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pdf 2002); Wyoming v. U.S. Dep’t of Agric., 201 F. Supp. 2d 1151 (D.
Wyo. 2002).
Additionally, the Roadless Rule has withstood a
limited judicial challenge in the Ninth Circuit.
See Kootenai
Tribe of Idaho v. Veneman, 142 F. Supp. 2d 1231 (D. Idaho 2001),
rev’d, 313 F.3d 1094 (9th Cir. 2002).1
The case is now before the Court on Plaintiff’s Motion for
Declaratory Judgment and Injunctive Relief.
1
After considering the
The Ninth Circuit’s opinion in Kootenai Tribe, 313 F.3d
1094, may have impliedly overruled several Ninth Circuit opinions
under the National Environmental Policy Act (“NEPA”). For
example, a juxtaposition of the Kootenai Tribe opinion, and the
Ninth Circuit’s other roadless area opinion, California v. Block,
690 F.2d 753 (9th Cir. 1982), leads this Court to believe that
the Block decision has been overruled.
Additionally, Kootenai Tribe represents a significant
departure from Supreme Court NEPA precedent. For one example,
the Ninth Circuit declared that the “NEPA alternatives
requirement must be interpreted less stringently when the
proposed agency action has a primary and central purpose to
conserve and protect the natural environment, rather than harm
it.” Kootenai Tribe, 313 F.3d at 1120. The Ninth Circuit also
disagreed with the district court’s conclusions because it gave
“inadequate weight to analysis of the conservation and
environmental values supporting the [Roadless] Rule[.]” Id. at
1121. However, the Supreme Court has held that NEPA, which
merely prescribes a process, does not contain any such
substantive components. Robertson v. Methow Valley Citizens
Council, 490 U.S. 332, 350-51 (1989).
For these reasons, and the legal uncertainty of the Ninth
Circuit’s judicial gloss, this Court finds the Kootenai Tribe
opinion to be of limited persuasive value. Moreover, because
this Court is unable to discern what NEPA opinions Kootenai Tribe
overruled, this Court will refrain from relying on any Ninth
Circuit NEPA opinions as persuasive authority.
2
three administrative records in this case, reading the briefs,
hearing oral argument, and being fully advised of the premises, the
Court FINDS and ORDERS as follows:
Statement of Parties and Jurisdiction
Plaintiff, Wyoming, is a sovereign State of the United States
and has brought this suit in its own right and on behalf of its
citizens.
Defendant, United States Department of Agriculture (“USDA”),
is a department of the Executive Branch of the United States
government.
The USDA is responsible for overseeing the activities
of the United States Forest Service (“Forest Service”). The Forest
Service
is
an
agency
of
the
USDA
and
is
charged
with
the
administration of the National Forests, including several National
Forests within Wyoming.
Defendant Ann M. Veneman is the Secretary
of Agriculture and has been sued in her official capacity for the
actions of her predecessor, former Secretary of Agriculture Daniel
R. Glickman.
Defendant Dale N. Bosworth is Chief of the Forest
Service and has been sued in his official capacity for the actions
of his predecessor, former Chief Michael Dombeck. These Defendants
will be collectively referred to as the “Federal Defendants.”
3
The intervenors are environmental organizations that have
advocated the protection of roadless areas before Congress, state
legislatures,
and
the
Forest
Service
for
a
number
of
years.
Parties that have intervened in this action are the Wyoming Outdoor
Council, Wilderness Society, Sierra Club, Biodiversity Associates,
Pacific
Rivers
Council,
Natural
Resources
Defense
Council,
Defenders of Wildlife, and National Audubon Society (collectively
“Defendant-Intervenors”).
The Defendant-Intervenors were active
participants in the rulemaking process leading to the promulgation
of the rules and regulations challenged by Wyoming.
The Court exercises federal question jurisdiction.
§ 1331; 5 U.S.C. §§ 701-706.
Venue is proper.
28 U.S.C.
28 U.S.C. §
1391(b),(e).
Background
In 1897, Congress enacted the Forest Service Organic Act
(“Organic Act”).
See Act of June 4, 1897, ch. 2, § 1, 30 Stat. 11,
34-36 (codified as amended at 16 U.S.C. §§ 473-482, 551).
The
Organic Act, for the first time, established a limited multiple-use
mandate for management of the National Forests.
475.
See 16 U.S.C. §
That multiple-use mandate provides that National Forests may
be established and administered to improve and protect the forest
4
within its boundaries and to furnish a continuous supply of timber
for the use and necessities of Americans.
Id.
In 1905, after the Forest Service was transferred to the
Department of Agriculture, it began actively managing the National
Forest System.2
In
1960,
Congress
codified
the
multiple-use
mandate when it enacted the Multiple-Use and Sustained-Yield Act
(“MUSYA”).
See 16 U.S.C. §§ 528-531.
Currently, the Forest
Service manages 191.8 million acres of forest, grass, and shrub
lands, which comprises about one-twelfth of the land and waters in
the United States.
See John Fedkiw, Managing Multiple Uses on
National Forests 1905-1995, at 1-4 (1998).3
In 1924, Congress designated a portion of the Gila National
Forest in New Mexico as a wilderness preserve, which was the first
“roadless area” in the National Forest System.
See H. Michael
Anderson & Aliki Moncrief, America’s Unprotected Wilderness, 76
Denv. U. L. Rev. 413, 434 (1999).
Thereafter, the Forest Service
established regulations for managing “primitive” roadless areas.
2
In 1881, Congress established the “Division of Forestry.”
The Division of Forestry was part of the Department of the
Interior until it was transferred to the Department of
Agriculture in 1905. See 16 U.S.C. § 472.
3
Available at:
5
See id.
In 1964, Congress enacted the Wilderness Act, 16 U.S.C. §§
1131-36, which established a procedure by which Congress could
designate
System.
roadless
“wilderness”
areas
in
the
National
Forest
16 U.S.C. § 1131(a).
In 1967, the Forest Service embarked on the Roadless Area
Review Evaluation (“RARE I”), which was a nationwide inventory of
the
National
Forest
System
to
identify
areas
that
could
designated as “wilderness” pursuant to the Wilderness Act.
be
See
Fedkiw, Managing Multiple Uses on National Forests 1905-1995, at
113-14.
The RARE I inventory ended in 1972, with the Forest
Service finding that approximately 56 million acres in the National
Forests were suitable for wilderness designation. (Id.). However,
RARE I was abandoned after a successful National Environmental
Policy Act (“NEPA”) challenge to the procedure employed by the
Forest Service during the evaluation. Id. at 114; see also Wyoming
Outdoor Coordinating Council v. Butz, 484 F.2d 1244 (10th Cir.
1973), Sierra Club v. Butz, 349 F. Supp. 934 (N.D. Cal. 1972).
In 1977, the Forest Service began a new Roadless Area Review
Evaluation (“RARE II”). Fedkiw, Managing Multiple Uses on National
Forests 1905-1995, at 115-19.
RARE II, like its predecessor, was
administratively initiated for the purpose of identifying those
6
roadless
and
undeveloped
areas
which
could
be
designated
as
“wilderness areas” pursuant to the Wilderness Act. Mountain States
Legal Foundation v. Andrus, 499 F. Supp. 383, 387 (D. Wyo. 1980).
The RARE II inventory culminated in 1979 with the Forest Service
identifying approximately 62 million National Forest acres as
potential wilderness.
Fedkiw, Managing Multiple Uses on National
Forests 1905-1995, at 117.
The purpose behind the RARE I and RARE II inventories was to
gather information upon which the President could rely in making
wilderness
area
Wilderness Act.
recommendations
to
Congress
pursuant
to
the
See 16 U.S.C. § 1132 (requiring the Secretary of
Agriculture to review potential wilderness areas and make a report
to the President so he can recommend designated areas to Congress).
Pursuant to the Wilderness Act, Congress has designated 103.6
million roadless “wilderness areas” in the United States. Anderson
& Moncrief, America’s Unprotected Wilderness, 76 Denv. U. L. Rev.
at 415.
After another successful challenge to the procedure employed
by the Forest Service in its RARE II inventory, see California v.
Block,
690
F.2d
753
(9th
Cir.
1982),
the
Forest
Service’s
involvement in the roadless area controversies remained relatively
7
stagnant for the next seventeen years.
the
Forest
Service
temporarily
In February 1999, however,
suspended
road
construction
activities in inventoried National Forest roadless areas while it
developed a new road management policy and refocused its attention
on the larger issue of public use surrounding the National Forest
transportation system.
64 Fed. Reg. 7,290 (Feb. 12, 1999).
The “Interim Roadless Rule” went into effect on March 1, 1999.
See id.
The Interim Roadless Rule imposed an eighteen month
moratorium on road construction in inventoried roadless areas.
Id.; Wyo. Timber Indus. Ass’n v. U.S. Forest Service, 80 F. Supp.
2d 1245, 1249 (D. Wyo. 2000).
The Interim Roadless Rule was the first step in the Executive
Branch’s strategy to protect roadless areas.
(Admin. Record
(“AR”), Doc. 1535, at p. 2).4
By July 1999, the Forest Service had
developed
strategy
a
comprehensive
and
timeline
for
the
promulgation of the Roadless Rule and Forest Service Transportation
Policy.
(AR, Doc. 3440).
Three months later, President William
Jefferson Clinton noted that the temporary moratorium on road
4
There are three administrative records involved in this
case because Wyoming has challenged three rules promulgated by
the Forest Service. However, as explained below, two of these
challenges are not ripe for judicial review. Accordingly, all
citations to the administrative record are to the Roadless Rule
administrative record.
8
construction gave his administration time to assess the ecological,
economic, and social value of roadless areas and to evaluate the
long-term management options for inventoried roadless areas.
(AR,
Doc. 1535, at p. 2).
I.
The Roadless Area Conservation Rule.
On October 13, 1999, President Clinton directed the Forest
Service
to
inventoried
initiate
roadless
administrative
areas
and
to
proceedings
determine
to
protect
whether
roadless
protection was warranted for any uninventoried roadless areas.
(Id.).
President Clinton’s directive set the Forest Service’s
administrative machinery in process.
A.
The Scoping Process.5
5
Generally, an agency begins its “NEPA process” with an
environmental assessment. An environmental assessment is a brief
document that provides the agency with sufficient evidence to
determine whether it should prepare a finding of no significant
impact or an environmental impact statement. 40 C.F.R. § 1508.9.
If the agency determines that an environmental impact statement
is necessary, it must publish a notice of intent that an
environmental impact statement will be prepared and considered.
40 C.F.R. § 1508.22. The scoping process begins after the agency
determines that an environmental impact statement will be
prepared. 40 C.F.R. § 1501.7. The purpose of the scoping period
is to determine the scope of the issues to be addressed during
the promulgation of the proposed rule. 40 C.F.R. §§ 1501.7,
1508.25.
9
On October 19, 1999, the Forest Service issued a Notice of
Intent (“NOI”) to prepare a draft environmental impact statement
(“EIS”) and to initiate rulemaking.
(AR, Doc. 1608, at p. 1).
The
proposal set forth in the NOI was to promulgate a rule that would
initiate a two-part process to protect roadless areas by:
immediately
restricting
certain
activities
such
as
(1)
road
construction in unroaded portions of the RARE II inventoried
roadless areas; and (2) determining whether to extend similar
protections to uninventoried roadless areas.
NOI
did
not
provide
any
information
(Id., at p. 2).
regarding
the
The
estimated
geographic scope of the proposed rulemaking, nor did it provide any
maps to identify the land areas that would be covered by the
proposed rule.
1.
(See id.).
The Comment Period.
President Clinton directed the Forest Service to issue the
final Roadless Rule by the fall of 2000.6
2).
(AR, Doc. 1549, at p.
In turn, Forest Service Chief Michael Dombeck informed his
employees of the President’s directive that the final Roadless Rule
was expected to be completed in late 2000.
1).
(AR, Doc. 330, at p.
To this end, Chief Dombeck created a “Roadless Team” to work
6
President Clinton’s second term in office ended in January
2001.
10
exclusively on promulgating the Roadless Rule.
(AR, Doc. 331).
The Roadless Team proceeded according to the following schedule:
“Dates – get done during the Clinton Administration (Dec. 2000).”
(AR, Doc. 123, at p. 3).
The Forest Service recognized that if it were to issue the
final rule by December 2000, it would have to require “a very short
timeframe [sic] for the public to respond to [the] NOI.”
1549, at p. 2).
(AR, Doc.
As a result, the Roadless Rule NOI provided for a
sixty-day comment period, which expired on December 20, 1999. (AR,
Doc. 1608, at p. 2).
2.
Range of Alternatives.
According to Chief Dombeck, the NOI was to be limited to
examining only those alternative methods that would meet President
Clinton’s goals.
(AR, Doc. 330, at p. 1).
Thus, the Forest
Service would only examine “alternatives that limit or eliminate
certain activities in inventoried roadless areas such as road
construction.”
(AR, Doc. 330, at p. 1).
The NOI provided four
alternatives that could be considered in the draft EIS:
(1)
prohibiting road construction activities in inventoried roadless
areas; (2) prohibiting road construction activities and commercial
timber harvest in inventoried roadless areas; (3) prohibiting the
11
implementation
of
all
activities
that
did
not
contribute
to
enhancing ecological values, subject to valid existing rights, in
inventoried roadless areas; and (4) making no changes (no action
alternative).7
3.
Public Participation.
During the scoping process, the Forest Service held 187 public
meetings across the nation concerning the Roadless Rule. (AR, Doc.
4609, at p. 1-7).
On December 3, 1999 – forty-three days into the
comment period – the Forest Service published notice of the local
scoping meetings to be held in Wyoming.
(AR, Doc. 149, at pp. 4,
6). These meetings overlapped each other and were held on the last
thirteen days of the sixty-day comment period.
(AR, Doc. 149).
On December 14, 1999, Wyoming submitted comments prepared by
Governor Jim Geringer that described the fundamental defects with
the
NOI
and
scoping
period.
(AR,
Doc.
207,
at
pp.
6-8).
Specifically, Governor Geringer criticized the “extraordinarily
short” time for the public to consider the proposed rule, and what
7
The “no action alternative” is required by Council of
Environmental Quality regulations. 40 C.F.R. § 1502.14(d).
Interestingly, the Interim Roadless Rule prohibited road
construction in inventoried roadless areas until December 2000.
Thus, even if the Forest Service would have adopted the “no
action alternative,” road construction still would have been
prohibited in inventoried roadless areas during the remainder of
the Clinton Administration.
12
he perceived as the Forest Service’s predetermined outcome. (Id.).
In addition, the Forest Service received numerous requests to
extend
the
scoping
comment
period
businesses, and members of Congress.
from
States,
individuals,
(AR, Doc. 1549).
However, the Forest Service refused to extend the comment
period, even though it did not have any maps of the inventoried
roadless areas and was strategizing on how to respond to requests
for maps just ten days prior to the close of the comment period.
(AR, Doc. 2748, 2765).
the
comment
period
The Roadless Team was reluctant to extend
because
they
had
timelines imposed by Chief Dombeck.
to
meet
the
strict
EIS
(AR, Doc. 2765, at p. 2).
The
Roadless Team also figured they would have another opportunity to
update the roadless area data between the draft EIS and final EIS.
(Id.).
On
December
schedule.
20,
1999,
the
NOI
comment
period
closed
During those sixty days, approximately 517,000 comments
were submitted on the Roadless Rule NOI.
(AR, Doc. 4609, at p. 1-
7).
