The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS
The simplified version of this litigation is either that the government or defendant Secretary (hereafter "Forest Service") is using various environmental laws to unduly thwart development of a private parcel amidst the Tahoe National Forest, or that plaintiff has been unable to comply with legitimate terms and conditions of various use permits for a development which would otherwise be lawful. The facts and the law regarding jurisdiction detailed below, of course, are much more complex.
The Forest Service has moved to dismiss for lack of jurisdiction and for failure to state a claim. For the reasons that follow, the court recommends that Forest Service motions to dismiss be granted in part and denied in part. \\\\\
The factual recitation herein does not purport to finally resolve any issues of fact on the merits of this litigation under whatever theory advanced. This recitation is performed pursuant to the standards utilized in adjudicating Fed. R. Civ. P. 12 (b)(1) motions, see infra, in order to assess the jurisdiction of the court to adjudicate the theories advanced. The record is sketchy at this point, but no party has requested an evidentiary hearing.
Plaintiff apparently lived proximate to a private parcel (the "Parcel") in the Tahoe National Forest. He purchased this Parcel in the very early 1990s, or perhaps late 1980s. Access to this Parcel was over Forest Service lands, and crossed a creek, ostensibly on Forest Service Lands as well. Also, apparently, due to a filed or threatened litigation in state court, plaintiff and the Forest Service agreed that plaintiff had a right to access his newly acquired parcel over Forest Service property due to the provisions of Alaska National Interest Land Conservation Act (ANILCA § 1323(a)) 16 U.S.C. 3210 (a). *fn2 Access required the building and/or the refurbishing of a road, and most importantly for this litigation, the construction of a bridge over Scotchman Creek.
The resolution of the lawsuit expressly or impliedly required the preparation of an environmental report and the issuance of a special use permit by the Forest Service. Plaintiff submitted proposed plans of some sort to the Forest Service, and work commenced on an Environmental Assessment. On or about October 23, 1995, the EA was issued followed closely by the FONSI (Finding of No Significant Impact), but the Special Use Permit was not issued (according to the exhibits) until November 17, 1998. The Permit (attached as Exhibit A to the Complaint) was issued for the purpose: \\\\\ to gain vehicle access to private property, which is landlocked by National Forest System Lands. Use also includes construction and maintenance of a bridge on said roadbed and burying and maintaining a 6" or less utility conduit in said roadbed.
2. The Permittee in exercising the privileges granted by this permit shall comply with all applicable State and Federal laws, Executive Orders, and Federal rules and regulations, and shall comply with all State standards for public health and safety, environmental protection, and siting construction, operation, maintenance of or rights-of-way for similar purposes if those standards are more stringent than applicable Federal standards.
Other provisions pertinent to this motion include:
8. All construction or reconstruction of the road shall be in accordance with plans, specifications, and written stipulations approved by the Forest Service prior to beginning such reconstruction (See Exhibit B)
15. This permit may be terminated or suspended upon breach of any of the conditions herein.
20. Unless sooner terminated in accordance with the terms of this permit, this permit shall expire and terminate on December 31, 2007. At that time, if the permittee still needs the road for the purposes for which the permit is granted, the permit will be reissued for successive periods of 10 years. At the time of reissuance, the terms and conditions may be modified and new conditions or stipulations added at the discretion of the Forest Service.
The cover letter to the Permit (for some reason not dated until February 23, 1999) (Exhibit H) provided:
Upon receipt and approval of your engineering plans and drawings, a fully executed copy of the construction stipulations will be sent to you.*fn3
For unexplained reasons, no activity of record seems to have been pursued until 2007. In July of 2007, plaintiff was issued a building permit by Nevada County. Exhibit J. California Fish and Game also approved of the project, especially the bridge construction, in 2007 as well. By e-mail to plaintiff, the Forest Service indicated its approval to begin construction: "The Forest Service has approved your submitted bridge design...[and will] allow immediate construction pending submittal of a stream alteration permit..." (which appears to have been the Fish and Game approval).
However, the just approved construction was halted a scant month or so later due to alleged environmental concerns which had not been addressed in the prior EA analysis. Plaintiff was told, "[d]o not proceed with any plans or any surface disturbing activities at the site pending further notification." Exhibit K. On October 5, 2007, plaintiff was given the "back to square one" letter (Exhibit M) -- even worse, in that plaintiff was to be tasked with further large expenditures if he decided to pursue the road and bridge. The Forest Service, now, did not like the bridge plans after all, and stated:
Since so much time has passed since the issuance of the Environmental Analysis, and since your permit expires December 31, 2007, and since engineering stipulations were never issued or agreed upon by both parties [despite the above approval], my decision is that the Environmental Analysis will need to be revised....We will also need to conduct surveys for all the new plants and animals which have been listed as sensitive since 1995. We will not begin any of this ...