ORDER

RONALD A. WHITE, District Judge.

Plaintiff filed his Amended Complaint on April 1, 2016 for injunctive and other appropriate relief under the Administrative Procedures Act, 5 U.S.C. §§ 701, et seq. (herein the "APA"). The subject of this appeal under the APA is a Decision Notice issued by the Regional Forester on September 26, 2013 (herein the "Final Decision"). Before the court are the briefs filed by the parties [Docket Nos. 45, 46 and 47]. Plaintiff argues that the Final Decision is arbitrary, capricious, and not supported by substantial evidence. He requests that the court reverse and remand this action with instructions to the Forest Service to grant his requested special use permit to construct a road to his property. Defendants argue that the court should deny Plaintiff's request, maintaining that the Forest Service complied with its required procedures for making a determination on a special use permit and that the Final Decision is supported by substantial evidence and is not arbitrary or capricious.

BACKGROUND1

Plaintiff owns a 160-acre tract of land located approximately one-half mile south of the Talimena Scenic Drive and three miles east of Highway 259 in southern LeFlore County. Plaintiff's property is completely surrounded by the Upper Kiamichi Wilderness. Plaintiff desires to build a residence on the tract, but there is no existing road access to the property. The only current access to the property is via remnants of an old foot trail or cross country.

On February 28, 2007, Plaintiff submitted his formal application for a special use permit to construct a gravel road for motorized access to his property. AR at 191. Plaintiff's proposed road would be approximately 5,300 feet long with a 10-12 foot running surface. AR at 12. The total area of soil directly affected by the road construction would be approximately 5 acres. Id. Specifically, 5 acres of soils would no longer be suitable for vegetative production. AR at 36. The average clearing limits would be 40 feet, but due to steep terrain and slopes exceeding 20 percent, the clearing width would extend up to 100 feet. AR at 12-13.

"Construction of the road would require the use of heavy equipment, including one or more bulldozers, dump trucks, and either a `hammer-hoe' . . . or explosives to dislodge areas of solid sandstone ledge and bedrocks along the proposed route." AR at 19. Building the road would result in an estimated 41.54 tons of sediment the first year. AR at 36. Plaintiff's proposed action would result in a 178% increase over the annual sediment delivered in an undisturbed watershed condition. AR at 37.

On November 9, 2008, while his application was pending, Plaintiff attempted to access his property by hiking through a trail. AR at 51, 478. He fell in a dangerous section of the trail, breaking his leg and tearing several ligaments in his ankle. Id. He crawled back to his vehicle and drove to a nearby hospital for treatment. Id.

On June 29, 2012, the Regional Forester issued a "Decision Notice and Finding of No Significant Impact" (herein "First Decision"). AR at 1229-35. Relying on an Environmental Assessment and a Biological Evaluation, the First Decision selected a "no action alternative" and denied Plaintiff's request to construct, maintain and use a permanent road. AR at 1230. Plaintiff was notified of the First Decision by letter dated July 19, 2012. AR at 1241. Plaintiff appealed, and in November of 2012, the Forest Service withdrew the First Decision. AR at 7.

In August 2013, the Forest Service issued an amended Environmental Assessment, adding a non-motorized alternative to be considered for access to Plaintiff's property — "Alternative C." AR at 9-49. On September 26, 2013, the Regional Forester issued the Final Decision. AR at 76-83. Again, relying on the amended Environmental Assessment and the Biological Evaluation, the Regional Forester selected the "no action alternative," denying Plaintiff's request to construct, maintain and use a permanent road. AR at 77.

On January 24, 2014, Plaintiff appealed the Final Decision to the Chief of the Forest Service. AR 108-120. On March 10, 2014, the Appeal Deciding Officer affirmed the Final Decision, exhausting Plaintiff's administrative remedies. AR at 137. On March 30, 2016, Plaintiff filed this action pursuant to the APA, challenging the Final Decision.

Access to Private Property within the Wilderness

The Upper Kiamichi Wilderness was established in 1988 and is located within the Ouachita National Forest. The Upper Kiamichi Wilderness is classified as:

AR at 29. Hikers are the largest user group. Id. Hunters also use the wilderness during the fall deer season and the spring turkey season. Id.

The Upper Kiamichi Wilderness and is managed by the Forest Service pursuant to the Wilderness Act of 1964, 16 U.S.C. § 1311, et seq. (herein "Wilderness Act"). In managing the Upper Kiamichi Wilderness, the Forest Service must also comply with the Alaska National Interest Lands Conservation Act, 16 U.S.C. § 3101-3233 (herein "ANILCA").

The Wilderness Act requires that

16 U.S.C. § 1134(a) (emphasis added). Furthermore, the Forest Service must "permit ingress and egress to such surrounded areas by means which have been or are being customarily enjoyed with respect to other such areas similarly situated." 16 U.S.C. § 1134(b) (emphasis added).

