F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
SEP 20 2004
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT
WYOMING SAWMILLS
INCORPORATED, a Wyoming
corporation,
Plaintiff-Appellant,
v.
UNITED STATES FOREST SERVICE;
and ANN M. VENEMAN, Secretary, U.S.
Department of Agriculture; DALE N.
BOSWORTH, Chief, U.S. Forest Service;
RICK D. CABLES, Regional Forester,
Region II, U.S. Forest Service; and BILL
BASS, Supervisor, Bighorn National
Forest, all in their official capacities,
Defendants-Appellees, No. 02-8009
and
MEDICINE WHEEL COALITION ON
SACRED SITES OF NORTH
AMERICA,
Defendants-Intervenors-Appellees.
NATIONAL CONGRESS OF
AMERICAN INDIANS AND
NATIONAL TRUST FOR HISTORICAL
PRESERVATION; BECKET FUND FOR
RELIGIOUS LIBERTY AND VARIOUS
CHRISTIAN, JEWISH AND MUSLIM
ORGANIZATIONS,
Amici Curiae.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF WYOMING
(D.C. No. 99-CV-0031-J)
William Davis Thode, Esq., (William Perry Pendley, Esq., with him on the briefs)
Mountain States Legal Foundation, Lakewood, Colorado, for Plaintiff-Appellant.
David C. Shilton, Attorney, (Kelly A. Johnson, Acting Assistant Attorney General,
Environment and Natural Resources Division, Matthew H. Mead, United States Attorney,
Carol A. Statkus, Assistant United States Attorney, E. Anne Peterson, Attorney, with him
on the brief) United States Department of Justice, Washington, D.C., for Defendants-
Appellees.
Jack F. Trope, (Andy Baldwin, Baldwin & Crocker, P.C., Lander, Wyoming, with him on
the brief) Association on American Indian Affairs, Rockville, Maryland, for Intervenor-
Appellee.
Steven J. Gunn, Jerome N. Frank Legal Services Org., New Haven, Connecticut, Walter
R. Echo-Hawk, Jr. and Steven C. Moore, Native American Rights Fund, Boulder,
Colorado, and Paul W. Edmondson, Elizabeth S. Merritt, and Anita C. Canovas, National
Trust for Historic Preservation, Washington, D.C., filed an Amicus Curiae Brief for
National Congress of American Indians and National Trust for Historical Preservation in
support of Appellees.
Anthony Picarello, Roman Storzer, and Derek L. Gaubatz, The Becket Fund for Religious
Liberty, Washington, D.C., and Robert L. Greene, The Law Offices of Robert L. Greene,
New York, New York, filed an Amicus Curiae Brief for The Becket Fund for Religious
Liberty, in support of appellees.
Before HENRY, HOLLOWAY and MURPHY, Circuit Judges.
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HOLLOWAY, Circuit Judge.
Plaintiff-appellant Wyoming Sawmills Incorporated brings this appeal from the
district court’s order dismissing plaintiff’s claim of violation of the Constitution’s
Establishment Clause and holding against plaintiff on the merits of its claims of violation of
the National Forest Management Act.1 Plaintiff commenced this action in the district court
after the United States Forest Service had rejected plaintiff’s challenges to the Historic
Preservation Plan issued by the Forest Service for the management of the Medicine Wheel
National Historic Landmark and Vicinity. Named as defendants in the complaint were the
Forest Service, the Secretary of Agriculture (who is the cabinet officer with authority over
the Forest Service), and three individual officers of the Service, all of whom will be referred
to herein as the Forest Service or just the Service. The Medicine Wheel Coalition on Sacred
Sites of North America was permitted to intervene in the district court and is aligned with the
Service as an appellee in this court.
I
The Medicine Wheel National Historic Landmark was created in 1969 to preserve the
Medicine Wheel, a prehistoric stone circle about 80 feet in diameter that was constructed by
the aboriginal peoples of North America. The wheel includes a large cairn in the center and
1
The district court’s opinion is published at 179 F.Supp.2d 1279 (D. Wyo. 2001), and
includes a more detailed description of the background of the litigation.
