Robert Luciano, Jr. v. United States , 667 F. App'x 278 ( 2016 )

FILED
NOT FOR PUBLICATION
JUN 24 2016
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ROBERT A. LUCIANO, Jr., Trustee of No. 14-16167
The Robert A. Luciano Jr. Revocable Trust
Dated February 27, 1995, D.C. No. 2:11-cv-01831-TLN-KJN
Plaintiff - Appellant,
MEMORANDUM*
v.
UNITED STATES OF AMERICA; et al.,
Defendants - Appellees.
Appeal from the United States District Court
for the Eastern District of California
Troy L. Nunley, District Judge, Presiding
Submitted June 14, 2016**
San Francisco, California
Before: CLIFTON and IKUTA, Circuit Judges and LAMBERTH,*** Senior
District Judge.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Royce C. Lamberth, Senior District Judge for the U.S.
District Court for the District of Columbia, sitting by designation.
Plaintiff Robert Luciano, Jr. appeals the district court’s summary judgment
in favor of the United States and various other federal defendants. We affirm.
Luciano first argues that the Forest Service’s denial of his 2007 Small Tract
Act Application for a boundary adjustment was arbitrary and capricious. The
Forest Service is authorized by 16 U.S.C. § 521d(1) to exchange National Forest
lands in certain circumstances, including “parcels of ten acres or less which are
encroached upon by improvements occupied or used under claim or color of title.”
16 U.S.C. § 521e. The party seeking the boundary adjustment must have had “no
advance notice . . . that the improvements encroached or would encroach upon”
National Forest land. Id. The Forest Service determined that Luciano had advance
notice of the encroachment as a result of a 1993 boundary survey that was recorded
in Plumas County approximately two years before Luciano purchased his property.
The Forest Service’s denial of his application was neither arbitrary nor capricious.
Second, Luciano argues that the Forest Service’s denial of his proposal to
exchange a parcel of land located in the Middle Fork of the Feather River was
arbitrary and capricious. The Forest Service has broad discretion to reject land
exchange proposals:
The Secretary is not required to exchange any Federal lands. Land
exchanges are discretionary, voluntary real estate transactions
between the Federal and non-Federal parties. Unless and until the
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parties enter into a binding exchange agreement, any party may
withdraw from and terminate an exchange proposal at any time during
the exchange process.
36 C.F.R. § 254.3(a). The Forest Service determined that it was not interested in
giving up acreage that it already owned in exchange for Luciano’s land for
multiple non-arbitrary reasons: (1) The land was not very accessible, (2) it was
littered with old cars, trucks, bulldozers, mining equipment, and likely hazardous
materials, (3) it would require extensive environmental impact analyses, and (4)
the agency did not have the funding or the human resources to complete the
exchange. Luciano’s arguments and the Forest Service’s scrivener’s error in
referencing the incorrect land exchange regulation do not undercut these legitimate
reasons, nor do they persuade us that the Forest Service failed to consider any
factors that it had a duty to consider before rejecting a land exchange proposal.
The Forest Service’s rejection of Luciano’s proposal was not arbitrary and
capricious.
Third, Luciano argues that the Forest Service’s denial of his land exchange
proposal violated the National Forest Management Act, the National Wild and
Scenic Rivers Act, the Sierra Nevada Forest Plan, the Plumas National Forest Land
Resource Management Plan, and the Forest Service’s manual. Although these
sources provide broad policy directives that might align with a decision to acquire
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land in the Middle Fork of the Feather River, Luciano points to no mandatory
language that would require the Forest Service to give up existing federal lands in
exchange.
Fourth, Luciano argues that the district court abused its discretion when it
struck extra-record evidence from the record. “As a general matter, judicial review
of agency decisions is limited to the record considered by the agency in making its
decision. A court may consider extra-record documents, however, if necessary to
determine whether the agency has considered all relevant factors and has explained
its decision.” Humane Soc’y of U.S. v. Locke, 626 F.3d 1040, 1058 (9th Cir. 2010)
(internal citation and quotation marks omitted). Because the existing record
showed that the Forest Service adequately explained its decision and based its
decision on the relevant factors, there was no need for the district court to consider
the extra-record evidence. The district court did not abuse its discretion when it
struck the challenged evidence.1
AFFIRMED.
1
Luciano’s request for judicial notice, addressed to this court, is granted in
part and denied in part. The request regarding Exhibit A is denied as unnecessary.
Federal statutes, in this instance the Small Tracts Act, are before the court as law
and need not be submitted as evidence. The request regarding Exhibit B, pages
from the Plumas National Forest Land and Resource Management Plan, is granted.
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