B.
on
The Draft EIS and Proposed Roadless Rule.
1.
Events Before the Publication of the Draft EIS.
13
One month after the close of the NOI comment period, the
Forest Service announced that maps of the proposed roadless areas
were available.
(AR, Doc. 76, at p. 1).
However, the Forest
Service also acknowledged that these maps did not contain the best
data available, even though it had access to better data for the
maps.
(AR,
Doc.
2610).
The
maps
that
the
Forest
Service
distributed provided little, if any, substantive information on the
inventoried roadless areas.
(See AR, Doc. 274).
On February 8, 2000, Wyoming requested “cooperating agency
status” pursuant to the Council for Environmental Quality (“CEQ”)
regulations.
(AR, Doc. 1889, at pp. 6-7).
The CEQ encouraged
federal agencies to work with state and tribal governments.
Doc. 3544, at pp. 2-3; 40 C.F.R. §§ 1501.6, 1508.5).
(AR,
Prior to
Wyoming’s request for cooperating agency status, the Roadless Team
recognized that it had “an obligation to consider and routinely
solicit cooperating agency status.”
(AR, Doc. 2292, at p. 1).
Nevertheless, the Forest Service did not respond to Wyoming’s
request for cooperating agency status and impliedly rejected that
request when it issued the draft EIS.
2.
(AR, Doc. 1889, at p. 1).
The Draft Environmental Impact Statement.
14
On May 10, 2000, the Forest Service published the draft EIS
and the proposed Roadless Rule.
(AR, Doc. 1350).
The draft EIS
identified 54 million acres of inventoried roadless areas that were
subject to the proposed rule.
The
proposed
rule
(Id., at p. 2).
was
made
up
of
two
parts:
(1)
the
“Prohibition Rule” and (2) the “Procedural Rule.” The “Prohibition
Rule”
banned
inventoried
road
roadless
construction
areas.8
and
(Id.,
at
reconstruction
pp.
5-6,
within
14).9
The
“Procedural Rule” required local forest managers to identify other
uninventoried roadless areas and to designate whether those areas
also warranted protection.10
(Id., at pp. 6-7, 14).
8
In the draft EIS, the Forest Service considered four
alternatives to its proposed “Prohibition Rule.” Those four
alternatives were: (1) the “no action” alternative; (2) a
prohibition on road construction within unroaded portions of
inventoried roadless areas, but allowing timber harvest where
such timber harvest could occur without road construction; (3) a
prohibition on road construction, except for stewardship
purposes, in the unroaded portions of the inventoried roadless
area; and (4) a prohibition on road construction and all timber
harvest within unroaded portions of inventoried roadless areas.
(AR, Doc. 1362, at pp. 2-3 to 2-6). The Forest Service selected
Alternative 2 as its preferred alternative to the Prohibition
Rule. (Id., at p. 2-4).
9
Unless otherwise stated, as used in this Order, the terms
“road construction” include new road construction and road
reconstruction.
10
In the draft EIS, the Forest Service considered four
alternatives to its proposed “Procedural Rule.” Those four
15
3.
The Draft EIS Comment Period.
Originally, Chief Dombeck stated that because the Roadless
Rule would amend or lead to the amendment of local forest plans it
would have to provide a ninety-day public comment period in order
to comply with the National Forest Management Act (“NFMA”).
Doc. 3440, at p. 4; see also 36 C.F.R. § 219).
(AR,
However, the Forest
Service only provided a sixty-nine day comment period for the draft
EIS and proposed Roadless Rule.
(AR, Doc. 4608, at p. S-2).
During this comment period, the Forest Service held over 400
public meetings.
(Id.).
Between May 22 and June 27, 2000, sixteen
of these meetings were held in Wyoming.
(AR, Doc. 1350, at p. 34).
At the meetings held in Wyoming, the public was given three minutes
to comment on the proposed Roadless Rule.
1, 11).
(AR, Doc. 4580, at pp.
Additionally, the local Forest Service employees who
conducted the meetings did not have enough information to answer
questions.
(Id.).
Several attendees of these public meetings
alternatives were: (A) the “no action” alternative; (B)
evaluation and implementation of protections for unroaded areas
at the next forest plan revision; (C) a project-by-protect
analysis whereby local managers would evaluate whether and how to
protect roadless characteristics; and (D) a project-by-project
analysis to evaluate whether and how to protect roadless area
characteristics until completion of a plan revision. (AR, Doc.
1362, at pp. 2-6 to 2-9). The Forest Service selected
Alternative B as its preferred alternative to the Procedural
Rule. (Id., at p. 2-7).
16
described them as a “sham.”
(AR, Doc. 4580, at p. 1).
Governor
Geringer expressed these, and other, concerns to Chief Dombeck.
(AR, Doc. 4580, at pp. 1-3).
Governor Geringer believed that the
Forest Service was simply going through the NEPA motions to reach
a predetermined outcome.11
(AR, Doc. 4580, at p. 2).
The Forest Service provided maps during this comment period;
however, the maps were of such a large scale – a continental scale
– that they actually provided less detail than a standard highway
map.12
The maps did not identify the unroaded areas that were
subject to the Procedural Rule or the “roaded” areas that were
subject to the Roadless (Prohibition) Rule.13
(See generally AR,
11
The Forest Service designated Wyoming as one of the
states “most affected” by the proposed Roadless Rule. (AR, Doc.
1537, at p. 2). As a result, Governor Geringer was an active
participant in the public process surrounding the implementation
of the Roadless Rule. Thus, Governor Geringer’s observations
that the proposed Roadless Rule, and the Forest Service’s
illusory public process, was the result of political posturing
for an outgoing president, and geared to support a vice president
who was also a presidential candidate, are based on firsthand
knowledge and carry their own indicia of reliability. (See AR,
Doc. 4580).
12
The actual scale of the maps provided by the Forest
Service was between 10 miles per inch and 40 miles per inch.
standard highway map has scale of 18 miles per inch.
13
A
The draft EIS classified 2.8 million acres of National
Forest land that contained roads within the inventoried “roadless
areas.” (AR, Doc. 1350, at p. 2).
17
Doc. 4110 (maps of inventoried roadless areas)). The Wyoming State
Engineer’s Office commented that the “maps provided in the [draft
EIS] lack sufficient detail to be of help [in] determining what
specific roads and areas are affected.”
(AR, Doc. 4580, at p. 30).
Numerous states and various agencies requested an extension of
the draft EIS comment period because of:
(1) the lack of maps and
inaccuracies in the maps provided, (AR, Doc. 4580, at pp. 24-40; AR
Doc. 4111, at pp. 80-81, 161, 500, 589); (2) the size of the draft
EIS and proposed Roadless Rule, (AR, Doc. 4580); (3) confusion over
what “roaded” areas were covered by the proposed Roadless Rule,
(AR, Doc. 4580, at p. 30); (4) concerns regarding the narrow range
of alternatives the Forest Service analyzed in the draft EIS, (AR,
Doc. 4580, at p. 33; AR, Doc. 4111, at pp. 80-81, 161, 500, 589);
and (5) concerns regarding the lack of a site-specific analysis
(i.e., the issues involving Wyoming’s natural resources were lumped
in
the
same
category
as
issues
involving
Alabama’s
natural
resources), (AR, Doc. 4580, at pp. 25-26).
The Forest Service refused to extend the comment period, which
was contrary to its usual policy of liberally granting extensions
on important issues.14
The Forest Service received approximately
14
For example, the Forest Service extended the comment
period for the Interim Roadless Rule in response to several
18
1,155,000 public comments on the Roadless Rule draft EIS.15
Doc. 4609, at p. 1-7).
(AR,
Nevertheless, the comment period closed
after sixty-nine days on July 17, 2000, as scheduled.
C.
The Final Environmental Impact Statement.
In November 2000, the Forest Service issued the Roadless Rule
final EIS.
(AR, Doc. 4609).
The final EIS departed from the draft
EIS and proposed Roadless Rule in four material aspects:
(1) the
final EIS broadened the scope of the Roadless Rule to apply to all
inventoried roadless areas, not just the “unroaded portions” of the
inventoried roadless areas, (AR, Doc. 4609, at p. xi); (2) the
final
EIS
adopted
an
even
more
restrictive
Roadless
Rule
Alternative, which prohibited road construction and timber harvest
(except for stewardship purposes) in all inventoried roadless areas
(AR, Doc. 4609, at p. 2-13); (3) the Forest Service added an
additional 4.2 million acres of inventoried roadless areas subject
to the Roadless Rule, thereby increasing the geographic scope of
requests.
See 64 Fed. Reg. 7290.
15
Defendant-Intervenors consistently point to the number of
comments received on the draft EIS to bolster their argument that
this comment period was sufficiently long to permit meaningful
participation. However, the Court finds these arguments
unhelpful since 1,095,000 of these comments were form letters,
form e-mails, post-cards, or faxes. (AR, Doc. 4609, at p. 1-7).
The Forest Service only received 60,000 original letters. (Id.).
19
the Roadless Rule to 58.5 million acres (increasing the roadless
area in Wyoming by 39,000 acres), (AR, Doc. 4608, at p. S-1; AR,
Doc. 4609, App. A, at p. A-4); and (4) the final EIS eliminated all
analyses related to the “Procedural Rule” part of the Roadless
Rule, which was incorporated into the final Forest Service Planning
Regulations issued on November 9, 2000, (AR, Doc. 4609, at p. xi).
The maps accompanying the final EIS generally identified the
inventoried roadless areas within each state that were subject to
the Roadless Rule.
(See AR, Doc. 4110, at pp. 3-213).
The maps
did
provide
identify
not,
however,
sufficient
information
to
existing roads within the “roadless” area and did not identify the
additional 4.2 million acres of “roadless” area identified in the
final EIS.
(See id.).
The maps contained in the final EIS did not
contain this information because the Roadless Team did not have
information such as the number of classified roads within the
inventoried roadless areas and total acres of classified road
impacts.
Forest
(AR, Doc. 5590, at pp. 1, 2, 9).
Service’s
deadline
imposed
for
Interestingly, the
gathering
this
basic
information was not until after the scheduled date of publication
of the Record of Decision.
D.
(AR, Doc. 5590, at p. 2).
The Final Roadless Rule and Record of Decision.
20
On January 5, 2001, the Secretary of Agriculture signed the
Record of Decision (“ROD”).
The final Roadless Rule was published
in the Federal Register on January 12, 2001.
(AR, Doc. 5796).16
The Roadless Rule prohibits road construction in inventoried
roadless areas of the National Forest System unless the road
construction falls within an exception to the general prohibition.
36 C.F.R. § 294.12(a).
The exceptions permit road construction in
inventoried roadless areas:
(1) to protect public health and
safety in cases of an imminent threat of flood, fire, or other
catastrophic event that, without intervention, would cause property
damage; (2) to conduct an environmental cleanup pursuant to federal
pollution statutes; (3) pursuant to reserved or outstanding rights,
or as provided for by statute or treaty; or (4) when needed in
conjunction with the continuation, extension, or renewal of a
mineral lease.
36 C.F.R. § 294.12(b)(1)-(3),(7).
The Roadless
Rule also prohibits timber harvesting in inventoried roadless areas
subject to certain limited exceptions.
16
See 36 C.F.R. § 294.13.
The final Roadless Rule departed from the final EIS by
restricting stewardship timber harvests to small diameter timber.
(AR, Doc. 5796, at p. 15). The final Roadless Rule also added a
narrow exception to the prohibition on timber harvesting. (AR,
Doc. 5796, at p. 15).
21
In all, the Roadless Rule affects 58.5 million acres (or 31%)
of
the
National
Forest
System
lands.
This
approximately two percent of America’s land mass.
constitutes
The Roadless
Rule affects 3.25 million acres (or 35%) of the 9.2 million acres
of National Forest System land in Wyoming.
II.
National Forest Management Planning Regulations.
The NFMA provides procedural guidelines to structure the
planning of Forest Service lands.
National
Forest
Management
16 U.S.C. § 1604(g).
Planning
Regulations
The
(“Planning
Regulations”) were originally promulgated in 1979 and substantially
revised in 1982.
65 Fed. Reg. 67,516 n.1.
Between 1982 and 1999,
the Forest Service implemented 127 forest plans pursuant to the
1982 Planning Regulations.
Id.
On October 5, 1999, the Forest Service proposed a rule to
comprehensively revise the 1982 Planning Regulations. 64 Fed. Reg.
54,074.
The Forest Service held a comment period for these
proposed revised Planning Regulations.
65 Fed. Reg. 67,517.
Wyoming raised a number of concerns regarding the proposed rule,
including
its
concern
that
the
violated the NFMA and the MUSYA.
proposed
planning
regulations
(Pl.’s Opening Br., Exh. 78).
Nevertheless, the Forest Service published the final Planning
22
Regulations on November 9, 2000 (“2000 Planning Rule”).
65 Fed.
Reg. 67,514. The 2000 Planning Regulations set forth a process for
amending and revising land and natural resource management plans
and for selecting and implementing site-specific actions.
C.F.R. § 219.1.
36
Among other things, the 2000 Planning Regulations
established the elements of the general planning process.
36
C.F.R. §§ 219.1 to 219.25.
The most controversial part of the 2000 Planning Regulations
was that they allegedly altered the management mission of the
Forest Service.
The Forest Service mission was changed from
“multiple
management
use”
management.
to
(AR, Doc. 1078).
“ecological
sustainability”
This shift, Wyoming and other
commentators contended, violated both the NFMA and the MUSYA.
Additionally, many believed this shift in the Forest Service’s
management mission exceeded their authority and displaced Congress’
intent expressed in the NFMA and the MUSYA.
The 2000 Planning Regulations are not currently in effect. On
May 17, 2001, the Forest Service published a proposed rule stating
that it was not sufficiently prepared to fully implement the 2000
Planning
Regulations
because
“serious
concerns”
regarding the ecological sustainability mission.
23
had
arisen
66 Fed. Reg.
27,555.
On November 27, 2002, the Forest Service proposed some
revised planning regulations for public comment.
72,770 to 72,816.
March 6, 2003.
67 Fed. Reg.
The public comment for that rule extended until
67 Fed. Reg. 72,770.
III. The Road Management Rule.
After notice and a comment period, the Road Management Rule
went into effect on January 12, 2001.
66 Fed. Reg. 3,206 to 3,207.
The Road Management Rule requires development of a transportation
atlas for each National Forest administrative unit. Id.; 36 C.F.R.
§ 212.2.
The Road Management Rule mandates a “science-based
process” to analyze the National Forest road system and establishes
standards for the road system.
Management
Rule
was
See 36 C.F.R. § 212.5(b).
designed
to
remove
the
The Road
emphasis
on
transportation development and road construction in the National
Forest system and to signal a shift to maintaining needed roads and
decommissioning unneeded roads.
IV.
Id.
Transportation Policy.
Concurrent with the Road Management Rule, the Forest Service
proposed a new Transportation Policy. 66 Fed. Reg. 3,219 to 3,241.
The Transportation Policy amended the management guidelines set
forth in the Forest Service Manual.
24
Id.
Among other things, the
Transportation
Policy
prohibits
road
construction
within
inventoried roadless areas unless a science-based roads analysis is
conducted
pursuant
to
the
procedures
set
forth
in
the
Transportation Policy. 66 Fed. Reg. 3,236; 66 Fed. Reg. 65,797-98.
Additionally, the exceptions in the Transportation Policy for
building a road are narrower than the exceptions in the Roadless
Rule.
