313 F.3d 1094 (9th Cir. 2002), 01-35472, Kootenai Tribe of Idaho v. Veneman

Docket Nº:01-35472, 01-35539, 01-35476.
Citation:313 F.3d 1094
Party Name:KOOTENAI TRIBE OF IDAHO; Boise County, by and through the Boise County Board of Commissioners; Valley County, by and through the Valley County Board of Commissioners; the Blueribbon Coalition, Inc.; Idaho State Snowmobile Associates, Inc.; Illinois Association of Snowmobile Clubs; the American Council of Snowmobile Associations; Little Cattle Compa
Case Date:December 12, 2002
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

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313 F.3d 1094 (9th Cir. 2002)

KOOTENAI TRIBE OF IDAHO; Boise County, by and through the Boise County Board of Commissioners; Valley County, by and through the Valley County Board of Commissioners; the Blueribbon Coalition, Inc.; Idaho State Snowmobile Associates, Inc.; Illinois Association of Snowmobile Clubs; the American Council of Snowmobile Associations; Little Cattle Company Limited Partnership; Highland Livestock and Land Company; Boise Cascade Corporation, Plaintiffs-Appellees,

v.

Ann VENEMAN, [*] in her official capacity as the Secretary of Agriculture; Dale Bosworth, [**] in his official capacity as the Chief Forester of the USDA Forest Service; Department of Agriculture; United States Forest Service, Defendants,

Forest Service Employees for Environmental Ethics, Defendant-Intervenor,

and

Idaho Conservation League; Idaho Rivers United, Inc.; Sierra Club; the Wilderness Society; Oregon Natural Resources Council; Pacific Rivers Council; Natural Resources Defense Council, Defendants-Intervenors-Appellants.

Dirk Kempthorne, ex rel State of Idaho; Pete T. Cenarrusa, Secretary of State; Alan G. Lance, Attorney General; J.D. Williams, State Controller; Marilyn Howard, Superintendent of Public Instruction, as the State Board of Land Commissioners; Winston Wiggins, Acting Director, Idaho Department of Lands; Dirk Kempthorne, Governor, in his capacity as Chief Executive of the State of Idaho and President of the Idaho Board of Land Commissioners, Plaintiffs-Appellees,

v.

U.S. Forest Service; Dale Bosworth, in his official capacity as Chief Forester of the United States Forest Service; Ann Veneman, in her official capacity as the Secretary of Agriculture, Defendants,

and

Idaho Conservation League; Idaho Rivers United, Inc.; Sierra Club; the Wilderness Society; Oregon Natural Resources Council; Pacific Rivers Council; Natural Resources Defense Council; Defenders of Wildlife, Defendant-Intervenors-Appellants.

Nos. 01-35472, 01-35539, 01-35476.

United States Court of Appeals, Ninth Circuit

December 12, 2002

Argued and Submitted Oct. 15, 2001

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Douglas L. Honnold (argued) and Timothy J. Preso, Earthjustice Legal Defense Fund, Bozeman, MT; Nathaniel S.W. Lawrence, Natural Resources Defense Council, Olympia, WA, for defendants-intervenors-appellants Idaho Conservation League, et al.

Raymond B. Ludwiszewski (argued), Peter E. Seley, Hassan A. Zavareei, Gibson, Dunn, & Crutcher, Washington, DC, for plaintiffs-appellees Kootenai Tribe of Idaho, et al.

Alan G. Lance, Idaho Attorney General, Clive J. Strong, Deputy Attorney General, Chief, Natural Resources Division, Steven W. Strack (argued), Deputy Attorney General, Natural Resources Division, Boise, ID, for plaintiffs-appellees State of Idaho ex. rel. Dirk Kempthorne, et al.

Patrick Parenteau (argued), Vermont Law School, South Royalton, VT, for defendant-intervenor-appellant Forest Service Employees for Environmental Ethics.

Daniel J. Popeo, Paul D. Kamenar, Richard A. Samp, Washington Legal Foundation, Washington DC, for amici curiae Washington Legal Foundation and United States Senators Larry E. Craig and Mark Dayton.

Mike McGrath, Montana Attorney General, and Candace F. West, Assistant Attorney General, Helena, MT, for amicus curiae Montana Attorney General Mike McGrath.

Appeal from the United States District Court for the District of Idaho; Edward J. Lodge, District Judge, Presiding. D.C. Nos. CV-01-00010-EJL, CV-01-00011-EJL.

Before FERGUSON, KLEINFELD and GOULD, Circuit Judges.

Opinion by Judge GOULD; Partial Concurrence and Partial Dissent by Judge KLEINFELD.

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OPINION

GOULD, Circuit Judge:

I

This case involves procedural challenges to a United States Forest Service rule, known commonly as the "Roadless Rule," with a potential environmental impact restricting development in national forest lands representing about two percent of the United States land mass.1 These challenges in essence urge that the Roadless Rule was promulgated without proper process and that it is invalid. The case also presents constitutional and procedural issues about the ability of the plaintiffs and of the proposed intervenors to be heard.

