United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued February 18, 2014 Decided April 29, 2014

No. 13-5103

ARK INITIATIVE AND DONALD DUERR,

APPELLANTS

v.

THOMAS L. TIDWELL, U.S. FOREST SERVICE AND ASPEN

SKIING COMPANY,

APPELLEES

Appeal from the United States District Court

for the District of Columbia

(No. 1:12-cv-01467)

William S. EubanksII argued the cause for appellants. With

him on the briefs was Eric R. Glitzenstein.

Nicholas A. DiMascio, Trial Attorney, U.S. Department of

Justice, argued the cause for appellees. With him on the brief

were Robert G. Dreher, Acting Assistant Attorney General, and

Allen M. Brabender, Attorney.

Ezekiel J. Williams, Steven K. Imig, and Benjamin H. Kass

were on the brief for intervenor-appellee Aspen Skiing

Company. 
2

Before: ROGERS, GRIFFITH and SRINIVASAN, Circuit

Judges.

Opinion for the court by Circuit Judge ROGERS.

ROGERS, Circuit Judge: Responding to a petition by the

State of Colorado, the U.S. Forest Service in the Department of

Agriculture promulgated a final rule revising its inventory of

protected “roadless” land in Colorado. Special Areas; Roadless

Area Conservation; Applicability to the National Forests in

Colorado, 77 Fed. Reg. 39,576 (July 3, 2012) (“2012 Colorado

Rule”). Two weeks later, The Ark Initiative, a non-profit

environmental group (“Ark”), sent an Emergency Petition to the

Forest Service seeking “roadless” designation for roughly 1,000

acres on Burnt Mountain in the Snowmass ski area and

suspension of the Aspen Skiing Company’s authorization to cut

trees on that land. The Service denied the petition and Ark filed

suit, alleging that the Service had inadequately explained its

denial and failed to address relevant evidence. The district court

granted summary judgment to the Forest Service and the

Company, and denied reconsideration. Ark appeals. Although

we reject the challenge by the Service and the Company to

Ark’s standing, we agree that Ark’s challenges lack merit and

we therefore affirm.

I.

“Roadless areas are, among other things, sources of

drinking water, important fish and wildlife habitat, semiprimitive or primitive recreation areas, including motorized and

nonmotorized recreation opportunities, and natural-appearing

landscapes.” 2012 Colorado Rule, 77 Fed. Reg. at 39,577. It

is the Department’s view that “tree cutting, sale or removal, and

road construction/reconstruction have the greatest likelihood of

altering and fragmenting landscapes, resulting in immediate,
3

long-term loss of roadless area values and characteristics, and

there is a need generally to prohibit these activities in roadless

areas.” Id. But acknowledging that the State of Colorado “has

indicated flexibility is needed to accommodate State-specific

situations and concerns in Colorado’s roadless areas,” including

“accommodating existing permitted or allocated ski areas,” the

Department concluded that accurate mapping and effective

management of Colorado roadless areas were appropriate. Id.

After considering numerous comments and alternative

proposals, the Department, acting through the Forest Service,

selected one of the alternatives that it concluded would “provide

long-term management of [these areas] to ensure roadless area

values are passed on to future generations, while providing for

Colorado-specific situations and concerns that are important to

the citizens and economy of Colorado.” Id. Succinctly put, the

2012 Colorado Rule established “a high level of conservation of

roadless area characteristics on approximately 4.2 million

acres,” designating as roadless 409,500 acres that were not

previously protected as “roadless,” while removing protection

for 459,100 acres that “ha[d] been determined to be substantially

altered” and 8,300 acres “for ski area management.” Id. at

39,577–78. 