66 Fed. Reg. 3,236.
The Transportation Policy went into
effect on January 12, 2001.17
Standard of Review
Judicial review of an agency’s final action is governed by the
Administrative Procedure Act (“APA”).
See 5 U.S.C. §§ 701 to 706;
Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 882 (1990).
Under the
APA, a federal court may set aside informal agency action if it is
arbitrary, capricious, an abuse of discretion, or otherwise not in
accordance with law.
5 U.S.C. § 706(2)(A).
arbitrary or capricious if:
An agency decision is
(1) the agency entirely failed to
consider an important aspect of the issue; (2) the agency offered
an explanation for its decision that was counter to the evidence
17
The Court has also reviewed the Federal Defendants
Supplemental Authority and the Bush Administration’s proposed
amendments to, and/or revisions of, the Roadless Rule. (See Fed.
Defs.’ Notice of Supp. Authority). The Court has concluded that
neither of those actions affect the efficacy of this Order.
25
before it; (3) the agency relied on factors that Congress did not
intend for it to consider; or (4) the agency’s decision is so
implausible that it could not be ascribed to the product of agency
expertise.
Colo. Envtl. Coalition v. Dombeck, 185 F.3d 1162, 1167
(10th Cir. 1999).
The Tenth Circuit has held that informal agency
action must be set aside if it fails to meet statutory, procedural,
or constitutional requirements.
Olenhouse v. Commodity Credit
Corp., 42 F.3d 1560, 1573-74 (10th Cir. 1994).
In applying this deferential standard of review, a federal
court is required to review the whole administrative record, or
those parts of the record cited by the parties.
Utahns for Better
Transp. v. U.S. Dep’s of Transp., 305 F.3d 1152, 1164 (10th Cir.
2002).
The court reviews the administrative record to ensure the
agency’s decision was based on consideration of the relevant
factors and was not the result of a clear error in judgment.
Envtl. Coalition, 185 F.3d at 1167.
Colo.
In so reviewing, the court
cannot substitute its judgment for that of the agency.
Utahns for
Better Transp., 305 F.3d at 1164.
The essential function of judicial review under the APA is for
the federal court to determine whether the agency:
within
its
scope
of
authority;
26
(2)
complied
with
(1) acted
prescribed
procedures; and (3) acted in accordance with law (i.e., did not act
arbitrarily or capriciously).
Olenhouse, 42 F.3d at 1574.
In the
end, administrative decisions may only be set aside for substantial
procedural or substantive reasons.
Utahns for Better Transp., 305
F.3d at 1164. However, courts and agencies alike should be mindful
that an “agency’s rulemaking power is not the power to make law, it
is only the power to adopt regulations to carry into effect the
will of Congress as expressed by the statute.”
Sundance Assoc.,
Inc.
1998)
v.
Reno,
139
F.3d
804,
808
(10th
Cir.
(internal
quotation marks and citations omitted).
Analysis
The parties have presented several issues in their briefs.
The Court will first address Federal Defendants’ and DefendantIntervenors’
contention
that
the
Court
lacks
subject
matter
jurisdiction. Next, the Court will address Wyoming’s argument that
the Roadless Rule was promulgated in violation of several federal
environmental statutes.
Finally, the Court will consider the
appropriate injunctive relief.
I.
Justiciability Claims.
Federal
Defendants
and
Defendant-Intervenors
argue
that
Wyoming’s claims challenging the 2000 Planning Regulations, the
27
Road Management Rule, and the Transportation Policy are not ripe
for judicial review.
Defendants also argue that Wyoming does not
have standing to challenge the Roadless Rule.
Each claim will be
discussed in turn.
A.
Wyoming’s Challenges to the Planning Regulations, Road
Management Rule, and Transportation Policy.
Wyoming
argues
that
the
2000
Planning
Regulations,
Road
Management Rule, and Transportation Policy violate NEPA, the NFMA,
the Wilderness Act, the Wyoming Wilderness Act, the MUSYA, the
National Historic Preservation Act, and the Regulatory Flexibility
Act.18
(Pl.’s Opening Br., at pp. 63, 70, 71-74).
The Federal
Defendants respond that these claims are not ripe for judicial
review.
(Fed. Defs.’ Resp. Br., at pp. 28-31).
Defendant-
Intervenors make essentially the same justiciability argument.
(Def.-Intervenors’ Resp. Br., at pp. 18-20).
1.
Ripeness.
“Ripeness” is a justiciability doctrine that is used to
determine when judicial review is appropriate.
Judicial review is
premature when an injury is speculative. Coalition for Sustainable
Res. v. U.S. Forest Service, 259 F.3d 1244, 1249 (10th Cir. 2001).
18
As explained below, Wyoming has waived its claims under
the Wyoming Wilderness Act, the National Historic Preservation
Act, and the Regulatory Flexibility Act.
28
To determine whether an agency’s decision is ripe, a court must
examine:
(1) the fitness of the issues for judicial review; and
(2) the hardship to the parties of withholding consideration. Ohio
Forestry Ass’n, Inc. v. Sierra Club, 523 U.S. 726, 733 (1998).
In making the ripeness determination, the district court may
consider whether:
plaintiffs;
(2)
(1) delayed review would cause hardship to the
judicial
intervention
would
inappropriately
interfere with further administrative action; and (3) the courts
would benefit from further factual development of the issues
presented.
Id. at 733.
In the administrative law context, the
purpose behind the ripeness doctrine is to prevent courts from
entangling themselves in abstract disagreements over administrative
Id. at 732-33.
policies.
2.
Application.
Wyoming’s challenges to the 2000 Planning Regulations are not
ripe for judicial review because those rules are currently in the
process
of
being
revised.
To
the
extent
that
Wyoming
is
challenging the Road Management Rule and Transportation Policy,
those claims are not ripe for judicial review because they merely
present
an
abstract
disagreement
over
the
Forest
Service’s
administrative process for revising and amending forest plans and
29
its transportation system. See Coalition for Sustainable Res., 259
F.3d at 1252-53.
Likewise, Wyoming cannot establish any present
injury from the Road Management Rule or Transportation Policy
because neither rule, in isolation, has any on-the-ground impact
for road construction activities.
For
3.
Conclusion.
the
aforementioned
reasons,
Wyoming’s
request
for
declaratory relief with respect to the 2000 Planning Regulations,
the Road Management Rule, and the Transportation Policy is DENIED.
B.
Wyoming’s Standing to Challenge the Roadless Rule.
Federal Defendants argue that Wyoming’s challenge to the
Roadless Rule should be dismissed because the potential injury to
the national and state forests in Wyoming could not be redressed by
setting aside the Roadless Rule.
22-28).
(Fed. Defs.’ Resp. Br., at pp.
Defendant-Intervenors argue that Wyoming lacks standing
because it has only alleged economic injury, which is not within
the zone-of-interests protected by NEPA.
Br., at pp. 11-20).
(Def.-Intervenors’ Resp.
Wyoming replies that it has standing because
it seeks to protect state lands and National Forests within its
borders from the irreparable environmental consequences that will
30
result from the Forest Service’s uninformed implementation of the
Roadless Rule.
1.
(Pl.’s Reply Br., at pp. 4-13).
Article III Standing Requirements.
Federal courts are courts of limited jurisdiction.
Const. art. III, § 2.
U.S.
A federal court only has jurisdiction to
hear “cases” or “controversies.”
504 U.S. 555, 559 (1992).
Lujan v. Defenders of Wildlife,
Standing is a jurisdictional doctrine
that is an essential part of Article III’s case-or-controversy
requirement.
Id. at 560.
Jurisdiction is a threshold question
that must be addressed before reaching the merits of any case.
Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 94-95
(1998).
This rule is inflexible and without exception.
Id.
The
party invoking federal jurisdiction has the burden of proving it
Defenders of Wildlife, 504 U.S. at 561.
exists.
To have standing, the party invoking federal jurisdiction must
prove:
(1) it has suffered an injury in fact – an invasion of a
legally protected concrete interest that is not conjectural;
(2)
a causal connection between the injury and the conduct complained
of; and (3) that the injury will be redressed by a favorable
decision.
Comm. to Save the Rio Hondo v. Lucero, 102 F.3d 445, 447
31
(10th Cir. 1996).
In a NEPA case, the standing analysis is
slightly more complex.
a.
Injury-in-Fact Prong.
Under the injury-in-fact prong of the standing doctrine, the
plaintiff
must
prove
that:
(1)
the
agency
increased
the
plaintiff’s risk of actual, threatened, or environmental harm by
failing to comply with NEPA; and (2) this increased risk of
environmental harm injured the plaintiff’s concrete interests. Id.
at 449; Sierra Club v. U.S. Dep’t of Energy, 287 F.3d 1256, 1265
(10th Cir. 2002).
“A litigant shows an injury to its concrete
interest by demonstrating either a geographical nexus to or actual
use of the site of agency action.”
b.
Under
the
Id.
Causation Prong.
causation
prong
of
the
standing
doctrine,
a
plaintiff must show its actual or threatened harm is “fairly
traceable to the agency’s failure to comply with NEPA.” Rio Hondo,
102
F.3d
at
451.
The
plaintiff’s
burden
of
demonstrating
traceability is fairly low where the plaintiff’s injury in fact
consists
of
a
procedural
injury
under
NEPA.
Jackson
Hole
Conservation Alliance v. Babbit, 96 F. Supp. 2d 1288, 1294 (D. Wyo.
2000).
When an agency fails to perform, or performs an inadequate
32
NEPA analysis, the harm that is traceable to the agency’s deficient
analysis is the agency’s uninformed decisionmaking.19
Sierra Club,
287 F.3d at 1265.
c.
Redressability Prong.
With respect to redressability, the plaintiff must prove that
its injury would be redressed by a favorable decision requiring the
agency to comply with NEPA procedures.
Rio Hondo, 102 F.3d at 452.
The redressability requirement is fairly low in NEPA cases because
the plaintiff is only required to demonstrate that the agency could
have proceeded on a more informed basis if it would have complied
with NEPA.
Jackson Hole, 96 F. Supp. 2d at 1294.
The plaintiff is
not required to demonstrate that the agency would change its
decision upon NEPA compliance.
Id.
Ordinarily, this element is
easily satisfied in NEPA cases because a federal court can enjoin
the implementation of the rule that is based on a deficient NEPA
19
Determining whether a plaintiff has suffered a procedural
injury as a result of an agency’s failure to comply with NEPA
requires some analysis into merits of the plaintiff’s underlying
claim, which should ordinarily be avoided in a federal court’s
standing analysis. Ass’n of Data Processing Serv. Org. v. Camp,
397 U.S. 150, 153 (1970). However, this “is the unavoidable
consequence of premising standing on injuries to statutory
rights.” Wyo. Timber Indus. Ass’n v. U.S. Forest Service, 80 F.
Supp. 2d 1245, 1258 n.4 (D. Wyo. 2000).
33
analysis
until
the
agency
consequences of its actions.
2.
can
better
inform
itself
of
the
Sierra Club, 287 F.3d at 1265.
Application.
Wyoming has standing because it was adversely aggrieved by the
Forest Service’s failure to follow mandatory NEPA procedures when
it promulgated the Roadless Rule, which necessarily increased the
environmental risks to state and federal forests within Wyoming.
See Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 883 (1990); Rio
Hondo, 102 F.3d at 448-49.
a.
Injury in Fact.
Wyoming has presented evidence that the Roadless Rule will
increase the risk of environmental harm to its thousands of acres
of state forest land that are adjacent to, or intermingled with,
lands designated by the Forest Service as inventoried roadless
areas. (Pl.’s Reply Br., Exh. 2). Defendant-Intervenors’ standing
arguments fail because those arguments are based on the flawed
premise that the sole injury Wyoming has alleged is an injury to
its economic interests.
Wyoming
has
been
(Def.-Intervenors’ Resp. Br., at p. 14).
injured
within
fundamental ways.
34
the
scope
of
NEPA
in
two
First,
Wyoming’s
risk
of
actual
or
threatened
harm
was
increased by the Forest Service’s promulgation of the Roadless Rule
because
the
resources.
Roadless
Rule
may
damage
Wyoming’s
environmental
For decades, the Forest Service has actively managed
the National Forests to prevent the spread of forest disease,
insect infestations, and wildfires.
Many of the National Forest
acres that were previously managed in Wyoming have been designated
as roadless areas.
(Pl.’s Reply Br., Exh. 2).
As a result, there
is a real and substantial possibility that forest disease, insect
infestation, and wildfires from the non-managed National Forests in
Wyoming
will
spread
into
Wyoming’s
state
forests
that
are
Forest
has
contiguous to those National Forests.
For
example,
the
Medicine
Bow-Routt
National
several “blow down” sections that have become infected with the
spruce bark beetle.20
(Id.).
Additionally, the downed timber in
these areas creates the risk of catastrophic wildfire. (Id., at ¶¶
7-8).
The Forest Service had planned some timber salvage in
certain areas of the Medicine Bow-Routt National Forest to reduce
20
The “blow down” areas in the Medicine Bow-Routt National
Forest were caused by 120-mile per hour winds that hit the forest
in the fall of 1997. That windstorm resulted in over four
million trees being blown down in a thirty mile stretch of the
National Forest.
35
the risk of wildfire and the impact of the spruce bark beetle
infestation.
However, because of the designation of certain areas
in the Medicine Bow-Routt National Forest as roadless areas, such
active forest management is no longer feasible.
Consequently, the
decrease in active forest management in the Medicine Bow-Routt
National Forest substantially increases the risk of spruce beetle
infestation and wildfire spread to forested lands in Wyoming
contiguous to that National Forest.
Second,
the
Tenth
Circuit
has
held
that
“harm
to
the
environment may be presumed when the agency fails to comply with
the required NEPA procedure.” Davis v. Mineta, 302 F.3d 1104, 1115
(10th Cir. 2002).
As described more fully below, the Forest
Service failed to comply with NEPA in promulgating the Roadless
Rule.
Wyoming has demonstrated injury to its concrete interests
for purposes of standing because it has shown actual or threatened
injury to its natural resources, which have a close geographic
nexus to the inventoried roadless areas. See Sierra Club, 287 F.3d
at 1265.
b.
Causation.
Neither Federal Defendants nor Defendant-Intervenors have
argued that Wyoming’s injuries were not caused by the Roadless
36
Rule.
The Court notes, however, that the Forest Service’s failure
to consider certain environmental impacts, such as the cumulative
impacts of the Roadless Rule, increased the risk of injury to
Wyoming’s
natural
resources
because
proceeding on an uninformed basis.
the
Forest
Service
was
See Jackson Hole, 96 F. Supp.
2d at 1294.
c.
Redressability.
Federal Defendants argue that the increased risk of injury to
Wyoming’s lands is not redressable because fuel treatments and
responses to spruce bark beetles within National Forest lands are
entirely within the discretion of the Forest Service. (Fed. Defs.’
Resp. Br., at pp. 23-26).
This argument is unavailing for two
reasons.
First, while the Forest Service does have discretion in its
management of the National Forests, the Roadless Rule takes away
that discretion.
For example, the Roadless Rule does not provide
for an exception that would permit the Forest Service to build a
road into the inventoried roadless area in the Medicine Bow-Routt
National Forest (or any national forest) to treat a particularly
pervasive insect infestation, such as the case of the spruce bark
37
beetle.21
Therefore, without access to the inventoried roadless
areas, the local foresters have one choice in how to manage the
problem:
let nature run its course.
