Wyoming Timber Industry Ass'n v. U.S. Forest Serv., 99-CV-1016-B.

• Decision Date: 05 January 2000
• Docket Number: No. 99-CV-1016-B.,99-CV-1016-B.
• Citation: 80 F.Supp.2d 1245
• Parties: WYOMING TIMBER INDUSTRY ASSOCIATION, a Wyoming non-profit trade association; Frontiers of Freedom-Wyoming, a Wyoming, a Wyoming non-profit organization, Petitioners, v. UNITED STATES FOREST SERVICE; Daniel R. Glickman, in his official capacity as Secretary of the United States Department of Agriculture; Michael P. Dombeck, in his official capacity as Chief Forester of the United States Forest Service; Lyle Laverty, in his official capacity as Regional Forester, Region II, United States Forest Service; Jack A. Blackwell, in his official capacity as Regional Forester, Region IV, United States Forest Service, Respondents, Wyoming Outdoor Council, Bighorn Forest Users Coalition, Sierra Club, Wilderness Society, Greater Yellow-stone Coalition, Northwest Wyoming Resource Council, Biodiversity Associates, Wyoming Wilderness Association, Wyoming Wildlife Association, American Wildlands, American Lands Alliance, Pacific Rivers Council, Oregon Natural Resources Council, U.S. Public Interest Research Group, Intervenor Respondents, and Northwest Forestry Association, Independent Forest Products Association, Intermountain Forestry Association, California Forestry Association, Amici Curiae.
• Court: U.S. District Court — District of Wyoming

80 F.Supp.2d 1245

WYOMING TIMBER INDUSTRY ASSOCIATION, a Wyoming non-profit trade association; Frontiers of Freedom-Wyoming, a Wyoming, a Wyoming non-profit organization, Petitioners, v. UNITED STATES FOREST SERVICE; Daniel R. Glickman, in his official capacity as Secretary of the United States Department of Agriculture; Michael P. Dombeck, in his official capacity as Chief Forester of the United States Forest Service; Lyle Laverty, in his official capacity as Regional Forester, Region II, United States Forest Service; Jack A. Blackwell, in his official capacity as Regional Forester, Region IV, United States Forest Service, Respondents,

Wyoming Outdoor Council, Bighorn Forest Users Coalition, Sierra Club, Wilderness Society, Greater Yellow-stone Coalition, Northwest Wyoming Resource Council, Biodiversity Associates, Wyoming Wilderness Association,

Wyoming Wildlife Association, American Wildlands, American Lands Alliance, Pacific Rivers Council, Oregon Natural Resources Council, U.S. Public Interest Research Group, Intervenor Respondents, and

Northwest Forestry Association, Independent Forest Products Association, Intermountain Forestry Association, California Forestry Association, Amici Curiae.

No. 99-CV-1016-B.

United States District Court, D. Wyoming.

January 5, 2000.

John D. Ward, Sheridan, WY, for petitioners.

Carol A. Statkus, AUSA, U.S. Attorney's Office, Cheyenne, WY, John W. Watts, Dept. of Justice, Washington, D.C., for federal defendants.

James S. Angell, Stephen D. Mashuda, Earthjustice Legal Defense Fund, Bozeman, MT, Caroline Byrd, Lander, WY, for intervenor respondents.

Scott W. Horngren, Portland, OR, John A. Coppede, Cheyenne, WY, for Amici Curiae.

ORDER

BRIMMER, District Judge.

This matter comes before the Court on Petitioners' petition for review of the United States Forest Service's final interim rule, codified as 36 C.F.R. § 212.13, requiring an eighteen month suspension of road construction decision making in certain unroaded areas within the National Forest System (the "Rule").¹ After hearing oral arguments, reading the briefs, and being fully advised in the premises, the Court FINDS and ORDERS as follows:

Background

Today's dispute is part of the larger battle over the use of our public lands. In particular, the dispute over the Rule arises out of the struggle over wilderness designation within the National Forest System. Consequently, a brief review of the wilderness designation controversy will serve to frame the issues which form the backdrop to the present lawsuit.

The debate over wilderness designation has centered on roadless and undeveloped areas within the National Forest System, which are thought to be most suitable for wilderness designation. In 1977, the United States Forest Service ("Forest Service") instituted its second Roadless Area Review and Evaluation ("RARE II") which sought to survey roadless areas within the National Forests to determine which areas would be appropriate for congressional addition to the National Wilderness Preservation System. See S.Sep. No. 98-54, at 3 (1983). The State of California succeeded in a suit claiming that the RARE II Final Environmental Impact Statement ("EIS") inadequately considered the wilderness alternative for a number of areas located within California. California v. Bergland, 483 F.Supp. 465 (E.D.Cal.1980), aff'd in part, rev'd in part, sub nom, California v. Block, 690 F.2d 753 (9th Cir.1982).

Concurrently with the RARE II study, the Forest Service was conducting a land management planning process mandated by the National Forest Management Act of 1976 ("NFMA"). See S.Rep. No. 98-54, at 3-4. The planning process requires the Forest Service to allocate lands among a variety of different uses. See 16 U.S.C.A. § 1604(e) (West 1985). The Forest Service was to consider the option of recommending that Congress designate appropriate areas as wilderness. NFMA mandated completion of the first round of the planning process by September 30, 1985. See 16 U.S.C.A. § 1604(c). These first round plans are referred to as "first generation" or "section 6" plans. Second generation forest plans must be completed within ten to fifteen years after the first generation plans.

