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ARO, Appeal #07-03-05-0002-A251, Tucson Rod and Gun Club Storage Yard by ftb12802

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									United States       Forest         Southwestern Region                  333 Broadway SE
Department of       Service        Regional Office                      Albuquerque, NM 87102
Agriculture                                                             FAX (505) 842-3800
                                                                        V/TTY (505) 842-3292

                                                            File Code: 1570-1/2720
                                                                 Date: December 6, 2007

Mr. David Hardy
President
Tucson Rod and Gun Club                                  CERTIFIED MAIL – RETURN
P.O. Box 12921                                           RECEIPT REQUESTED
Tucson, AZ 85732                                         NUMBER: 7005 1820 0003 7466 8360

RE: Appeal #07-03-05-0002-A251, Tucson Rod & Gun Club Storage Yard Permit, Santa
Catalina Ranger District, Coronado National Forest

Dear Mr. Hardy:
This is my review decision regarding your appeal of the Tucson Rod and Gun Club (TRGC)
storage yard special use permit decision of April 13, 2007. The decision denies the renewal of
TRGC’s storage yard special use permit at the former Sabino Canyon site.

INTRODUCTION

Your appeal contends that the Forest Supervisor’s letter of February 15, 2007, constitutes a
decision that is appealable. The Forest Supervisor’s letter of February 15, 2007, did not take any
action on TRGC’s written authorization except to provide notice that the storage yard permit
may not be re-issued. Since this letter did not impose any action affecting the permit, it is not
subject to appeal under 36 CFR 251. The Forest Supervisor’s letter of April 13, 2007, made the
decision not to renew TRGC’s storage yard permit and offered appeal rights. The Forest
Supervisor is identified as the Responsible Official whose decision is subject to administrative
review under 36 CFR 251 Subpart C appeal regulations. TRGC appealed the decision on May
30, 2007.

The record was closed by letter on November 13, 2007.

My review of this appeal has been conducted in accordance with 36 CFR 251 Subpart C. I have
reviewed the appeal record and my review decision incorporates the appeal record. A
chronology of events related to the storage yard special use permit, your appeal issues and my
responses and findings are enclosed.

BACKGROUND

On June 6, 2003, I upheld the Coronado Forest Supervisor’s decision not to issue TRGC a
shooting range special use permit for the Sabino Canyon site. In my decision, TRGC was given
one year from the date of the decision to remove all improvements and 6 months to submit a
proposal and design for a new shooting facility.




                               Caring for the Land and Serving People                Printed on Recycled Paper
Mr. Hardy                                                                                           2



On May 14, 2004, the Forest Supervisor reminded TRGC all property and improvements had to
be removed by June 6, 2004. TRGC made no attempt to remove its property and improvements.
Instead the club told the Forest Supervisor it intended to leave everything in place until another
location for a shooting range was found. Subsequently, TRGC failed to respond to repeated
requests by the Forest to provide a schedule for the removal of its property and improvements.

On an April 12, 2005, field trip with TRGC to the Sabino Canyon site, the Forest agreed to
accept applications from the club for a one-year storage yard special use permit for the remaining
property and improvements. The Forest received an application for a storage yard special use
permit on August 11, 2005.

A special use permit was not issued to TRGC until February 24, 2006, because of the club’s
concerns about standard language in the permit’s clauses and language in the operating and
maintenance plan. This permit had a term of one year.

The Forest also worked with TRGC to find a new site for a shooting range on National Forest
System lands. Over a 2 ½ year period, five potential shooting range sites were visited with
TRGC. Significant issues were identified with the first four sites (Prison Camp, Bug Springs,
Race Track and Italian Trap) proposed by the Forest. The final site proposed by the Forest,
Corral, was visited by TRGC in February 2006. The club agreed it was the best alternative for a
shooting range. A conceptual drawing of a proposed shooting range facility at the Corral site
was not received by the Forest until July 1, 2007. To date, the Forest has not received the
requested financial and technical information needed to accept TRGC’s application for a
shooting range permit.

APPEAL DECISION

After a review of the appeal and record, I affirm in whole the Responsible Official’s decision to
not issue a new storage yard special use permit based on higher public need for the former
Sabino Canyon shooting range site. Continued occupancy of the site by TRGC would preclude
the Forest Service from analyzing a complete range of options including the final CERCLA
cleanup of the site, construction of the Southern Arizona Search and Rescue Association’s
headquarters facility, and Forest Service overflow parking and trailhead facilities.