The present dispute centers around an undeveloped slope on

Burnt Mountain that is within the eastern perimeter of the

Snowmass permitted ski area near Aspen, Colorado. Although

some portion of the Snowmass resort is privately owned, most

of it is situated on public lands in the White River National

Forest. Since the resort’s opening in 1967, the Forest Service

has granted special use permits and approved master

development plans allowing the Aspen Skiing Company to

maintain and improve the ski terrain, including cutting trees and

building ski lifts. The disputed portion of Burnt Mountain has

been slated for additional ski run development for nearly two

decades. In 2001, the Forest Service designated a small portion
4

of Burnt Mountain as “roadless,” thereby “prohibit[ing] road

construction, reconstruction, and timber harvest in inventoried

roadless areas” in order to preserve “large unfragmented tracts

of land” for long-term stewardship and conservation. Special

Areas; Roadless Area Conservation, 66 Fed. Reg. 3244, 3244,

3245 (Jan. 12, 2001) (“2001 Rule”). 

In 2006, in accord with the Company’s master development

plan, the Forest Service authorized the Company to clear ski

runs on Burnt Mountain by selectively removing trees and

brush. Ark and others challenged the Service’s authorization of

new ski runs on the ground that the area was, in fact, roadless,

and therefore protected, even though it was not included in the

“roadless” inventory. See Notice of Appeal at 56–67 (Apr. 10,

2006). Their administrative appeal of the decision authorizing

the 2006 Snowmass Ski Area Improvement Project was largely

unsuccessful, see Forest Serv. Reg. Appeal Decision at 1–2

(May 22, 2006), and their efforts in court to overturn the

decision failed, see Ark Initiative v. U.S. Forest Serv., 2010 WL

3323661 (D. Colo. Aug. 18, 2010); Ark Initiative v. U.S. Forest

Serv., 660 F.3d 1256 (10th Cir. 2011).

When the 2012 Colorado Rule redrew the roadless area

boundaries in the State to exclude permitted ski areas and to add

nearly 410,000 acres to the Colorado “roadless” inventory, the

disputed parcel was not added to the inventory. The previously

listed “roadless” portion of Burnt Mountain, which is also within

the permitted ski area, was removed from the “roadless”

inventory. The rulemaking proceedings generated substantial

public participation, but Ark did not choose to comment. 

Instead, less than two weeks after the 2012 Colorado Rule was

promulgated, Ark submitted an “Emergency Petition” to the

Forest Service claiming that the disputed parcel had been

omitted from the Colorado roadless inventory due to “a factual

error.” Emerg. Pet. at 9 (July 16, 2012). Alternatively, if no
5

factual or “administrative error” were found, the Forest Service

“should consider whether ‘changed circumstances’ exist.” Id.

n.2. 

The Emergency Petition requested that “the Service invoke

its authority [under] 36 C.F.R. § 251.60, to temporarily suspend,

on an emergency basis, the narrow authorization to proceed with

activities within this parcel until such time as the Service can

assess this parcel and make a final determination concerning the

roadlessness of this tract.” Id. at 8. The regulation authorizes

emergency suspension of a special use permit “for specific and

compelling reasons in the public interest” or when suspension is

“necessary to protect the public health or safety or the

environment.” 36 C.F.R. § 251.60(a)(2)(i)(D), 251.60(f). The

petition argued that the disputed parcel’s omission from the

“roadless” inventory was a “factual error” because the Burnt

Mount parcel was roadless, as indicated by “the best available

evidence,” namely, sworn testimony, on-the-ground conditions,

satellite imagery, mapping, and aerial photography. Emerg. Pet.

at 8. “[B]ecause the Service has never taken a ‘hard look’ at the

precise impacts of cutting trees for new ski runs and a traverse

trail on this parcel’s roadless characteristics, nor even disclosed

such impacts to the public,” the petition stated, “it is imperative

that the Service revisit this issue, both from a roadless inventory

and [National Environmental Policy Act (“NEPA”)]

standpoint.” Id. at 10. The petition requested the Service to

designate the disputed parcel as “roadless” and, pending its

decision, to suspend the Company’s 2006 authorization to cut

trees there.

The Forest Service denied the Emergency Petition by two

letters, one from a Service Supervisor and the other from the

Chief of the Service. Both letters referenced the prior

unsuccessful litigation concerning the 2006 Improvement

Project and the recent conclusion of the 2012 Colorado
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rulemaking. The Chief’s letter stated that the Service was

“satisfied that the Burnt Mountain [‘roadless’] boundary is

appropriate,” Forest Serv. Ltr., Sept. 7, 2012, and the Supervisor

advised that the Service was already “working with [the

Company] on the implementation schedule for the activities,”

Forest Serv. Ltr., Aug. 17, 2012.

