State v. United States Dep't of Agriculture

• Decision Date: 21 October 2011
• Docket Number: 09–8075.,Nos. 08–8061,s. 08–8061
• Citation: 661 F.3d 1209,73 ERC 1449
• Parties: State of WYOMING, Plaintiff–Appellee, v. UNITED STATES DEPARTMENT OF AGRICULTURE; United States Forest Service; Tom Vilsack, Secretary, United States Department of Agriculture, in his official capacity; Tom Tidwell, Chief Forester, United States Forest Service, in his official capacity, Defendants–Appellants,andBiodiversity Conservation Alliance; Defenders of Wildlife; National Audubon Society; Natural Resources Defense Council; Pacific Rivers Council; Sierra Club; The Wilderness Society; Wyoming Outdoor Council, Defendants–Intervenors–Appellants.Colorado Mining Association, Intervenor–Appellee,State of Washington; Mountain States Legal Foundation; State of California; State of Montana; State of Oregon; California Association of 4 Wheel Drive Clubs; United Four Wheel Drive Associations; American Counsel of Snowmobiles Associations; Blue Ribbon Coalition; Alaska Miners Association; Utah Mining Association; New Mexico Mining Association; Northwest Mining Association; The Western Business Roundtable, Amici Curiae.
• Court: U.S. Court of Appeals — Tenth Circuit

661 F.3d 1209

73 ERC 1449

State of WYOMING, Plaintiff–Appellee,

v.UNITED STATES DEPARTMENT OF AGRICULTURE; United States Forest Service; Tom Vilsack, Secretary, United States Department of Agriculture, in his official capacity; Tom Tidwell, Chief Forester, United States Forest Service, in his official capacity, Defendants–Appellants,andBiodiversity Conservation Alliance; Defenders of Wildlife; National Audubon Society; Natural Resources Defense Council; Pacific Rivers Council; Sierra Club; The Wilderness Society; Wyoming Outdoor Council, Defendants–Intervenors–Appellants.Colorado Mining Association, Intervenor–Appellee,State of Washington; Mountain States Legal Foundation; State of California; State of Montana; State of Oregon; California Association of 4 Wheel Drive Clubs; United Four Wheel Drive Associations; American Counsel of Snowmobiles Associations; Blue Ribbon Coalition; Alaska Miners Association; Utah Mining Association; New Mexico Mining Association; Northwest Mining Association; The Western Business Roundtable, Amici Curiae.

Nos. 08–8061

09–8075.

United States Court of Appeals, Tenth Circuit.

Oct. 21, 2011.

James Kaste, Senior Assistant Attorney General, State of Wyoming (Jay Jerde, Deputy Attorney General; Patrick J. Crank, Speight, McCue & Crank, P.C., with him on the brief), Cheyenne, WY, for Plaintiff–Appellee.

John Luther Smeltzer, Attorney, Department of Justice, Environment & Natural Resources Division (David C. Shilton, Attorney, Department of Justice, Thomas Millet, Brian Sonfield, Leslie Lagomarcino, and Vincent DeWitte, Of Counsel, Office of the General Counsel, United States Department of Agriculture, with him on the brief), Washington, D.C., for Defendants–Appellants.

James S. Angell, Earthjustice, Denver, CO, (Andrew Evans Hartsig, Attorney, Earthjustice, Denver, CO; Douglas L. Honnold and Timothy Joseph Preso, Attorneys, Earthjustice Legal Defense Fund, Bozeman, MT, with him on the brief), for Defendants–Intervenors–Appellants.Paul Martin Seby, Moye White, LLP (Marian C. Larsen, Attorney, Colorado Mining Association, with him on the brief), Denver, CO, for Intervenor–Appellee.Sally J. Magnani, Supervising Deputy Attorney General, State of California, Sacramento, CA; Mary Sue Wilson, Senior Assistant Attorney General, State of Washington, Olympia, WA; Jeremiah D. Weiner, Assistant Attorney General, State of Montana, Helena, MT; Roger J. DeHoog, Senior Assistant Attorney General, State of Oregon, Salem, OR, filed an amicus curiae brief for the State of California, State of Washington, State of Montana, and State of Oregon.James Martin Manley, Lakewood, CO, filed an amicus curiae brief for the Mountain States Legal Foundation.Paul A. Turcke, Moore Smith Buxton & Turcke, Boise, ID, filed an amicus curiae brief for the Blue Ribbon Coalition, California Association of 4 Wheel Drive Clubs, United Four Wheel Drive Associations, and American Counsel of Snowmobiles Associations.Matthew A. Morr, Featherstone Petrie DeSisto LLP, Denver, CO, filed an amicus curiae brief for the Alaska Miners Association, Utah Mining Association, New Mexico Mining Association, Northwest Mining Association, Wyoming Mining Association, and The Western Business Roundtable.

Before MURPHY, ANDERSON, and HOLMES, Circuit Judges.

HOLMES, Circuit Judge.