This appeal decision is the final administrative decision of the Department of Agriculture unless
the next higher officer exercises discretion to review per the regulations at 36 CFR 251.99(f).




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Mr. Hardy                                                                                       3



This appeal review decision will be forwarded to the Chief of the Forest Service for discretionary
review. Following receipt of this decision letter, the Chief will have 15 calendar days to decide
if she will conduct a discretionary review (36 CFR 251.87(e) and 36 CFR 251.100). The Chief
will notify you of her decision.

Sincerely,



/s/ Lucia M. Turner
LUCIA M. TURNER
Acting Regional Forester
Appeal Reviewing Officer

Enclosures (2): Response and Findings, Chronology


cc: Judy Levin
Judy Yandoh
Jeanine Derby
Mailroom R3 Coronado
Mailroom R3
Chief of the Forest Service
Karen Terney
Constance J Smith
Stan Helin
Annette H Chavez




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Mr. Hardy                                                                                        4



                                 Response and Findings
                               Tucson Rod and Gun Club’s
                              Appeal #07-03-05-0002-A251 of
                         Denial of Storage Yard Permit Issuance
                 Santa Catalina Ranger District, Coronado National Forest


Issue 1: The TRGC believes its storage yard permit was not renewed because the club did
not submit a proposal for a new shooting range site, and the requested technical and
financial information.

Response: The Forest Supervisor’s February 15, 2007, letter (AR196) conditions the issuance of
a new storage permit upon TRGC submitting a proposal for a new shooting range, and submittal
of technical and financial information. The Forest Supervisor’s letter of April 13, 2007, (AR211)
to the TRGC outlines recent developments since her letter of February 15. The letter documents
other uses for the site to repair flood damage and enhance recreational opportunities in Sabino
Canyon. Projects that could be funded by donated money include additional parking for the
Sabino Canyon visitor center and new trailheads. She also mentioned that the Southern Arizona
Rescue Association (SARA) submitted a proposal to construct their headquarters facility on part
of the former Sabino Canyon site.

In a January 24, 2007, e-mail to the Forest Supervisor (AR190), District Ranger Larry Raley
outlined proposals for future uses of the former TRGC shooting range site. He mentioned the use
of the site for overflow parking and trailheads.

A March 23, 2007, (AR204) Coronado National Forest Briefing discussed restoration of Sabino
Canyon Recreation after the August 31, 2006, flood. The briefing documents the Friends of
Sabino Canyon’s offer to assist in raising money for projects that would enhance visitor
experience in the Canyon as well as address flood damage. Potential projects identified by the
Forest included expansion of additional parking at the former TRGC shooting range site.

The initial proposal for the construction of a SARA facility on the former TRGC shooting range
site was received by District Ranger Raley in June 2005 (AR98). No further action was taken on
the proposal because of SARA’s interest in another site located off National Forest System lands.
In an e-mail dated February 9, 2007, (AR193), District Ranger Raley informs the Forest
Supervisor that SARA is again interested in the Sabino Canyon site. He states “They have
evidently received a letter from the county that is telling them that the site on Houghton Road is
no longer available for the building. They are asking if we could discuss the gun site.” On April
2, 2007 SARA submitted an application package (AR207) to the Forest Service for construction
of a headquarters facility and associated parking on the former TRGC shooting range site.

Finding: The record shows that new information concerning proposed projects on the former
TRGC shooting range site became available about the time of the Forest Supervisor’s February
15, 2007, letter or shortly afterward. The record reflects changed circumstances leading up to the
April 13, 2007, decision not to issue a new permit. The lack of a new shooting range proposal
was not the key factor in the decision not to issue a new storage yard permit.



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Mr. Hardy                                                                                         5




Issue 2: The Forest Service agreed to allow TRGC to store its equipment at the Sabino site
until issuance of a permit for a new shooting range.

Response: The Forest Service has consistently provided direction to TRGC to remove their
property and improvements from the former Sabino Canyon shooting range site. In a June 6,
2003, letter (AR248), to TRGC, Deputy Regional Forester (DRF) Lucia Turner stated the
shooting range special use permit would terminate on that date and authorization for all activities
would cease. The letter further stated that removal of improvements, as described in TRGC’s
special use permit clause 11 (AR247), would be completed within one year. In a January 12,
2004, letter to TRGC (AR3), DRF Turner stated in her letter that the Forest Supervisor would be
contacting TRGC about removal of articles, materials, and/or improvements from the shooting
range. In a May 14, 2004, letter to TRGC (AR16), the Forest Supervisor reminded the club that
all facilities and improvements must be removed by June 6, 2004.

