Jayne v. Sherman
| Decision Date | 07 January 2013 |
| Docket Number | Nos. 11–35269,11–35292,11–35322.,11–35305,s. 11–35269 |
| Citation | 706 F.3d 994 |
| Parties | Gerald JAYNE; Greater Yellowstone Coalition; The Lands Council; Natural Resources Defense Council; Sierra Club; The Wilderness Society, Plaintiffs–Appellants, v. Harris SHERMAN, Under Secretary for Natural Resources and Environment; Tom Tidwell, Chief, U.S. Forest Service; Rowan Gould, Acting Director, U.S. Fish and Wildlife Service; Ken Salazar, Secretary, U.S. Department of the Interior; Tom Vilsack, Secretary, U.S. Department of Agriculture, in their official capacities, Defendants–Appellees, Idaho Association of Counties; C.L. Butch Otter, Governor; Kootenai Tribe of Idaho; Idaho Mining Association, Intervenors–Defendants–Appellees. Gerald Jayne; Greater Yellowstone Coalition; The Lands Council; Natural Resources Defense Council; Sierra Club; The Wilderness Society, Plaintiffs–Appellees, v. Harris Sherman; Tom Tidwell, Chief, U.S. Forest Service; Rowan Gould, Acting Director, U.S. Fish and Wildlife Service; Kenneth Lee Salazar, Secretary, U.S. Department of the Interior; Tom Vilsack, Secretary, U.S. Department of Agriculture, in their official capacities, Defendants, Kootenai Tribe of Idaho, Intervenor–Defendant–Appellant. Gerald Jayne; Greater Yellowstone Coalition; The Lands Council; Natural Resources Defense Council; Sierra Club; The Wilderness Society, Plaintiffs–Appellees, v. Harrsi Sherman; Tom Tidwell, Chief, U.S. Forest Service; Rowan Gould, Acting Director, U.S. Fish and Wildlife Service; Kenneth Lee Salazar, Secretary, U.S. Department of the Interior; Tom Vilsack, Secretary, U.S. Department of Agriculture, in their official capacities, Defendants, Idaho Association of Counties; Idaho Mining Association, Intervenors–Defendants–Appellants. Gerald Jayne; Greater Yellowstone Coalition; The Lands Council; Natural Resources Defense Council; Sierra Club; The Wilderness Society, Plaintiffs–Appellees, v. Harrsi Sherman; Tom Tidwell, Chief, U.S. Forest Service; Rowan Gould, Acting Director, U.S. Fish and Wildlife Service; Kenneth Lee Salazar, Secretary, U.S. Department of the Interior; Tom Vilsack, Secretary, U.S. Department of Agriculture, in their official capacities, Defendants, and C.L. Butch Otter, Governor, Intervenor–Defendant–Appellant. |
| Court | U.S. Court of Appeals — Ninth Circuit |
OPINION TEXT STARTS HERE
Timothy J. Preso, EarthJustice, Bozeman, MT, for Plaintiffs–Appellants.
J. David Gunter II, United States Department of Justice, Environment & Natural Resources Division, Washington, D.C., for Defendants–Appellees.
Julie A. Weis, Haglund Kelley Jones & Wilder, LLP, Portland, OR; Robert A. Maynard, Perkins Coie LLP, Boise, ID; and Thomas C. Perry, Office of the Governor, Boise, ID, for Intervenors–Defendants–Appellees–Cross Appellants.
David C. Lundsgaard, Seattle, WA, for Amici Curiae.
Appeal from the United States District Court for the District of Idaho, B. Lynn Winmill, Chief District Judge, Presiding. D.C. No. 4:09–cv–00015–BLW.
Before: ARTHUR L. ALARCÓN, STEPHEN S. TROTT, and RICHARD A. PAEZ, Circuit Judges.
After scouring both the administrative and district court records in this case, we conclude that the district court's grant of summary judgment to the defendants was warranted. The inclusive, thorough, and transparent process resulting in the challenged rule conformed to the demands of the law and is free of legal error. Thus, we affirm the district court's judgment in Appeal No. 11–35269, adopt the district court's comprehensive opinion as our own, Jayne v. Rey, 780 F.Supp.2d 1099 (D.Idaho 2011), and attach it to this opinion as the Appendix.
AFFIRMED.
The Kootenai Tribe of Idaho, the Idaho Association of Counties, the Idaho Mining Association, and Idaho Governor C.L. “Butch” Otter are hereby granted status as Intervenors–Defendants–Appellees with full participation in this case. Cf. Wilderness Soc'y v. U.S. Forest Serv., 630 F.3d 1173, 1176, 1180 (9th Cir.2011) (en banc) (). Consequently, Cross Appeals Nos. 11–35292, 11–35305, and 11–35322 are DISMISSED as MOOT.
APPENDIX
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO
GERALD JAYNE; GREATER YELLOWSTONE COALITION; THE LANDS COUNCIL; NATURAL RESOURCES DEFENSE COUNCIL; SIERRA CLUB; and THE WILDERNESS SOCIETY, Plaintiffs,
v.