Defendants Forest Service ¹ and Defendants–Intervenors–Appellants Environmental Groups ² appeal the district court's order setting aside and permanently enjoining the Roadless Area Conservation Rule (“Roadless Rule”), which the Forest Service promulgated in 2001. In setting aside the Roadless Rule, the district court held that the rule violated the Wilderness Act of 1964 (“Wilderness Act”), 16 U.S.C. §§ 1131– 36, and the National Environmental Policy Act of 1969 (“NEPA”), 42 U.S.C. §§ 4321– 70. See Wyoming v. U.S. Dep't of Agric., 570 F.Supp.2d 1309 (D.Wyo.2008).³

On appeal, the Forest Service and the Environmental Groups ask us to hold that the Roadless Rule was not promulgated in violation of the Wilderness Act or NEPA. Furthermore, even if we were to conclude that the rule was promulgated in violation of federal law, they ask us to nevertheless reverse the district court's order establishing a permanent nationwide injunction. Plaintiff–Appellee State of Wyoming and Intervenor–Appellee Colorado Mining Association (“CMA”) ⁴ ask us to affirm the district court order on the grounds that the rule does in fact violate the Wilderness Act and NEPA. In the event that we conclude that the Roadless Rule complies with the Wilderness Act and NEPA, they ask us to affirm on the alternate grounds that the rule was promulgated in violation of the Multiple–Use Sustained–Yield Act (“MUSYA”), 16 U.S.C. §§ 528– 31, and also the National Forest Management Act (“NFMA”), 16 U.S.C. §§ 1600– 14. Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we REVERSE the district court's order granting Plaintiff's declaratory relief and issuing a permanent injunction, and REMAND the case for the district court to vacate the permanent injunction.

I. BACKGROUND

Due to the complexity of this case, we initially offer an overview of the applicable statutory framework, the factual background of the Roadless Rule, and the procedural history.

A. Statutory Framework

The Forest Service currently manages over 191 million acres of National Forest System (“NFS”) land, including 155 national forests, 20 national grasslands, 8 land utilization projects, 20 research and experimental areas, and 33 “other areas.” 36 C.F.R. § 200.1. The Forest Service is responsible for managing the NFS under, inter alia, the Organic Administration Act of 1897 (“Organic Act”), 16 U.S.C. §§ 473–482, 551, MUSYA, and NFMA. On a general level, these statutes authorize the Forest Service to manage NFS lands for multiple uses. In managing the NFS, however, the Forest Service also must comply with the Wilderness Act and NEPA. These relevant statutes are briefly discussed in turn.

In 1897, Congress passed the Organic Act. 16 U.S.C. §§ 473–482, 551. The Act “established a limited multiple-use mandate for management of the National Forests,” Wyoming, 570 F.Supp.2d at 1320, including such purposes as “improv[ing] and protect[ing] the forest[s],” “securing favorable conditions of water flows,” and “furnish[ing] a continuous supply of timber for the use and necessities of citizens of the United States.” 16 U.S.C. § 475. The Act authorizes the Secretary of Agriculture to “make provisions for the protection against destruction by fire and depredations upon the public forests and national forests,” in order “to regulate their occupancy and use and to preserve the forests thereon from destruction.” Id. § 551.⁵

More than sixty years later, in 1960, Congress enacted MUSYA. 16 U.S.C. §§ 528–31. MUSYA codified the multiple-use mandate first articulated in the Organic Act, directing the Forest Service to “administer the renewable surface resources of the national forests for multiple use and sustained yield,” including for the purposes of “outdoor recreation, range, timber, watershed, and wildlife and fish purposes.” Id. §§ 528, 529.

In 1964, Congress enacted the Wilderness Act, 16 U.S.C. §§ 1131–36, which “established a National Wilderness Preservation System to be composed of federally owned areas designated by Congress as ‘wilderness areas,’ ” id. § 1131. More specifically, the Act put in place a process under which Congress designates “wilderness areas,” id. § 1132, and established requirements for the management and protection of such areas, see id. § 1133 (listing the uses permitted in congressionally designated wilderness areas). In order to aid Congress in designating “wilderness,” the Act required the Forest Service to review “primitive” areas of the NFS to determine their “suitability or nonsuitability for preservation as wilderness.” Id. § 1132(b).

In 1972, the Forest Service completed the Roadless Area Review and Evaluation project (RARE I), which resulted in a nationwide inventory of NFS areas—totaling approximately 56 million acres—that the agency deemed to be suitable for “wilderness” designation pursuant to the Wilderness Act. However, the RARE I inventory was abandoned following a successful judicial challenge under NEPA. See Wyo. Outdoor Coordinating Council v. Butz, 484 F.2d 1244 (10th Cir.1973).

In 1976, Congress passed NFMA. 16 U.S.C. §§ 1600–14. The Act, “which is primarily concerned with planning,” Utah Envtl. Cong. v. Richmond, 483 F.3d 1127, 1131 (10th Cir.2007), “requires the Forest Service to ‘develop, maintain, and, as appropriate, revise land and resource management plans for units of the National Forest System.’ ” Citizens' Comm. to Save Our Canyons v. Krueger, 513 F.3d 1169, 1176 (10th Cir.2008) (quoting 16 U.S.C. § 1604(a)). NFMA establishes both substantive and procedural requirements for the development and implementation of forest management plans under the Act, see 16 U.S.C. § 1604, including the requirement that each forest plan comply with MUSYA's multiple-use mandate, id. § 1604(e)(1).

From 1977 until 1979, the Forest Service embarked on a second Roadless Area Review and Evaluation project (RARE II), which again created a national inventory of roadless areas that were potentially suitable for “wilderness” designation under the Wilderness Act. See, e.g., California v. Block, 690 F.2d 753, 758 (9th Cir.1982) (describing the development of the RARE II inventory). Based on the RARE II inventory (and subsequent presidential recommendations), see 16 U.S.C. § 1132, Congress designated several NFS areas as “wilderness,” which—combined with the designations included in the Wilderness Act itself, see 16 U.S.C. § 1132(a)—total approximately 35 million acres. See 66 Fed.Reg. 35,918, 35,919 (July 10, 2001).

B. History of the Roadless Rule

The RARE II undertaking, completed in 1979, produced a nationwide inventory of roadless areas that the Forest Service found worthy of some level of protection. Over the next two...