Second, Wyoming has demonstrated a procedural injury by the
Forest Service’s failure to comply with NEPA.
Therefore, setting
aside the Roadless Rule would redress Wyoming’s injuries because
the Forest Service would then be proceeding on a more informed
basis.
3.
Conclusion.
For the aforementioned reasons, the Court FINDS Wyoming has
satisfied
all
the
Article
III
jurisdictional
requirements
to
maintain its challenge to the Roadless Rule.
II.
Wyoming’s Claims Challenging the Roadless Rule.
Wyoming argues that the Roadless Rule was promulgated in
violation of NEPA, the Wilderness Act, the NFMA, the MUSYA, the
21
The only exception to the Roadless Rule that would
arguably apply in such a situation is found in 36 C.F.R. §
294.12(b)(1). However, that subsection of the Roadless Rule does
not provide for treatment of insect infestations unless such
infestation is classified as a “catastrophic event.” For a road
to be built to treat a “catastrophic event,” a claimant would
still have to demonstrate that the fire or event is: (1)
imminent; and (2) would cause the loss of life or property
without intervention. 36 C.F.R. 294.12(b)(1). In other words,
routine and proactive insect and fire treatment is unavailable
under the Roadless Rule.
38
Wyoming Wilderness Act, the National Historic Preservation Act, and
the Regulatory Flexibility Act. Each argument will be discussed in
turn.
A.
Wyoming’s National Environmental Policy Act Claims.
Wyoming argues that the Roadless Rule was promulgated in
violation of NEPA.
Defendants
and
(Pl.’s Opening Br., at pp. 48-62).
Defendant-Intervenors
respond
that
Federal
the
Forest
Service involved Wyoming, and the public generally, in one of the
most extensive public involvement campaigns ever undertaken in the
history of administrative law and that the Forest Service met, if
not exceeded, all statutory and regulatory requirements.
(Fed.
Defs.’ Resp. Br., at pp. 40-61; Def.-Intervenors’ Resp. Br., at pp.
20-46).
1.
NEPA Overview.
a.
NEPA’s Statutory Mandate and Structure.
NEPA requires federal agencies to consider the environmental
impacts of their actions, disclose those impacts to the public, and
then
explain
how
their
actions
will
address
those
impacts.
Baltimore Gas & Elec. Co. v. Natural Res. Defense Council, 462 U.S.
87, 97 (1983).
NEPA prescribes the process, not the end result, of
agency action.
Robertson v. Methow Valley Citizens Council, 490
39
U.S. 332, 350 (1989).
If the agency follows the NEPA process, as
set forth in the agency’s implementing regulations, the public is
ensured
that
the
agency
was
informed
consequences of its final action.
of
the
environmental
Colo. Envtl. Coalition v.
Dombeck, 185 F.3d 1162, 1172 (10th Cir. 1999).
In this regard, the
Tenth Circuit has repeatedly emphasized that NEPA only requires an
agency to take a “hard look” at environmental consequences before
taking a major federal action that significantly affects the
quality of the human environment.
Citizens’ Comm. to Save Our
Canyons v. U.S. Forest Service, 297 F.3d 1012, 1022 (10th Cir.
2002) [hereinafter “Save Our Canyons”].
To ensure that federal agencies take a “hard look” at the
environmental consequences of their actions, NEPA requires an
agency
to
prepare
an
environmental
impact
statement
(“EIS”).
Friends of the Bow v. Thompson, 124 F.3d 1210, 1213 (10th Cir.
1997). “An EIS is a detailed statement of the environmental impact
of a proposed action.”
Id.
The Tenth Circuit has described the
NEPA process an agency follows in preparing an EIS:
Initially, any agency announces its intent to study a
proposed action through a process called scoping, during
which the agency solicits comments and input from the
public and other state and federal agencies with the goal
of identifying specific issues to be addressed and
studied. 40 C.F.R. § 1501.7. After assessing the input
40
from the scoping process, the government then prepares a
draft Environmental Impact Statement (DEIS), id. §
1502.9(a), which is then presented to the public and
other government agencies for notice and comment. Id. §
1503.1(a). After evaluating the feedback received during
the notice and comment process, the agency prepares a
[final EIS (FEIS)]. Id. § 1502.9(b). If after preparing
either a DEIS or FEIS, the proposed action substantially
changes in a way “relevant to environmental concerns,” or
if new information comes to light about environmental
impacts, an agency must prepare a supplemental EIS
(SEIS). Id. § 1502.9(c)(1).
Save Our Canyons, 297 F.3d at 1022.
In the end, the agency must address the following in its EIS:
(1) the purpose and need for the proposed action; (2) environmental
impacts
resulting
from
the
actions;
(3)
alternatives
to
the
proposed action; (4) the relationship between short-term uses and
long-term productivity; and (5) the amount of resources that must
be devoted to the proposed action. Id.; 42 U.S.C. § 4332(2)(C)(i)(v); 40 C.F.R. § 1502.10.
b.
Judicial Review of NEPA Compliance.
The role of the judiciary in the NEPA process is twofold.
First, the court must ensure that the agency has taken a hard look
at the environmental consequences of its actions and has adequately
disclosed those impacts to the public.
Baltimore Gas, 462 U.S. at
97-98; Middle Rio Conservancy Dist. v. Norton, 294 F.3d 1220, 1225
(10th Cir. 2002).
Second, the court must ensure that the agency’s
41
decisions were not arbitrary or capricious.
Baltimore Gas, 462
U.S. at 97-98; Utahns for Better Transp., 305 F.3d at 1163.
In reviewing the adequacy of an EIS, a federal court simply
examines whether the agency objectively presented all the topics
required by NEPA.
Colo Envtl. Coalition, 185 F.3d at 1172.
In so
reviewing, the court must make a pragmatic judgment about whether
the preparation of the EIS and its ultimate form and content
fostered informed public participation and informed decisionmaking.
Id.
While
a
federal
agency
is
entitled
to
a
presumption
of
regularity in arriving at its decision, the court is not simply a
“rubber stamp” for agency action and will set aside agency action
if
it
is
in
contravention
congressional mandate.
of
the
agency’s
own
rules
or
See Glisson v. U.S. Forest Service, 876 F.
Supp. 1016, 1023-24 (S.D. Ill. 1993).
In other words, the court
will not accept pro forma compliance with NEPA procedures, nor post
hoc rationalizations as to why and how the agency complied with
NEPA.
See Davis v. Mineta, 302 F.3d 1104, 1112-13 (10th Cir.
2002); Utahns for Better Transp., 305 F.3d at 1165.
2.
Wyoming’s
Service.
Specific
42
Claims
Against
the
Forest
Wyoming argues the Forest Service violated NEPA in six ways
when it promulgated the Roadless Rule.
Each contention will be
addressed in turn.
a.
Wyoming
The Forest Service’s Procedure in Implementing
the Roadless Rule.
argues
that
the
Forest
Service’s
process
in
implementing the Roadless Rule was fundamentally flawed as a result
of
its
“mad
dash
to
complete
the
President Clinton left office.”
Federal
Defendants
respond
that
Roadless
Initiative
before
(Pl.’s Opening Br., at p. 48).
the
Forest
Service
provided
adequate information to the public during the rulemaking process.
(Fed. Defs.’ Resp. Br., at pp. 42-45).
Defendant-Intervenors
contend that Wyoming has blurred the distinct phases of the NEPA
process, which has resulted in its confusion regarding the NEPA
requirements at each stage.
(Def.-Intervenors’ Resp. Br., at pp.
20-27).
i.
The Dissemination of Information During
the Scoping Period.
Wyoming argues that the information disseminated to the public
during the scoping period and development of the EIS was “woefully
inadequate” and that the Forest Service should have extended the
43
scoping period until it made better information available.
(Pl.’s
Opening Br., at p. 49-51).
The
scoping
period
is
an
“early
and
open”
process
for
determining the scope of the issues to be addressed in the EIS and
for identifying significant issues related to the rulemaking.
C.F.R. §§ 1501.7, 1508.25.
40
During the scoping process, an agency
is required to invite the participation of federal agencies,
states, local governments, and Indian tribes that may be affected
by the agency action.22
40 C.F.R. § 1501.7(a)(1).
The agency
determines the scope of the proposed action by considering three
types of actions, three types of alternatives, and three types of
impacts. 40 C.F.R. §§ 1501.7(a)(2), 1508.25(a)-(c). The agency is
then required to allocate assignments for preparation of the EIS
among
itself
and
cooperating
agencies.
40
C.F.R.
§
1501.7(a)(4),(6).
The clear import of
the
agency
undertaking
§ 1501.7(a)’s mandatory language is that
the
action
shall
engage
with
other
governmental entities in an open and public manner so that they may
22
In subsection (a) of § 1501.7, the regulation provides
that the agency “shall” perform certain activities. This
language is mandatory as evidenced by subsection (b) of § 1501.7,
which provides a list of activities the agency “may” perform
during the scoping period. See 40 C.F.R. § 1501.7(a)-(b).
44
work together in preparing the EIS.
40 C.F.R. § 1501.7(a).
When
a federal agency is required to invite the participation of other
governmental
entities
and
allocate
responsibilities
to
those
governmental entities, that participation and delegation of duty
must be meaningful.
ii.
Application.
Wyoming contends that although it was one of the states most
affected
by
participate
the
Roadless
Rule,
it
could
not
meaningfully
in the scoping process because the Forest Service did
not provide it with adequate information.
did not know
Specifically, Wyoming
where the alleged roadless areas were because the
Forest Service did not provide any maps until after the scoping
period had ended.
EIS
did
not
geographic
The Forest Service’s NOI to prepare the draft
provide
ambit
of
any
the
information
proposed
regarding
rule
nor
the
any
estimated
maps
of
the
inventoried roadless area.
The Court agrees that Wyoming and other affected states could
not
meaningfully
“participate”
in
determining
the
scope
and
significant issues to be analyzed in the EIS, which requires
consideration of the mitigating measures and impacts of the alleged
action, without knowing specifically what roadless areas the rule
45
covered.
See 40 C.F.R. §§ 1501.7(a)(1)-(2), 1508.25(b)-(c).
For
example, Wyoming could not meaningfully provide input on the scope
of the proposed EIS by commenting on the direct, indirect, and
cumulative impacts of the Roadless Rule in Wyoming when it did not
know what areas in Wyoming were to be designated as roadless.
See
40 C.F.R. §§ 1501.7(a)(1)-(2), 1508.25(c)(1)-(3).
According to Defendant-Intervenors, the Roadless Rule was the
“most
significant
century.”
land
conservation
initiative
(Def.-Intervenors’ Resp. Br., at p. 1).
in
nearly
a
With NEPA’s
purpose in mind – adequate and full disclosure – maps accurately
depicting the areas covered by the Roadless Rule are the most basic
and fundamental information needed to begin the scoping process.
Wyoming could not meaningfully participate in defining the scope of
a rule when it did not know what lands within its borders would be
impacted by the rule.
The Administrative Record is replete with
the Forest Service’s own admissions that its data was incomplete,
outdated, and simply inaccurate.23
23
(See AR, Doc. 5612, at pp. 14, 73-74, 77, 80-82; Doc.
1408, at pp. 1, 8; Doc. 2113, at p. 1; Doc. 2115, at p. 1; Doc.
2123, at p. 1; Doc. 3062, at p. 1; Doc. 2770, at pp. 1-6; Doc.
2600, at p. 1; Doc. 2610, at p. 1; Doc. 899, at p. 1; Doc. 4060,
at pp. 1-2; Doc. 3682, at p. 1).
46
Notwithstanding these admissions, the Forest Service would not
extend
the
scoping
period
because
of
the
significant
time
constraints that it imposed on itself. From the outset, the Forest
Service’s plan was to proceed according to its predetermined
schedule, which was imposed before the scoping process began, with
the hope that the updated roadless information would be included in
the final EIS.24
iii. Conclusion.
To the Court, the facts evidence mere pro forma compliance
with NEPA’s scoping procedures and requirements.
Therefore, the
Court finds that the Forest Service’s refusal to extend the scoping
period, notwithstanding the protests of nearly all of the affected
states, for the sole reason of meeting a self-imposed deadline was
arbitrary and capricious.
This is particularly true in this case
because the Forest Service was aware that better information was
available, even within the Forest Service itself, but simply
refused to use that information because it did not comport with the
arbitrary deadline by which the final rule had to be promulgated.
24
The predetermined schedule from which the Forest Service
adamantly refused to deviate is in contravention of the CEQ
regulations. Those regulations provide that the agency may set
time limits as part of the open scoping process. See 40 C.F.R. §
1501.7(b)(2).
47
b.
Denial of Cooperating Agency Status.
Wyoming argues that the Forest Service’s decision to deny it
cooperating agency status was arbitrary and capricious.
Opening Br., at p. 51-52).
decision
to
grant
(Pl.’s
Federal Defendants respond that the
cooperating
agency
status
is
completely
discretionary; therefore, the Forest Service cannot be faulted for
its failure to exercise its discretion.
50).
(Fed. Defs.’ Br., at p.
Defendant-Intervenors did not respond to this argument.
i.
The Grant of Cooperating Agency Status to
States.
The NEPA regulations emphasize inter-agency cooperation early
in the NEPA process by designating as cooperating agencies those
agencies that have expertise in the field or are affected by the
lead agency’s actions.
40 C.F.R. § 1501.6.
A state may become a
cooperating agency only through agreement with the lead federal
agency.
40 C.F.R. § 1508.5.
However, just over two months before
the Roadless Rule NOI was published, the Director of the CEQ urged
agencies to more actively solicit the participation of state
governments as cooperating agencies during the scoping process
because cooperating agency relationships with state agencies help
to achieve the purposes of NEPA.
ii.
(AR, Doc. 3544, at pp. 2-3).
Application.
48
The Court agrees with Federal Defendants that the Forest
Service, acting as lead agency, had the discretion to grant or deny
the states cooperating agency status.
See 40 C.F.R. § 1508.5. The
Court also agrees with the Director of the CEQ that granting
cooperating agency status serves the purposes of NEPA.
U.S.C. § 4331(a).
See 42
Wyoming requested cooperating agency status
early in the scoping process; however, the Forest Service did not
even see fit to respond to that request until after the draft EIS
was released.
(AR, Doc. 1889).
When it did respond, the Forest
Service still did not provide Wyoming with a reason why it denied
the state cooperating agency status.25 However, the director of the
roadless project indicated that cooperating agency status was
denied because states would want to work at too great of a “level
of detail.”
(AR, Doc. 3085).
The Court finds that the Forest Service acted arbitrarily and
capriciously in denying Wyoming, and the nine other states most
affected by the Roadless Rule, cooperating agency status.
25
This
The Forest Service did reference Wyoming to a proposal it
extended to the Western Governors’ Association, which would have
relegated the state to “collecting and synthesizing” comments
rather than participating in the production of the EIS as a
cooperating agency pursuant to 40 C.F.R. § 1501.6(b). In other
words, the Forest Service told Wyoming, and the Western
Governors: “You are good enough to work for us, but not good
enough to work with us.”
49
finding is not premised on a conclusion that the Forest Service had
a duty to grant cooperating agency status to any of the states that
requested that status, nor does it provide a judicial gloss on the
lead federal agency’s discretionary authority to grant cooperating
agency status.
Rather, the finding is based on the fact that the
Roadless Rule affected 53.37 million acres of land, or 92% of the
total inventoried roadless areas, in those ten most affected
states, and the Forest Service did not find it worth its time to
explain why it was denying cooperating agency status to those
states.
