsistent with the intent of the Forest Service and traditional rules of construction. See Opening Br. at 30-31, citing, e.g., United States v. Colacurcio, 84 F.3d 326, 333 n.5 (9th Cir. 1996). In short, contrary to Linick's view (Linick Br. at 24), a permitting official-under the guise of the "public interest" subsection -cannot impose a term or condition based on the official's "personal interpretation of the public interest" (Linick Br. at 24).~ 10/
10/ Linick's reliance on 36 C.F.R. 251.54(i)(2) and 251.60(b) - which both contain references to the "public interest" - is misplaced. Linick Br. at 24 n. l 1. Both provisions by their own terms do not apply to the noncommercial group use permit at issue here. Hence, neither provision helps Linick's cause. Moreover, neither section even remotely suggests that the term "public interest" in section 251.56(a)(2)(vii) either (1) applies to the grant or denial of a permit as opposed to terms and conditions that may be imposed or (2) grants unbridled discretion to impose a term or condition.
11/ Linick argues that Black is inapposite because the district court in Black "did not mention the language of Section 251.56(a)(2)(vii), let alone construe such language." Linick Br. at 26. This is mere quibbling with language. While the district court in Black did not specifically single out Section 251.56(a)(2)(vii) or quote it, it was unquestionably addressing a challenge precisely like the one addressed by the district court below and came to an opposite conclusion based on a narrowing construction of Section 251.56(a)(2) as a whole. See 18 F. Supp.2d at 1134 ("[P]laintiffs argue that the regulation delegates unbridled discretion to the permitting official because it does not set standards for granting or denying permits, or standards for the type of terms and conditions the permit may contain.").
Linick further contends that Black should not be considered
persuasive because, in Linick's view, "there is no possible
reading" of Section 251.56(a)(2)(i) -which refers to "protect[ing]
Federal property and economic interests"-that falls within
the ambit of the narrowing construction applied in Black.
Linick Br. at 26 n.14. This contention, even if it had merit,
is a quibble with the articulation of the district court's decision
in Black, not with the articulation of the Forest Service's
narrowing construction set forth in the opening brief at pp. 30,
36. As we have noted, the narrowing construction in Black is substantively
similar to, but not exactly the same as, the Forest Service's.
See Opening Br. at 30 (noting that Black "adopt[ed]
a narrowing construction substantively the same as the one advanced
[by the Forest Service]"). In any event, the complaint has
no merit. At a minimum, federal "economic interests"
are implicated when damage is done to "water quality, fish,
wildlife, and other environmental aspects of the forests,"
one of the general concerns that the Black court said was
specifically addressed by the terms and conditions set out in
Section 251.56(a)(2). See Black, 18 F. Supp.2d at 1134.
Clearly, the repair of damage to the items in this list affects
federal economic
interests.
This argument is, of course, wrong. The narrowing construction
applied by the Forest Service is based on the Forest Service's
interpretation of its own regulations. 12/ Pursuant to
that interpretation, the criteria in 36 C.F.R. 251.56(a)(2)(i)-(vi)
address in a specific way the three public interests addressed
generally in the regulatory scheme (see, e.g., 60 Fed. Reg. at
45258 & 45262) - i.e., the protection of resources and improvements
on National Forest System lands, the allocation of space among
potential or existing uses and activities, and public health and
safety concerns. See also Opening Br. at 30, 36. Accordingly,
36 C.F.R. 251.56(a)(2)(vii) authorizes a Forest Service official
to attach terms and conditions "otherwise" not specified
in subsections (i)-(vi) that protect these three generally stated
public interests.' 13/
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12/ See n.8, infra.
13/ The Forest Service's narrowing construction gives full meaning to the term "otherwise" and recognizes that the criteria listed in subsections (i)-(vi) do not encompass the universe of terms or conditions that could carry out the three public interests discussed in the text. Linick's arguments (Linick Br. at 27-28) clearly misunderstand this point. Thus, the Forest Service's narrowing interpretation is entirely consistent with Linick's contention that "otherwise " must mean, for example, "in a different manner" (Linick Br. at 27). For this reason, Linick's argument really does not raise an issue with the Forest Service's interpretation. Moreover, the fact that subsection (a)(1)(ii) also contains the term "otherwise" does not render the use of that term in subsection (a)(2)(vii) a redundancy as Linick asserts. See Linick Br. at 31-31 n.l9. The two subsections accomplish different goals: subsection (a)(1) is a general provision (as its heading indicates) while subsection (a)(2) is specific, focusing on the particular types of terms and conditions that might be imposed by the permitting official. Finally, Linick's reliance on City of Toledo v. Beazer Materials & Services, Inc.. 912 F. Supp. 1051 (N.D. Ohio 1995), rev'd 103 F.3d 128 (6th Cir. 1996) (table) (opinion found at 1996 WL 683505) is misplaced. The decision was reversed and, therefore, lacks any legal value.
