Forestwatch v. Lint, Civil Action No.: 8:12–CV–3455–BHH

Citation135 F.Supp.3d 477
Decision Date29 September 2015
Docket NumberCivil Action No.: 8:12–CV–3455–BHH
CourtU.S. District Court — District of South Carolina
Parties Georgia Forestwatch, Plaintiff, v. Rick Lint, in his official capacity as Supervisor of the Francis Marion and Sumter National Forests, et al., Defendants.

Alexander M. Bullock, Kilpatrick Townsend and Stockton, Washington, DC, Rachel S. Doughty, Greenfire Law, Berkeley, CA, for Plaintiff.

John H. Douglas, U.S. Attorneys Office, Charleston, SC, John Pershing Tustin, U.S. Department of Justice, Washington, DC, for Defendants.

Opinion and Order

Bruce Howe Hendricks

, United States District Judge

This matter is before the Court on the plaintiff's motion for summary judgment on the administrative record (ECF No. 52) and the defendants' cross-motion for judgment on the administrative record (ECF No. 54). For the reasons set forth in this order, the defendants' cross-motion for judgment on the administrative record is granted, and the plaintiff's motion for summary judgment is denied.

The Court has reviewed Judge Mary G. Lewis' Amended Order and Opinion in the case of American Whitewater v. Tidwell, C/A No. 8:09–CV–2665–MGL (ECF No. 275). That decision was appealed and affirmed by the United States Court of Appeals for the Fourth Circuit in American Whitewater v. Tidwell, 770 F.3d 1108 (4th Cir.2014)

. The documents contained in the Administrative Record1 in this case are the same as those contained in the Administrative Record in that related case. As such, relevant portions of Judge Lewis' factual summary are provided below.2


The Chattooga is one of the longest and largest free-flowing mountain waterways in the Southeast remaining in a relatively undeveloped condition. (AR001:00009). The river, which is 57 miles long, originates in western North Carolina and flows south to form the border of northwestern South Carolina and northeastern Georgia. (AR350:14358–14359). The waters of the Chattooga run through the Nantahala, Chattahoochee–Oconee, and Sumter National Forests ("NFs") before eventually descending into Georgia's Tugaloo Reservoir. (AR002:00186). On June 15, 1971, the Forest Service issued the Wild and Scenic River Study Report for the Chattooga River ("1971 Study") providing descriptions of the river and adjoining lands and outlining several recommendations and considerations for Congress prior to the river's designation as a WSR. (AR001:00001–00185).

In 1974, Congress designated the entire Chattooga River and its 15,432 acre corridor as a part of the Wild and Scenic Rivers System ("WSRS") under the Wild and Scenic Rivers Act ("WSRA") (16 U.S.C. §§ 1274(a)(10)

–1287 ) based on the 1971 Study. (AR400:16697; AR001:00001–00185). 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. Portions of the Chattooga WSR Corridor are located within three states—North Carolina, South Carolina, and Georgia (AR002:00186), and can be divided into six distinctive sections under the "Guidelines for Evaluating Wild and Scenic River Areas Proposed for Inclusion under the National Wild and Scenic Rivers System." (AR001:00072). Section I of the Chattooga WSR covers 5.5 miles of the Headwaters from 0.8 miles below Cashiers Lake to 0.2 miles above Norton Mill Creek. (AR001:00072–00075). Section II of the Chattooga WSR covers 15.9 miles beginning 0.2 miles above Norton Mill Creek to Nicholson Fields. (AR001:00075–00077). Section III of the Chattooga WSR covers 6.1 miles of the river from Nicholson Fields to 2 miles below the Highway 28 Bridge at Turnhole. (AR001:00077–00078). Sections IV through VI of the Chattooga WSR are located on the lower portion of the river. (AR001:00078–00080). Under the WSRA, the USDA is in charge of managing the Chattooga in compliance with the Act, and the USDA primarily executes its management responsibilities through the Forest Service. See 16 U.S.C. § 1281(d).

On March 22, 1976, the Forest Service published its Chattooga Wild and Scenic Development Plan3 in the Federal Register ("1976 Plan"), in an effort to manage the resources available at and around the Chattooga. (AR002:00186–00096). Over the years, the Forest Service has enacted various Plans for the management and oversight of the Chattooga WSR, the relevant portions of which are summarized hereafter.

