277 F.Supp.2d 1197 (D.Wyo. 2003), 01-CV-860, Wyoming v. United States Dept. of Agri.

Docket Nº:01-CV-860B.
Citation:277 F.Supp.2d 1197
Party Name:State of WYOMING, Plaintiff, v. UNITED STATES DEPARTMENT OF AGRICULTURE, et al., Defendants, and Wyoming Outdoor Council, et al., Defendant-Intervenors.
Case Date:July 14, 2003
Court:United States District Courts, 10th Circuit, District of Wyoming

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277 F.Supp.2d 1197 (D.Wyo. 2003)

State of WYOMING, Plaintiff,

v.

UNITED STATES DEPARTMENT OF AGRICULTURE, et al., Defendants,

and

Wyoming Outdoor Council, et al., Defendant-Intervenors.

No. 01-CV-860B.

United States District Court, D. Wyoming.

July 14, 2003

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Thomas John Davidson, Harriet M. Hageman, Kara Brighton, Jennifer Ann

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Golden, Jay A. Jerde, Wyoming Attorney General, Water & Natural Resources Division, Cheyenne, WY, for Plaintiffs.

Andrea L. Berlowe, Barclay T. Samford, Department of Justice, Environment & Natural Resources Division, Washington, DC, Carol A. Statkus, Assistant United States Attorney, Cheyenne, WY, for Defendants.

Douglas L. Honnold, Timothy J. Preso, Earthjustice Legal Defense Fund, Bozeman, MT, Steve Jones, Wyoming Outdoor Council, Lander, WY, for Intervenors.

ORDER ON PLAINTIFF'S MOTION FOR DECLARATORY JUDGMENT AND INJUNCTIVE RELIEF

BRIMMER, District Judge.

Today, the Court considers the legality of 58.5 million acres of roadless area that the United States Forest Service drove through the administrative process in a vehicle smelling of political prestidigitation. In so considering, this Court is not proceeding down an untrammeled path. In this case alone, the Court has already filled thirty-nine pages of the Federal Supplement. See Wyoming v. U.S. Dep't of Agric., 239 F.Supp.2d 1219 (D.Wyo.2002); Wyoming v. U.S. Dep't of Agric., 201 F.Supp.2d 1151 (D.Wyo.2002). Additionally, the Roadless Rule has withstood a limited judicial challenge in the Ninth Circuit. See Kootenai Tribe of Idaho v. Veneman, 142 F.Supp.2d 1231 (D.Idaho 2001), rev'd, 313 F.3d 1094 (9th Cir. 2002). 1

The case is now before the Court on Plaintiff's Motion for Declaratory Judgment and Injunctive Relief. After considering the three administrative records in this case, reading the briefs, hearing oral argument, and being fully advised of the premises, the Court FINDS and ORDERS as follows:

Statement of Parties and Jurisdiction

Plaintiff, Wyoming, is a sovereign State of the United States and has brought this suit in its own right and on behalf of its citizens.

Defendant, United States Department of Agriculture ("USDA"), is a department of the Executive Branch of the United States government. The USDA is responsible for overseeing the activities of the United States Forest Service ("Forest Service"). The Forest Service is an agency of the USDA and is charged with the administration

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of the National Forests, including several National Forests within Wyoming. Defendant Ann M. Veneman is the Secretary of Agriculture and has been sued in her official capacity for the actions of her predecessor, former Secretary of Agriculture Daniel R. Glickman. Defendant Dale N. Bosworth is Chief of the Forest Service and has been sued in his official capacity for the actions of his predecessor, former Chief Michael Dombeck. These Defendants will be collectively referred to as the "Federal Defendants."

The intervenors are environmental organizations that have advocated the protection of roadless areas before Congress, state legislatures, and the Forest Service for a number of years. Parties that have intervened in this action are the Wyoming Outdoor Council, Wilderness Society, Sierra Club, Biodiversity Associates, Pacific Rivers Council, Natural Resources Defense Council, Defenders of Wildlife, and National Audubon Society (collectively "Defendant-Intervenors"). The Defendant-Intervenors were active participants in the rulemaking process leading to the promulgation of the rules and regulations challenged by Wyoming.

The Court exercises federal question jurisdiction. 28 U.S.C. § 1331; 5 U.S.C. §§ 701-706. Venue is proper. 28 U.S.C. § 1391(b), (e).

Background

In 1897, Congress enacted the Forest Service Organic Act ("Organic Act"). See Act of June 4, 1897, ch. 2, § 1, 30 Stat. 11, 34-36 (codified as amended at 16 U.S.C. §§ 473-482, 551). The Organic Act, for the first time, established a limited multiple-use mandate for management of the National Forests. See 16 U.S.C. § 475. That multiple-use mandate provides that National Forests may be established and administered to improve and protect the forest within its boundaries and to furnish a continuous supply of timber for the use and necessities of Americans. Id.