Ark challenged the Forest Service’s decision in federal

district court and sought an injunction against the Company’s

planned tree-cutting in the Burnt Mountain parcel. Following

the grant of summary judgment to the Forest Service and the

Company, see Ark Initiative v. Tidwell, 895 F. Supp. 2d 230, 241

(D.D.C. 2012), the Company carried out its planned project and

advised the district court that it may carry out further activities

in the future pursuant to the 2006 authorization. See Aspen

Skiing Co. Br. Regarding Whether the Controversy is Moot at

1–2. The district court denied Ark’s motion for reconsideration. 

See Ark Initiative v. Tidwell, No. 12-1467 (D.D.C. Feb. 14,

2013). 

Ark appeals, and this court reviews the grant of summary

judgment de novo. See Dunning v. Quander, 508 F.3d 8, 9

(D.C. Cir. 2007). The court may affirm the grant of summary

judgment on any ground properly raised and supported by the

record. See Jones v. Bernanke, 557 F.3d 670, 676 (D.C. Cir.

2009); EEOC v. Aramark Corp., Inc., 208 F.3d 266, 268 (D.C.

Cir. 2000). Where, as here, there is a challenge to agency action

under the Administrative Procedure Act (“APA”), this court will

uphold the agency’s decision unless it is “arbitrary, capricious,

an abuse of discretion, or otherwise not in accordance with law.” 

5 U.S.C. § 706(2)(A). This court’s review of the denial of

reconsideration is typically limited to abuse of discretion

because reconsideration “need not be granted unless the district

court finds that there is an intervening change of controlling law,

the availability of new evidence, or the need to correct a clear
7

error or prevent manifest injustice.” Ciralsky v. CIA, 355 F.3d

661, 671 (D.C. Cir. 2004) (quoting Firestone v. Firestone, 76

F.3d 1205, 1208 (D.C. Cir. 1996)); see also FED. R. CIV. P.

59(e). 

II.

As a threshold matter, the court addresses the objection by

the Service and the Company that Ark lacks standing under

Article III of the Constitution to challenge the Forest Service’s

final action denying the Emergency Petition. Because Ark is the

party invoking the court’s jurisdiction, it bears the burden of

demonstrating that it satisfies the “irreducible constitutional

minimum” of standing: (1) an “injury in fact” that is “concrete

and particularized” as well as “actual or imminent”; (2) a

“causal connection” between the injury and the challenged

conduct; and (3) a likelihood, as opposed to mere speculation,

“that the injury will be redressed by a favorable decision.” 

Lujan v. Defenders of Wildlife, 504 U.S. 555, 560–61 (1992)

(internal quotation marks omitted). 

Only the second and third elements are at issue. Ark has

clearly demonstrated a cognizable injury-in-fact: its founder’s

declaration in the district court stated that the Company’s treecutting would “permanently reduce the places [he] enjoy[s]

going to appreciate nature” and would “irreparably impair [his]

ability to observe wildlife . . . in this area.” Duerr Decl. ¶ 14. 

Such aesthetic injuries constitute injury-in-fact. See Defenders

of Wildlife, 504 U.S. at 562–63. The Forest Service and the

Company contend, however, that Ark cannot show causation

and redressability because the grandfathering provision in the

2012 Colorado Rule preserves the Company’s prior 2006

authorization to cut trees on the Burnt Mountain parcel

regardless of the area’s “roadless” status.
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The grandfathering provision provides that the 2012

Colorado Rule “does not revoke, suspend, or modify any permit,

contract, lease, or other legal instrument authorizing or granting

rights to the occupancy and use of National Forest system land

issued prior to July 3, 2012[.]” 36 C.F.R. § 294.48(a). Even if

the disputed parcel were designated as “roadless,” the Service

and the Company maintain that Ark’s injury would persist

because the Company’s 2006 authorization to cut trees in that

area trumps any limitations the final rule might otherwise

impose. Likewise, they maintain, it is the 2006 authorization,

not the lack of “roadless” status, that causes Ark’s injury.