MARK REY, Under Secretary for National Resources and Environment, U.S. Department of Agriculture; GAIL KIMBELL, Chief U.S. Forest Service; ROWAN GOULD, Acting Director, U.S. Fish and Wildlife Service; and DIRK KEMPTHORNE, Secretary, U.S. Department of the Interior, in their official capacities, Defendants.
Case No. 4:CV 09–015–BLW
MEMORANDUM DECISION
INTRODUCTION
The Court has before it cross-motions for summary judgment. The Court heard oral argument and took the motions under advisement. For the reasons expressed below, the Court will grant the defendants' motion and deny the plaintiffs' motion.
FACTUAL BACKGROUND
In the 1970s, the Forest Service began to develop an inventory of roadless areas within National Forests. The Forest Service designated roadless areas of more than 5,000 acres as “inventoried roadless areas” (IRAs). Today, there are over 58.5 million acres contained in IRAs throughout the National Forest system. The lack of development within the IRAs makes them “bastions for public drinking water, plant and animal diversity, natural appearing landscapes, and other unique characteristics.” FEIS at 386.
Concerned about encroaching development, the Forest Service promulgated in 2001 the Roadless Area Conservation Rule (“2001 Roadless Rule”) to “prohibit road construction, reconstruction, and timber harvest in inventoried roadless areas because they have the greatest likelihood of altering and fragmenting landscapes, resulting in immediate, long-term loss of roadless area values and characteristics.” 66 Fed.Reg. 3244 (Jan. 12, 2001).
The 2001 Roadless Rule was nation-wide in scope and did not contain variations tailored for each State. As a result, “some states and communities felt disenfranchised by the process.” 73 Fed.Reg. at 61457 (October 16, 2008). In 2005, the Forest Service opted for a new approach, inviting States to submit petitions to adjust the management requirements for the IRAs within their borders. In conjunction with this new approach, the Department of Agriculture (USDA) created the Roadless Area Conservation National Advisory Committee (RACNAC), an advisory committee composed of 14 members to review State petitions and provide advice to the Department. See 70 Fed.Reg. 25,654 (May 13, 2005). The RACNAC included representatives from state and local governments, industry trade associations like the National Cattleman's Beef Association and National Mining Association, and conservation-oriented groups, including Trout Unlimited, Montana Wilderness Association, Nature Conservancy, and the Center for Biological Diversity.
In 2005, Idaho's Governor began a collaborative process to draft a state petition governing the 9.3 million acres of IRAs within the State. The State submitted the petition to the RACNAC in 2006, and then-Governor James Risch and his staff met with RACNAC in Washington D.C. to discuss the petition and clarify their intent.
The RACNAC then held four meetings to take comments on Idaho's petition. Many industry and conservation-oriented groups that were not directly represented on the RACNAC itself participated in these meetings. In addition to the RACNAC meetings, the USDA held 16 public meetings in Idaho, and obtained additional input in the written comment period. See 73 Fed.Reg. at 61458.
As a result of this process, Idaho's petition was modified and refined. Ultimately, the RACNAC—in a unanimous vote—recommended to the USDA that the petition be approved. The USDA did so on December 22, 2006. 72 Fed.Reg. 17,816, 17,817 (April 10, 2007).
The resulting Idaho Rule—known as the Idaho Roadless Rule—creates different categories of lands within Idaho's 9.3 million acres of IRAs based on the specific attributes of those lands, and then applies different management “themes” to each category. The first of those themes—the Wild Land Recreation theme (WLR)—covers about 1.5 million acres. 73 Fed.Reg. at 61463. All road construction in the WLR is banned except for one exception for roads required by “statute, treaty, reserved or outstanding rights, or other legal duty of the United States.” 36 C.F.R. § 294.23(a). Similarly, all timber cutting on WLR lands is banned, except where incidental to some other management activity permitted by the rule (such as, for example, constructing a road described above).
The next theme is called “Primitive” and it covers 1.7 millions acres of Idaho IRAs. 73 Fed.Reg. at 61643. For Primitive areas, road construction is prohibited subject to a single exception. 36 C.F.R. § 294.23(a).
The third theme covers 50,000 acres designated under the Special Areas of Historic or Tribal Significance theme (“SAHTS”). SAHTS are treated similarly to Primitive areas. See 36 C.F.R. §§ 294.23–24.
For these first three categories—WLR, Primitive, and SAHTS—the Idaho Roadless Rule provides more protection than the 2001 Roadless Rule. See 73 Fed.Reg. at 61460. However, the next two categories allow more roads and logging than contemplated by the 2001 Roadless Rule.
The Backcountry/Restoration (BCR) category covers 5.3 million acres. Protections are reduced here because temporary roads and logging are allowed to reduce the threat of wildfire. See 73 Fed.Reg. at 61458. The new Rule allows temporary road construction and logging within 442,000 acres of “community protection zones” (CPZs) within BCR lands. See 73 Fed.Reg. at 61460. Outside of CPZs, roads and logging are only allowed if there is a significant wildfire risk to a community or water supply, and protection “cannot be accomplished without a temporary road.” See 36 C.F.R. § 294.23(b)(2) & (3).
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