Friends of the Boundary Waters Wilderness v. Robertson, 91-3032

Citation978 F.2d 1484
Decision Date26 January 1993
Docket NumberNo. 91-3032,91-3032
Parties23 Envtl. L. Rep. 20,518 FRIENDS OF THE BOUNDARY WATERS WILDERNESS; Sierra Club; The Wilderness Society; Defenders of Wildlife; Wilderness Watch; Wilderness Inquiry; Minnesota Public Interest Research Group; Izaak Walton League of America, Inc., Appellants, v. F. Dale ROBERTSON, Chief of the United States Forest Service; Edward Madigan, Secretary of Agriculture, Appellees, City of Ely, a Minnesota corporation; Conservationist With Common Sense, Inc., a Minnesota not-for-profit corporation; F.B. Hubachek, Jr.; Wilderness Outfitters, Inc., Intervenors-Appellees.
CourtUnited States Courts of Appeals. United States Court of Appeals (8th Circuit)

Brian B. O'Neill, Minneapolis, Minn., argued (Richard Duncan and Sandi Zellmar, on the brief), for appellants.

Peter A. Appell, Dept. of Justice, Washington D.C., argued (Robert Klarquist, Dept. of Justice, Washington D.C., Robert Small, Asst. U.S. Atty., Minneapolis, Minn., on the brief), for appellees.

Before McMILLIAN, JOHN R. GIBSON, and MAGILL, Circuit Judges.

JOHN R. GIBSON, Circuit Judge.

Whether there should be motorized portages in the Boundary Waters Canoe Area Wilderness is the issue before us in this case. The district court refused to enjoin the motorized portages, and the Friends of Boundary Waters Wilderness and seven other groups 1 appeal. The central issue in the appeal boils down to the interpretation of the word "feasible" contained in Section 4(g) in the Boundary Waters Canoe Area Wilderness Act, Pub.L. No. 95-495, 92 Stat 1649 (1978). The district court upheld the Chief of the United States Forest Service's decision allowing the motorized transportation of boats across the portages because no feasible alternative existed, 770 F.Supp. 1385. We are convinced the district court erred in its interpretation of the statute, particularly, the word "feasible," and we reverse.

The Boundary Waters Canoe Area Wilderness, in northeastern Minnesota, consists of some 1,075,500 acres of streams, lakes, and forests. 2 This case involves three portages in the Boundary Waters Canoe Area Wilderness: Prairie Portage, Four Mile Portage, and Trout Lake Portage. For some time, trucks have been used to carry boats across the portages. The Boundary Waters Canoe Wilderness Area Act, however, limits the continuation of this practice. Section 4(g) of the Act provides:

Nothing in this Act shall be deemed to require the termination of the existing operation of motor vehicles to assist in the transport of boats across the [Prairie Portage, Four Mile Portage, and Trout Lake Portage] during the period ending January 1, 1984. Following said date, unless the Secretary determines that there is no feasible nonmotorized means of transporting boats across the portages to reach the lakes previously served by the portages listed above, he shall terminate all such motorized use of each portage listed above.

The Secretary did not close the motorized portages in 1984. In 1986, the local Forest Service staff completed a Land Resource Management Plan for the Superior National Forest (the Boundary Waters Canoe Area lies wholly within the Superior National Forest). See 16 U.S.C. § 1604 (1988). The Plan authorized the continued motorized operation of the Prairie, Trout Lake, and Four Mile portages. The Plan concluded that these three portages should remain open because it was not feasible to use nonmotorized portage wheels to cross the portages. The Forest Service based this conclusion on a 1981 test in which three men unsuccessfully attempted to cross Prairie Portage using portage wheels.

The Friends administratively appealed the decision to continue to allow motorized portages. The Friends submitted a videotape and pictures showing three men traversing all three of the portages at issue using portage wheels.

On March 10, 1989, the Chief of the Forest Service issued his decision on the administrative appeal. He observed that the Regional Forester's 1981 study determined only that it was not feasible to use nonmotorized means to cross the Prairie Portage, and that no finding was made about the Four Mile or Trout Lake portages. The Chief concluded that "feasible" means "possible," not "ideal" or "most practical." The Chief directed the closing of the Four Mile and Trout Lake portages and ordered a study to test the feasibility of nonmotorized portaging for the Four Mile, Trout, and Prairie portages. The Chief observed that "[i]f a determination is made that it is feasible to use nonmotorized means to cross a portage, that portage must be closed."

