Hells Canyon Alliance v. US. Forest Serv.
| Decision Date | 29 November 2000 |
| Docket Number | No. 99-35675,No. 99-35683,99-35683,99-35675 |
| Parties | (9th Cir. 2000) HELLS CANYON ALLIANCE, Plaintiff-Appellant, v. UNITED STATES FOREST SERVICE; MICHAEL DOMBECK, Chief U.S. Forest Service; ROBERT G. WILLIAMS, Regional Forester Region 6; KARYN WOOD, Forest Supervisor, Wallowa-Whitman National Forest, Defendants-Appellees. HELLS CANYON PRESERVATION COUNCIL; OARS DORIES INC. WILDERNESS WATCH; NATIONAL ORGANIZATION FOR RIVERS; RIVERS COUNCIL OF WASHINGTON; AMERICAN WHITE WATER AFFILIATION; AMERICAN CANOE ASSOCIATION; HOLIDAY RIVER EXPEDITIONS OF IDAHO INC.; CANYON OUTFITTERS INC; DAVIS WHITE WATER, Plaintiffs-Appellants, and ROW INC., Plaintiff, v. ROBERT WILLIAMS, Regional Forester Pacific Northwest Region U.S. Forest Service, Defendant, v. UNITED STATES FOREST SERVICE, Defendant-Appellee |
| Court | U.S. Court of Appeals — Ninth Circuit |
Paul A. Turcke, Moore Smith Buxton & Turcke, Chartered, Boise, Idaho, for appellant Hells Canyon Alliance.
William H. Sherlock, Hutchinson, Anderson, Cox, Coons & DuPriest, P.C., Eugene, Oregon, for appellants Hells Canyon Preservation Council et al.
Jared A. Goldstein, United States Department of Justice-Environmental and Natural Resources Division, Washington, D.C., for appellee United States Forest Service.
Appeals from the United States District Court for the District of Oregon James A. Redden, District Judge, Presiding. D.C. No.CV-98-00708-RE D.C. No. CV-98-00622-RE
Before: Donald P. Lay,1 A. Wallace Tashima, and M. Margaret McKeown, Circuit Judges.
This appeal brings to mind the maxim that you can please all of the people some of the time, and some of the people all of the time, but you can't please all of the people all of the time. At issue are the regulations for motorized water craft adopted by the United States Forest Service ("Forest Service") for portions of the Snake River within the diverse and spectacular area known as the Hells Canyon National Recreation Area. Balancing the competing and often conflicting interests of motorized water craft users, including jet boaters, and non-motorized water craft users, such as rafters and kayakers, is no easy task. The legislative framework contemplates not only that such craft are legitimate recreational uses in Hells Canyon but that the area should be preserved and conserved for the public benefit. In 1998, after a lengthy environmental impact process and extensive public comment, the Forest Service implemented a recreation management plan that included a "non-motorized window"--a three-day period every other week throughout the primary season during which motorized water craft would be barred from part of the "wild" section of the river. The Hells Canyon Preservation Council (the "Council"),2 representing the non-motorized craft users or "floaters," and the Hells Canyon Alliance (the "Alliance"), representing primarily the motorized boaters, challenged the plan under a variety of statutes. We affirm the district court's grant of summary judgment upholding the plan.
Hells Canyon is the deepest river canyon in North America; through it runs the Snake River, which divides Idaho and Oregon as it flows northward. In 1975, Congress established the Hells Canyon National Recreation Area (the "Hells Canyon NRA") to preserve this area, designating portions of the Snake River as "wild" and "scenic" and designating certain adjacent areas as wilderness. Hells Canyon National Recreation Area Act (the "Hells Canyon Act" or "the Act"), Pub. L. 94-199, 89 Stat. 1117 (1975) (codified at 16 U.S.C. 460gg-460gg-13).