identity or beliefs from non-members of the group that is seeking authorization" may not be considered in deciding whether to grant or deny permit). So for this reason alone the "public interest" in the Forest Service regulations cannot be read as broadly as the phraseology struck down in Shuttlesworth, TJ's South, Staub, or Dease. Moreover, the "public interest" in 36 C.F.R. 251.56(a)(2)(vii) makes sense only if limited as previously discussed. Otherwise, a broad reading would render subsections (i)-(vi) mere surplusage and thus meaningless. See pp. 13-15, supra. 14/
14/ Significantly, the Alabama Supreme Court attempted to apply a narrowing construction to the ordinance at issue in Shuttlesworth in order to save the ordinance's constitutionality. The Supreme Court characterized the narrowing as "a remarkable job of plastic surgery" (394 U.S. at 153) but stated that "[i]t would have taken extraordinary clairvoyance for anyone to perceive that this language meant what the Supreme Court of Alabama was destined to find that it meant more than four years later" (id. at 156). No such "plastic surgery" was necessary at arriving at the Forest Service's narrowing construction.
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15/ Linick argues that severing Section 251.56(a)(2)(vii) would not make the regulatory scheme constitutional because the Court would also have to sever Section 251.56(a)(2)(i) ("to protect the Federal economic interests"), Section 251.56(b) (the duration of a special use authorization "shall be no longer than the authorized officer determines to be necessary to accomplish the purpose of the authorization"), and the entire administrative appeals process contained in 36 C.F.R. 251.80-251.102. All that is at issue in this appeal, however, is Section 251.56(a)(2)(vii). Accordingly, there is no merit to this argument. Moreover, Linick has not demonstrated how any of these provisions is unconstitutional, and the burden is on him to do so. See FW/PBS, 493 U.S. at 229-230. In any event, we have already demonstrated that Linick's contentions regarding "Federal economic interests" and the administrative appeals process are without merit. See, supra, at pp. 10-11 (administrative appeals process) and at pp. 15-16 n.12 ("Federal economic interests"). Finally, for the reasons stated in Point A above and in our opening brief (at pp. 18-24), Linick should not be allowed to advance a facial challenge to the "Federal economic interests" or "duration" provisions since he has never applied for a permit and thus, in the absence of a record, can only speculate that these provisions might be implemented in an unconstitutional manner.
Respectfully submitted,
DAVID W. OGDEN
Acting Assistant Attorney GeneralJOSE de JESUS RIVERA
United States AttorneyMICHEL JAY SINGER
(202) 514-5432HOWARD S. SCHER
(202) 514-4814
Attorneys, Appellate Staff
Civil Division, Room 9124
Department of Justice
601 D Street, N.W.
Washington. D.C. 20530-0001SEPTEMBER 1999
United States Forest Payette P.O . Box 1026
Department of Service National McCall, ID 83638
Agriculture Forest
Reply to: 1570
#97-04- 12-06-01
Date: May 1, 1997
SUSAN BUXTON CERTIFIED MAIL
MOORE AND McFADDEN CHARTERED RETURN RECEIPT REQUESTED
ONE CAPITOL CENTER SUITE 910
999 MAIN STREET
BOlSE ID 83702
Dear Ms. Buxton:
I have received your April 21 appeal of District Ranger Fred Dauber's March 5 and 13 decision to not grant Mr. Epley's request for a special use permit for outfitting and guiding on the Payette National Forest. You are appealing on behalf of Ted Epley, of Epley's Inc. We acknowledge you as Mr. Epley's representative and defer to you to communicate the following information to him.
In your appeal, you state the decision appears to: (1) alter the status quo of outfitters and guides permits and guiding, (2) be in violation of the National Environmental Policy Act (NEPA), (3) be arbitrary and capricious, and (4) have no proper analysis of the need to cease such outfitter and guiding activities.