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28 radiating spokes of rocks. Although the age of the structure is unknown, archeological
evidence indicates that human presence in the area goes back for 7,500 years or more. Many
tepee rings, trails, and other artifacts and traces of human habitation are found in the vicinity.
A number of Native American tribes consider the Wheel to be sacred.
The Medicine Wheel is located on Medicine Mountain in the Bighorn National Forest
in north central Wyoming. In 1957, approximately 200 acres in the Bighorn National Forest
were set aside for the preservation of the Wheel, and designation as a National Historic
Landmark followed twelve years later. In the 1980s, the Forest Service began to reconsider
the level of protection afforded the area. An increase in the number of visitors to the
monument had raised concerns of visitor safety and concern that the features and artifacts
were at risk. On the other hand, apparently some officials were of the view that the flow of
visitors should be facilitated.
In 1991, the process resulted in the publication of a Draft Environmental Impact
Statement (DEIS) which set out management alternatives. The preferred alternative set out
in the DEIS called for road construction and improvements to allow unrestricted vehicular
access except during times of ceremonial use of the Wheel, construction of an enlarged
parking lot adjacent to the Wheel, and so forth. The Forest Service received more than 300
comments on the DEIS, many of which were critical and called for an approach more
sensitive to the concerns of Native Americans.
In response, the Service withdrew the proposal and began a more intensive
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consultation process with the Wyoming State Historic preservation Officer and the federal
Advisory Council on Historic Preservation.2 The Big Horn County Commissioners, the
Medicine Wheel Coalition on Sacred Sites of North America, the Medicine Wheel Alliance,
and the Federal Aviation Administration3 also became “Consulting Parties” in the
development of plans for management of the site. The Consulting Parties entered into a
Memorandum of Agreement (MOA) which established that “the management priorities for
management for the Medicine Wheel are its protection and continued traditional cultural use
consistent with Section 110(f) of the [National Historic Preservation] Act.” I Aplt. App. 91.
The Consulting Parties comprised a committee for planning management of the site.
Plaintiff notes that no representative of commercial interests was involved in this process.
The Forest Service agreed in the MOA to close a portion of Forest Development Road (FDR)
12, which provides access to the Medicine Wheel; an exemption to the closing was made for
the “special needs of traditional religious practitioners” to reach the site. (As will be seen,
the alleged impact on logging of the decision to close FDR 12 is important to plaintiff’s
action). The term of the MOA appears to have been quite brief; it apparently was executed
in mid-1993 and provided that it was to expire on January 1, 1994.
On August 29, 1994, the Forest Service published a Programmatic Agreement with
the Consulting Parties, the stated purpose of which was to develop a plan for the long term
2
The Service is required to consult with other federal, state, and local agencies and Indian
tribes by the National Historic Preservation Act, 16 U.S.C. § 470h-2(a)(2).
3
The FAA was involved because it has operated a radar site on the mountain since 1962.
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management of the Medicine Wheel and Medicine Mountain. As part of this agreement, the
Service prohibited, temporarily, any new “undertakings” in an area within 2.5 miles of the
Medicine Wheel, including any new mining or timber harvesting, until the anticipated
Historic Preservation Plan could be completed and adopted.
In September 1996, the Service adopted the long-term plan now at issue, titled the
Historic Preservation Plan for the Medicine Wheel National Historic Landmark and Medicine
Mountain (the HPP). The Service implemented the HPP on October 7, 1996, by issuing
Amendment 12 to the Bighorn National Forest Plan;4 Amendment 12 included a “Decision
Notice and Finding of No Significant Impact,” and Environmental Assessment. III Aplt.
App. 573 et seq.
The HPP provides that the Forest Service will consult with the other parties to the
HPP for any project within an “Area of Consultation” around the monument. The “Area of
Consultation” is considerably larger than the National Historic Landmark, covering an
estimated 18,000 to 20,000 acres. The purpose of the consultation envisioned by the HPP
is to facilitate the consideration of means to minimize impacts to historic resources and
traditional cultural use.
The HPP recognizes explicitly that the cultural and historic importance of the
Medicine Wheel is, for many Native Americans, an element of their religious tradition.
