23G

• Board Meeting Date: 4/30/2004
• Description: 23G
• Board Meetings - Doc Type: Executive Session

question involve statutory interpretation. The Tenth Circuit has recognized, "The general rule
requiring exhaustion of remedies before an administrative agency is subject to an exception
where the question is solely one of statutory interpretation." Frontier Airlines, Inc v Civil
Aeronautics Bd., 621 F.2d 369, 371 (10 Cir. 1980). On the other hand, "[e]xhaustion concerns
apply with particular force when the action under review involves exercise of the agency's
discretionary power or when the agency proceedings in question allow the agency to apply its
special expertise." McKart v United States, 395 U.S. 185, 194 (1969). The Court disagrees with
Plaintiffs' assertion that the unexhausted claims are purely a matter of statutory interpretation.
Plaintiffs argument fails because resolution of these claims requires application of law to
facts developed in the administrative record. See Rocky Mountain Oil & Gas Ass 'n v. Watt, 696
F.2d 734, 744 (10 Cir. 1982) (distinguishing the question of pure statutory construction that was
before it from a question where a factual administrative record would be essential to the court's
determination). Here, Plaintiffs' Second Claim requires examination of the alternatives
developed by the agency and a comparison of those alternatives with that Plaintiffs insist the
agency should have considered. See Holy Cross Wilderness Fund v Madigan, 960 F.2d 1515,
1528 (10 Cir. 1992). Similarly, Plaintiffs' Fifth Claim cannot be resolved without considering
the scope and nature of the amendment to determine whether it is significant for the purposes of
the National Forest Management Act, and the Ninth Claim requires interpretation of the agency's
species viability regulation. Likewise, Plaintiffs' Thirteenth Claim requires an evaluation of
whether the Madigan directive was implemented by the Forest Service as if it were a binding rule