The 1976 Plan

The 1976 Plan allowed non-motorized boating on the lower two-thirds of the Chattooga, but prohibited all boating on the Headwaters. (AR002:00191; AR400:16697). In 1978, the Forest Service promulgated final regulations (36 C.F.R. § 261.77

) which prohibited all private and commercial boating on the Chattooga River on the Georgia and South Carolina portions except where permits were provided by the Forest Service. (AR400:16758). The summary of the agency action indicated that permits would "include conditions of use to protect river values and provide for floater safety." See Permits for Chattooga River, 43 Fed.Reg. 3706–01 (Jan. 27, 1978) (codified at 36 C.F.R. pt. 261).

The 1985 Plan

The 1985 Sumter Forest Land Resource Management Plan ("1985 Plan"), like the 1976 Plan, allowed floating on the lower two-thirds of the Chattooga and precluded floating on the Headwaters. (AR006:00301–00019). The 1985 Plan provided that "[f]loating is limited to the 26 mile portion below Highway 28 Bridge and the West Fork's lower 4 miles in Georgia" and would be prohibited on the Headwaters. (AR007:00322). The 1985 Plan also established that administrative responsibility for the Chattooga was divided among the supervisors for the three relevant National Forests. (AR007:00324).

The 2004 Plan

In 2002, the Forest Service approved an amendment to the 1985 Plan which altered some of the provisions regarding boating on the lower portion of the river, but this amendment did not propose any changes to the provisions for the Headwaters. (AR400:17146). Then, on April 7, 2003, the Forest Service released a Draft Environmental Impact Statement ("DEIS") for a revised plan. (AR019:01171). The DEIS proposed altering some of the provisions regarding boating on the lower portion of the river, but maintained the boating prohibition on the Headwaters. (AR021:01929–01930). The Regional Forester, who reports to the Chief of the Forest Service and manages one of nine geographic regions of the National Forest System, signed a Record of Decision ("ROD") in January 2004 that adopted the Revised Forest Plan ("2004 Plan"). (AR021:01914–01942); 36 C.F.R. § 200.2

. In April 2004, a national non-profit organization called American Whitewater lodged an administrative appeal of the 2004 Plan that banned floating on the Headwaters. (AR025:01951–02045). Thereafter, on April 28, 2005, the Forest Service's Reviewing Officer granted American Whitewater's administrative appeal and explained that:

After careful review of the record ... I am reversing the Regional Forester's 2004 Decision to continue to exclude boating on the Chattooga [Headwaters]. 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.


The Forest Service's Reviewing Officer directed the Regional Forester to reassess the boating prohibition as part of a broader examination of visitor use capacity issues on the upper segment of the Chattooga and required the Regional Forester to conduct appropriate visitor use capacity analyses, including an analysis of noncommercial boating use. (ARO54:02120–02121). Based upon the results of the visitor use capacity analysis, the Regional Forester was required to adjust or amend, as appropriate, the 2004 Plan to reflect a new decision based on the findings. Id.

Due to the Forest Service's appeals procedures, the pre-existing prohibition on boating above Highway 28 set forth in the 1985 Plan remained in effect pending the results of the visitor use capacity analysis. (AR054:02120).

The 2009 Plan

Over the next few years, the Forest Service conducted a visitor use capacity analysis and other studies, held public meetings, and solicited public comment on recreation along the Chattooga. (AR400:16763–16765; see also AR400:16702–16706). The Forest Service received over 3,000 comments on the studies and proposed plan amendments (AR400:16705), and issued an Environmental Assessment ("EA") on Managing Recreation Uses on the Upper Chattooga River in August 2009. (AR224:09716–09915). On August 25, 2009, the Forest Supervisors for the Sumter, Chattahoochee–Oconee, and Nantahala National Forests signed a Decision Notice and Finding of No Significant Impact ("DN/FONSI") to amend their respective Land Resource Management Plans ("LRMPs") ("the 2009 Plan"). (AR221:09661; AR222:09679; AR223.1:09699). The 2009 Plan allowed limited non-motorized, noncommercial boating or floating on the Headwaters for the first time since the Chattooga's designation as a WSR. Floating was limited to a seven-mile long section starting at the confluence of Norton Mill Creek in North Carolina south to Burrells Ford Bridge in South Carolina (not including the tributaries) during the months of December, January and February when the river was flowing at levels of 450 cubic feet per second ("cfs") or higher. (AR221:09661; AR224.0:09731).

American Whitewater and others brought administrative appeals challenging the 2009 Plan. On October 14, 2009, and prior to the Forest Service's final decision on those appeals, American Whitewater also filed suit challenging the 2009 Plan. American Whitewater alleged in its complaint that the Forest Service's actions violated the Administrative Procedure Act ("APA"), the WSRA (16 U.S.C. § 1271 et seq.

), the Wilderness Act (16 U.S.C. §...

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