Utah Shared Access Alliance v. U.S. Forest Service, 00-4146.

• Decision Date: 25 April 2002
• Docket Number: No. 00-4146.,00-4146.
• Citation: 288 F.3d 1205
• Parties: The UTAH SHARED ACCESS ALLIANCE and Anthony Chatterley, Plaintiffs-Appellants, v. UNITED STATES FOREST SERVICE and Mary Wagner, in her official capacity as Forest Supervisor of Dixie National Forest, Defendants-Appellees, Southern Utah Wilderness Alliance; The Wilderness Society; American Lands Alliance; Sierra Club, Utah Chapter; Great Old Boards for Wilderness; Wildlands Center for Preventing Roads; and John Galland, Defendants-Intervenors-Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

288 F.3d 1205

The UTAH SHARED ACCESS ALLIANCE and Anthony Chatterley, Plaintiffs-Appellants, v. UNITED STATES FOREST SERVICE and Mary Wagner, in her official capacity as Forest Supervisor of Dixie National Forest, Defendants-Appellees, Southern Utah Wilderness Alliance; The Wilderness Society; American Lands Alliance; Sierra Club, Utah Chapter; Great Old Boards for Wilderness; Wildlands Center for Preventing Roads; and John Galland, Defendants-Intervenors-Appellees.

No. 00-4146.

United States Court of Appeals, Tenth Circuit.

April 25, 2002.

Kristen L. Cassisa (William Perry Pendley and D. Andrew Wight, Mountain States Legal Foundation, Denver, CO, on the briefs), for Plaintiffs-Appellants.

David C. Shilton, Dept. of Justice, Washington, D.C. (Lois J. Schiffer, Ass't. Attorney General, Environmental & Nat. Resources Division, Paul M. Warner, U.S. Attorney and Stephen Roth, Asst. U.S. Attorney, Salt Lake City, UT; Lisa Jones, Dept. of Justice, Washington, D.C., and Kenneth D. Paur, Office of Gen. Counsel, U.S. Dept. of Agriculture, Ogden, UT, on the briefs), for Defendants-Appellees.

Stephen H.M. Bloch (Heidi J. McIntosh and Stephen H.M. Bloch, Southern Utah Wilderness Alliance, Salt Lake City, UT, on the briefs), for Defendants-Intervenors-Appellees.

Before EBEL, Circuit Judge, McWILLIAMS, Senior Circuit Judge, and BROWN^*, Senior District Judge.

BROWN, Senior District Judge.

This suit involves a decision by the Forest Service to close numerous roads on Boulder Top, a popular recreation area in the Dixie National Forest near Teasdale, Utah. The decision was taken as part of an effort to reduce sedimentation in lakes on Boulder Top. Biologists had observed that sedimentation was contributing to increased winter kill of trout populations in area lakes, and the Forest Service concluded that poorly constructed roads on Boulder Top were a major source of the problem. Appellant Utah Shared Access Alliance ("US-ALL") challenged the Forest Service's decision in U.S. District Court, arguing that the Service failed to comply with its obligations under the National Environmental Policy Act ("NEPA"), 42 U.S.C. § 4321 et seq. Among other things, U.S. ALL argued the Forest Service failed to take a "hard look" at the potential environmental consequences of the proposed action as required by NEPA, and erroneously determined that the action would not significantly affect the quality of the human environment. The district court granted summary judgment in favor of the defendants, finding the Forest Service had complied with NEPA and that its decision was not arbitrary or capricious.¹ We have jurisdiction pursuant to 28 U.S.C. § 1291, and affirm for the reasons that follow.

I.

General Requirements of NEPA. NEPA calls for all federal agencies to use a "systematic, interdisciplinary approach" in agency decision-making, taking into account the natural and social sciences and the environmental design arts. 42 U.S.C. § 4332(A). Among other things, NEPA requires federal agencies to prepare a detailed statement of the environmental impact for "major Federal actions significantly affecting the quality of the human environment." § 4332(C).

NEPA has been implemented in part by regulations of the Council on Environmental Quality. See 40 C.F.R. § 1500 et seq. Under the regulations, an agency contemplating action may be required to prepare an "environmental assessment" (or "EA") containing a concise discussion of environmental considerations and providing a basis for the agency to determine whether the action is a major one. If the agency finds that the action will not significantly affect the human environment (and is thus not a major action), it makes a "Finding of No Significant Impact" (or "FONSI"). If it finds the action will significantly affect the environment, it is then required to prepare a more extensive analysis in the form of an "environmental impact statement" (or "EIS"). See Airport Neighbors Alliance, Inc. v. United States, 90 F.3d 426, 429 (10th Cir.1996).