Ark, on the other hand, interprets the grandfathering

provision not to have the “sweeping . . . effect” of

“foreclos[ing], as a matter of law, the Service’s discretion in

modifying a pre-2012 project decision.” Reply Br. 14. It points

to another provision in the 2012 Colorado Rule stating that

“[n]othing in this subpart shall prohibit a responsible official

from further restricting activities allowed within Colorado

Roadless Areas.” 36 C.F.R. § 294.48(c). Under Ark’s

interpretation, the grandfathering provision cannot operate as the

Service and the Company suggest because that would “read out

of the regulation the ‘changed circumstances’ and

‘administrative correction[s]’ provision of the [2012 Colorado

Rule, 36 C.F.R. § 294.47(a), (b)].” Reply Br. 15. Additionally,

noting that the Service relies on the grandfathering provision for

the first time on appeal, Ark references 36 C.F.R. § 294.42,

which provides that “[t]rees may not be cut, sold, or removed in

Colorado Roadless Areas” unless a “responsible official”

determines an exception applies. 36 C.F.R. § 294.42(a),

294.42(c); Reply Br. 8 n.1.

Absent another basis for Ark’s Article III standing, this

court’s jurisdiction turns on whether a proper interpretation of

the grandfathering provision precludes the relief Ark seeks. For
9

purposes of demonstrating standing, Ark need not convince this

court that its interpretation is correct. Rather, Ark’s “standing

depends upon whether its interpretation of the [grandfathering

provision], under which th[e] [2012 Colorado Rule] . . . would

not preclude the relief it seeks, is non-frivolous.” United

Transp. Union – Ill. Legislative Bd. v. STB, 175 F.3d 163, 166

(D.C. Cir. 1999) (emphasis added). Ark has met its burden here. 

The district court concluded, in rejecting the challenge to Ark’s

standing, that roadless designation would give Ark a procedural

right to have a “responsible official” determine whether treecutting may proceed on the disputed parcel. See Ark Initiative,

895 F. Supp. 2d at 240 (citing 36 C.F.R. § 294.42). The Service

contends that the grandfathering provision obviates that

procedural right. See Fed. Appellee’s Br. 29–30. Yet Ark

makes a plausible argument that even if an authorization to cut

trees has been “grandfathered” in a new roadless area, the

“responsible official” may override such authorization because

“[n]othing” in the final rule “prohibit[s] a responsible official

from further restricting activities allowed within Colorado

Roadless Areas.” 36 C.F.R. § 294.48(c); Reply Br. 14–15. 

Having advanced a non-frivolous interpretation of the 2012

Colorado Rule under which the causation and redressability of

its injury are apparent, Ark has Article III standing to challenge

the Forest Service’s denial of the Emergency Petition.

III.

The Forest Service’s denial of Ark’s Emergency Petition

was neither unexplained, unreasonable, nor unduly brief under

the circumstances. Under the Administrative Procedure Act,

the Service was required to give a “brief statement of the

grounds” for its denial of Ark’s Emergency Petition, unless such

denial was “self-explanatory” or merely “affirming a prior

denial.” 5 U.S.C. § 555(e). “Although nothing more than a

brief statement is necessary, the core requirement is that the
10

agency explain why it chose to do what it did.” Tourus Records,

Inc. v. Drug Enforcement Admin., 259 F.3d 731, 737 (D.C. Cir.

2001) (internal quotation marks omitted). That explanation

must evince reasoned decision-making. See Butte Cnty., Cal. v.

Hogen, 613 F.3d 190, 194 (D.C. Cir. 2010); 5 U.S.C.

§ 706(2)(A). The Service has satisfied these requirements.