Between June 2004, and February 2005, several requests were made to TRGC to provide the
Forest with a schedule for the removal of its property and improvements (AR21, AR31). The
club proposed leaving everything in place until another site for shooting was identified (AR31,
AR61). In February 2005, the Forest directed TRGC to remove its property from the Sabino
Canyon site (AR52).

During a range field visit on April 12, 2005, (AR73) the Forest Service agreed that TRGC could
complete a special use application requesting to use the existing club house and ramada area as a
storage site. A storage yard permit was issued to TRGC on February 24, 2006 with an expiration
date of February 21, 2007, (AR181). On February 15, 2007 the term of the permit was extended
60 days by letter (AR196).

Finding: The record does not support TRGC’s contention that the Forest Service agreed to
allow its property to be stored at the Sabino Canyon site until a permit for a new shooting range
was authorized. The authorization for the storage of the club’s property at the Sabino Canyon site
was for one year and that authorization has expired. In addition, the 60-day extension of the
permit term has expired.

Issue 3: New developments including SARA headquarters, overflow parking and new
trailheads were discussed and planned for when the storage permit was negotiated. The
Forest Service agreed that it would work around TRGC’s storage facilities.

Response: The only discussion in the record concerning accommodating planned future uses of
the former shooting range site with TRGC’s stored property is found in notes for the April 12,
2005 shooting range visit (AR73). The notes state “there may be further discussion for an
agreement for the FS to use the ramadas”.

Finding: The record does not support TRGC’s contention the Forest Service agreed to work
around TRGC’s improvements and stored property.




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Mr. Hardy                                                                                      6



Issue 4: Although the Forest Service claims that extensive engineering is necessary on the
site, they have produced no written documentation on the proposed uses, engineering
reports or estimates of work to be done.

Response: The record contains SARA’s proposal for a headquarters facility at the Sabino
Canyon site (AR207). Future use of the Sabino Canyon site for overflow parking and trailheads
are documented in the record (AR190, AR204). The record also contains references for the need
to complete the CERCLA clean-up of the site (AR33, AR52).

Finding: The record indicates that site specific designs and environmental analyses for the
proposed future projects at the Sabino Canyon site are in the beginning stages. TRGC’s
occupancy of the Sabino Canyon site precludes the Forest Service from addressing the full range
of options for implementation of the proposed projects including the SARA facilities, overflow
parking, new trailheads and CERCLA cleanup.

Issue 5: The Forest Service should consider other options to address the need for parking
that do not include removing TRGC’s equipment from the Sabino site. The area north of
the visitor center would be far more useful and convenient for SARA headquarters and
additional parking.

Response and Finding: The Forest is currently considering options for CERCLA cleanup,
overflow parking and other proposed uses such as SARA facilities and new trailheads. Public
comments will be solicited for any new NEPA decision on these uses.

Issue 6: The Forest Supervisor’s decision letter of April 13, 2007 violated 36 CFR 251.84
which requires a statement of the deciding officer’s willingness to meet with applicants or
holders to hear and discuss any concerns or issues related to the decision. Such a statement
is lacking in the decision letter.

Response: On April 13, 2007, the Forest Supervisor spoke over the telephone with Don Saba
(AR212) concerning her decision not to renew the storage yard special use permit. The
conversation lasted over an hour and a half. She also stated she had left a message on David
Hardy’s voice mail but had not received a response (AR216). In a May 23, 2007, e-mail
(AR217) the Forest Supervisor stated she had not been contacted by TRGC (Hardy and Saba).
TRGC made no contacts with the Forest Service from April 13, 2007, until May 30, 2007, when
the club’s appeal was received (AR219).

Finding: The record shows the Forest did discuss the issue with TRGC (Don Saba). TRGC had
opportunity between April 13th and May 30, 2007, to discuss the issues and decision.

