United States v. Michael Backlund

MEMORANDUM

Michael Backlund appeals his conviction for unauthorized residence in the Umpqua National Forest in violation of 36 C.F.R. § 261.10 (b), contending that the Forest Service acted arbitrarily and capriciously or contrary to law when it determined that year-round residency on National Forest System land was not reasonably incident to his mining activities. We have jurisdiction pursuant to 28 U.S.C. § 1291 , and we affirm the district court’s rejection of Backlund’s collateral attack on the Forest Service’s determination.

1. The district court did not err in reviewing the Forest Service’s informal adjudication, 5 U.S.C. §§ 554 (a), 551(4), under Administrative Procedure Act (APA) § 706(2)(Á) (arbitrary and capricious standard), rather than APA § 706(2)(F) (de- novo review). De novo review is proper only “when the action is adjudicatory in nature and the agency fact-finding procedures are inadequate” or “when issues that were not before the agency are raised in a proceeding to enforce nonadjudicatory agency action.” Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 415 , 91 S.Ct. 814 , 28 L.Ed.2d 136 (1971), abrogated on other grounds by Califano v. Sanders,…