You also request a stay of implementation of the decision (under 36 CFR 251.91), and an oral presentation under 36 CFR 251.90 (c).
The appeal regulation at 36 CFR 251.86, "Parties," defines who may appeal a decision. Specifically, in pertinent part:
"Only the following may participate in the appeals process provided under this subpart:
(a) An applicant who, in response to a prospectus or written solicitation or other notice by the Forest Service, files a formal written request for a written authorization to occupy and use National Forest System land covered under section 251.82 of this subpart.....
(b) The signatory(ies) or holder(a) of a written authorization to occupy and use National Forest System land covered under section 251.82 of this subpart who seeks relief from a written decision related to that authorization."
RECEIVED MAY - 5 PM 12:33 (Page 1 of 2)
Susan Buxton 2
Your appeal does not contain evidence that Mr. Epley filed his request "in response to a prospectus or written solicitation or other notice by the Forest Service." It also does not contain evidence that Mr. Epley is a holder "of a written authorization to occupy ant use National Forest System land."
According to our records, Mr. Epley, of Epley's Inc., no longer holds a special use permit for outfitting and guiding on the Payette National Forest.
Therefore, I am dismissing your appeal in accordance with 36 CFR 251.92 (a)(l), because Mr. Epley is not eligible to appeal such a determination by Mr. Dauber, and because there was no appealable decision by Mr. Dauber.
As stated by Mr. Dauber's 3/5/97 letter, if the evaluation of outfitter's needs in the area concludes that commercial outfitting service by a new outfitter is desirable, the District would issue a prospectus. The District then would consider your 7/19/96 application at that time.
Pursuant to 36 CFR 251.87 (d), this decision is subject to discretionary review by the Regional Forester.
Enclosed is a copy of the 36 CFR 251 appeal regulations for your reference. If you have questions on this matter, please contact me or Appeal Coordinator Curtis Spalding at (208) 634-0796.
Sincerely,
(signed)
DAVID F. ALEXANDER
Forest Supervisor
Reviewing Officer
Enclosure
cc:
Regional Forester
Krassel District Ranger
McCall District Ranger
R. Geibel
C. Spalding
United States Forest Intermountain 324 25th Street
Department of Service Region Ogden, Utah 84401-2310
Agriculture
Reply to: 1570
#97-04- 00-0024
Date: JUL 15, 1997
SUSAN BUXTON CERTIFIED MAIL
MOORE AND McFADDEN CHARTERED RETURN RECEIPT REQUESTED
ONE CAPITOL CENTER SUITE 910
999 MAIN STREET
BOlSE ID 83702
Dear Ms. Buxton:
This letter is my discretionary review decision of Forest Supervisor David F Alexander's May 1, decision to dismiss Epley's Inc., appeal. That appeal was filed by you on behalf of Epley's Inc., and appealed District Ranger Fred Dauber's March 5 and 13, decisions regarding Mr. Epley's request for a special use permit for outfitting and guiding on the Payette National Forest.
I am affirming the Forest Supervisor's dismissal decision. The basis for my decision is enclosed.
This decision is the final administrative determination by the United States Department of Agriculture as provided in 36 Code of Federal Regulations (CFR) 251.87(e)(3)..
Sincerely,
(signed)
JACK G. TROYER
Appeal Deciding Officer
Deputy Regional Forester
Enclosure
Payette National Forest Supervisor David F. Alexander properly dismisses the appeal of Epley's Inc. concerning Mr. Epley's application for a special use permit to conduct outfitting and guiding on the Krassel Ranger District, Payette National Forest.
Regulations at 36 CFR Subpart C provide for appeal of decisions relating to occupancy and use of National Forest System lands. The scope of the appeal regulations is set forth in 36 CFR 251.80, which states that:
"This subpart provides a process by which those who hold or, in certain instances, those who apply for written authorizations to occupy and use National Forest System lands, may appeal a written decision by an authorized Forest Service line officer with regard to issuance, approval or administration of the written instrument." (emphasis added)
The regulations at 36 CFR 251.86 further provide that only certain parties may participate in the appeals process. Those parties include:
"(a) An applicant who, in response to a prospectus or written solicitation or other notice by the Forest Service, files a formal written request for a written authorization to occupy and use National Forest System land covered under section 251.82 of this subpart and
"(1) Was denied the authorization, or
"(2) Was offered an authorization subject to terms and conditions that the applicant finds unreasonable or impractical.
