Great Old Bds. for Wilderness v. Kimbell

• Decision Date: 04 March 2013
• Docket Number: No. 11–16183.,11–16183.
• Citation: 709 F.3d 836
• Parties: GREAT OLD BROADS FOR WILDERNESS; The Wilderness Society, Plaintiffs–Appellants, v. Abigail KIMBELL, Chief, United States Forest Service; Mike Johanns, Secretary of Agriculture; Edward Monning, Humboldt–Toiyabe National Forest Supervisor; Jack Troyer, Intermountain Regional Forester; United States Forest Service; United States of America, Defendants–Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

709 F.3d 836

GREAT OLD BROADS FOR WILDERNESS; The Wilderness Society, Plaintiffs–Appellants,

v.Abigail KIMBELL, Chief, United States Forest Service; Mike Johanns, Secretary of Agriculture; Edward Monning, Humboldt–Toiyabe National Forest Supervisor; Jack Troyer, Intermountain Regional Forester; United States Forest Service; United States of America, Defendants–Appellees.

No. 11–16183.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Nov. 6, 2012.

Filed March 4, 2013.

Alison Christine Flint (argued) and Michael Freeman, Earthjustice, Denver, CO; Craig Coleman, Faegre Baker Daniels LLP, Minneapolis, MN; Henry Egghart, Attorney, Reno, NV, for Appellants.

Elizabeth Ann Peterson (argued), Environment & Natural Resources Division, Department of Justice, Washington, D.C.; Andrew A. Smith, Assistant United States Attorney, Albuquerque, NM, for Appellees.

Appeal from the United States District Court for the District of Nevada, Roger L. Hunt, Senior District Judge, Presiding. D.C. No. 3:07–cv–00170–RLH–RAM.

Before: ROBERT D. SACK,^*RONALD M. GOULD, and MILAN D. SMITH, JR., Circuit Judges.

OPINION

GOULD, Circuit Judge:

This case arises out of the long and contentious process to repair a flood-damagedroad in a sensitive area of the Humboldt–Toiyabe National Forest in Elko County, Nevada. A related dispute reached us twice before, when we ordered that Appellants Great Old Broads and the Wilderness Society (collectively, “Great Old Broads”) be allowed to intervene in court-directed settlement talks to determine how best to repair or replace the road, rejecting timeliness and standing challenges. See United States v. Carpenter (Carpenter I), 298 F.3d 1122, 1125 (9th Cir.2002); United States v. Carpenter (Carpenter II), 526 F.3d 1237, 1240 (9th Cir.2008). Great Old Broads now appeals the district court's grant of summary judgment to the United States Forest Service (“Forest Service”) on Great Old Broads's claims related to the Forest Service's record of decision (“ROD”) determining the method for restoring the South Canyon Road as a part of the Jarbidge Canyon Project (the “Project”). The Project was an effort to reestablish the South Canyon Road after flood waters damaged the road in 1995, eliminating vehicle access to the Snowslide Gulch Wilderness Portal in the Jarbidge Wilderness. Great Old Broads sought review in federal court, contending that the Forest Service's approval of the Project violated (1) the National Forest Management Act (“NFMA”), 16 U.S.C. §§ 1600–1687, because the Project offended the Fisheries and Wildlife Restoration standard FW2 of the Inland Native Fish Strategy (“INFISH”), which is incorporated into the Humboldt National Forest Land and Resource Management Plan (“Humboldt Plan”); (2) Executive Order 11988, (“EO 11988”), 42 Fed. Reg. 26951 (1977); and (3) the National Environmental Policy Act of 1969 (“NEPA”), 42 U.S.C. §§ 4321–4370f.

The district court gave summary judgment to the Forest Service, holding that Great Old Broads did not exhaust its administrative remedies and, alternatively, that Great Old Broads's claims failed on the merits. We have jurisdiction under 28 U.S.C. § 1291. We reverse the district court's conclusion on exhaustion and affirm its alternate decision on the merits.

I. BACKGROUND

Jarbidge Canyon is in the northeast corner of Nevada, between Twin Falls, Idaho, and Elko, Nevada. The Jarbidge River flows north from the Jarbidge Wilderness into Idaho, where it joins the Bruneau River and eventually the Snake and Columbia Rivers. The Jarbidge River is home to the only population of bull trout known to exist south of the Snake River. This population has been isolated from other bull trout for more than 100 years by a combination of human and natural barriers.

The South Canyon Road (indexed as Forest Road # 064) follows the West Fork of the Jarbidge River through Jarbidge Canyon. The road dates to 1909, when gold was discovered in the canyon, leading to one of the last gold rushes in the United States and spurring development of access roads throughout the canyon. The disputed segment of the road was completed between 1911 and 1918. In 1974, the road was closed above Snowslide Gulch because annual landslides made maintenance impractical. Until 1995, the South Canyon Road gave the only motorized-vehicle access to the wilderness area at Snowslide Gulch. The road climbs one mile from Pine Creek Campground to the Urdahl Concentrated Use Area (“Urdahl”) and then another half mile to Snowslide Gulch. In 1995, the Jarbidge River flooded, making this part of the South Canyon Road unpassable to passenger vehicles for at least the fifth time since 1970.

