Colorado Wild v. U.S. Forest Service

The Leavell-McCombs Joint Venture (LMJV) owned property surrounded by National Forest System (NFS) land. The property was accessible by car through Forest System Road 391 (FSR 391), a single-track gravel road open to seasonal vehicle use, with certain restrictions. LMJV sought to construct a year-round resort on its property and to extend Tranquility Road, which was located north of FSR 391. LMJV submitted an access-permit application for the road extension to the United States Forest Service (USFS) (defendant), pursuant to the Alaska National Interest Lands Conservation Act (ANILCA), 16 U.S.C. § 3210(a). ANILCA required the federal government to provide landowners with access to NFS land, to the extent adequate to provide reasonable use and enjoyment of the landowners’ property. The local county approved the resort as a Planned Use Development (PUD) in 2004, while LMJV’s USFS permit application was still pending. The PUD anticipated the use of Tranquility Road. The local county’s approval was vacated in state court in 2005, on the basis that road access under FSR 391 was inadequate and that the USFS had not yet approved the Tranquility Road extension. In 2006, the USFS released a final environmental impact statement (FEIS) and Record of Decision in compliance with the National Environmental Policy Act (NEPA), 42 U.S.C. §§ 4332 et seq. The FEIS did not consider any alternatives to the proposed resort. The USFS based its alternatives analysis on three premises: (1) LMJV would build the resort regardless of whether the USFS granted additional road access, (2) the reasonable use and enjoyment of LMJV’s property was the county-approved resort, and (3) FSR 391 did not provide adequate access to the resort. Colorado Wild, Inc. and others (plaintiffs) challenged the USFS’s decision. The United States District Court for the District of Colorado issued a temporary restraining order pending judicial review. The plaintiffs moved to continue the preliminary injunction.