Am. Whitewater v. Tidwell

• Decision Date: 02 December 2010
• Docket Number: C.A. No. 8:09-cv-02665-JMC
• Parties: American Whitewater; American Canoe Association; Georgia Canoeing Association; Atlanta Whitewater Club; Foothills Paddling Club; Western Carolina Paddlers; Joseph C. Stubbs; Kenneth L. Strickland; and Bruce A. Hare, Plaintiffs, v. Thomas Tidwell, in his official capacity as Chief of the United States Forest Service; the United States Forest Service, an agency of the United States Department of Agriculture; Elizabeth Agpaoa, Regional Forester, Southern Region, United States Forest Service; Monica J. Schwalbach, Acting Forest Supervisor, Francis Marion and Sumter National Forests; Marisue Hilliard, Forest Supervisor, National Forests in North Carolina; George M. Bain, Forest Supervisor, Chattahoochee-Oconee National Forests; Thomas Vilsack, in his official capacity as Secretary of the United States Department of Agriculture; and the United States Department of Agriculture, Defendants, and Richard Rust; Philip Rust; Henry Rust; and the Whiteside Cove Association, Intervenors.
• Court: U.S. District Court — District of South Carolina

American Whitewater; American Canoe Association; Georgia Canoeing Association;Atlanta Whitewater Club; Foothills Paddling Club; Western Carolina Paddlers;Joseph C. Stubbs; Kenneth L. Strickland; and Bruce A. Hare, Plaintiffs,

v. Thomas Tidwell, in his official capacity as Chief of the United States Forest Service;the United States Forest Service, an agency of the United States Department of Agriculture;Elizabeth Agpaoa, Regional Forester, Southern Region, United States Forest Service;Monica J. Schwalbach, Acting Forest Supervisor, Francis Marion and Sumter National Forests;Marisue Hilliard, Forest Supervisor, National Forests in North Carolina;George M. Bain, Forest Supervisor, Chattahoochee-Oconee National Forests;Thomas Vilsack, in his official capacity as Secretary of the United States Department of Agriculture;and the United States Department of Agriculture, Defendants, andRichard Rust; Philip Rust; Henry Rust; and the Whiteside Cove Association, Intervenors.

C.A. No. 8:09-cv-02665-JMC

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF SOUTH CAROLINA

ANDERSON DIVISION

Date: December 2, 2010

OPINION AND ORDER

Plaintiffs American Whitewater ("AW"), American Canoe Association, Georgia Canoeing Association, Atlanta Whitewater Club, Foothills Paddling Club, Western Carolina Paddlers, Joseph C. Stubbs, Kenneth L. Strickland, and Bruce A. Hare ("Hare") (collectively "Plaintiffs") bring this action alleging that the United States Department of Agriculture ("USDA"), through its agency, the United States Forest Service ("USFS") (collectively with the named agency defendants and named individual defendants in their official capacity "Defendants"), unlawfully infringed upon Plaintiffs' right to use and enjoy the Chattooga River (the "Chattooga") upstream of South Carolina Highway 28 (the "Headwaters" or "Upper Chattooga") through hand-powered floating.¹ Now before the court are Plaintiffs' Motion for Preliminary Injunction [Doc. # 15], Plaintiffs' related Motion for Reconsideration of Temporary Restraining Order [Doc. # 35], Defendants' Motion to Dismiss [Doc. # 44], the Rust Family and Whiteside Cove Association's ("Intervenors") Amended Motion to Dismiss [Doc. # 69], and Motion by Government Defendants to Exclude Some of the Plaintiffs' Proposed Exhibits and Witnesses [Doc. # 84].

Factual and Procedural History

The Chattooga River is a natural waterway originating in western North Carolina and flowing south to form the border of northwestern South Carolina and northeastern Georgia. Only those remote and northernmost twenty-one miles of the Chattooga above South Carolina Highway 28 are at issue in this case.

In 1974, Congress designated the entire Chattooga as a "Wild and Scenic River" under the Wild and Scenic Rivers Act ("WSRA" or "Act").² Under this designation, the river was and is protected as a valuable natural resource to be preserved for present and future use. See 16 U.S.C. § 1271. Under the WSRA, the USDA was placed in charge of managing the Chattooga in compliance with the Act, see 16 U.S.C. § 1281(d), and the USDA primarily executed its management responsibilities through the USFS. In 1976, the USFS instituted the 1976 Chattooga Wild & Scenic River Classifications, Boundaries and Development Plan (the "1976 Plan") to manage the use of the resources available at and around the Chattooga. In 1978, the USFS promulgated final regulations which prohibited all private and commercial floating on the entire Chattooga River without a permit. 36 C.F.R. 261.77 (2010). The summary of the agency action provided that permits would "include conditions of use to protect river values and provide for floater safety." See 43 Fed. Reg. 3706 (Jan. 27, 1978). While safety was noted as a concern, the agency provided no detailed purpose for enacting this prohibition. Although the regulation prohibited floating on the entire Chattooga, the USFS permitted floating on the lower portion of the Chattooga River below South Carolina Highway 28. There was allegedly no posting regarding the ban on or near the Chattooga Headwaters and floaters continued to use this portion of the river for floating activitites. However, the USFS did not permit floating on the Headwaters and noted this continued prohibition under a new management plan in 1985, the Sumter National Forest Land and Resource Management Plan (the "1985 Plan").

