ARK Initiative v. Tidwell

• Decision Date: 08 March 2016
• Docket Number: No. 14–5259.,14–5259.
• Citation: 816 F.3d 119
• Parties: ARK INITIATIVE, et al., Appellants v. Thomas L. TIDWELL, Chief, U.S. Forest Service, et al., Appellees.
• Court: U.S. Court of Appeals — District of Columbia Circuit

816 F.3d 119

ARK INITIATIVE, et al., Appellants

v.Thomas L. TIDWELL, Chief, U.S. Forest Service, et al., Appellees.

No. 14–5259.

United States Court of Appeals, District of Columbia Circuit.

Argued Jan. 19, 2016.

Decided March 8, 2016.

William S. Eubanks II argued the cause for appellants. With him on the briefs was Eric R. Glitzenstein.

James Maysonett, Attorney, U.S. Department of Justice, argued the cause for federal appellees. With him on the brief was John C. Cruden, Assistant Attorney General. Katherine J. Barton, Attorney, entered an appearance.

Ezekiel J. Williams and Steven K. Imig were on the brief for intervenor-appellee Aspen Skiing Company.

Cynthia H. Coffman, Attorney General, Office of the Attorney General for the State of Colorado, Federick R. Yarger, Solicitor General, Casey A. Shpall, Deputy Attorney General, and Scott Steinbrecher, Assistant Solicitor General, were on the brief for amicus curiae the State of Colorado in support of appellee.

John M. Bowlin and David S. Neslin were on the brief for amicus curiae Colorado Ski Country USA, Inc. in support of defendant-appellees and intervenor-appellee.

Before: BROWN, KAVANAUGH and PILLARD, Circuit Judges.

Opinion for the Court filed by Circuit Judge PILLARD

.

PILLARD

, Circuit Judge:

The U.S. Forest Service in the Department of Agriculture generally prohibits road building and timber cutting on its inventoried "roadless" national forest lands. Responding to a petition by the State of Colorado, in 2012 the Service promulgated a rule adopting State-specific standards for the designation and management of the inventoried roadless areas within Colorado's borders. Special Areas; Roadless Area Conservation; Applicability to the National Forests in Colorado (2012 Colorado Rule), 77 Fed.Reg. 39,576 (July 3, 2012)

(codified at 36 C.F.R. §§ 294.40 -294.49 ). At issue in this case is the 2012 Colorado Rule's exclusion from the 4.2 million acres of inventoried roadless land in Colorado of about 8,300 acres of land that the Service also has designated for recreational skiing. The practical effect of the decision is to exempt that skiing acreage from the Service's ban against road building and timber cutting on roadless lands, although any such developments remain subject to environmental review under the National Environmental Policy Act.

The plaintiffs—environmental organizations and two individuals—challenge the Service's application of the 2012 Colorado Rule to allow development of a proposed egress ski trail on once-roadless land within the Special Use Permit boundary for the Snowmass Ski Resort in Aspen. The proposed trail is not a paved road, but a trail approximately 3,000 feet long and averaging 35 feet wide that would require some spot grading and tree and brush cutting to make it usable by skiers and emergency-response patrollers and to open part of it to grooming vehicles. Plaintiffs contend that the Service adopted the ski-area exclusion with reference to factors other than the on-the-ground, undeveloped condition of the 8,300 affected acres, thereby deviating from its own established policy without sufficient explanation. The plaintiffs also claim that the Service gave them insufficient notice of the rulemaking. The District Court disagreed, concluding that the Service offered ample reasons for its decision to exclude existing designated ski areas from the Colorado roadless inventory, and that the Service's six-year public rulemaking process satisfied all applicable notice requirements. See Ark Initiative v. Tidwell, 64 F.Supp.3d 81 (D.D.C.2014)

. Because we agree that the Service adequately explained the limited ski-area exclusion and did not violate any applicable notice requirements, we affirm.

I.

A.

The Service generally manages its national forest lands for multiple uses, as authorized by a layered set of national forest management laws reaching back more than a century. See generally Wyoming v. U.S. Dep't of Agric., 661 F.3d 1209, 1221–22 (10th Cir.2011)

; Montanans for Multiple Use v. Barbouletos, 568 F.3d 225, 226–27 (D.C.Cir.2009). The Organic Administration Act of 1897, 16 U.S.C. §§ 473 et seq., requires the Service to manage national forests to secure favorable conditions of water flows and to furnish the nation with a continuous supply of timber, id. § 475. The 1960 Multiple–Use Sustained–Yield Act, 16 U.S.C. §§ 528 et seq., adds "outdoor recreation, range, timber, watershed, and wildlife and fish purposes" to the list of the Service's objectives for forest land management, id. § 528, and specifies that renewable surface resources must be administered "for multiple use and sustained yield," id. § 529. To serve those goals, the National Forest Management Act of 1976, 16 U.S.C. §§ 1600 et seq., requires the Service to develop land and resource management plans, also called forest plans, which, much like zoning restrictions, designate certain areas of national forest lands for specified uses, id. § 1604(a), (e)(1). The Service also may issue permits for development within national forests pursuant to various authorities, consistent with governing forest plans. Id. § 1604(i). As relevant here, under the National Forest Ski Area Permit Act of 1986, 16 U.S.C. § 497b