Moreover, the logistics of coordinating with ten states
would not have been insurmountable.
The roadless team director’s statement that cooperating agency
status was being denied because the Forest Service did not want to
work at the “level of detail” as the states affected by the
Roadless Rule also evidences:
(1) that the Forest Service was not
proceeding with all the relevant and valuable information that was
available on the environmental consequences of its action; and (2)
that
the
Forest
Service
was
omitting
relevant
and
valuable
information for the sole reason of administrative simplicity. With
regard to the latter, it is also important to note that the Forest
Service
adopted
the
top-down
administrative
50
approach
to
the
implementation of the Roadless Rule and defined the scope of the
project itself, so it cannot now complain of the administrative
difficulties associated with the implementation of the Roadless
Rule.
iii. Conclusion.
There is not one good reason in the administrative record
before the Court explaining why cooperating agency status was
denied
to
the
ten
most
affected
states,
including
Wyoming,
especially in light of the CEQ’s direction that federal agencies
should actively solicit participation of the states in order to
comply with NEPA’s statutory mandate. Absent any such explanation,
the
Court
must
again
conclude
that
Wyoming
was
right
in
characterizing the Forest Service’s process as a “mad dash to
complete the Roadless Initiative before President Clinton left
office.”
The Forest Service dared not let any of the ten most
affected states have cooperating agency status, lest its “mad dash”
would be slowed to a walk.
For these reasons, the Court finds that
the Forest Service acted arbitrarily and capriciously in denying
cooperating agency status to the ten states most affected by the
Roadless Rule.
c.
The Forest Service’s Failure to Consider a
Reasonable Range of Alternatives.
51
Wyoming argues that the Forest Service failed to consider a
reasonable range of alternatives to its proposed action.
Opening Br., at pp. 52-55).
(Pl.’s
Federal Defendants respond that the
Forest Service considered a “wide range” of alternatives in light
of its defined purpose for the Roadless Rule.
pp. 52-57).
(Fed. Defs.’ Br., at
Defendant-Intervenors argue that the Forest Service
only had a duty to consider alternatives that prohibited road
construction in roadless areas because the purpose of the Roadless
Rule was to create a cohesive national policy that eliminated
activities, such as road construction, which cause the degradation
of roadless areas.
i.
NEPA’s Alternatives Requirement.
Early in the NEPA process, a federal agency is required to
“[s]tudy, develop, and describe” alternatives to its proposed
action.
42 U.S.C. § 4332(E); 40 C.F.R. § 1501.2(c).
If the
federal agency prepares an EIS, NEPA requires the federal agency to
rigorously explore and objectively evaluate reasonable alternatives
to its proposed action.
42 U.S.C. § 4332(C)(iii); 40 C.F.R. §
1502.14(a); Utahns for Better Transp., 305 F.3d at 1166.
The
requisite level of detail and the number of alternatives an agency
must consider depends on the nature and scope of the agency’s
52
proposed action.
Dubois v. U.S. Dep’t of Agric., 102 F.3d 1273,
1289 (1st Cir. 1996). The alternatives requirement is the linchpin
of NEPA, and the alternatives section is “the heart” of the EIS.
Save Our Canyons, 297 F.3d at 1030; 40 C.F.R. § 1502.14.
To comply with NEPA, an agency must give each reasonable
alternative “substantial treatment” in the EIS.
1502.14(b); Save Our Canyons, 297 F.3d at 1030.
40 C.F.R. §
A “reasonable
alternative” is one that is non-speculative and bounded by some
notion of feasibility.
1172.
Utahns for Better Transp., 305 F.3d at
When the agency eliminates an alternative from detailed
study, it must briefly discuss the reason for eliminating that
alternative.
40 C.F.R. § 1502.14(a); Utahns for Better Transp.,
305 F.3d at 1166.
The existence of a reasonable, but unexamined,
alternative renders the EIS inadequate.
Dubois, 102 F.3d at 1287.
In the Tenth Circuit, federal courts are required to “look
closely” at the EIS’s purpose to determine whether the agency
considered reasonable alternatives.
1030.
Save Our Canyons, 297 F.3d at
It is well established that an agency cannot define the
purpose of its project so narrowly that it precludes consideration
of reasonable alternatives.
Davis, 302 F.3d at 1119.
because
for
“[o]ne
obvious
way
53
an
agency
to
slip
This is
past
the
structures of NEPA is to contrive a purpose so slender as to define
competing ‘reasonable alternatives’ out of consideration (and even
out of existence).”
Id. (quoting Simmons v. U.S. Army Corps of
Eng’rs, 120 F.3d 664, 666 (7th Cir. 1997)).
In reviewing an agency’s choice of alternatives, and the
extent to which the EIS addresses each alternative, federal courts
in the Tenth Circuit employ the “rule of reason.”
Action Ass’n, 256 F.3d at 1040.
court
to
determine
whether
Custer County
The rule of reason requires the
the
EIS
contained
a
sufficient
discussion of the relevant issues and opposing viewpoints to enable
the agency to take a hard look at the environmental consequences of
its proposed action and the alternatives to that action.
Canyons, 297 F.3d at 1031.
Save Our
In applying this rule, federal courts
will not permit an agency to circumvent NEPA by narrowly defining
the purpose of the proposed action and thereby avoiding its duty to
consider
reasonable
alternatives.
Davis, 302 F.3d at 1119.
42
U.S.C.
§
4332(C)(iii);
As explained by the Seventh Circuit, if
“NEPA mandates anything, it mandates this: a federal agency cannot
ram through a project before first weighing the pros and cons of
the alternatives.”
Simmons, 120 F.3d at 670 (emphasis added).
54
ii.
The
Forest
Service’s
Analysis in Implementing
Rule.
Alternatives
the Roadless
On October 13, 1999, President Clinton directed the Forest
Service to develop regulations that provide appropriate long-term
protection for most or all currently inventoried roadless areas
(i.e., RARE I and RARE II inventoried Roadless Areas).
1535, at p. 2).
(AR, Doc.
The next day, Chief Dombeck informed Forest
Service employees that the public process would begin with a notice
of intent to prepare an EIS.
(AR, Doc. 330, at p. 1).
The EIS was
to “examine alternative methods to meet the goals established by
the President.”
(AR, Doc. 330, at p. 1).
However, the Forest
Service was only to “examine alternatives that limit or eliminate
certain activities in inventoried roadless areas such as road
construction.”
(AR, Doc. 330, at p. 1).
The Forest Service apparently believed that public comments in
response
to
the
NOI
were
unhelpful
alternatives for the draft EIS.
in
defining
a
range
of
(AR, Doc. 4609, at p. 2-15).
In
the draft EIS, the Forest Service defined the twofold purpose of
the Roadless Rule:
(1) to immediately stop activities that have the greatest
likelihood of degrading desirable characteristics of
inventoried roadless areas, and (2) to ensure that
ecological and social characteristics of inventoried
55
roadless and other unroaded areas are identified and
evaluated through local forest planning efforts.
(AR, Doc. 1362, at p. 1-10).
The final EIS defined the purpose of
the Roadless Rule in substantially the same manner.
(AR, Doc.
4609, at p. 1-14).26
To achieve this purpose, the Forest Service decided only to
analyze alternatives that eliminated road construction and timber
harvest in roadless areas because road construction and timber
harvest:
likelihood
(1) occur on a national scale; (2) have the greatest
of
altering
landscapes;
(3)
often
cause
landscape
fragmentation; and (4) often result in immediate, irreversible, and
long term loss of roadless characteristics. (AR, Doc. 1362, at pp.
1-10 to 1-11; AR, Doc. 4609, at p. 1-16).
The Forest Service then
eliminated from detailed study every other proposed alternative on
the basis that they did not meet the purpose of immediately
stopping activities that resulted in the degradation of roadless
26
The preamble to the Roadless Rule stated that the “final
rule prohibits road construction, reconstruction, and timber
harvest in inventoried roadless areas because they have the
greatest likelihood of resulting in long-term loss of roadless
area values and characteristics.” 66 Fed. Reg. at 3244 (Jan. 12,
2001). The purpose of the final Roadless Rule was to “provide,
within the context of multiple-use management, lasting protection
for inventoried roadless areas within the National Forest
System.” 40 C.F.R. § 294.10.
56
areas.
(AR, Doc. 1362, at pp. 2-16 to 2-21; AR, Doc. 4609, at pp.
2-15 to 2-22).
After eliminating alternatives that did not meet the purpose
of the Roadless Rule, the Forest Service considered the mandatory
no-action alternative and three “action alternatives.”27
4609, at pp. 2-5 to 2-8).
(AR, Doc.
As the Forest Service explained, the
“action alternatives have essentially the same effect on access. .
. . No new roads would be built in inventoried roadless areas, and
existing roads could not be reconstructed.”
3-41).
(AR, Doc. 4609, at p.
In other words, the proposed action alternatives were all
identical except the degree of restrictions placed on timber
harvest.
Alternative
2,
which
prohibited
road
construction
in
inventoried roadless areas, and Alternative 4, which prohibited
road construction and all timber cutting in inventoried roadless
areas, had the same practical effect with regard to timber harvest.
(See AR, Doc. 4609, at pp. 2-6 to 2-8).
Alternative 2 prohibited
all road construction in roadless areas and explained that road
27
The Forest Service never actually considered the “no
action” alternative as a viable alternative. In fact, the Forest
Service eliminated other proposed alternatives because, like the
no action alternative, they did not meet the purpose of the
Roadless Rule. (AR, Doc. 4609, at p. 2-18).
57
construction activities in support of logging activities that used
ground-based equipment (including helicopters) would be prohibited
under this alternative.
(AR, Doc. 4609, at p. 2-7).
Thus,
Alternatives 2 and 4 had the practical effect of eliminating all
timber harvest in roadless areas.28
In essence, the Forest Service only considered two action
alternatives: (1) prohibiting road construction and timber harvest
altogether
(Alternatives
2
and
4);
or
(2)
prohibiting
road
construction and timber harvest except for stewardship purposes
(Alternative 3).
However, under Alternative 3, harvesting timber
for stewardship purposes could only occur in roadless areas where
the
harvesting:
(1)
maintained
or
improved
roadless
area
characteristics; and (2) improved threatened, endangered, proposed
or
sensitive
species
“uncharacteristically
habitat;
intense”
or,
fire;
reduced
or,
the
restored
risk
of
ecological
structure, function, processes, or composition to roadless areas
(AR,
Doc.
4609,
at
p.
2-7
(emphasis
added)).
In
addition,
Alternative 3 also prohibited logging for stewardship purposes
using ground-based equipment.
(AR, Doc. 4609, at p. 2-7).
28
This
The Court notes that it is extremely difficult to harvest
timber without a road, and this especially true when the Forest
Service prohibits foresting by helicopter.
58
exception, if it permits timber harvesting at all, is extremely
limited.
iii. Application.
The
Court
finds
that
the
Forest
Service’s
alternatives
analysis for the Roadless Rule violated NEPA and its implementing
regulations
because
the
agency
did
not
provide
an
adequate
discussion of the alternatives it was required to address. This is
true in several respects.
First, the Court notes that, in reality, the Forest Service
only considered two action alternatives in implementing the “most
significant land conservation initiative in nearly a century.” The
number of alternatives an agency must consider, and the requisite
level of detail it must give to those alternatives, are directly
proportional to the scope and nature of the proposed action.
The
Forest Service stated that it did not consider various components
of the alternatives, “such as mitigation, geographical scope, and
exemptions for specific roadless areas” because it would create an
“unmanageably large number of alternatives.” (AR, Doc. 4609, at p.
2-15).
Thus, the Court is left to believe that the Forest Service
violated CEQ regulations because it did not rigorously explore
reasonable alternatives and did not include appropriate mitigation
59
measures
in
the
proposed
alternatives.
See
40
C.F.R.
§
1502.14(a),(b), (f). This Court will not permit the Forest Service
to
promulgate
a
rule
of
national
scope
and
then
eliminate
alternatives simply because it finds considering a large number of
them “unmanageable.”
Second, the Forest Service eliminated some alternatives on the
basis that they were covered by procedural aspect of the Roadless
Rule and then eliminated the procedural aspect of the Roadless
Rule,
without
giving
further
consideration
to
the
eliminated
alternatives. The Forest Service stated that the Roadless Rule was
promulgated for two purposes:
that
have
the
characteristics
greatest
of
(1) to immediately stop activities
likelihood
roadless
areas;
of
and
degrading
(2)
to
desirable
ensure
that
ecological and social characteristics of inventoried roadless areas
were
identified
efforts.
and
evaluated
through
local
forest
planning
However, the Forest Service unilaterally, and without
notice to the public, eliminated the latter purpose from the rule
when it removed the “procedural aspects” of the Roadless Rule.
As
a result, alternatives that were eliminated from consideration in
the draft EIS on the grounds that the procedural aspect of the
60
Roadless Rule precluded further examination, should have been
reevaluated.
For example, the mineral withdrawal exemptions were eliminated
from study because such activities could be proposed through the
implementation
of
the
procedural
proposals to local forest managers.
alternatives,
i.e.,
through
(AR, Doc. 1362, at p. 2-18).
However, after the final EIS was published, and the procedural
aspect of the rule was eliminated, the Forest Service did not
reevaluate the need for mineral withdrawal exemptions. Instead, it
simply stated that mineral withdrawals in inventoried roadless
areas could be proposed “in compliance with Department of Interior
rules and procedures.”
(AR, Doc. 4609, at p. 2-19).
The Forest
Service did not inform the public or the mining industry what these
rules were, nor why it had changed its position between the draft
EIS and the final EIS.
As this example demonstrates, by eliminating the procedural
aspects of the Roadless Rule, the Forest Service eliminated all
reasonable alternatives that could have been evaluated through the
local forest planning process without rigorously exploring or
objectively evaluating this potential large and significant class
of alternatives.
40 C.F.R. § 1502.14(a).
61
In other words, the
range
of
alternatives
inadequate.
considered
by
the
Forest
Service
was
This is because the nature and scope of the proposed
action materially changed between the draft EIS and the final EIS,
and the agency failed to update the list of alternatives it
considered to reflect those changes.
Third, early in the NEPA process, Chief Dombeck informed his
employees that they would only consider alternatives, such as
eliminating road construction, that protected roadless areas.
The
Forest Service then proceeded throughout the NEPA process on the
premise that any road construction whatsoever would degrade the
desirable
characteristics
of
inventoried
roadless
contravention of the purpose of the Roadless Rule.
Reg. 3244.
areas
in
See 66 Fed.
Neither Federal Defendants nor Defendant-Intervenors
have directed the Court to any evidence considered by the Forest
Service to support this conclusory premise.
Thus, the Court is left with the conclusion that the Forest
Service
did
reasonable
not
rigorously
alternatives
to
explore
the
and
Roadless
objectively
Rule.
40
evaluate
C.F.R.
§
1502.14(a),(b); see also Concerned About Trident v. Rumsfeld, 555
F.2d 817, 827 (D.C. Cir. 1977) (finding conclusory discussion of
alternatives in a final EIS inadequate). The Court’s conclusion is
62
supported by the administrative record.
For example, the Forest
Service eliminated from consideration exceptions to permit road
construction activities for “hazardous fuel reduction treatments,
insect
and
disease
treatments,
and
forest
health
management”
because an “exception for these activities could lead to widespread
road construction in many roadless areas that would be incompatible
with the [Roadless Rule’s] stated purpose and need.”
(AR, Doc.