Six days later, however, the Chief issued a memorandum delaying the closure of the portages pending the feasibility study. The Friends claim that this change of mind was due to a telephone call from Representative Jim Oberstar. The Chief admitted that Oberstar telephoned and informed him that his constituents were unhappy with the Forest Service's decision, but claims that Oberstar did not ask him to change his ultimate decision on the issue--only to discuss his concerns with the interested parties.

In July and September 1989, the Forest Service conducted a feasibility study considering nonmotorized portaging. The Forest Service organized one, two, and three person teams of various ages and genders, using fishing boats with equipment loads of different weights. The field testers successfully completed twenty-six out of thirty-four attempts, and most all of the three-person teams successfully completed the portages.

After considering the test results, the Chief determined that although portaging by nonmotorized means "[could] be done ... the task [was] not feasible." The Chief concluded that "the risk to health and safety of portagers should be taken into account in determining 'feasibility.' " Relying on a study performed by three physiologists who concluded that it was physically dangerous for persons to attempt nonmotorized portages, the Chief concluded that it was not "feasible" to attempt nonmotorized portages. Accordingly, the Chief ruled that all three motorized portages should remain open indefinitely. The district court affirmed the Chief's decision, and this appeal followed.

I.

The Friends argue that the Chief's decision leaving open the three motorized portages constitutes agency action "not in accordance with law." 5 U.S.C. § 706(2)(A) (1988). They contend that the Chief's decision violates the Boundary Waters Canoe Area Wilderness Act and the Wilderness Act, 16 U.S.C. §§ 1131-1136 (1988). They argue that as a matter of law, "feasible" means "possible" and, therefore, the district court erred in failing to enjoin this violation of law.

The Supreme Court set forth our standard for reviewing agency action in Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). We must first determine "whether Congress has directly spoken to the precise question at issue. If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress." Id. at 842-43, 104 S.Ct. at 2781. If the statute is silent or ambiguous, we may only review the agency's action to determine whether that action "is based on a permissible construction of the statute." Id. at 843, 104 S.Ct. at 2782. This court recently set forth the inquiry required by Chevron, in Emerson v. Steffen, 959 F.2d 119, 121 (8th Cir.1992).

Both parties suggest that the statute is unambiguous, and that the intent of Congress was clear. On the one hand, the Friends say that Congress intended "feasible" to mean "possible," and the Chief violated Congress' express intent by closing the motorized portages in light of the test results. The Chief and intervenors 3 respond that Congress intended that "feasible" meant "reasonable," "practicable" or "likely," and that the Chief, therefore, complied with the expressed intent of Congress in continuing to allow motorized portaging. Their fall-back position is that to the extent that the statute is ambiguous the Chief's decision is based on a "permissible construction" of the Act, which is not arbitrary, capricious, or contrary to law, and therefore, must be upheld. 5 U.S.C. § 706(2)(A).

The Friends say that the Boundary Waters Canoe Area Wilderness Act, legislative history of the Act, Supreme Court precedent, and agency precedent conclusively establish that "feasible" means "physically possible." For support, the Friends direct us to the Supreme Court's decision in Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971). In that case, the Supreme Court considered language contained in the Department of Transportation Act and Federal-Aid Highway Act which directed the Secretary not to " 'approve any program or project' [which] requires the use of any public parkland 'unless (1) there is no feasible and prudent alternative to the use of such land....' " Id. at 411, 91 S.Ct. at 821 (citations omitted). The Supreme Court observed "the requirement that there be no 'feasible' alternative route admits of little administrative discretion. For this exemption to apply the Secretary must find that as a matter of sound engineering it would not be feasible to build the highway along any other route." Id. (footnote omitted).

The Chief and intervenors contend that "feasible" does not mean "physically possible," and that Citizens to Preserve Overton Park, is not on point. Pointing to Webster's Third New International Dictionary, 831 (3d ed.1967), they argue that feasible means "reasonably possible" or "practicable," and that it is not "reasonably possible" or "practicable" to push a 16 foot, 25 horsepower boat and gear across the portages.

In considering the definition of "feasible," we observe the purposes behind the Boundary Waters Canoe Area Wilderness and...

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  • THE EMERGING LAW OF OUTDOOR RECREATION ON THE PUBLIC LANDS.
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