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McFARLAND v. NORTON

No. 03-35831.

425 F.3d 724 (2005)

John James McFARLAND, Plaintiff-Appellant, v. Gale A. NORTON, in her capacity as Secretary of the Department of the Interior; John F. Shireman, in his capacity as Acting Superintendent of Glacier National Park; United States of America; National Park Service, Defendants-Appellees, National Parks Conservation Association, Defendant-Intervenor-Appellee.

United States Court of Appeals, Ninth Circuit.

Filed October 11, 2005.

Attorney(s) appearing for the Case

Alison Roberts, Lakewood, CO, argued the cause for the appellant; Kelly S. Hall and William Perry Pendley, Mountain States Legal Foundation, Lakewood, CO, were on the briefs.

Todd S. Kim, Washington, DC, argued the cause for the appellees; Kelly A. Johnson, Acting Assistant Attorney General, William W. Mercer, United States Attorney, Kris A. McLean, James C. Kilbourne, and Todd S. Kim, United States Department of Justice, Washington, DC, and Gary Moore, United States Department of the Interior, Washington, DC, were on the brief for the federal appellees. Alan J. Pemberton, Vijay Shanker, and Emily S. Williams, Washington, DC, were on the brief for appellee National Parks Conservation Association.

Before: McKAY, O'SCANNLAIN, and BEA, Circuit Judges.

O'SCANNLAIN, Circuit Judge:

We are asked to decide whether a landowner can prove that he has an easement over a federally-owned road to his property within Glacier National Park in Montana and whether the National Park Service arbitrarily and capriciously denied his request for a special use permit to use the road during the winter time.

I

In 1916, Charles F.W. Schoenberger received title under the Homestead Act to an 89-acre parcel in Montana. The...

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