Plaintiffs claim that floaters did not learn of the prohibition until several years after the institution of the 1985 Plan, and it was at this time that interested parties allegedly began efforts to lift the ban. As a result of an official challenge in 2003, the USFS agreed to analyze the reasons for disallowing floating on the Headwaters under the various plans. Unfortunately, in the 2004 Revised Sumter National Forest Land and Resource Management Plan (the "2004 Plan") issued by the Regional Forester, the USFS determined that the floating prohibition was warranted without substantial analysis or explanation. In April 2004, AW filed an administrative appeal of the 2004 Plan. The USFS Reviewing Officer of the Chief of the Forest Service ("Reviewing Officer") reversed the Regional Forester's decision to continue the floating ban on the Headwaters. In her decision, the Reviewing Officer stated:

I find the Regional Forester does not provide an adequate basis for continuing the ban on boating above Highway 28. Because the record provided to me does not contain the evidence to continue the boating ban, his decision is not consistent with the direction in Section 10(a) of the WSRA or Sections 2(a) and 4(b) of the Wilderness Act or agency regulations implementing these Acts.

(Decision for Appeal of the Sumter National Forest Land and Resource Management Plan Revision, at 6 (April 2004)). The Reviewing Officer further directed the Regional Forester to conduct a visitor use capacity analysis of the Headwaters and to adjust or amend the 2004 Plan based on the findings. The Reviewing Officer estimated that the analysis would be completed in approximately two years. Because the Reviewing Officer reversed the section of the 2004 Plan concerning the floating ban, she also provided for an interim management direction reverting back to the 1985 Plan for the management of floating on the Headwaters. This interim management direction effectively continued the floating prohibition.

In May 2006, AW filed suit in the United States District Court for the Northern District of Georgia challenging the Reviewing Officer's decision to revert to the 1985 Plan for the interim management of the Headwaters.³ AW requested the court to set aside the Reviewing Officer's 2005 decision perpetuating the ban until the USFS issued an amendment to the 2004 Plan. American Whitewater, et al v. Bosworth, et al, C.A. No. 2:06-cv-00074-WCO (N.D. Ga. Oct. 6, 2006). AW argued that the Reviewing Officer's interim management decision was arbitrary and capricious in that it directly conflicted with her analysis that the incorporation of the ban in the 2004 Plan was inadequately supported. Id.

The court declined to grant AW the relief it sought on the grounds that it lacked standing because the alleged injury-the prohibition against floating on the Headwaters-was not traceable to the Reviewing Officer's 2005 decision, but was derived from the 1985 Plan. The court also found

that the issue was not ripe for review. In discussing the ripeness of the Reviewing Officer's decision, the court stated:

Despite the order's last sentence [stating that the decision was final and appealable], the court agrees with defendants on this issue. While the order setting aside the 2004 plan constitutes final agency action, the decision to temporarily revert to the 1985 plan while an amended plan is developed is just that, temporary.... Whether that amended plan renews or lifts the floating ban, the question of floating on the Headwaters will be definitively resolved by final agency action and subject to judicial review at that more appropriate time.

Id. at 12-13. While the court found that AW's suit was not ripe, the court noted that AW only challenged the interim floating ban and not the 1985 Plan. The court also noted that any hardship experienced by AW would last for only a short period while the USFS amended the 2004 Plan and that the affected parties, by order of the Reviewing Officer, would be involved in the visitor use capacity analysis. Id. at 17-18.

In August 2009, the USFS issued the 2009 Amendments to the 2004 Plan which allowed very limited floating on the Headwaters from December 1 through March 1 only when river flow levels reach approximately 450 cubic feet per second or higher. Plaintiffs filed the instant action in October 2009, and sought a temporary restraining order ("TRO") and preliminary injunction to require the USFS to entirely lift any and all prohibition against floating on the Headwaters. In addition to alleging a violation of the WSRA, Plaintiffs also allege in their Complaint that Defendants' actions violate the Wilderness Act, the Multiple-Use Sustained-Yield Act, the Forest and Rangeland Renewable Resources Planning Act, the National Forest Management Act and its implementing regulations, the Administrative Procedures Act ("APA"), and the National Environmental Policy Act and its implementing regulations.

This court heard Plaintiffs' motion for TRO and denied that motion, in part, on the basis that court intervention was not necessary because the 2009 Amendments allowed at least some access to floating on the Headwaters. The court granted the TRO to the extent it allowed Plaintiffs to proceed with the administrative appeals process without waiving any rights to proceed with judicial review.

Several entities brought administrative appeals challenging the 2009 Amendments, including Plaintiffs. Approximately one week after the court's decision on the TRO, Defendants issued a stay of the 2009 Amendments based on a request from a third party. Consequently, floating...