Hells Canyon Pres. Council v. U.S. Forest Service

• Decision Date: 25 January 2010
• Docket Number: No. 07-35456.,07-35456.
• Citation: 593 F.3d 923
• Parties: HELLS CANYON PRESERVATION COUNCIL, an Oregon non-profit corporation; and The Wilderness Society, Plaintiffs-Appellants, v. UNITED STATES FOREST SERVICE, an agency of the United States Department of Agriculture, Defendant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

593 F.3d 923

HELLS CANYON PRESERVATION COUNCIL, an Oregon non-profit corporation; and The Wilderness Society, Plaintiffs-Appellants, v. UNITED STATES FOREST SERVICE, an agency of the United States Department of Agriculture, Defendant-Appellee.

No. 07-35456.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted December 11, 2008.

Filed January 25, 2010.

Brett E. Brownscombe (argued), Portland, OR; William H. Sherlock, Hutchinson, Cox, Coons, Dupriest, Orr & Sherlock, P.C., Eugene, OR, for the plaintiffs-appellants.

Mark R. Haag, United States Department of Justice, Washington, D.C., for the defendant-appellee.

Appeal from the United States District Court for the District of Oregon, Ancer L. Haggerty, District Judge, Presiding. D.C. No. CV-02-01138-HA.

Before: DIARMUID F. O'SCANNLAIN, SUSAN P. GRABER, and JAY S. BYBEE, Circuit Judges.

Opinion by Judge BYBEE; Partial Concurrence and Partial Dissent by Judge GARBER.

BYBEE, Circuit Judge:

Plaintiffs-Appellants Hells Canyon Preservation Council and The Wilderness Society (collectively, "HCPC" or "plaintiffs") brought suit against the United States Forest Service ("Forest Service" or "Service"), seeking a judgment declaring: (1) that the Forest Service has failed to retain the original map of the Wilderness in violation of the Hells Canyon National Recreation Area Act, 16 U.S.C. § 460gg(b); (2) that the Forest Service's description of the wilderness boundary is arbitrary and capricious in violation of 5 U.S.C. § 706(2)(A); and (3) that the Forest Service's failure to close the Lord Flat Trail to motorized vehicle use is an "agency action unlawfully withheld or unreasonably delayed" under 5 U.S.C. § 706(1). Plaintiffs also seek an injunction to close the Lord Flat Trail to motorized vehicle use. The district court held that each of plaintiffs' claims was barred by the Administrative Procedure Act's ("APA's") six-year statute of limitations. Although we rely on different reasoning, we affirm the judgment of the district court.

I

Stretching across 214,944 acres, the Hells Canyon Wilderness straddles the state boundary between Oregon and Idaho. The Snake River winds along the same boundary, creating two distinct regions of the Wilderness: one side, in Idaho, consists of towering peaks and rock-faced slopes; the other side, slightly larger, in Oregon, exhibits expanses of grass-land dotted with Douglas fir trees and free-flowing creeks.¹

"To assure that the natural beauty and historical and archeological values of the Hells Canyon area . . . are preserved for this and future generations," Congress passed the Hells Canyon National Recreation Area Act ("Hells Canyon Act" or "Act") in 1975. Pub.L. No. 94-199, 89 Stat. 1117 (1975) (codified at 16 U.S.C. §§ 460gg-460gg-13). The Act established the Hells Canyon National Recreation Area ("Hells Canyon Area"), id. § 460gg(a), and designated the Hells Canyon Wilderness, located within the Hells Canyon Area, id. § 460gg-1(a), as wilderness. As a congressionally designated wilderness area, Hells Canyon Wilderness is governed by both the Hells Canyon Act and the Wilderness Act, 16 U.S.C. §§ 1131-1136, whichever is more restrictive, id. § 460gg-1(b). With respect to motorized vehicles, the Wilderness Act is more restrictive because it prohibits the "use of motorized vehicles" within designated wilderness areas "except as necessary to meet minimum requirements for the administration of the area." Id. § 1133(c).

Congress identified two sources to define the contours of the Hells Canyon Area: a map and a boundary description. The map, created by the Forest Service in May 1978, was titled the "Hells Canyon National Recreation Area." 16 U.S.C. § 460gg(b). The Act requires that the map "be on file and available for public inspection in the office of the Chief, Forest Service, United States Department of Agriculture." Id. In addition, Congress instructed the Secretary of Agriculture to "publish a detailed boundary description of the recreation area," including the Hells Canyon Wilderness. Id. In 1978, the Secretary complied by preparing a metes-and-bounds boundary description and inviting public comment. In 1981, the Forest Service published final notice of the boundary description in the Federal Register but, "[i]n the interests of economy," did not publish either the full metes-and-bounds description or the map in the Federal Register. 46 Fed.Reg. 34,611-02, 34,611 (July 2, 1981). Instead, the boundary description was made available for review at the Forest Service in Washington, D.C., and at Regional Forester offices in Idaho, Montana, Oregon, and Utah, and the boundary description and map were lodged with committees in the House of Representatives and the Senate.