"(b) The signatory(ies) or holder(s) of a written authorization to occupy and use National Forest System land covered under section 251.82 of this subpart who seeks relief from a written decision related to that authorization."
The plain language of the regulation contemplates that only certain decisions denying permits to applicants are appealable. The regulations define those narrow circumstances under 36 CFR 251.86(a) to include only those situations where the Forest Service has solicited applications.
To construe the regulation as proposed by appellant would render
the limitation in 36 CFR 251.86(a) a nullity. If the regulations
had intended to provide a right of administrative appeal to any
applicant who was denied a permit, there would be no reason to
use the qualifying language "in response to a prospectus
or written solicitation or other notice.. Similarly, there would
be no need in 36 CFR 251.80(a) to use the limitation "in
certain instances."
In addition to the plain language of the regulations, comments on the proposed regulations at 53 FR 17310, 17315 (1988) confirm this interpretation. 1/
"Appellants would be limited to a holder of a written instrument or authorization or to applicants who are applying for an authorization in response to a solicitation by the Forest Service and who either are denied the authorization or object to terms and conditions being offered." (emphasis added).
The regulations are intended to provide "a procedure for bringing and resolving grievances" with "persons [who] have a business or legal relationship with the Forest Service..
Under the special use regulations, no such "legal or business relationship. exists between the Forest Service and a person who has submitted an unsolicited application for a special use permit. "No rights or use privileges are conveyed without a special use authorization" (36 CFR 251.54[d]). An unsolicited applicant for a special use permit has no rights to the use of National Forest System lands sought prior to issuance of a permit,
Special use permits are not assignable or transferable, and the holder may only sublet use with prior approval by the Forest Service (36 CFR 251.55). The fact that Mr. Epley now asserts ownership of improvements on National Forest System lands which were previously permitted to Mr. Minter creates no legal right to a permit. Mr. Epley is an applicant for a new permit, and has only the rights of a new applicant under the regulations.
The Forest Service has no control over the number or nature of applications received, and does not have the resources to process appeals of every denial of an unsolicited application for a special use permit. Anyone may apply for a permit (36 CFR 251.54). Permits may be denied for many reasons at the discretion of the Forest Service, including a potential land use conflict or if the permit is generally not in the public interest (36 CFR 251.54[i]). "The [Forest] Service has broad discretion to grant or deny a special use permit.. Western Radio Services Company. Inc. v. Glickman, 113 F.3d 966, 971 (9th Cir. 1997).
While, "[g]enerally, the [Forest] Service's decision to
issue or deny a permit is subject to judicial review, Western
Ratio Services Company, Inc. v. Glickman, 79 F.3d 896, 900
(9th Cir. 1996), there is no statutory or other requirement that
the Forest Service provide for appeals of decisions relating to
special use permits. Because there is adequate redress available
in the courts to a person who is denied a special use permit,
the Forest Service has chosen not to burden its limited resources
with the potentially numerous appeals of such decisions.
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1/ In the draft regulations, the provision dealing with
eligible parties was originally codified as 36 CFR 251.83. The
language is virtually identical to the provision codified in final
as 36 CFR 251.86.
Appellant's citation to Clouser v. Espy, 42 F.3d 1522 (9th Cir. 1994) is inapposite. Clouser involved the appeal of a decision related to a mining plan of operations, which is governed by the regulation at 36 CFR 228.14. That regulation provides that a mining operator aggrieved by any decision of the Forest Service in connection with the mining regulations in Part 228 A may appeal under the provisions of 36 CFR 251, the entitlement to appeal under Part 228 A is not limited as are the appeal rights in 36 CFR 251.
The Forest Service did not solicit Epley's application, and the application was not submitted in response to a prospectus, solicitation or notice. The appeal was dismissed because Epley does not meet the criteria in 36 CFR 251.86 to qualify as a "party" to an appeal. Epley is not the holder of a current authorization, and its application was not received in response to a solicitation, prospectus, or notice from the Forest Service. Accordingly' the appellant is not eligible to appeal ant the appeal was properly dismissed under 36 CFR 251.92(a)(1).