ANILCA requires with regard to the reasonable use and enjoyment of land within the boundaries of the National Forest System:

16 U.S.C. § 3210(a) (emphasis added).

The regulations define "access" as "the ability of landowners to have ingress and egress to their lands. It does not include rights-of-ways for power lines or other utilities." 36 C.F.R. § 251.111. "Adequate access" is defined as "a route and method of access to non-Federal land that provides for reasonable use and enjoyment of the non-Federal land consistent with similarly situated non-Federal land and that minimizes damage or disturbance to National Forest System lands and resources." Id. (emphasis added).

36 C.F.R. § 251.114(a) (emphasis added).

The Final Decision

Noting the applicable law and regulations cited above, for purposes of Plaintiff's application, the Environmental Assessment (herein "EA")2 defined "similarly situated" as "private inholdings within the wilderness on the Ouachita National Forest." AR at 25. The EA defined "similar purposes" as "residential use." Id. The EA noted that: "No permits have been granted to construct a road within any wilderness inside the Ouachita National Forest." AR at 26 (emphasis added). One special use permit, the "Morrison permit," allows the land owner to maintain a low-development road, but that permit existed prior to the wilderness establishment and "is the sole permit in place affecting wildernesses of the Ouachita National Forest." Id. "A review of National Forests included in the National Wilderness Preservation System found that motorized vehicles were only allowed on roads that existed prior to the area's wilderness designation." Id. The EA determined that granting Plaintiff's application "would be contrary to the agency's customary interpretation and application of the laws and regulations pertaining to access and wilderness management." AR at 27.

As part of her review, the Regional Forester stated that she carefully considered the following regulations pursuant to the Wilderness Act and ANILCA:

AR at 78.4

The Regional Forester stated that she chose the "no action alternative" for the following reasons:

AR at 78-79.

The Regional Forester further stated that Plaintiff's proposed gravel road and the alternative of a porous paving surface road were not selected because they did not meet the criterion of minimizing impacts to the wilderness resource while providing adequate access to the landowner. AR at 79. She opined that implementation of these alternatives would violate the Wilderness Act's mandate to preserve wilderness character. AR at 79. The Regional Forester explained that while Alternative C — the non-motorized trail — would have minor impacts on the wilderness character, it was not selected because it would not meet Plaintiff's expressed desire to have motorized access to his property. AR at 79-80. The Regional Forester noted that Plaintiff is not precluded from filing an application for such an alternative. AR at 77.

The Regional Forester also discussed other alternatives considered in the EA but eliminated from detailed study — access by historic routes, access along abutting section lines, and access by new road construction from a southern approach. AR at 18 and 80. The possible historic route was deemed impassable and furthermore, did not ever extend to or provide access to Plaintiff's tract. Id. Access along abutting section lines was eliminated because the terrain is very steep and road construction along those lines would not minimize adverse environmental impacts.5 Id. An alternate road approaching Plaintiff's property from the south was also eliminated because of very steep terrain which would create a safety issue and user conflicts. Id. Each of these three alternatives were determined by the EA and the Final Decision to not meet the requirements of 36 C.F.R. § 251.114(f)(2), which requires the Regional Forester, prior to issuing any access authorization, to ensure that "[t]he route is so located and constructed as to minimize adverse impacts on soils, fish and wildlife, scenic, cultural, threatened and endangered species, and other values of the Federal land."

STANDARD OF REVIEW

When a final agency action6 is challenged, the reviewing court "shall decide all relevant questions of law, interpret constitutional and statutory provisions,7 and determine the meaning or applicability of the terms of an agency action." 5 U.S.C. § 706. The court must set aside any agency action, finding, or conclusion, if the court finds it is, inter alia, "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance of law." 5 U.S.C. § 706(2).

An agency's action is arbitrary and capricious if the agency:

New Mexico ex rel. Richardson v. Bureau of Land Mgmt., 565 F.3d 683, 704 (10th Cir. 2009) (citation and internal quotations omitted). An agency's decision is entitled to deference, but the court must "engage in a `substantial inquiry'" and conduct a "thorough, probing, in-depth review." Olenhouse v. Commodity Credit Corp., 42 F.3d 1560, 1574 (10th Cir. 1994) (citing Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 415 (1971)).

The court "must find and identify substantial evidence to support the agency's action and may affirm agency action, if at all, only on the grounds articulated by the agency itself." Id. at 1580. The court is not to rely "on the post hoc rationalizations of counsel," but is to engage in a "substantive review of the record to determine if the agency considered relevant factors or articulated a reasoned basis for its conclusions." Id.