The Chief of the Forest Service explained in his September

7, 2012 letter that the 2012 Colorado Rule revising roadless

boundaries had been finalized only weeks before the Emergency

Petition was submitted. In view of the “extensive public

involvement” in the rulemaking, including “[m]ore than 310,000

public comments, over a 6-year period,” the Chief wrote that the

Service was “satisfied that the Burnt Mountain [‘roadless’ area]

boundary is appropriate.” He noted that the disputed Burnt

Mountain parcel is “within [the Company’s] Master

Development Plan in the permitted boundary,” and that the

“roadless” area inventory for the 2012 Colorado Rule excluded

lands within ski area permitted boundaries. See 2012 Colorado

Rule, 77 Fed. Reg. at 39,576. The Chief further noted that “[i]n

addition, changes to the area were made based on site-specific

knowledge of White River National Forest personnel.” Both the

Chief’s and the Supervisor’s letters referred to Ark’s

unsuccessful challenge to the 2006 plan with respect to the same

parcel of land, the Chief observing in his letter that “[t]he

roadless area inventory that delineated the Burnt Mountain

roadless area” had previously been subject to “public review and

comment” and “was upheld by [the Service] during appeal.” 

Therefore, the Chief stated the Service saw “no reason to revisit

that decision.” 

Ark maintains the Forest Service cannot rely on the 2012

Colorado rulemaking because the final rule never

“contemplated, addressed, or analyzed” the disputed Burnt

Mountain parcel. Appellants’ Br. 30. Rather, Ark contends,
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“the [2012 Colorado Rule] applies only to the specifically

enumerated parcels that were removed from the roadless

inventory based on specific factual determinations as to their

roadless qualities” and “was never intended to permanently

foreclose roadless designation of any parcels within ski area

boundaries (including the disputed parcel).” Id. Ark elaborates

that “the Service made a threshold determination that certain

enumerated parcels totaling 8,260 acres are in fact degraded and

thus are no longer roadless,” and “then made a formal

decision . . . to remove these specifically enumerated acres from

the roadless inventory.” Id. at 30 n.5. In fact, the 8,260 acres

correspond to the “roadless” acreage that had overlapped with

permitted ski areas and was removed from the “roadless”

inventory for that reason. See 2012 Colorado Rule, 77 Fed. Reg.

at 39,578. Although conceding that the Forest Service decided

that all previously designated roadless parcels inside ski areas

should be removed from the roadless inventory, Ark contends

that the 2012 Colorado Rule did not address whether other

parcels inside ski areas that had not yet been designated as

roadless should be added to the inventory. 

The preamble to the 2012 Colorado Rule stated that the

affected ski-area acres “include roadless acres with degraded

roadless area characteristics due to the proximity to a major

recreational development.” Id. (emphasis added). Contrary to

Ark’s view, there was no assertion that all 8,260 acres were

“degraded.” Rather, the Service explained that removing all skiarea acres from the roadless inventory would “ensure [that]

future ski area expansions within existing permit boundaries”

are “not in conflict” with the requirements for roadless lands,

and would “address one of the State-specific concerns identified

by the State of Colorado,” id. — namely, to “remove from

roadless inventory all areas allocated . . . in Colorado to ski area

special uses, including all areas inside special use permit

boundaries,” Colo. Roadless Area Recs. at 7 (Gov’r’s Ltr., Nov.
12

13, 2006). 

The Chief’s letter is consistent with the view that the 8,260

acres were removed from the roadless inventory on the basis of

a state-wide policy decision that roadless areas not overlap with

ski areas. The letter explained that the Colorado roadless

inventory “excluded lands within ski area permitted

boundaries,” and that “[t]his change was applied to the Burnt

Mountain roadless area.” Forest Serv. Ltr., Sept. 7, 2012. It

then noted that “[i]n addition, changes to the area were made

based on site-specific knowledge of White River National Forest

personnel.” Id. (emphasis added). The fact that site-specific

knowledge was merely an “addition[al]” basis for removing the

ski-area acres from the roadless inventory, and not the primary

basis for doing so, further undermines Ark’s claim that all 8,260

ski-area acres were removed from the inventory based on sitespecific findings of degradation. Ark’s suggestion the court

cannot rely on the Chief’s letter because it is an inadequate posthoc rationalization lacks merit. Ark’s filing of its lawsuit on

September 5, 2012, only 19 days after the Service refused to

suspend the Company’s project, did not mean the letter is

properly characterized as a supplemental response; the Service’s

official denial of the Emergency Petition by letter within 21 days

of the refusal to suspend the Company’s 2006 authorization is 

part of the Service’s final decision. Cf. Alpharma, Inc. v.