Issue 7: The Forest Supervisor’s decision letter of April 13, 2007, violated 36 CFR 251.93
which requires the Forest officer consult and meet with holders of written instruments
prior to issuing written decisions relating to administration of a written authorization. The
Forest Supervisor failed to consult and meet with the appellant prior to issuing the
decision.




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Mr. Hardy                                                                                           7



Response: 36 CFR 251.93 (a) states “Authorized Forest Service officers shall, to the extent
practicable and consistent with the public interest, consult and meet in person or by phone with
holders of written instruments prior to issuing written decisions related to the administration of a
written authorization.” The appeal record contains a long history of Forest Service meetings
with, telephone calls and letters to TRGC over a three-year period. The Forest Supervisor’s letter
of February 15, 2007, notified TRGC of the possibility that a new storage yard special use permit
would not be issued (AR196). TRGC (Hardy) responded to this letter (AR202). TRGC’s appeal
(AR216) and reply (AR246) to the Forest Supervisor’s responsive statement (AR223) documents
their knowledge of the planned future projects on the former shooting range site.

Finding: The record documents that the communications between TRGC and the Forest Service
met the intent of 36 CFR 251.93.

Issue 8: The Forest Supervisor’s decision letter of April 13, 2007 violated 36 CFR 251.64
which states that when a special use authorization provided for the renewal, the authorized
officer shall renew it. The special use authorization provides for the renewal of the permit
and yet the Forest Supervisor did not renew the permit.

Response: On February 16, 2006, TRGC (Hardy) signed a storage yard special use permit, FS-
2700-4 (05/03) (AR181). Refer to the following permit clauses: Clause II E. Discretion of the
Forest Service states “The decision whether to issue a new permit to a holder or successor in
interest is at the absolute discretion of the Forest Service.” Clause II C Notification to
Authorized Officer: “If the holder desires issuance of a new permit after expiration, the holder
shall notify the authorized officer in writing not less than six (6) months prior to expiration date.”
Clause II D. Conditions for Issuance of a New Permit states “At the expiration or termination of
an existing permit, a new permit may be issued to the holder of the previous permit.”
Finding: The permit clauses do not guarantee issuance of a new permit.

Issue 9: The Forest Supervisor cites FSM 2716.12 as the basis for denial of the relief
(repave the existing parking area without the need for extensive recontouring of the site
and request the Forest Service find other locations for parking that do not necessitate
relocation of TRGC equipment). This section of the manual merely states that a permit
should be brought into compliance with its terms.

Response: FSM 2716.12 states “Before approving the issuance of a new special use permit for
an established use, an analysis of the conditions of use shall be made to determine whether
changes in permit conditions are needed”. It also states “When an existing use is no longer
desirable, or when the area is needed for uses of higher priority, the permittee should be given
written notice that a request for a new permit will not be approved if the improvements are
transferred.”

Finding: Forest Service policy recognizes that higher priority uses for an area can result in a
special use permit not being renewed. The Forest Supervisor’s decision not to renew TRGC’s
storage yard special use permit was consistent with policy. Refer to Issue 1 response regarding
proposed uses of the area.




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Mr. Hardy                                                                                          8



                                CHRONOLOGY OF EVENTS
                            for TUCSON ROD AND GUN CLUB’s
                                 Appeal #07-03-05-0002-A251
                                    Storage Yard Permit