Evidence is substantial if it is "enough to justify, if the trial were to a jury, a refusal to direct a verdict when the conclusion to be drawn is one of fact." Id. "`Substantial evidence' is more than a mere scintilla; it must be such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Id. at 1581 (citation omitted). "Evidence is not substantial if it is overwhelmed by other evidence . . . or if it constitutes mere conclusion." Id. (citations omitted).

While the court's review must be thorough, "the Forest Service's decision is `entitled to a presumption of regularity.'" Utah Envtl. Cong. v. Richmond, 483 F.3d 1127, 1134 (10th Cir. 2007) (citing Overton Park, Inc. v. Volpe, 401 U.S. at 415). "This deference is `especially strong where the challenged decision involves technical or scientific matters within the agency's area of expertise.'" Id. (citation and internal brackets omitted). The court is also to give "great deference to the Forest Service's interpretation of its own regulations," rejecting only those interpretations that are "unreasonable, plainly erroneous, or inconsistent with the regulation's plain meaning." Id. (citation omitted). This standard of review is narrow, and the court may not substitute its judgment for that of the agency. Id. (citing Overland Park, 401 U.S. at 416).

ANALYSIS

Plaintiff argues the Final Decision is arbitrary and capricious because it applied the wrong standards when it: (1) failed to balance the adequacy of cross-country hiking access with the reasonableness of Plaintiff's use of his property as a residence; (2) disregarded similarly situated properties from its customary and reasonable access determination because roads servicing the properties existed before wilderness designation; and (3) disregarded consideration of access pursuant to Oklahoma section lines that existed before wilderness designation from its customary and reasonable access determination. Plaintiff further argues the decision that the construction, maintenance, and use of the proposed road would result in lasting adverse effects on the wilderness character of the Upper Kiamichi Wilderness is not supported by substantial evidence.

I. Adequate Access

Plaintiff argues that the Regional Forester's determination was based upon an improper finding of "any access" rather than upon the legal standards that define "adequate access" because the Final Decision: (1) failed to consider the reasonable use of his property, and (2) failed to consider similarly situated properties.

As to the first contention, Plaintiff argues that the Final Decision does not include a discussion of whether a cross-country hiking trail provides adequate access for "reasonable use" of residential property and thus, it made no determination of the "reasonable use" of his property as required by 36 C.F.R. § 114(a). Plaintiff notes that he has sustained significant injuries attempting to access his property by hiking cross-country and argues that such dangers are inadequate access to a residential property. Plaintiff maintains that this case is like Breaker v. United States, 977 F.Supp.2d 921 (D. Minn. 2013), wherein the Forest Service's position was that it only needed to consider the impact on the wilderness at the initial screening stage and so did not make a "reasonable use" determination before denying the plaintiff's request.

As to his second contention, Plaintiff argues that the Regional Forester failed to consider access to similarly situated properties. He notes the Morrison permit and contends that there is no justifiable distinction between owners who purchased before or after the surrounding area was classified as wilderness. There are also three other inholdings with keys to roads that existed before the area was classified as wilderness.8

"Adequate access" is a term of art defined as "a route and method of access to non-Federal land that provides for reasonable use and enjoyment of the non-Federal land consistent with similarly situated non-Federal land and that minimizes damage or disturbance to National Forest System lands and resources." 36 C.F.R. § 251.111 (emphasis added). The Regional Forester had a duty to determine what constitutes "reasonable use and enjoyment of the lands based on contemporaneous uses made of similarly situated lands in the area and any other relevant criteria." 36 C.F.R. § 251.114(a) (emphasis added).

The Regional Forester did not, as Plaintiff argues, decline to make a "reasonable use" determination. In fact, she compared Plaintiff's tract to those "similarly situated," which the EA defined as "private inholdings within the wilderness on the Ouachita National Forest." AR at 25. This definition includes not only all private inholdings in the Upper Kiamichi Wilderness, but in all wildernesses within the Ouachita National Forest. The court finds that the EA's definition of "similarly situated" is not arbitrary or capricious.

The Regional Forester found that there are several other private inholdings in the Upper Kiamichi and other wilderness areas in the Ouachita National Forest, but none have been granted permits to construct a road. AR at 26 and 78. (emphasis added). The EA found only one special use permit, the "Morrison permit," within the Ouachita National Forest. Id. It is for maintenance only and was in place prior to the wilderness designation. The Regional Forester, therefore, determined that non-motorized modes of access would continue to provide Plaintiff with "adequate access" consistent with "reasonable use and enjoyment of the lands based on contemporaneous uses made of similarly situated lands in the area." This determination is not arbitrary or capricious.9

Plaintiff argues, however, that the Regional Forester was obligated to determine whether a cross-country hiking trail provides adequate access for the reasonable use of residential property.10 This argument utilizes the literal or common dictionary definition of the term "adequate" rather than recognizing that "adequate access" here is defined as: "a route and method of access to non-Federal land that provides for reasonable use and enjoyment of the non-Federal land consistent with similarly situated non-Federal land and that minimizes damage or disturbance to National Forest System lands and resources."