Visitor use has soared since the Hells Canyon NRA was established, increasing 147% during the primary (summer) season from 1979-1991. Motorboat use during the primary season has grown at over 400%, from about 300 launches in 1979 to more than 1500 in 1994. Use of non-motorized water craft has also grown, from less than 100 float trips in 1973 to over 450 in 1992. Use restrictions for non-motorized water craft have been in place since 1977, but motorized useremained essentially unregulated until the Forest Service in 1998 implemented the Wild and Scenic Snake River Recreation Management Plan ("Recreation Management Plan") prepared in 1994.3
The Recreation Management Plan, developed in response to litigation challenging the agency's failure to regulate motorized water craft,4. has a lengthy and complex history. In 1993, after issuing a notice of intent to prepare such a plan and an environmental impact statement for the river corridor, the agency released a draft environmental impact statement ("EIS") identifying eight outstandingly remarkable values ("values," or "ORVs") in the corridor--scenic, recreational, geologic, fish, wildlife, cultural, botanic/vegetative, and ecological values--and presenting six alternatives for consideration. Most of these alternatives restricted motorized use levels; two also contemplated the elimination of motorized water craft from the wild part of the river. In response to comments on the draft EIS, Forest Supervisor R.M. Richmond asked the agency to develop a seventh alternative."Alternative G," denominated the "preferred alternative" in the final environmental impact statement ("FEIS") issued in July 1994, included not only motorized use-level restrictions but also a non-motorized window in part of the "wild" river for threeday periods from Monday-Wednesday every other week in July and August for a total of 24 motor-free days.
In October 1994, Richmond issued a Record of Decision ("ROD") selecting Alternative G, with certain modifications we need not enumerate here. Implementation of the Recreation Management Plan was stayed pending the resolution of numerous administrative appeals that followed. On July 19, 1995, Deputy Regional Forester Richard Ferraro partially affirmed and partially reversed the ROD. He affirmed "the programmatic decision to provide a non-motorized window to achieve more primitive conditions in the wild river segment" but delayed implementation of the Recreation Management Plan pending a new assessment of commercial use addressing, among other issues, the "specifics of timing and duration of a non-motorized window." Ferraro also directed the agency to conduct a new analysis of access to private lands. 5
In December 1995, the Forest Service gave notice of its intent to analyze the issues on remand in an environmental assessment ("EA") regarding the economic effects of the Recreation Management Plan's use limitations on individual commercial river permits (the "Outfitter EA"). One month later, in January 1996, the Council filed suit in the District of Oregon, claiming that the agency had unduly delayed implementation of the Recreation Management Plan and had failed to adequately regulate motorized river craft in the Hells Canyon. See Hells Canyon Preservation Council v. Williams, No. CV 96-68-RE (D. Or. 1996). In April 1996, Judge Redden denied the Council's request for a preliminary injunction ordering the agency to implement the Recreation Management Plan for the 1996 summer season but indicated that: 1) he would retain jurisdiction over the case; 2) the agency's failure to issue the EA promptly could prove the Council's case of delay; and 3) the agency should anticipate implementing the plan for the 1997 summer season.
By April 1996, agency personnel began to have second thoughts about the wisdom of the window and consequently evaluated options, including its elimination. The Outfitter EA, released in June 1996, contained three alternatives: (1) a noaction alternative, which was windowless, and had no restrictions on motorized water craft; (2) an alternative mirroring Alternative G; and (3) and a new, preferred Alternative C that modified the window by limiting it to 21 days. Following public comment, agency personnel, apparently concerned by opposition to the window, actively researched ways to remove it but ultimately did not alter the options in the EA.6. Richmond issued a Decision Notice ("DN") in September 1996, selecting Alternative C and declaring a Finding of No Significant Impact, which obviated any need for a full-blown EIS.
In transmitting the numerous administrative appeals that resulted from this decision, Richmond wrote Ferraro a letter, dated November 25, 1996, in which he stated that he "could not eliminate the non-motorized period for the commercial outfitters without going through another NEPA process . . . because you upheld the non-motorized period . . . in your July 1995 decision." Explaining that the time necessary to complete such a process "would preclude implementation of the Plan during the 1997 primary use season," Richmond concluded that he was "unable to resolve the non-motorized issue and also meet Judge Redden's expectations for implementing the Plan [during the 1997 season]."