June 6, 2003 ...............Reviewing Officer upholds Forest Supervisor’s decision. TRGC is given
                            one year from the date of the decision to remove all improvements.
June 23, 2003 ............Chief decides not to do discretionary review of decision.
January 12, 2004 .......TRGC told Forest Supervisor will be contacting club about removal of
                            articles, materials, and/or improvements from the shooting range.
May 14, 2004 .............Forest Supervisor reminds TRGC that all facilities and improvements
                            must be removed by June 6 2004.
June 16, 2004 .............District Ranger Raley contacts TRGC for a timeline on removal of
                            improvements. He is told a company is inventorying the site and that he
                            would be given a proposed schedule for removal.
July 13, 2004..............District Ranger Raley asks TRGC for a schedule or to meet on site to
                            discuss removal of the club’s improvements and property.
August 18, 2004 .........TRGC tells Forest Supervisor the club intends to leave everything in place
                            until they have another location to move it to.
August 23, 2004 .........District Ranger Raley meets with TRGC at possible shooting range site at
                            Prison Camp off Mt. Lemon Road.
August 26, 2004 .........District Ranger Raley visits a potential shooting range site at Race Track
                            Tank off the Redington Pass Road. TRGC is notified of the site.
September 4, 2004 .....Bob Cote, owner of Bellota Guest Ranch, strongly protests location of
                            shooting range at Race Track site in a letter to District Ranger Raley.
February 9, 2005 ........TRGC informed by District Ranger Raley that all TRGC improvements
                            and property must be removed from the Sabino Canyon site by March 31
                            2005.
March 22, 2005 ..........TRGC informed by District Ranger Raley that he will work with club on
                            temporary storage of salvageable items at the Sabino Canyon site.
April 12, 2005 ............Field visit by TRGC, NRA Federal liaison, USDA NRE and Forest
                            Service made to Sabino Canyon site. Clean-up of site and storage of
                            TRGC’s property was discussed. TRGC agreed to complete a special use
                            application for a one year storage yard permit. Potential shooting range
                            sites at Prison Camp and Race Track Tank were visited by the group.
                            Group agreed the Prison Camp site was not the best site for consideration
                            because of conflicts, increased public use and road construction. The
                            nearby Bug Springs site was also discussed. The group also agreed this
                            site should not be pursued.
May 13, 2005 .............Forest Service proposes Italian Trap off the Redington Pass Road as a
                            possible site for a shooting site.
May 16, 2005 .............TRGC told Forest Service is waiting for the club’s application for a
                            storage yard special use permit.
May 31, 2005 .............Bob Cotes writes Forester Supervisor complaining about possible shooting
                            range at Race Track Tank site.
June 10, 2005 .............TRGC agrees to submit storage permit application by end of June.



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Mr. Hardy                                                                                            9



June 29, 2005 .............Santa Catalina District employees and TRGC visit Italian Trap site.
July 14, 2005..............District Ranger Raley informed there are 11 recorded archaeological sites
                            at Italian Trap. Many of the sites are considered significant. Tribal
                            consultation will be required
August 11, 2005 .........Forest Service receives TRGC’s application for a storage special use
                            permit.
September 8, 2005 .....Storage yard special use permit, and operating and maintenance plan are
                            mailed to TRGC for signature.
September 13, 2005 ...TRGC refuses to sign storage yard special use permit. Club requests
                            modification of standard clause language, and operation and maintenance
                            plan.
December 13, 2005 ....District Ranger Raley proposes the Corral site off Redington Pass Road as
                            a possible site for a shooting range.
January 3, 2006 ..........After lengthy discussions, another storage yard special use permit, and
                            operating and maintenance plan is sent to TRGC for signature.
January 9, 2006 ..........TRGC returns a modified storage special use special use permit, and
                            operating and maintenance plan to the Forest Service. The Forest Service
                            discusses the modifications with the club.
February 1, 2006 ........TRGC is given another storage yard special use permit. The club is told it
                            has until February 17, 2006 to sign and return the storage yard special use
                            permit.
February 24, 2006 ......Forest Service authorizes a one year storage yard special use permit.
                            Permit terminates on February 21 2007. Club is given until April 2 2006 to
                            complete clean-up of site and consolidation of property.
February 2006 ............TRGC informed about Corral site. Club visits site and agrees it is the best
                            alternative for a shooting range.
January 2007 ..............TRGC completes consolidation and fencing of property at Sabino Canyon
                            site. Minor clean-up still remains.
February 15, 2007 ......TRGC is informed its storage yard permit has been extended until April 23
                            2007. Club must submit proposal for a new shooting range, and financial
                            and technical information by April 16 2007. The storage yard permit will
                            not be renewed if the requested documentation is not received by the
                            Forest Service.
April 13, 2007 ............The Forest Supervisor makes the decision not to renew the club’s storage
                            yard special use permit. Several projects have been identified for the
                            former Sabino Canyon site. TRGC’s property must be removed by July 23
                            2007.
May 30, 2007 .............TRGC appeals Forest Supervisor’s decision not to renew the storage yard
                            special use permit.
June 28, 2007 .............Forest files appeal responsive statement.
July 1, 2007................TRGC provides the Forest Service with a conceptual drawing of a
                            shooting range at the Corral site.
October 1, 2007..........TRGC Appellant files reply statement.
November 2007..........TRGC has not provided Forest Service with financial and technical
                            information needed to accept an application for a shooting range permit.
November 13, 2007....Appeal Record closed.



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