NEPA places upon federal agencies the obligation "to consider every significant aspect of the environmental impact of a proposed action." Baltimore Gas & Elec. Co. v. Natural Res. Defense Council, 462 U.S. 87, 97, 103 S.Ct. 2246, 76 L.Ed.2d 437 (1983). It also ensures that an agency will inform the public that it has considered environmental concerns in its decision-making process. Id. The Act does not require agencies to elevate environmental concerns over other appropriate considerations, however; it requires only that the agency take a "hard look" at the environmental consequences before taking a major action. Id. In other words, it "`prohibits uninformed — rather than unwise — agency action.'" Custer County Action Ass'n. v. Garvey, 256 F.3d 1024, 1034 (10th Cir.2001). The role of the courts in reviewing compliance with NEPA "is simply to ensure that the agency has adequately considered and disclosed the environmental impact of its actions and that its decision is not arbitrary and capricious." Baltimore Gas & Elec., 462 U.S. at 97-98, 103 S.Ct. 2246.

II.

Boulder Top is a 50,000 acre plateau at about 11,000 feet elevation on top of Boulder Mountain in the Dixie National Forest. It is interspersed with numerous lakes and forest areas and is a popular recreation destination for camping, fishing, hiking and hunting.

Sixteen lakes on Boulder Top are managed for fish production. The main fish species on Boulder Top include brook trout and Yellowstone cutthroat trout. Lakes on Boulder Top that support sport fishing are generally more productive than high-altitude lakes in other areas of Utah. The lakes that consistently overwinter trout have sufficient depth and volume to supply fish through the long winter, when snow and ice cover prevent photosynthesis and the atmospheric input of oxygen. Many of the lakes on Boulder Top are relatively shallow, and there is a delicate balance concerning a lake's ability to overwinter trout from one year to the next. For this reason, any decrease in lake depth from sediment accumulation can decrease or eliminate trout survival. See Aplt.App. at 0170.

The Boulder Top area contains approximately 131 miles of vehicular routes. The road system was summarized by the Forest Service as follows:

The majority of the roads are the result of past and ongoing dry log timber harvest activities. Other roads have resulted from recreationists seeking access to lakes and scenic overlooks, and permittees driving between grazing allotments. In almost all cases, very little thought was given to proper road location, design standards, or maintenance objectives. Roads were located so as to incur the least amount of work and therefore costs. Many have resulted from simply driving across the gently rolling open meadows, weaving among the rocks wherever possible. Where trees have been encountered, primitive road prisms have been constructed if it was physically impossible to weave among the rocks and trees. The net result is a system of low speed primitive roads passable to high clearance vehicles during dry weather, but requiring 4-wheel drive during inclement weather.

Road maintenance on the Boulder Top has been minimal. Those involved in the harvest of dry logs have made a good faith effort to maintain the roads they are using, but due to the road prisms and materials available to work with, their efforts are somewhat futile and short lived. Maintenance has consisted for the most part of surface blading which usually lasts until the next storm when re-rutting of the travel way occurs once again. Most of the road prisms consist of wheel tracks if blading hasn't occurred and a trench section if blading has been performed. Re-blading of the "trench section" tends to just deepen the roadway, allowing for the collection of more water and thus numerous mud holes. When the mud holes become impassible, the practice has been to drive around them, resulting in a torn up, dual or triple tracked section of roadway.

The "constructed" sections of roadway generally are in timbered areas or areas of excessive rock. Typical sections consist of a narrow road prism, often trenched, with slash and boulders lining both sides of the roadway, thus preventing proper maintenance or drainage work.

Aplt.App. at 0165.

In the early 1980's, Utah Department of Wildlife Resource ("UDWR") fisheries biologists realized that many of the lakes on Boulder Top were being impacted by sediment. Many lakes that had historically supported overwintering populations of trout were becoming shallower due to increased sediment, and as a result, winter kill of trout was becoming more prevalent. Over the course of several years the UDWR attempted to reduce winter kill through the use of mechanical aerators, but eventually decided these attempts were not beneficial and were not addressing the root of the problem. According to biologists, much of the sediment increase in the lakes was attributable to poorly located, constructed or improperly drained roads. UDWR eventually recommended that the Forest Service take steps to reduce the sedimentation. Aplt.App. at 0171.

By 1993, the Forest Service had commenced a study of the Boulder Top area. On June 3, 1997, the Forest Service published an Environmental Assessment ("EA") for Boulder Top with a proposed action and various alternative proposals. The EA determined that action was needed to "correct the sediment entering the lakes from improper road location and drainage," and said the purpose of the proposed action was to "improve watershed conditions, fisheries and the road system on Boulder Top to reduce on-going damage." Aplt.App. at 0149. The EA noted that although sedimentation of lakes is a natural process, "[t]he sediment impacts from roads and other uses in the riparian areas around the lakes has accelerated sedimentation rates," and the increased sedimentation "is a serious threat to fisheries on Boulder Top." Id. at 0168. The EA...