In 1905, after the Forest Service was transferred to the Department of Agriculture, it began actively managing the National Forest System. 2 In 1960, Congress codified the multiple-use mandate when it enacted the Multiple-Use and Sustained-Yield Act ("MUSYA"). See 16 U.S.C. §§ 528-531. Currently, the Forest Service manages 191.8 million acres of forest, grass, and shrub lands, which comprises about one-twelfth of the land and waters in the United States. See John Fedkiw, Managing Multiple Uses on National Forests 1905-1995, at 1-4 (1998). 3

In 1924, Congress designated a portion of the Gila National Forest in New Mexico as a wilderness preserve, which was the first "roadless area" in the National Forest System. See H. Michael Anderson & Aliki Moncrief, America's Unprotected Wilderness, 76 Denv. U.L.Rev. 413, 434 (1999). Thereafter, the Forest Service established regulations for managing "primitive" roadless areas. See id. In 1964, Congress enacted the Wilderness Act, 16 U.S.C.§§ 1131-36, which established a procedure by which Congress could designate roadless "wilderness" areas in the National Forest System. 16 U.S.C. § 1131(a).

In 1967, the Forest Service embarked on the Roadless Area Review Evaluation ("RARE I"), which was a nationwide inventory of the National Forest System to identify areas that could be designated as

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"wilderness" pursuant to the Wilderness Act. See Fedkiw, Managing Multiple Uses on National Forests 1905-1995, at 113-14. The RARE I inventory ended in 1972, with the Forest Service finding that approximately 56 million acres in the National Forests were suitable for wilderness designation. (Id.). However, RARE I was abandoned after a successful National Environmental Policy Act ("NEPA") challenge to the procedure employed by the Forest Service during the evaluation. Id. at 114; see also Wyoming Outdoor Coordinating Council v. Butz, 484 F.2d 1244 (10th Cir. 1973), Sierra Club v. Butz, 349 F.Supp. 934 (N.D.Cal.1972).

In 1977, the Forest Service began a new Roadless Area Review Evaluation ("RARE II"). Fedkiw, Managing Multiple Uses on National Forests 1905-1995, at 115-19. RARE II, like its predecessor, was administratively initiated for the purpose of identifying those roadless and undeveloped areas which could be designated as "wilderness areas" pursuant to the Wilderness Act. Mountain States Legal Foundation v. Andrus, 499 F.Supp. 383, 387 (D.Wyo.1980). The RARE II inventory culminated in 1979 with the Forest Service identifying approximately 62 million National Forest acres as potential wilderness. Fedkiw, Managing Multiple Uses on National Forests 1905-1995, at 117.

The purpose behind the RARE I and RARE II inventories was to gather information upon which the President could rely in making wilderness area recommendations to Congress pursuant to the Wilderness Act. See 16 U.S.C. § 1132 (requiring the Secretary of Agriculture to review potential wilderness areas and make a report to the President so he can recommend designated areas to Congress). Pursuant to the Wilderness Act, Congress has designated 103.6 million roadless "wilderness areas" in the United States. Anderson & Moncrief, America's Unprotected Wilderness, 76 Denv. U.L.Rev. at 415.

After another successful challenge to the procedure employed by the Forest Service in its RARE II inventory, see California v. Block, 690 F.2d 753 (9th Cir. 1982), the Forest Service's involvement in the roadless area controversies remained relatively stagnant for the next seventeen years. In February 1999, however, the Forest Service temporarily suspended road construction activities in inventoried National Forest roadless areas while it developed a new road management policy and refocused its attention on the larger issue of public use surrounding the National Forest transportation system. 64 Fed.Reg. 7,290 (Feb. 12, 1999).

The "Interim Roadless Rule" went into effect on March 1, 1999. See id. The Interim Roadless Rule imposed an eighteen month moratorium on road construction in inventoried roadless areas. Id.; Wyo. Timber Indus. Ass'n v. U.S. Forest Service, 80 F.Supp.2d 1245, 1249 (D.Wyo.2000).

The Interim Roadless Rule was the first step in the Executive Branch's strategy to protect roadless areas. (Admin. Record ("AR"), Doc. 1535, at p. 2). 4 By July 1999, the Forest Service had developed a comprehensive strategy and timeline for the promulgation of the Roadless Rule and Forest Service Transportation Policy. (AR, Doc. 3440). Three months later, President William Jefferson Clinton noted that the temporary moratorium on road construction gave his administration time to assess the ecological, economic, and social

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value of roadless areas and to evaluate the long-term management options for inventoried roadless areas. (AR, Doc. 1535, at p. 2).

I. The Roadless Area Conservation Rule.

On October 13, 1999, President Clinton directed the Forest Service to initiate administrative proceedings to protect inventoried roadless areas and to determine whether roadless protection was warranted for any uninventoried roadless areas. (Id.). President Clinton's directive set the Forest Service's administrative machinery in process.

A. The Scoping Process. 5

On October 19, 1999, the Forest Service issued a Notice of Intent ("NOI") to prepare a draft environmental impact statement ("EIS") and to initiate rulemaking. (AR, Doc. 1608, at p. 1). The proposal set forthin the NOI...

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