Although it has been almost thirty years since the Forest Service published the map and the boundary description, there continues to be controversy regarding the precise location of the Hells Canyon Wilderness boundary and, in particular, its western boundary. In general, the boundary description locates the Wilderness boundary by reference to specific map coordinates and to topographic descriptors such as "ridge," "hydrologic divide,"² and "rim." The 1978 public notice regarding the proposed boundary explained that "[t]he established Hells Canyon Wilderness boundary has been located on the most identifiable feature of the canyon rim. In some cases this is the rim and in other cases it is the crest of a hill." The description frequently refers to the western boundary as the "east rim of Summit Ridge." In 1994, a registered land surveyor advised the Forest Service that the "east rim of the ridge" was not a precise definition "because the position of the rim varies with respect to the topography of the ridge." He indicated that the terms "hydrologic divide" and "rim" were, in this context, "mutually exclusive." The surveyor explained that the features might but would not necessarily run parallel:

The hydrologic divide is the line defined by the highest elevation points along the divide. The rim is interpreted as a topographic feature below the hydrologic divide where the downward slope of the divide increases significantly in comparison to the downward slope between the rim and the divide. At points along the hydrologic divide the initial downward slope may be steep enough that the rim is congruous with the divide.

The surveyor concluded that "references [in the description] to the rim are not synonymous with references to the hydrologic divide."

Running along the western boundary of Hells Canyon Wilderness is a fifteen-mile man-made unpaved road known as the Lord Flat Trail. The Trail, originally created in 1960 to help fight a forest fire, is an unmarked travelway located on the Lord Flat Plateau, west of—and generally parallel to—the Snake River. Commencing at Warnock Corral, the Trail moves north, crossing the hydrologic divide between the Snake River and the Inmaha River drainages several times before terminating at the Lord Flat landing strip. The Trail is suitable for four-wheel drive vehicles only.

In 1989, the U.S. Forest Service discovered that a 1.5-mile stretch of the Trail traversed the western boundary of the Hells Canyon Wilderness. Upon making this discovery, the Forest Service temporarily banned motorized vehicle use on the Trail. After soliciting advice from a number of sources, the Forest Service decided, in 1992, to relocate the offending 1.5-mile part of the Trail outside the Wilderness area and publicly issued a Decision Memo to that effect.³ The Memo described the relocation of the Trail as a "minor realignment" and indicated that the entire length of the Trail—which, as a result of the Forest Service's decision, now fell completely outside the Wilderness—would be reopened for motorized use. The Forest Service based its decision in part on the Hells Canyon Act, which it read to provide that "the immediate wilderness boundary along the western side of Hells Canyon would be the canyon rim." It also indicated that its plan was consistent with Congress's intent to "provid[e] access to scenic views from the Western rim of Hells Canyon." 16 U.S.C. § 460gg-5(c).

After learning of the Lord Flat Trail's relocation, HCPC brought suit in 1994, alleging that the Forest Service had violated the National Environmental Policy Act of 1969 ("NEPA"), 42 U.S.C. §§ 4321-4347, by failing to file an environmental impact statement when it relocated the portion of the Trail. HCPC's suit also alleged that, even after the relocation, other parts of the Trail remained within the Hells Canyon Wilderness and that, consequently, motorized vehicle access to the Trail violated the Wilderness Act. See Hells Canyon Pres. Council v. U.S. Forest Serv. ("HCPC I"), 883 F.Supp. 534, 535 (D.Or.1995).

HCPC's Wilderness Act claim in HCPC I was based on a "Forest Service transportation system map," showing a half-mile area in which the Trail appeared to cross the Wilderness boundary. In response to HCPC's summary judgment motion, the Forest Service asserted that the map upon which HCPC relied to bolster its claim was "incorrect." During oral argument before the district court on the parties' cross-motions for summary judgment, HCPC voluntarily abandoned its Wilderness Act claim. The district court, after rejecting HCPC's NEPA claim on the merits, dismissed the cross-motions for summary judgment on the Wilderness Act claim as moot. See HCPC I, 883 F.Supp. at 539.

Seven years later, in 2002, HCPC staff again voiced HCPC's concerns about motorized vehicle access to the Trail and met with the Forest Service to document the places where the Trail purportedly crossed the hydrologic divide. The Service responded that at the documented points the hydrologic divide did not establish the Hells Canyon Wilderness boundary. Rather, the Service explained, at those points the rim marked the boundary, leaving the Trail entirely outside the wilderness area. As a result, the...