                                                                           FILED
                           NOT FOR PUBLICATION                              FEB 22 2010

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



J. B. SCOTT,                                     No. 09-35222

             Plaintiff - Appellant,              D.C. No. 1:08-cv-00138-BLW

  v.
                                                 MEMORANDUM *
UNITED STATES OF AMERICA;
UNITED STATES DEPARTMENT OF
AGRICULTURE; UNITED STATES
FOREST SERVICE,

             Defendants - Appellees.



                   Appeal from the United States District Court
                             for the District of Idaho
                 B. Lynn Winmill, Chief District Judge, Presiding

                      Argued and Submitted February 4, 2010
                               Seattle, Washington

Before: W. FLETCHER and RAWLINSON, Circuit Judges, and LASNIK, **
Chief District Judge.


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
             The Honorable Robert S. Lasnik, Chief United States District Judge
for the Western District of Washington, sitting by designation.

                                         -1-
      J.B. Scott (Scott) appeals the District Court’s entry of summary judgment in

favor of the Forest Service, which had previously denied Scott’s request for a

permit to land his helicopter on Forest Service lands.

      The Forest Service’s denial of Scott’s request “may only be set aside under

the [Administrative Procedure Act] if it was arbitrary, capricious, an abuse of

discretion, or otherwise not in accordance with law.” Siskiyou Reg’l Educ. Project

v. U.S. Forest Service, 565 F.3d 545, 554 (9th Cir. 2009) (citations and internal

quotation marks omitted). Because the Forest Service’s 2003 closure order

required that Scott obtain a permit to land a helicopter in the forest, and because

the reasoning of the Forest Service can be discerned from its decision, its denial of

Scott’s request was not arbitrary, capricious, or contrary to law. See McFarland v.

Kempthorne, 545 F.3d 1106, 1113 (9th Cir. 2008).

      Scott failed to exhaust his administrative remedies with respect to any NEPA

challenge to the 2003 closure order. See Great Basin Mine Watch v. Hankins, 456

F.3d 955, 967 (9th Cir. 2006). Because we resolve this case pursuant to the 2003

closure order, we need not, and do not, address whether Scott’s proposed use of his

helicopter constituted a non-commercial recreational activity.

      AFFIRMED.




                                          -2-