But we must start closer to the beginning: This appeal arises out of litigation that began on January 8, 2001 when Kootenai Tribe of Idaho and Boise Cascade Corporation, joined by motorized recreation groups, livestock companies, and two Idaho counties2 filed suit in the United States District Court for the District of Idaho, alleging that the United States Forest Service's Roadless Area Conservation Rule ("Roadless Rule") violated, inter alia, the National Environmental Policy Act ("NEPA"), 42 U.S.C. §§ 4321 et seq., and the Administrative Procedure Act ("APA"), 5 U.S.C. § 533. One day later, the State of Idaho and some state office-holders (collectively "Idaho plaintiffs") filed a separate complaint in the District of Idaho and stated similar allegations. Environmental groups intervened. The district court granted plaintiffs' motions for preliminary injunction against the implementation of the Roadless Rule. Although the federal defendants did not appeal the invalidation of the Roadless Rule, an appeal was taken in both cases by intervenors. We consolidated the appeals and have jurisdiction under 28 U.S.C. § 1292(a) (1).

We hold that the district court had discretion to permit intervention, under Fed.R.Civ.P. 24(b), and intervenors now can bring this appeal under Fed.R.Civ.P. 24(b); that plaintiffs have standing to challenge the Roadless Rule; and, assessing the merits, that the district court abused its discretion in granting preliminary injunction against implementation of the Roadless Rule.

II

A. History of the Roadless Rule

In the 1970s, the United States Forest Service ("Forest Service") began to study and evaluate roadless areas in national forests. The Forest Service developed an "inventory" of roadless areas, each larger than five thousand acres. There are now 58.5 million acres of inventoried roadless areas in the National Forest System.

The Forest Service, in an odd semantic twist,3 has included in "inventoried roadless

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areas" some areas with roads. Since 1982, the Forest Service has permitted road construction, industrial logging and other development in the inventoried roadless areas on a local, site-specific basis. See California v. Block, 690 F.2d 753 (9th Cir. 1982). In the past two decades, 2.8 million acres of roadless areas have been developed by the Forest Service.

On October 13, 1999, President William Jefferson Clinton ordered the United States Forest Service to initiate a nationwide plan to protect inventoried and uninventoried roadless areas within our treasured national forests. Within a week of President Clinton's directive, the Forest Service published a Notice of Intent ("NOI") to prepare an Environmental Impact Statement ("EIS") for a nationwide Roadless Rule. The NOI gave sixty days for scoping and public comment. 64 Fed.Reg. 56,306 (Oct. 19, 1999). The Forest Service denied requests to extend the sixty-day scoping period.

After this period, the State of Idaho brought an action, which preceded this one, against the Forest Service on December 30, 1999, alleging that the information presented in the NOI was insufficient and that the Forest Service's refusal to extend the scoping period was arbitrary and capricious. Shortly thereafter, on January 7, 2000, the State of Idaho moved to enjoin the release of the Draft EIS (DEIS) until the Forest Service provided maps of the roadless areas that would be subject to the Proposed Rule. Although the district court in that action urged the Forest Service to allow meaningful participation by the public, the district court dismissed the State's action as unripe because the DEIS and Proposed Rule had not yet been published. No appeal was taken.

On May 10, 2000, the Forest Service published a 700 page DEIS, along with a Proposed Rule. The Proposed Rule identified 54.3 million acres of "inventoried roadless areas." Of these, 51.5 million acres were "unroaded" and 2.8 million acres were classified as "roaded."4 The Proposed Rule would have banned road building on the 51.5 million unroaded acres but exempted the 2.8 million roaded acres from the Rule's proscription. After the DEIS's release, the Forest Service allowed sixty-nine days for public comment. Again, some sought extensions of time to file comments and, again, the Forest Service denied requests for extensions, maintaining its schedule.

On November 13, 2000, the Forest Service published a final EIS ("FEIS"). The FEIS identified 58.5 million acres of "inventoried roadless areas" subject to the Roadless Rule's prohibition on road construction. Included were 4.2 million acres of inventoried roadless areas not identified in the DEIS and Proposed Rule. Also, the Proposed Rule now applied to the 2.8 million acres of "roaded" inventoried roadless areas, while relaxing standards for timber harvest in "roaded" areas. No maps in the FEIS identified the 2.8 million acres of "roaded" land.

On January 5, 2001, the Forest Service issued the Final [Roadless] Rule, applicable to the 58.5 million acres identified in the FEIS. It was to be implemented on March 13, 2001. It generally banned road building subject to limited exceptions including: the preservation of "reserved or outstanding rights" or discretionary Forest Service construction necessary for public

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health and safety. 36 C.F.R. § 294.12(b) (1),(3). Henceforth, this vast national...

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