If this court were conducting a de novo review, perhaps it would consider a determination of whether a cross-country trail is adequate to serve residential property, as "other relevant criteria" to be considered pursuant to 36 C.F.R. § 251.114(a). Such a determination, however, would not necessarily change the outcome considering all of the other relevant factors considered in the EA and by the Regional Forester.11

This court's review is narrow. It must afford deference to the Forest Service's decision and great deference to its interpretation of its own regulations. The court finds that the Regional Forester applied the correct standards. The Final Decision is not arbitrary or capricious and is supported by substantial evidence.

II. Pre-existing Right of Access

Plaintiff argues that the Regional Forester refused "to consider the policy reasons related to section-line access" and that the Final Decision "failed to consider the historical basis for access to Dobb's property." In fact, the EA and the Final Decision did consider section-line access. The EA found that there were no roads or history of roads along the steep terrain of the section-lines of Plaintiff's property. The Regional Forester noted that Plaintiff did not request section-line access in his special use permit application. AR at 80.

Additionally, the Regional Forester determined that the section-line laws are not applicable to Plaintiff's application, as "the Act refers to the establishment of public highways and roads, not private roads." AR at 81. The Act cited by Plaintiff reads:

Act of April 26, 1906, ch. 1876, § 24, 34 Stat. 145. The Regional Forester was correct. "The Act of April 26, 1906 is a reservation of the right to open the road for public use. It does not automatically create a public road." Burkhart v. Jacob, 976 P.2d 1046, 1051 (Okla. 1999).

Plaintiff argues, however, that his right to section-line access is "evidence of historical roaded access" to his property. Notwithstanding the existence of any such right, the Regional Forestor found that the "historic and traditional access to this inholding is via foot trail or cross country, not via road; there is no evidence that a permanent road ever provided motorized access to the property in question." AR at 78. This was one of several reasons the Regional Forester denied Plaintiff's application. A right to section-line access does not, as Plaintiff seems to argue, require the Forest Service to grant his application for a special use permit to construct, maintain and use a road to his property.

Again, the court's review is narrow. It must give deference to the Forest Service's decision and great deference to its interpretation of its own regulations. The court finds that the Regional Forester applied the correct standards. The Final Decision is not arbitrary or capricious and is supported by substantial evidence.

III. The Environmental Assessment

Finally, Plaintiff argues that the Regional Forester's finding that the construction, maintenance and use of the proposed road "would result in lasting adverse effects" on the wilderness character of the Wilderness is unsupported by substantial evidence. He argues that the EA illustrated that the effects on the Wilderness would only be minimal to negligible. To the contrary, construction of Plaintiff's proposed road would render 5 acres of soil unsuitable for vegetation and affect an even larger area due to clearing requirements. It would also result in an estimated 41.54 tons of sediment in the first year, with sedimentation continuing thereafter. Defendants argue, and the court agrees, that Plaintiff focuses on the Forest Service's analysis of six issues and encourages the court to substitute the Forest Service's conclusions with those favored by Plaintiff.

The EA examined seven issues or effects of Plaintiff's proposed action and alternatives. AR 22-46. The issues or effects were: (1) impacts on cultural resources; (2) compliance with legal requirements associated with access to private land and wilderness; (3) impacts on wilderness character; (4) impacts on scenic quality; (5) impacts on soils and water quality; (6) impacts on proposed, endangered, threatened, and sensitive species; and (7) impacts on management indicator species. Id. While the EA found that Plaintiff's proposed action would have minimal or moderate impact in some areas, it found the proposed action would "adversely affect the undeveloped quality of the wilderness character" and "adversely affect the qualities of solitude and primitive and unconfined recreation and not only have long-term, major influence on visitor experiences but also permanently alter these qualities of wilderness character." AR at 32. This was the basis for the Regional Forester's determination that the construction, maintenance and use of the proposed road "would result in lasting adverse effects on wilderness character of the Upper Kiamichi Wilderness." AR at 78.

The Forest Service considered the relevant factors and articulated a reasoned basis for its conclusions. This court is to afford deference to the Forest Service's conclusions and is not to substitute its judgment for that of the Forest Service. The Regional Forester's determination that the construction, maintenance and use of the proposed road "would result in lasting adverse effects" on the wilderness character of the Upper Kiamichi Wilderness is supported by substantial evidence.

CONCLUSION

In the Environmental Assessment, the Forest Service conducted a thorough review of the relevant factors. In the Final Decision, the Regional Forester considered the relevant factors and articulated a reasoned basis for her conclusions. The Final Decision is supported by substantial evidence. It is not arbitrary, capricious, or an abuse of discretion. It is in accordance with law. Accordingly, the court finds in favor of Defendants and dismisses this action.

IT IS SO ORDERED.