In 1997, the Forest Service prepared an environmental assessment and made a finding of no significant impact (“FONSI”) for the recommended repair of the entire South Canyon Road. Trout Unlimited mounted an administrative challenge to this FONSI, arguing that the proposed reconstruction would harm the bull trout population and habitat, and suggesting that harm would lead to the trout's listing under the Endangered Species Act (“ESA”). The Regional Forester remanded the environmental assessment to the Forest Service to consider Trout Unlimited's claims.

In June 1998, the United States Fish and Wildlife Service (“FWS”) proposed listing the Jarbidge River bull trout as a threatened species under the ESA. At the same time, after receiving comments on its 1997 environmental assessment and conducting more analysis in response to Trout Unlimited's suit, the Forest Service published a second environmental assessment. This 1998 environmental assessment identified a hiking trail as the preferred alternative, eliminating motorized access along the entire relevant stretch of the South Canyon Road.

In response to this proposed ESA listing and the recommendation of the 1998 environmental assessment, Elko County unilaterally directed its road department to begin repair of the South Canyon Road, citing its need to access the South Canyon to fight forest fires. While rebuilding the road, Elko County diverted the river into a straight channel. This channelization lifted a plume of sediment that stretched 3.5 miles down the river and damaged the river bank. Elko County's repair work was blocked by the Nevada Division of Environmental Protection, but the repairs had so damaged the river habitat that FWS issued an emergency listing of the Jarbidge bull trout as endangered in August 1998. Emergency Listing of the Jarbidge River Population Segment of Bull Trout as Endangered, 63 Fed. Reg. 42757, August 11, 1998. Predicting that “impacts from the road reconstruction to bull trout habitat will likely remain for years,” FWS permanently listed the bull trout as threatened on April 8, 1999. Endangered and Threatened Wildlife and Plants; Determination of Threatened Status for the Jarbidge River Population Segment of Bull Trout, 64 Fed. Reg. 17110, April 8, 1999.

The Forest Service and Elko County tried to negotiate a plan to reopen the road over the next few months, but this effort failed. Frustrated by lack of progress and determined to enable vehicle access to the wilderness area, a local citizens' group calling itself the “Shovel Brigade” decided to reopen the road by hand. In October of 1999, District Judge Hagen blocked the Brigade's plan to reopen the road and required the Brigade, Elko County, and the Forest Service to enter confidential mediation. Off-road vehicle (ORV) riders continued to enter the South Canyon, undeterred by road conditions and the Forest Service's attempts to block access. These ORVs established trails along the length of the washed-out road and further damaged the river habitat.

After months of unsuccessful talks, the Shovel Brigade again made plans to reopen the road by hand. This time the Brigade styled its effort as a protest scheduled on July 4, 2000. The district court did not enjoin the Brigade from its plan, and the Brigade successfully opened a rudimentary, quarter-mile road. In response, the United States charged members of the Shovel Brigade with trespassing and renewed a suit against Elko County for damage caused by the County's earlier road work. Elko County entered a cross-claim to quiet title to a right of way in the South Canyon Road under Revised Statute 2477 (RS 2477).¹

Judge Hagen again ordered the Forest Service, Elko County, and the Shovel Brigade (represented by named defendant John Carpenter) into confidential settlement talks. On March 2, 2001, the parties told the court that they had reached an agreement. Carpenter I, 298 F.3d at 1124. In the proposed settlement agreement (“Proposed Settlement”), (1) the parties released all claims against each other; (2) the Forest Service recognized Elko County's RS 2477 right of way and agreed to allow the County to restore the South Canyon Road; and (3) Elko County and Carpenter agreed that the United States had authority to manage the land in accord with federal environmental laws and promised to obtain Forest Service authorization before performing any work on the South Canyon Road.

At this point, the details of the Proposed Settlement were publicized, and Great Old Broads moved to intervene as a defendant in Elko County's Quiet Title Act claim. Id. Great Old Broads claimed that the Proposed Settlement “improperly ceded a property interest in the road to the County of Elko, thereby substantially diminishing the environmental protections for the adjacent wilderness areas.” Id. The district court rejected Great Old Broads's motion as untimely and accepted the Proposed Settlement. Id. Great Old Broads appealed. We vacated the approval of the Proposed Settlement and ordered that Great Old Broads be allowed to intervene. Id. at 1125.

Great Old Broads renewed its motion to intervene in the district court on the Quiet Title Act claim and filed Administrative Procedure Act (“APA”) cross-claims against the United States, challenging the settlement under...