Those in the West who rely on National Forest lands for their livelihood were dissatisfied with the status of National Forest management in general and the wilderness designation debate in particular. Economic users of the National Forests were concerned that endless debate and study surrounding the wilderness issue was obstructing appropriate economic utilization of National Forest lands. See S.Rep. No. 98-54, at 12-15. They feared that even lands not designated as wilderness would be managed in a perpetual defacto wilderness state pending additional studies and potential future wilderness designation. See id. Moreover, the possibility of litigation challenging EIS's covering forest planning decisions created an additional layer of uncertainty. See id.

1. The Wyoming Wilderness Act of 1984

Many Western states, including Wyoming, sought a final Congressional solution to the wilderness debate for National Forest lands within their borders. Congress responded with the Wyoming Wilderness Act of 1984 (the "WWA"), Pub.L. No. 98-550, 98 Stat. 2807 (1984). The purposes of the WWA were to designate certain National Forest Service System lands in Wyoming for inclusion in the National Wilderness Preservation System, and also to "insure that certain National Forest System lands in the State of Wyoming be made available for uses other than wilderness in accordance with applicable national forest laws and planning procedures and the provisions of this Act." Pub.L. No. 98-550, § 102(b), 98 Stat. 2807.

Title II of the WWA (§§ 201 through 203) designates certain National Forest System lands as wilderness. Title III (§ 301) designates certain wilderness study areas which are to be considered for wilderness designation when the second generation forest management plans are prepared. Most important to this dispute Title IV (§ 401) of the WWA releases remaining lands for multiple use management. Specifically, the WWA provides that RARE II lands not designated as wilderness or wilderness study area

shall be managed for multiple use in accordance with land management plans pursuant to section 6 of the Forest and Rangeland Renewable Resources Planning Act of 1974 as amended by the National Forest Management Act of 1976: Provided, That such areas need not be managed for the purpose of protecting their suitability for wilderness designation prior to or during revision of the initial land management plans.

Pub.L. No. 98-550, § 401(b)(3), 98 Stat. 2812. Title V of the WWA contains various miscellaneous provisions, most notably § 504, which provides:

Congress does not intend that the designation of wilderness areas in the State of Wyoming lead to the creation of protective perimeters or buffer zones around each wilderness area. The fact that nonwilderness activities or uses can be seen or heard from within any wilderness area shall not, of itself, preclude such activities or uses up to the boundary of the wilderness area.

Pub.L. No. 98-550, § 504, 98 Stat. 2813.

2. The Forest Service's Temporary Suspension of Road Construction in Unroaded Areas (the Rule)

Separate and apart from the WWA, the Forest Service was growing increasingly concerned about the ecological and resource impacts of roads within the National Forest System. See 63 Fed.Reg. 4350 (1998). In particular, the Forest Service was concerned with funding shortfalls, erosion and other environmental damage, substandard roads, and the value of unroaded areas. See id. at 4350-51. In light of these concerns, the Forest Service believed that new analytical tools were needed to assess the benefits and impacts of roads. See 63 Fed.Reg. 9980, 9981 (1998). On February 12, 1999, the Forest Service issued a final interim rule (the "Rule"), which temporarily suspends, for an 18-month period beginning March 1, 1999, project decision making regarding road construction and reconstruction in many unroaded areas of the National Forest System. See 64 Fed.Reg. 7290 (1999) (codified at 36 C.F.R. § 212.13). In particular, the Rule suspends road construction and reconstruction projects in: (a) all remaining RARE II roadless areas and all unroaded roadless areas identified in forest plans which are one-quarter mile or more beyond an existing classified road; (b) all unroaded areas greater than 1,000 acres that are contiguous to unroaded RARE II areas and unroaded areas identified in forest plans; (c) certain Appalachian areas; (d) all unroaded areas greater than 1,000 acres that are contiguous to Congressionally designated wilderness areas or National Wild and Scenic River System areas classified as Wild; and (e) all unroaded areas greater than 1,000 acres that are contiguous to other unroaded areas of 5,000 acres or more on federal lands. See 36 C.F.R. § 212.13.

The Rule also contains several exceptions. For example, the Rule does not apply to lands covered by a forest plan which was finalized after January 1, 1996. The Rule also exempts "unroaded areas where roads are needed for public safety, needed to ensure access provided by statute, treaty, or pursuant to reserved or outstanding rights; or needed to address an imminent threat of flood, fire, or other catastrophic event that, without intervention, would cause the loss of life or property." 36 C.F.R. § 212.13(c).

3. The Lawsuit

Petitioner Wyoming Timber Industry Association ("WTIA") is a non-profit trade association whose membership is comprised of nineteen primary and secondary timber processing companies. (Pet'nrs' First Am.Compl. ¶ 2.) Petitioner Frontiers of Freedom-Wyoming is a subsidiary of Frontiers of Freedom, a non-profit corporation formed "for purposes of, inter alia, education, research, advising and monitoring governmental activity for its members and the general public." (I...