4609, at p. 2-22). The Forest Service’s cavalier dismissal of such
forest management activities, which have been the environmental
status quo for decades, compels the Court to find that the Forest
Service
did
not
give
each
reasonable
alternative
substantial
treatment in the EIS or take a hard look at the environmental
consequences of its actions.
40 C.F.R. § 1502.14(a)-(b).
The Forest Service’s inadequate alternative analysis was the
result of the agency narrowly defining the scope of its project to
satisfy
a
predetermined
directive
alternatives
by
out
Chief
of
Dombeck,
consideration
which
eliminated
competing
and
existence.
The Court recognizes that the Forest Service did not
have a duty to evaluate alternatives inconsistent with the purpose
of the Roadless Rule or unreasonable alternatives; however, the
Forest Service cannot circumvent NEPA’s alternatives requirement by
63
so narrowly defining its purpose as to eliminate consideration of
such alternatives.
Moreover, there is nothing unreasonable about studying in
detail an alternative that would permit the construction of a road
into a roadless area to protect the forest through active forest
management.
In
this
case,
the
Forest
Service’s
preordained
conception of what a roadless area would be, and its schedule for
implementing the final rule, caused the Forest Service to drive the
Roadless Rule through the administrative process without weighing
the pros and cons of reasonable alternatives to the Roadless Rule.
At no time did the Forest Service stop to consider whether Roadless
Rule was the best idea for the greatest number of people.
Rather,
President Clinton issued his directive on October 13, 1999, and by
the next day, Chief Dombeck had eliminated road construction as an
alternative in inventoried roadless areas.
iv.
The
alternatives
Conclusion.
section
of
the
Roadless
Rule
EIS
was
implemented to justify the Forest Service’s predetermined decision
to prohibit all road construction and timber harvest in roadless
areas, even if such activity was beneficial to the forest.
The
Forest Service’s
its
haste
in
this
64
regard
violated
NEPA
and
implementing regulations. See 40 C.F.R. § 1502.2(g). As a result,
the Forest Service’s promulgation of the Roadless Rule was not in
accordance with law because the agency failed to rigorously explore
and objectively evaluate all reasonable alternatives.
5 U.S.C. §
706(2)(A); Dubois, 102 F.3d at 1289-90.
d.
The Forest Service’s Failure
Site-Specific Analysis.
to
Conduct
a
Wyoming argues that the Forest Service failed to perform the
required site-specific analysis for the Roadless Rule.
Opening Br., at pp. 55-59).
(Pl.’s
Federal Defendants respond that the
Forest Service fulfilled its duty to conduct a site-specific
analysis under NEPA.
(Fed. Defs.’ Resp. Br., at pp. 57-60).
Defendant-Intervenors assert that Wyoming’s site-specific analysis
argument is without merit because it is based entirely on an
inapposite Ninth Circuit decision.
(Def.-Intervenors’ Resp. Br.,
at p. 33-36).
i.
Site-Specific
Analysis
in
Environmental Impact Statement.
an
Three Circuit Courts of Appeal have concluded that NEPA
requires a federal agency to conduct a site-specific analysis of
its proposed action.
Conservation Law Found. of New England v.
General Serv. Admin., 707 F.2d 626, 630-31 (1st Cir. 1983); Sierra
65
Club
v.
Peterson,
717
F.2d
1409,
1414-15
(D.C.
Cir.
1983);
California v. Block, 690 F.2d 753, 763-64 (9th Cir. 1982).
These
courts have reasoned that a federal agency’s duty to conduct a
site-specific analysis is a component of its larger duty under NEPA
to
provide
a
sufficiently
“detailed
statement”
on
which
the
agency’s decisionmakers and the public can base their conclusions.
42
U.S.C.
§
4332(c);
40
C.F.R.
§§
Conservation Law Found., 707 F.2d at 631.
1501.2(b),
1502.16;
The Tenth Circuit has
never held that NEPA requires a federal agency to undertake a
detailed site-specific analysis.
ii.
Application.
Neither the Supreme Court nor the Tenth Circuit has ascribed
to
the
Ninth
Circuit’s
view
that
an
agency
must
conduct
“reasonably thorough” site-specific analysis under NEPA.
California v. Block, 690 F.2d 753, 765 (9th Cir. 1982).
a
See
Wyoming
has made a compelling argument that under California v. Block, the
Forest Service was required to conduct a detailed and thorough
site-specific analysis as part of the Roadless Rule NEPA process.29
iii. Conclusion.
29
However, a strong argument could be made that Kootenai
Tribe, 313 F.3d at 1113-1125, impliedly overruled Block. See
supra note 1.
66
In the absence of a clear statutory or regulatory directive,
and a binding decision on point, this Court will not impose
additional NEPA duties on federal agencies. The Forest Service was
not required to conduct a detailed site-specific analysis of every
forest affected by the Roadless Rule.
Therefore, the Court finds
that the Forest Service’s failure to conduct a site-specific
analysis did not violate NEPA.
e.
The Forest Service’s Failure to Conduct an
Adequate Cumulative Impacts Analysis.
Wyoming argues that the Forest Service violated NEPA when it
promulgated the Roadless Rule because it failed to adequately
consider the cumulative impacts of the Roadless Rule, Planning
Regulations,
Road
Management
Rule,
(Pl.’s Opening Br., at pp. 59-63).
and
Transportation
Policy.
Federal Defendants argue that
the three challenged rules are not so interdependent that the
Forest Service was irrational in implementing the Roadless Rule
without considering the impacts of the Planning Regulations, Road
Management Rule, and Transportation Policy.
Br., at pp. 60-64).
(Fed. Defs.’ Resp.
Defendant-Intervenors argue that the Forest
Service examined “at length” the cumulative impacts of the three
rules and that this was all NEPA required.
Resp. Br., at pp. 36-40).
67
(Def.-Intervenors’
i.
Cumulative Impacts Analysis.
NEPA regulations require an agency to discuss the cumulative
impacts
of
its
proposed
action
in
the
EIS.
40
C.F.R.
§
1508.25(a)(2); Custer County Action Ass’n v. Garvey, 256 F.3d 1024,
1035
(10th
Cir.
2001).
In
turn,
NEPA
regulations
define
a
cumulative impact as “the impact on the environment which results
from the incremental impact of the action when added to other past,
present, and reasonably foreseeable future actions regardless of
what agency . . . or person undertakes such other actions.”
C.F.R.
§
1508.7.
The
agency
must
consider
the
40
cumulative
ecological, aesthetic, historical, cultural, economic, social, or
health effects of its action.
The
Tenth
Circuit
uses
40 C.F.R. § 1508.8(b).
an
independent
utility
test
to
determine whether particular actions can be considered cumulative
impacts of the proposed action.
F.3d at 1173.
Utahns for Better Transp., 305
Under the independent utility test, an agency must
consider the cumulative impacts of other reasonably foreseeable
agency actions if they are so interdependent with the proposed
action that it would be unwise or irrational to complete one
without the others.
the
agency’s
Id.
cumulative
The district court’s duty in reviewing
impacts
68
analysis
is
to
examine
the
administrative record, as a whole, to determine whether the agency
made a reasonable, good faith, objective presentation of those
cumulative impacts sufficient to foster public participation and
informed decisionmaking. Colo. Envtl. Coalition, 185 F.3d at 1177.
ii.
Application.
The Forest Service’s final EIS does not provide an adequate
discussion of the cumulative impacts of the Roadless Rule, Planning
Regulations, Road Management Rule, and Transportation Policy on the
human environment.
The Court finds the Forest Service failed to
make a reasonable, good faith, and objective presentation of the
cumulative impacts of these rules on the environment.
The Forest Service’s final EIS generally analyzes the Roadless
Rule and its alternative effects on the human environment.
(AR,
Doc. 4609, at pp. 3-34 to 3-39, 3-69 to 3-72, 3-111 to 3-117, 3-122
to 3-123, 3-204 to 3-207, 3-227, 3-237, 3-240 to 3-242, 3-251 to 3252, 3-263 to 3-264).
However, the final EIS is completely devoid
of any substantive discussion on the Roadless Rule’s, Planning
Regulations’, Road Management Rule’s, and Transportation Policy’s
cumulative effects on the environment.
(See AR, Doc. 4609, at pp.
3-38 to 3-39, 3-113, 3-396 to 398).
In substance, the Forest
Service stated that it “recognizes that the Roadless Rule together
69
with other proposed and finalized rules and policies could have
cumulative effects.”
(AR, Doc. 4609, at p. 3-396).
The Forest
Service then limited its analysis to the single statement that the
combined effect of these rules would be to “create additional acres
of unroaded areas.”
(AR, Doc. 4609, at p. 3-113; see also AR, Doc.
4609, at p. 3-397).
One need not be an expert in silviculture to
draw that general, predictable, and unhelpful conclusion.
The Court’s finding that the Forest Service did not make a
reasonable,
good
faith,
and
objective
presentation
of
the
cumulative impacts of these rules in the final EIS is based on the
fact
that
these
rules
were
part
of
the
Forest
Service’s
“comprehensive strategy for accomplishing long-term sustainability
of [the national] forests and grasslands.”
(AR, Doc. 2890, at p.
2). This comprehensive strategy was in place even before President
Clinton directed the Forest Service to implement the Roadless Rule.
(See AR, Doc. 4153, at p. 2).
According to the Forest Service, the
interrelated rules would work as follows:
(1) the Roadless Rule
would permanently halt road construction in unroaded portions of
inventoried
roadless
areas
identified
by
RARE
II
and
other
inventories; and (2) the Planning Regulations and Road Management
Rule
would
then
provide
the
process
70
to
evaluate
extending
limitations to uninventoried roadless areas. (AR, Doc. 4153, at p.
2).
The Forest Service’s strategy for implementing these rules
proceeded on a coordinated basis with separate teams working on
each rule, yet routinely communicating with each other to make the
rules more cohesive.
(See AR, Doc. 77; Doc. 104, at p. 2; Doc.
3310; Doc. 4901; Doc. 5106; Doc. 4997; Doc. 5095; and Doc. 5594).
As part of the Forest Service’s coordinated proactive strategy to
implement the rules in a relatively short period of time, it would
conduct day-long meetings on the cumulative effects of these rules
and policies.
(AR, Doc. 4803, at p. 1; AR, Doc. 4153, at p. 2).
Additionally, congressional hearings were held on the potential
cumulative effects of these three rules and the Transportation
Policy.
(AR, Doc. 2815).
At one of those hearings, the Forest
Service was criticized because “the roadless area [draft] EIS does
not
provide
a
comprehensive
analysis
of
these
potential
[cumulative] effects. Instead, [the draft EIS] includes a two-andone-half-page general discussion of the provisions of the three
proposals with broad, non-specific statements of potential effects
without analysis.”
(AR, Doc. 2815, at p. 7).
The final EIS
actually provided less analysis on the cumulative impacts of the
71
rules than the draft EIS.
(Compare AR, Doc. 1362, at pp. 3-240 to
3-242 with AR, Doc. 4609, at pp. 3-392 to 3-394).
The Roadless Rule, Planning Regulations, Road Management Rule,
and Transportation Policy affect land use and transportation in
every national forest in the United States.
Cumulatively, those
rules establish a two-step procedure by which current inventoried
roadless areas are permanently protected and then provide the
procedural mechanism for further protecting uninventoried roadless
areas.
More troubling, however, is the fact that the Forest
Service had devised this “comprehensive strategy” even before
President Clinton directed it to implement the Roadless Rule.
Notwithstanding that it was the Forest Service’s strategy to
promulgate three interrelated rules in close proximity, it never
informed the American public of the cumulative effects of these
rules, or even how the rules operated together.
For
example,
the
Roadless
Rule
provides
four
exceptions for constructing roads in roadless areas.
294.12(b).
limited
36 C.F.R. §
However, even if one of those exceptions applied, the
road could only be built if the proposal met the requirements of
the Road Management Rule.
36 C.F.R. § 212.5(b)(1).
iii. Conclusion.
72
The reasonableness or unreasonableness of the Forest Service’s
road management strategy is of no concern to the Court; however,
the
Forest
Service
had
a
information to the public.
duty
under
NEPA
to
disclose
this
NEPA regulations require a federal
agency to conduct a cumulative impacts analysis of its proposed
action in the EIS when that action is so interrelated with other
actions that it would be irrational to complete one without the
other.
It was irrational for the Forest Service to develop a
comprehensive strategy for implementing interrelated rules and
policies,
carry
out
that
strategy,
and
never
consider
the
cumulative effects of its actions or explain them to the public.
On the administrative record before this Court, the cumulative
impacts analysis was woefully inadequate because those impacts are
potentially significant.
The Forest Service’s contrary conclusion
represents a clear error in judgment. 5 U.S.C. § 706(A)(2); see
also Davis v. Mineta, 302 F.3d 1104, 1126 (10th Cir. 2002).
f.
The Forest Service’s
Supplemental EIS.
Failure
to
Prepare
a
Wyoming argues that the Forest Service improperly failed to
issue a supplemental EIS.
Reply Br., at pp. 27-30).
(Pl.’s Opening Br., at pp. 62-63; Pl.’s
Federal Defendants respond that the
Forest Service was not arbitrary and capricious in failing to
73
prepare a supplemental EIS because none of the changes between the
draft EIS and final Roadless Rule affected the environment in a
significant manner that had not already been considered.
Defs.’ Resp. Br., at pp. 64-66).
(Fed.
Defendant-Intervenors argue that
the Forest Service’s duty to prepare a supplemental EIS was never
triggered by the changes it made to the final Roadless Rule.
(Def.-Intervenors’ Resp. Br., at pp. 40-46).
i.
NEPA
regulations
supplemental EIS if:
An
Agency’s
Duty
Supplemental EIS.
require
a
federal
to
agency
Prepare
to
prepare
a
a
(1) the agency makes substantial changes in
the proposed action that are relevant to environmental concerns; or
(2) there are significant new circumstances or information relevant
to environmental concerns that relate to the proposed action or its
impacts.
40 C.F.R. § 1502.9(c)(1)(i)-(ii).
The federal agency’s
duty to prepare a supplemental EIS is mandatory if either of these
two situations arise.
Dubois v. U.S. Dep’t of Agric., 102 F.3d
1273, 1291-92 (1st Cir. 1996).
This duty arises from NEPA’s
emphasis on public and informed decisionmaking.
Southern Utah
Wilderness Alliance v. Norton, 301 F.3d 1217, 1238 (10th Cir.
2002).
In sum, the “point of a supplemental EIS . . . is to foster
informed and thoughtful agency decisions and to promote public
74
involvement in actions affecting [the] environment.”
Holy Cross
Wilderness Fund v. Madigan, 960 F.2d 1515, 1527 (10th Cir. 1992).
The Tenth Circuit utilizes a two-prong test in evaluating an
agency’s decision not to develop a supplemental EIS. Southern Utah
Wilderness Alliance, 301 F.3d at 1238.
determine
whether
the
agency
took
a
First, the court must
“hard
look”
at
the
new
information to determine whether a supplemental EIS was necessary.
Id.
Under this “hard look” prong, the court may consider whether
the agency:
(1) obtained opinions from its own experts; (2)
obtained opinions from experts outside the agency; (3) gave careful
scientific scrutiny to the new information; (4) responded to all
legitimate concerns raised by the new information; or (5) otherwise
provided a reasoned explanation for the new information’s lack of
significance.
Second,
the
court
must
determine
whether
the
decision not to issue the supplemental EIS was arbitrary and
capricious under the APA.