A month later, on December 23, 1996, Judge Redden dismissed the Williams litigation, noting that the administrative appeals were still ongoing. Referencing Richmond's November 25 letter, he also expressed concern "about the chilling effect of my earlier rulings." Another two months later, but still during the administrative appeals process, Ferraro permitted Richmond to review his analysis of the non-motorized window issue. Richmond responded with a letter dated March 17, 1997, and an accompanying document titled "Non Motorized Period Review Rationale;" in both documents, he concluded that his review revealed no new or significant information establishing a need to eliminate the window and that the window should remain a component of the Recreation Management Plan.
Richmond's decision was affirmed. Restrictions on motorized use levels began in the 1997 summer season, but implementation of the window itself was delayed by Richmond pending completion of the Private Lands EA. This prompted the Council...
To continue reading
Request your trial
-
Forestwatch v. Lint, Civil Action No.: 8:12–CV–3455–BHH
...1851, 104 L.Ed.2d 377 (1989), and the agency is tasked with balancing often-competing interests. See Hells Canyon Alliance v. U.S. Forest Serv., 227 F.3d 1170, 1182 (9th Cir.2000). Nonetheless, the court will vacate an agency's decision if it has relied on factors which Congress had not int......
-
Oregon Natural Resources Council Fund v. Forsgren
...on a consideration of the relevant factors and whether the decision was a clear error of judgment. Hells Canyon Alliance v. United States Forest Serv., 227 F.3d 1170, 1177 (9th Cir.2000). For example, the court may reverse if the agency relied on factors that Congress did not intend the age......
-
Theodore Roosevelt Conserv. Partnership v. Salazar
...on both private and state lands. (FEIS at 2-12 to 2-13 (AR 2160-61); ROD at 14 (AR 4809)); see Hells Canyon Alliance v. U.S. Forest Serv., 227 F.3d 1170, 1181 (9th Cir.2000) (noting an agency did not violate NEPA by excluding an alternative that "would have been unrealistic in light of the ......
-
Friends of Yosemite Valley v. Scarlett
.... user capacities." In the absence of a statutory definition of the phrase, we look to the plain meaning of its terms. See Hells Canyon Alliance, 227 F.3d at 1177. "Address" means to "deal with or discuss." Random House Webster's College Dictionary 16 (1991). "User" is defined as "a person ......
-
Disparate Limbo: How Administrative Law Erased Antidiscrimination.
...to consider the potential impact of its new policy upon local broadcasting coverage"). (4.) Sec Hells Canyon All. v. U.S. Forest Serv., 227 F.3d 1170, 1172-73 (9th Cir. 2000), as amended (Nov. 29, 2000) ("This appeal brings to mind the maxim that you can please all of the people some of the......
-
Recreation wars for our natural resources.
...as motorized watercraft use, which compromise resource values. Id. (71) See, e.g., Hells Canyon Alliance v. United States Forest Serv., 227 F.3d 1170, 1173 (9th Cir. 2000) (stating that the interests of motorized watercraft users and nonmotorized watercraft users are "competing mid often co......
-
Suction dredge mining: the United States Forest Service hands miners the golden ticket.
...interpretation of their own regulations, including Forest Plans." Id. at 554-55; see also Hells Canyon Alliance v. U.S. Forest Serv., 227 F.3d 1170, 1180 (9th Cir. 2000). The court treats directives as equivalent to federal regulations adopted under the Administrative Procedure Act, 5 U.S.C......
-
CHAPTER 6 NEPA AND THE ENERGY POLICY ACT OF 2005
...an agency to set forth only those alternatives necessary to permit a reasoned choice." Hells Canyon Alliance v. U.S. Forest Service, 227 F.3d 1170, 1181 (9th Cir. 2000). The alternatives that must be analyzed are those (1) which meet the purpose and need for the proposed action; (2) which r......