Leavitt, 460 F.3d 1, 6–7 (D.C. Cir. 2006).

Ark nonetheless contends that the Forest Service “never

took a hard look,” Appellants’ Br. 57, at the new evidence

presented in the Emergency Petition, which purported to show

that the Burnt Mountain parcel “does not contain any improved

roads maintained for passenger vehicles or other structures that

would otherwise disqualify this area from inventory

consideration,” Emerg. Pet. at 8. This ignores that the Service

did not deny the petition because the Burnt Mountain parcel had
13

been degraded by disqualifying roads or structures. Rather, the

Service’s reason was a policy one: Less than two weeks before

Ark’s petition, the 2012 Colorado Rule had removed 8,260 skiarea acres from the roadless inventory in order to accommodate

“Colorado-specific concerns,” see 2012 Colorado Rule, 77 Fed.

Reg. at 39,578, and these concerns applied to the Burnt

Mountain parcel. Ark does not maintain that the Service

misjudged the boundary of the Snowmass permitted ski area in

relation to the Improvement Project’s boundary. And the record

shows the Service promulgated the final rule only after

considering over 300,000 comments received during the

rulemaking, balancing a range of competing interests regarding

“roadless area conservation” in the State, and explaining its

selection of one of the proposed alternatives. 2012 Colorado

Rule, 77 Fed. Reg. at 39,581. Given the recent promulgation of

the final rule after extended review, the Service responded

appropriately with a “brief statement” resting on the final rule’s

rationale. 

Neither does Ark’s APA challenge gain traction by

characterizing the Forest Service’s land boundary decision in

denying the Emergency Petition as a “major federal action”

subject to NEPA. See Appellants’ Br. 10 (citing Lands Council

v. Martin, 529 F.3d 1219, 1230–32 (9th Cir. 2008)). Ark

contends that “the Service was required under federal law to

conduct NEPA review to publicly disclose and analyze the

inevitable impacts to this particular parcel’s roadless qualities,”

but only if “the Service permanently disqualified the Burnt

Mountain parcel from roadless designation” as part of the 2012

Colorado Rule. Appellants’ Br. 50, 53–54. Ark’s contention

fails because its premise is flawed. In denying the Emergency

Petition, the Service did not rely on a categorical rule that ski

areas could never be designated as roadless; rather, the Chief

refused to revisit a boundary purposefully drawn to exclude the

Snowmass Ski Area just two weeks before, and rejected the
14

Emergency Petition as tardy and repetitive of Ark’s unsuccessful

earlier challenge. Consequently, the Service cannot be faulted

for failing to conduct a NEPA analysis of a “categorical rule”

that it did not adopt.

The Forest Service’s refusal to suspend the Company’s

2006 project authorization was also reasonable in view of the

denial of Ark’s “roadless” petition. The Emergency Petition

requested the suspension for the express and exclusive purpose

of allowing the Service “an opportunity to revisit [the Burnt

Mountain parcel] issue” and “make a final determination

concerning the roadlessness of this tract.” Emerg. Pet. at 2, 8. 

In response, the Service stated that it remained “satisfied that the

Burnt Mountain [‘roadless’ area] boundary is appropriate” and

saw “no reason to revisit” its prior decision. Forest Serv. Ltr.,

Sept. 7, 2012. Therefore, the Service had no basis to suspend

the permit for the Company’s project, and its refusal to do so

was “self-explanatory.” 5 U.S.C. § 555(e).

Accordingly, we hold that Ark has Article III standing, and

we affirm the grant of summary judgment and the denial of

reconsideration because the Forest Service’s denial of the

Emergency Petition was not arbitrary or capricious or contrary

to law, and Ark fails to show an abuse of discretion on

reconsideration.