Id.
Under this prong, an agency acts
arbitrarily and/or capriciously when it adopts substantial changes
that are relevant to environmental concerns in the final EIS and
never presents those changes to the public for review and comment.
Dubois, 102 F.3d at 1293.
ii.
Application.
75
The Court finds that the Forest Service’s decision not to
develop a supplemental EIS when it promulgated the Roadless Rule
violated NEPA regulations.
See 40 C.F.R. § 1502.9(c)(1)(i)-(ii).
The Forest Service made four substantial changes between the draft
EIS and the final EIS and did not prepare a supplemental EIS.
First,
the
final
EIS
eliminated
all
of
the
“procedural
aspects” of the Roadless Rule by incorporating those rules into the
Planning Regulations.
(AR, Doc. 4609, at p. xi; see also 65 Fed.
Reg. 67,529-30). Second, the Forest Service broadened the scope of
the Roadless Rule to include areas with classified roads within
inventoried roadless areas.
(AR, Doc. 4609, at pp. xi, 2-5 & n.3).
Third, the Forest Service identified an additional 4.2 million
acres of roadless areas that would be subject to the Roadless Rule.
Fourth, the Forest Service made a substantial change to the type of
timber harvesting that would be allowed; specifically, the Forest
Service limited the “stewardship exception” in the final Roadless
Rule to harvesting only “small diameter timber.”
294.13(b)(1).
36 C.F.R. §
The Forest Service did not define what constitutes
“small diameter timber,” see 36 C.F.R. § 294.11, nor did it explain
its reasoning for this change.
76
From the beginning, the Forest Service had planned to update
the geographic scope of the Roadless Rule between the draft EIS and
the
final
EIS
because
it
did
not
have
time
to
update
the
inventoried roadless areas. (See, e.g., AR, Doc. 2115, Doc. 2610).
The Forest Service then expanded the geographic scope of the rule
by 4.2 million acres of land and more severely limited timber
harvest exceptions within inventoried roadless areas. All this was
done without giving the public notice or an opportunity to comment
on the changes and, in some instances, without describing these
changes in the final EIS’s “summary of changes.”
Thus, the Forest Service had new information available to it
before it started the draft EIS but intentionally waited to update
its twenty-year-old roadless inventories until it issued the final
EIS,
because
information.
it
“did
not
have
time”
to
consider
the
new
This “mad rush” turned the NEPA process on its head.
A careful, objective consideration of the cumulative impacts of the
Forest Service’s actions indicates to the Court that it was only
giving pro forma compliance to the NEPA procedures.
iii. Conclusion.
The Court finds that the changes described above were all
substantial because they directly affected the purpose and scope of
77
the Roadless Rule.
Neither the Federal Defendants nor Defendant-
Intervenors have directed the Court to any discussion in the final
EIS that demonstrates that the Forest Service took a “hard look” at
the environmental consequences of these changes. Additionally, the
Forest Service did not provide a reasoned explanation for the new
information’s lack of significance.
Rather, the Forest Service
found that the addition of 4.2 million acres to the Roadless Rule
and the changes in the exceptions for timber harvest did not even
warrant mentioning in its summary of changes.
Such a summary
dismissal of these substantial changes is evidence of pro forma
compliance in the early stages of the NEPA process. Therefore, the
Court concludes that the Forest Service failed to take a “hard
look” at the new information that it had gathered and substantially
changed
the
final
Roadless
Rule
without
considering
the
environmental consequences of its actions or giving the public an
opportunity to comment on those changes.
The Court recognizes that a federal agency does not have to
issue a supplemental EIS every time new information comes to light.
Southern Utah Wilderness Alliance, 301 F.3d at 1238.
However, in
this case, the Forest Service had new, relevant, and important
information but failed to include that information in the draft EIS
78
simply in order to meet a predetermined schedule that was set for
political reasons.
Then, the Forest Service utilized “updated”
information without informing the public that it was using this
information that it had all along.
However, rather than use the
new information to update the roadless area inventories, the Forest
Service simply eliminated any “confusion” by broadening the scope
of the Roadless Rule beyond that which it even contemplated in its
notice of intent to undertake rulemaking.
This blatant disregard
for the NEPA process and regulations rendered the Forest Service’s
decision not to issue a supplemental EIS arbitrary and capricious.
3.
Conclusion on Wyoming’s NEPA Claims.
The Court FINDS that:
(1) the Forest Service’s decision not
to extend the scoping comment period was arbitrary and capricious;
(2) the Forest Service’s denial of cooperating agency status
without explanation was arbitrary and capricious; (3) the Forest
Service’s failure to rigorously explore and objectively evaluate
all reasonable alternatives was contrary to law; (4) the Forest
Service’s conclusion that its cumulative impacts analysis in the
Roadless Rule Final EIS satisfied its NEPA duties was a clear error
in judgment; and (5) the Forest Service’s decision not to issue a
supplemental EIS was arbitrary, capricious, and contrary to law.
79
In its rush to give President Clinton lasting notoriety in the
annals of environmentalism, the Forest Service’s shortcuts and
bypassing of the procedural requirements of NEPA has done lasting
damage to our very laws designed to protect the environment.
What
was meant to be a rigorous and objective evaluation of alternatives
to the proposed action was given only a once-over lightly.
In sum,
there is no gainsaying the fact that the Roadless Rule was driven
through the administrative process and adopted by the Forest
Service for the political capital of the Clinton administration
without taking the “hard look” that NEPA required.
B.
Wyoming’s Wilderness Act Claims.
Wyoming argues that the Roadless Rule constitutes a de facto
designation
of
“wilderness”
in
contravention
established by the Wilderness Act of 1964.
p. 72; Pl.’s Reply Br., at pp. 35-36).
of
the
process
(Pl.’s Opening Br., at
Federal Defendants respond
that the Roadless Rule does not constitute a de facto designation
of wilderness because it permits the continuation of multiple uses
in inventoried roadless areas that do not require the construction
of new roads – uses such as motorized travel, grazing, and oil and
gas
development.
(Fed.
Defs.’
Resp.
Br.,
at
pp.
69-70).
Defendant-Intervenors contend that the Wilderness Act is “simply
80
irrelevant” in this case because the Roadless Rule does not add any
areas to the National Wilderness Preservation System and does not
apply the strict management restrictions of the Wilderness Act.
The narrow issue before the Court is whether the Forest
Service has usurped Congress’ power regarding access to, and
management
of,
public
lands
by
a
de
facto
designation
of
“wilderness” in violation of the Wilderness Act of 1964.
1.
The Wilderness Act of 1964.
The Property Clause in the United States Constitution provides
Congress
with
the
power
to
enact
all
necessary
rules
regulations respecting the federal government’s property.
Const. art. IV, § 3.
No.
U.S.
Pursuant to this authority, Congress passed
the Wilderness Act in August of 1964.30
H.R. Rep.
and
88-1538.
President
Conf. Rep. No. 88-1829;
Lyndon
Wilderness Act into law on September 4, 1964.
Johnson
signed
the
The Wilderness Act
has been described as “the most far-reaching land preservation
statute ever enacted.”
Robert Glicksman & George Cameron Coggins,
Wilderness in Context, 76 Den. Univ. L. Rev. 383, 387 (1999).
30
The passage of the Wilderness Act by Congress was the
result of a nine-year political struggle. See Michael McCloskey,
The Wilderness Act of 1964: Its Background and Meaning, 45 Or. L.
Rev. 288, 295-301 (1966) (detailing the legislative history of
the Wilderness Act).
81
a.
The Policy and Purpose of the Wilderness Act.
The Wilderness Act declared it the policy of Congress to
“secure for the American people of present and future generations
the benefits of an enduring resource of wilderness.”
1131(a).
16 U.S.C. §
To effectuate this policy, Congress established the
National Wilderness Preservation System (“NWPS”), which would be
composed of congressionally designated “wilderness areas.”
Id.
The Wilderness Act also immediately designated certain areas as
wilderness, id. § 1132(a), and provided the procedure for future
designation of wilderness areas, id. § 1132(b).
In establishing
the NWPS, Congress unambiguously provided that “no Federal lands
shall be designated as ‘wilderness areas’ except as provided for in
[the Wilderness Act] or by a subsequent Act.”
Id. § 1131(a).
Therefore, Congress has the sole power to create and set aside
federally designated wilderness areas pursuant to the Wilderness
Act.
Parker v. United States, 309 F. Supp. 593, 597 (D. Colo.
1970), aff’d, 448 F.2d 793 (10th Cir. 1971).
In fact, the primary
purpose of the Wilderness Act was to provide:
[a] statutory framework for the preservation of
wilderness [that] would permit long-range planning and
assure that no further administrator could arbitrarily or
capriciously either abolish wilderness areas that should
be retained or make wholesale designations of additional
areas in which use would be limited.
82
Id. (quoting H.R. Rep. No. 88-1538).
To this end, the Wilderness
Act removed the Secretary of Agriculture’s and the Forest Service’s
discretion to establish de facto administrative wilderness areas,
a practice the executive branch had engaged in for over forty
years.31
Parker, 309 F. Supp. at 597, aff’d, 448 F.2d at 797.
Instead, the Wilderness Act places the ultimate responsibility for
wilderness designation on Congress.
Id.; 16 U.S.C. § 1131(a).
In
this regard, the Wilderness Act functions as a “proceed slowly
order” until Congress – through the democratic process rather than
by administrative fiat – can strike the proper balance between
multiple uses and preservation.
Parker, 448 F.2d at 795.
This
statutory framework necessarily acts as a limitation on agency
action.
Id. at 797.
Through this statutory procedure, the Wilderness Act provides
the
mechanism
for
preserving
wilderness
31
in
its
natural
and
In 1924, the Forest Service designated a “roadless” or
“institutional wilderness” area for the first time in New Mexico.
See Glicksman, Wilderness in Context, 76 Den. Univ. L. Rev. at
385; McCloskey, The Wilderness Act of 1964: Its Background and
Meaning, 45 Or. L. Rev., at 296. From 1924 until the passage of
the Wilderness Act, the Forest Service exercised broad discretion
in designating areas as “roadless” or “wilderness.” Id. at pp.
296-301. Congress specifically mentioned that the Secretary of
Agriculture and the Forest Service had exercised this broad
discretion by setting aside “88 wilderness type” areas in the
National Forests. H.R. Rep. No. 88-1538.
83
unmodified condition without human settlement for the enjoyment of
present and future generations.
16 U.S.C. § 1131(a).
As the Tenth
Circuit explained, this general purpose of the Wilderness Act is
simply a recognition by Congress of the necessity of preserving one
factor of our natural environment from the “hasty inroads of man.”
Parker, 448 F.2d at 795.
b.
The Definition of Wilderness.
The Federal Government owns approximately 660 million acres of
land.
Glicksman, Wilderness in Context, 76 Den. Univ. L. Rev. at
389.
Since 1964, Congress has designated roughly a 100 million
acres of that land as wilderness.
Act defines “wilderness” as:
Id. at 389-90.
The Wilderness
(1) “an area where the earth and its
community of life are untrammeled by man, where man himself is a
visitor who does not remain”; or (2) “an area of undeveloped
Federal
land
retaining
without
permanent
its
primeval
improvements
or
character
human
and
habitation,
influence,
which
is
protected and managed so as to preserve its natural conditions.”
16 U.S.C. § 1131(c).
area should:
Congress further provided that a wilderness
(1) generally appear to have been primarily affected
by the forces of nature; (2) have outstanding opportunities for
solitude or a primitive and unconfined type of recreation; (3) have
84
at least 5,000 acres of land or be of a sufficient size to make
practicable its preservation and use in an unimpaired condition;
and (4) contain ecological, geological, or other features of
scientific, educational, scenic, or historic value.
Id.
Congress’ definition of “wilderness” contains both objective
and subjective components.
The objective components are that an
area must be roadless and at least 5,000 acres in size.
Glicksman,
Wilderness
390.
in
Context,
76
Den.
Univ.
L.
Rev.
at
The
subjective components, which must be determined by Congress, are
whether the area has outstanding opportunity for solitude or
primitive recreation.
Id.
As the Wilderness Act’s legislative
history makes clear, Congress elevated substance over form through
its definition of “wilderness.”
H.R. Rep. No. 88-1538.
In
explaining the need for a “legislatively authorized wilderness
preservation system,” the House committee classified “wild areas,”
“canoe areas,” “roadless areas,” and “primitive areas” as included
within “wilderness-type areas.”
Id.
The ultimate test for whether an area is “wilderness” is the
absence of human disturbance or activity.
As one scholar has
explained, roads, which necessarily facilitate human disturbance
and activities, “are the coarse filter in identifying and defining
85
wilderness.”
Michael J. Mortimer, The Delegation of Law-Making
Authority to the United States Forest Service: Implications in the
Struggle for Nat’l Forest Mgmt., 54 Admin. L. Rev. 907, 959 (2002)
[hereinafter “Delegation of Law-Making Duty”].
In fact, the Forest Service’s procedures for identifying
wilderness areas, and its rules for protecting wilderness areas in
National Forests, emphasize the importance of the “roadless” nature
of “wilderness areas.”
Service’s
procedure
For example, the first step in the Forest
for
identifying
and
evaluating
potential
wilderness areas is to “identify and inventory all roadless,
undeveloped areas that satisfy the definition of wilderness found
in section 2(c) of the 1964 Wilderness Act.”
U.S. Dep’t of Agric.
Forest Serv. Manual, ch. 1909.12; U.S. Dep’t of Agric. Forest Serv.
Land and Res. Mgmt. Planning Handbook, FSH 1909.12, ch. 7, ¶ 7.1.32
Similarly, the regulations implementing the Wilderness Act provide
that
there
shall
be
“no
temporary
or
permanent
roads”
in
a
congressionally designated wilderness area. 36 C.F.R. § 293.6. In
32
The Forest Service also recognizes an inverse
relationship between human activity and the “purity” of a
wilderness area. U.S. Dep’t of Agric. Forest Serv. Manual, ch.
2320.6 (providing that “the more human influence, the lower the
purity of a wilderness is; the less human influence on a
wilderness, the higher, or purer, the wilderness area could be”).
There is a direct correlation between the availability of roads
and human activity.
86
short, it is “reasonable and supportable to equate roadless areas
with the concept of wilderness.”
Mortimer, The Delegation of Law-
Making Authority, 54 Admin. L. Rev. at 958.
recognized
that
the
areas
subject
to
The Ninth Circuit also
the
Roadless
Rule
were
“pristine wilderness,” Kootenai Tribe, 313 F.3d at 1106, and some
of the “last unspoiled wilderness in our country.”
c.
Id. at 1121.
The Uses Permitted in Wilderness Areas.
The Wilderness Act supplements the Organic Act of 1897, 16
U.S.C. §
475,
1133(a)(1).
and
the
MUSYA,
id. §§
528-531.
16
U.S.C.
§
The Wilderness Act provides protection for a use of
the National Forests that was not contemplated by either the
Organic Act or the MUSYA – preservation of the National Forests for
use and enjoyment of present and future generations.
Id. §§
1131(a), 1133(a).
To
this
end,
the
Wilderness
Act
prohibits
commercial
enterprise, permanent and temporary roads, aircraft and other forms
of
mechanical
transportation,
and
structures
or
installations
within congressionally designated Wilderness Areas.
1133(c).
The
Wilderness
Act
directs
federal
16 U.S.C. §
agencies
with
jurisdiction over congressionally designated wilderness areas to
preserve the wilderness character of the area.