, the Service issues long-term special-use permits for skiing and other recreational activities on lands within the National Forest System. Approximately 6,600 acres of land at issue in this case were covered by special-use ski-area permits, with the remaining 1,700 excluded acres designated for skiing under forest plans.

Some national forest lands are subject to especially stringent management constraints. In 1964, Congress passed the Wilderness Act, 16 U.S.C. §§ 1131 et seq.,

obligating the Service to review "primitive" lands in the National Forest System to determine their suitability for preservation as "wilderness," id. § 1132(b)-(c), a designation that carries with it strict development and use prohibitions for permanent protection of an area's "recreational, scenic, scientific, educational, conservation, and historical use," id. § 1133(b). In the 1970s, the Forest Service completed its Roadless Area Review and Evaluation project to fulfill the Wilderness Act's mandate that it inventory extensive primitive areas of federal lands potentially suitable for congressional wilderness designation. See Wyoming, 661 F.3d at 1221–22. As a result of that effort and the wilderness designations included in the Wilderness Act itself, see 16 U.S.C. § 1132(a), Congress has designated approximately 35 million acres as wilderness lands, see Wyoming, 661 F.3d at 1222.

The Service by 2001 had inventoried as "roadless" 58.5 million acres of relatively undisturbed land nationwide that did not make the congressional wilderness-designation cut, an area constituting about a third of national forest lands and 2% of the land mass of the continental United States. See id. at 1222, 1225

; Special Areas; Roadless Area Conservation (2001 Roadless Rule), 66 Fed.Reg. 3244, 3245–46 (Jan. 12, 2001). Before 2001, the Service regulated those inventoried roadless areas under governing forest plans, dictating their use and development on a local, "site-specific basis," with no nationwide management standards. Wyoming, 661 F.3d at 1222 ; see 66 Fed.Reg. at 3246. During that time, roadbuilding degraded approximately 2.8 million acres of inventoried roadless areas. 66 Fed.Reg. at 3246.

Concerned about further degradation, the Service promulgated the 2001 Roadless Rule, a national roadless policy that looked at "the ‘whole picture’ regarding the management of the National Forest System." Id. at 3246

. Subject to preexisting permits, the 2001 Roadless Rule generally "prohibits road construction, reconstruction, and timber harvest in inventoried roadless areas because [those activities] have the greatest likelihood of altering and fragmenting landscapes, resulting in immediate, long-term loss of roadless area values and characteristics." Id. at 3244. By "roadless area characteristics," the Service refers not only to the absence of roads as such, but also to beneficial environmental features typical of roadless areas or otherwise relatively undisturbed forest lands, such as high-quality and undisturbed soil, water, and air; plant and animal diversity and habitat for various sensitive categories of species; and scenic and cultural properties. See id. at 3245.

In 2005, the Service again changed course, shifting to a state-centered regime for managing roadless areas by inviting states to petition for federal approval of state-specific management approaches to inventoried roadless lands within their borders. See Special Areas; State Petitions for Inventoried Roadless Area Management (State Petitions Rule), 70 Fed.Reg. 25,654 (May 13, 2005)

. The State Petitions Rule was short-lived. In response to challenges by a handful of Western states and many environmental organizations, the Ninth Circuit sustained a district court order enjoining the State Petitions Rule because it had been adopted without the requisite environmental analysis under the National Environmental Policy Act (NEPA), 42 U.S.C. §§ 4321 et seq., as enforced through the Administrative Procedures Act (APA), 5 U.S.C. §§ 701 et seq., and without consultation about potential effects on endangered species as required by the Endangered Species Act (ESA), 16 U.S.C. §§ 1531 et seq.See Cal. ex rel. Lockyer v. U.S. Dep't of Agric., 575 F.3d 999, 1011–19 (9th Cir.2009), aff'ing Cal. ex rel. Lockyer v. U.S. Dep't of Agric., 459 F.Supp.2d 874 (N.D.Cal.2006). The court order reinstated the 2001 Roadless Rule that had previously been in force nationwide. Seeid. at 1019–21.

By that time, however, the State of Colorado already had seized the opportunity to request federal approval of management of its 4.2 million acres of roadless areas in a manner tailored to state needs. The State created a bipartisan task force in 2005 to compile recommendations for a Colorado-specific roadless-area management...