87
Id. § 1133(b).
For
example, the Secretary of Agriculture and the Forest Service are
charged with preserving the “wilderness character” of wilderness
areas in the National Forests.
36 C.F.R. §§ 293.1 to 293.17.
The Wilderness Act then provides seven “special provisions,”
or exceptions to the general use prohibitions, in congressionally
designated wilderness areas.
16 U.S.C. § 1133(d)(1)-(7).
exceptions allow, among other things:
Those
(1) the Forest Service to
take such measures as necessary to control fire, insects, and
diseases; (2) mining uses pursuant to valid existing rights; (3)
grazing uses in wilderness areas; and (4) commercial services to
the extent they are proper for realizing the recreational or other
wilderness purposes of the area.
Id. § 1133(d)(1)-(3),(5).
The
Wilderness Act also provides provisions for allowing a private land
owner to gain access to his land if it is surrounded by wilderness
areas.
Id. § 1134.
Finally, the Wilderness Act respects state
rights by providing that the federal government is not exempt from
state water laws and that the Act does not affect the jurisdiction
of states with respect to wildlife and fish in the National
Forests.
Id. § 1133(d)(6),(7).
2.
Application.
88
On October 13, 1999, President Clinton directed the Forest
Service to develop regulations for long-term protection of most or
all currently inventoried roadless areas.
(AR, Doc. 1535).
The
“currently inventoried roadless areas” to which the President was
referring
were
the
RARE
I
and
RARE
II
inventories.
These
inventories were initiated for the purpose of identifying those
roadless and underdeveloped areas within the National Forest System
that
should
be
further
evaluated
for
addition
to
the
NWPS
established by the Wilderness Act. Mountain States Legal Found. v.
Andrus, 499 F. Supp. 383, 387-88 (D. Wyo. 1980).
correctly
described,
these
inventoried
As the President
roadless
areas
were
generally parcels of 5,000 acres or more and are some of the last
“unprotected wildlands in America” and the remnants of “untrammeled
(AR, Doc. 1535, at p. 2); see also Kootenai Tribe,
wilderness.”
313 F.3d at 1106 (describing areas subject to the Roadless Rule as
“pristine wilderness”).
This rulemaking procedure marked a significant departure from
the statutory framework established by the Wilderness Act in which
the President, the Forest Service, and Congress interacted for the
protection
of
wilderness.
This
was
a
change
because
the
administrative rulemaking would remove Congress – the only body
89
with the sole power to designate wilderness areas – from the
process.
Nevertheless, the Forest Service proceeded with the rulemaking
process.
The 58.5 million acres of National Forest subject to the
Roadless Rule are the result of the RARE II inventory and other
unidentified assessments.
(AR, Doc. 4609, at p. 1-5).
The
Roadless Rule prohibits all road construction in the inventoried
roadless areas.
36 C.F.R. § 294.12(a).
The Roadless Rule does,
however, permit construction of roads in roadless areas in four
limited circumstances:
cases
of
an
(1) to protect public health and safety in
“imminent”
threat
of
flood,
fire,
or
other
“catastrophic event” that, without intervention, would cause loss
of life or property; (2) to conduct an environmental clean up
pursuant to the Comprehensive Environmental Response, Compensation,
and Liability Act, the Clean Water Act, or the Oil Pollution Act;
(3) when a road is needed pursuant to reserved or outstanding
rights or provided for by statute or treaty; and (4) when a road is
needed in conjunction with the continuation, extension, or renewal
of a mineral lease on lands that were under lease when the Roadless
Rule was
published.
36
C.F.R.
90
§
294.12(b)(1)-(3),(7).
The
Roadless Rule also bans all commercial timber harvest subject to
four limited exceptions.
36 C.F.R. § 294.13(a)-(b).
The Forest Service, through the promulgation of the Roadless
Rule, designated 58.5 million acres of National Forest land as a de
facto wilderness area in violation of the Wilderness Act.
The
Court makes this finding for three main reasons.
First, as the Forest Service itself seems to acknowledge, a
roadless forest is synonymous with the Wilderness Act’s definition
of
“wilderness.”
disturbance
and
The
reason
activity
is
in
that
roads
degradation
facilitate
of
human
wilderness
characteristics.
Second, a comparison of the uses permitted in wilderness areas
and those permitted in inventoried roadless areas leads inescapably
to the conclusion that the two types of areas are essentially the
same.
294.13.
Compare 16 U.S.C. § 1133(d) with 36 C.F.R. §§ 294.12,
In fact, uses in inventoried roadless areas are even more
restricted
than
wilderness areas.
those
permitted
in
congressionally
designated
For example, a road could be constructed in a
wilderness area to “control fire, insects, and diseases,” whereas
a road could only be constructed in a roadless area in the “case of
an imminent flood, fire, or other catastrophic event that, without
91
intervention, would cause the loss of life or property.”
Compare
16 U.S.C. § 1133(d)(1) with 36 C.F.R. § 294.12(b)(1).
Third, the fact that most, if not all, of the inventoried
roadless areas were based on the RARE II inventories, which were
designed
to
recommend
wilderness
areas
to
Congress,
further
evidences that the Forest Service usurped congressional authority.
One of the stated purposes of the Wilderness Act was to assure that
no
future
administrator
could
make
wholesale
designations
additional wilderness areas in which use could be limited.
of
Chief
Dombeck, acting at the behest of President Clinton, acted directly
contrary to this fundamental purpose of the Wilderness Act.
The Federal Defendants argue that the Forest Service did not
create a de facto wilderness area because the Roadless Rule, unlike
a wilderness designation, permits the continuation of multiple uses
including motorized uses, grazing, and oil and gas development that
do not require the construction of new roads.
Br., at p. 70).
(Fed. Defs.’ Resp.
This argument fails because all of those uses
would, in fact, require the construction or use of a road.
For
example, one could not meaningfully set cattle out to pasture in a
roadless area with no way of rounding those cattle back up or
trucking them in and out of the forest allotment (cattle drives now
92
days
are
just
performed
for
tourists);
or,
one
could
not
meaningfully explore or drill for oil and gas without access by
road into the roadless areas.
Congress unambiguously established in the Wilderness Act that
it had the sole authority to designate areas within the National
Forest
System
as
“wilderness.”
To
allow
the
Secretary
of
Agriculture and the Forest Service to establish their own system of
de
facto
administrative
wilderness
through
administrative
rulemaking negates the system of wilderness designation established
by Congress.
Mountain States Legal Found. v. Andrus, 499 F. Supp.
383, 394 (D. Wyo. 1980).
3.
Conclusion.
For the aforementioned reasons, the Court FINDS the Roadless
Rule was promulgated in violation of the Wilderness Act of 1964.
Accordingly, the Court must set the Roadless Rule aside because it
was
promulgated
in
excess
jurisdiction and authority.
C.
of
Forest
Service’s
statutory
5 U.S.C. § 706(2)(C).
Wyoming’s Challenges to the Roadless Rule under other
Federal Statutes.
Wyoming also argues that the Roadless Rule violates the NFMA,
the MUSYA, the Wyoming Wilderness Act, the National Historic
Preservation Act, and the Regulatory Flexibility Act.
93
(Pl.’s
Opening Br., at pp. 63-73).
The Court finds that Wyoming failed to
properly raise its claims under the National Historic Preservation
Act, the Wyoming Wilderness Act, and the Regulatory Flexibility Act
because its failure to cite any authority in support of those
claims in its opening brief waived those claims.33
Boone v.
Carlsbad Bancorp. Inc., 972 F.2d 1545, 1554 n.6 (10th Cir. 1990).
Wyoming properly raised its claims under the NFMA and the
MUSYA. However, because the Court has found that the Roadless Rule
violates NEPA and the Wilderness Act, the Court need not decide, at
this juncture, whether the Roadless Rule violates the NFMA or the
MUSYA.
Accordingly, Wyoming’s request for Declaratory and Injunctive
Relief under the National Historic Preservation Act, the Wyoming
Wilderness Act, and the Regulatory Flexibility Act is DENIED.
The
Court will refrain from ruling on Wyoming’s NFMA and MUSYA claims
at this time.
III. Equitable Relief.
33
The Court notes that while Wyoming’s argument under the
MUSYA and the Wilderness Act is short, those claims were not
waived because Wyoming cited the specific statutory sections
which it alleged that Defendants violated. In contrast, Wyoming
did not cite any provisions of the Wyoming Wilderness Act, the
National Historic Preservation Act, or the Regulatory Flexibility
Act.
94
Wyoming argues that the Roadless Rule must be permanently
enjoined because it was promulgated illegally and will continue to
cause irreparable harm to America’s National Forests. (Pl.’s Reply
Br., at pp. 39).
Federal Defendants argue that a permanent
injunction should not issue because Wyoming has made no showing
that broad injunctive relief is appropriate.
Br., at p. 72).
argument.
A.
(Fed. Defs.’ Resp.
Defendant-Intervenors make essentially the same
(Def.-Intervenors’ Resp. Br., at pp. 60-61).
Standards for Granting a Permanent Injunction.
The decision to grant an injunction lies in the discretion of
the district court.
Prows v. Fed. Bureau of Prisons, 981 F.2d 466,
468 (10th Cir. 1992).
The most important factor in the district
court’s decision to grant an injunction is whether the facts
indicate a danger of future violations of the law.
Roe v. Cheyenne
Mountain Conference, 124 F.3d 1221, 1230 (10th Cir. 1997).
A permanent injunction may issue only when the remedy at law
is inadequate to compensate a party for the injury sustained. TriState Generation and Transmission Ass’n v. Shoshone River Power,
Inc., 874 F.2d 1346, 1353 (10th Cir. 1989).
The party seeking a
permanent injunction has the burden of demonstrating:
violation
of
federal
law;
(2)
95
irreparable
harm
(1) a
unless
the
injunction is issued; (3) the harm from the violation outweighs the
harm that the injunction may cause the opposing party; and (4) the
injunction is not adverse to the public interest.
Amoco Prod. Co.
v. Village of Gambell, 480 U.S. 531, 546 n.12 (1987); Greater
Yellowstone Coalition v. Flowers, 321 F.3d 1250, 1255 (10th Cir.
2003).
The right to relief must be unequivocal before a federal
court may exercise its discretion to grant a permanent injunction
because of the extraordinary nature of such a remedy.
Shoshone
River Power, Inc., 874 F.2d at 1354.
B.
Application.
While the Court has always been mindful of the fact that an
extraordinary remedy like an injunction should be sparingly used,
the undersigned has also been sworn to uphold our laws, like NEPA
and the Wilderness Act.
The Court cannot condone what the Forest
Service has done in its rush to provide environmental fame for a
President in the last days of his term.
The Court therefore must
find that the Roadless Rule should be permanently enjoined because
allowing
the
Roadless
Rule
to
stand,
as
promulgated,
would
constitute a judicial acquiescence in a continuing violation of the
Wilderness Act.
See Roe, 124 F.3d at 1230.
96
Additionally, the
Court
finds
that
Wyoming
has
unequivocally
demonstrated
each
element required for a permanent injunction to issue.
First, Wyoming has proven that the Forest Service violated
NEPA and the Wilderness Act when it promulgated the Roadless Rule.
Second, Wyoming has demonstrated that there is a significant
risk that its state forests, which are contiguous to National
Forests, may be harmed because of the Roadless Rule.
This risk of
injury cannot be compensated by monetary damages, and may, in fact,
cause irreversible damage to the environment.
Moreover, harm to
the environment throughout the country can be presumed when an
agency fails to comply with NEPA.
Davis v. Mineta, 302 F.3d 1104,
1114 (10th Cir. 2002).
Third, this potential harm to the environment is great when
compared to the minimal harm, if any, that the Forest Service will
suffer should the injunction issue. The Forest Service’s injury is
de minimis because the agency will simply be required to comply
with federal law if it elects to re-promulgate another roadless
rule, or a variant of the current rule.
Ordinarily, the proper
remedy for a procedural violation of NEPA would be the issuance of
a temporary injunction until the agency could remedy the procedural
defects in its process.
However, in this exceptional case, the
97
Forest Service’s entire NEPA process was flawed and marred with
arbitrary
and
unreasonably
capricious
self-imposed
decisions
that
unreasonably
implementing the Roadless Rule.
resulted
short
from
its
deadline
for
Moreover, the Roadless Rule, as
now enacted, creates 58.5 million acres of de facto wilderness
areas.
This serious violation of the Wilderness Act, and the
removal of Congress from the process of wilderness designation, was
an aggrandizement of power by the Forest Service in violation of an
unequivocal act of Congress and the United States Constitution.
Finally, requiring the Forest Service to comply with the
Wilderness Act and NEPA is not adverse to the public interest.
In
the Forest Service’s desire to create a “legacy” for itself and the
Clinton administration through the Roadless Rule, (see AR, Doc.
2315), the Forest Service lost sight of its mission – “to provide
the greatest amount of good for the greatest amount of people in
the long run.”
Requiring the Forest Service to allow states,
individuals, and industries to meaningfully participate in the NEPA
process is the only way to remedy the many procedural violations
that occurred during the promulgation of the Roadless Rule.
More
than likely, such participation would seriously change the nature
98
and scope of the Roadless Rule.
In other words, the Forest Service
must start over.
Conclusion
In promulgating the Roadless Rule, the Forest Service violated
the National Environmental Policy Act and the Wilderness Act.
With respect to the latter, NEPA’s purpose is to prescribe the
process for the public to meaningfully participate in a federal
agency’s
major
federal
action
that
quality of the human environment.
where
the
agency
action
was
significantly
affects
the
In a case as important as this,
driven
by
political
haste
and
evidenced pro forma compliance with NEPA, it is the province of the
Court under NEPA to safeguard the public by telling the government
that more study is needed.
With respect to the former, the Wilderness Act’s purpose is to
prescribe the procedure for designation of wilderness areas and to
divest the Department of Agriculture of such authority.
While it
“must be admitted that it is difficult to define the line which
separates legislative power to make laws, from administrative
authority
to
make
regulations[,]”
one
thing
is
clear:
“The
Secretary of Agriculture [cannot] make regulations for any and
every purpose.”
United States v. Grimaud, 220 U.S. 506, 517, 522
99
(1911).
In this case, the Forest Service’s designation of 58.5
million acres as “roadless areas” was a thinly veiled attempt to
designate
“wilderness
areas”
in
violation
of
the
clear
and
unambiguous process established by the Wilderness Act for such
designation.
It is the duty of this Court to enforce the laws as
written by Congress.
For all the aforementioned reasons, the Court FINDS that: (1)
Wyoming’s challenges to the 2000 Planning Regulations, the Road
Management Rule, and the Transportation Policy are not ripe for
judicial review; (2) Wyoming has waived its claims under the
National Historic Preservation Act, the Wyoming Wilderness Act, and
the
Regulatory
challenge
the
Flexibility
Roadless
Act;
Rule;
(3)
and
Wyoming
(4)
the
has
standing
Roadless
Rule
to
was
promulgated in violation of the National Environmental Policy Act
and the Wilderness Act.
aside.
As a result, the Roadless Rule must be set
5 U.S.C. § 706(2)(A),(C).
Therefore, the Court ORDERS that the Roadless Rule, 36 C.F.R.
§§ 294.10 to 294.14, be permanently enjoined.
Dated this
14th
day of July, 2003.
/s/
Clarence A. Brimmer
United States District Court Judge
100
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| File Modified | 2003-07-14 |
| File Created | 2003-07-14 |