4
A forest plan, or land and resource management plan, is a planning document that guides
natural resource management activities in a national forest over a period of ten years or more.
See 16 U.S.C. § 1604.
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Indeed, plaintiff points to the fact that the first page of each of the nine major sections of the
HPP includes this statement: “The purpose of this HPP is to ensure that the Medicine Wheel
and Medicine Mountain are managed in a manner that protects the integrity of the site as a
sacred site and a nationally important traditional cultural property.” E.g., II Aplt. App. 263.
The Forest Service points out that preservation of the Medicine Wheel is consistent
with the Service’s responsibilities under a number of statutes. The Environmental
Assessment produced to evaluate the environmental effects of the HPP recites:
The Forest Service is required by law to protect and preserve National Historic
Landmarks and historic properties. These laws include the Antiquities Act of
1906, the Historic Sites Act of 1935, the National Historic Preservation Act of
1966, the Archaeological and Historic Resources Preservation Act of 1974, the
American Indian Religious Freedom Act of 1978, the Archaeological
Resources Act of 1979 (all as amended). In addition, Executive Order No.
13007 signed by President Clinton, May 24, 1996, orders Federal agencies to
accommodate access to and ceremonial use of Indian sacred sites by Indian
religious practitioners and avoid adversely affecting the physical integrity of
such sacred sites.
III Aplt. App. 582.
Plaintiff Wyoming Sawmills is a commercial timber company located in Sheridan
County, Wyoming. It has been the primary purchaser of timber from the Bighorn National
Forest for over 30 years. In addition to challenging the HPP, plaintiff’s complaint also
addressed the Forest Service’s decision not to hold one particular timber sale that it had
proposed. The Service had, in September 1997, advertised for bidding on a timber sale in
an area referred to as Horse Creek. The Service canceled the sale after receiving bids but
before opening the bids, citing a “procedural error” in having failed to consult formally with
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the parties to the HPP. Internal documents indicated that the Service planned to re-
advertise the sale and to proceed with it. However, after consulting with the other parties to
the HPP and after further deliberations, the Service identified several potential problems with
the proposed sale, including “process violations, conflicting data, and incomplete [National
Environmental Policy Act] analysis.” As a result, the Service never conducted a sale of
timber from the Horse Creek area; on the other hand, the Service did not decide to
permanently cancel the project.
II
The Forest Service and intervenor defendant Coalition moved to dismiss the
complaint, and alternatively moved for judgment as a matter of law. As relevant to this
appeal, the district court addressed issues of standing for plaintiff’s First Amendment claim
and addressed on its merits plaintiff’s claim of violation of the National Forest Management
Act.
The district court concluded that plaintiff did not have standing to bring its First
Amendment claims. We discuss below the concept of standing generally and the elements
of standing that the judge found were satisfied. The judge held that plaintiff lacked standing
as to the First Amendment claims because the court could not remedy the constitutional
wrongs plaintiff had alleged. The judge first determined that the legal harm suffered was,
essentially, the loss of the opportunity to bid on timber sales, an injury which flowed from
the decision to close FDR 12, to withdraw the Horse Creek timber sale, and other restrictions
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put in place by the HPP. The judge concluded that this injury could not be redressed
because, even if the HPP were declared constitutionally invalid, the Forest Service would still
be under no obligation to sell any timber from the Area of Consultation. The judge cited
Mount Evans Co. v. Madigan, 14 F.3d 1444 (10th Cir. 1994); Wyoming v. Lujan, 969 F.2d
877 (10th Cir. 1992); Ash Creek Mining Co. v. Lujan, 969 F.2d 868 (10th Cir. 1992); and
Baca v. King, 92 F.3d 1031 (10th Cir. 1996).
The district judge then considered plaintiff’s claim that the Forest Service had violated
its own regulations and the National Forest Management Act (NFMA) in adopting the HPP
by means of Amendment 12 to the Forest Management Plan. After concluding that the
plaintiff had established standing to advance that claim, the judge ruled against the plaintiff
on the merits. The gist of the district court’s ruling on this claim is that the procedural
protections which plaintiff had invoked were not, in fact, required because Amendment 12
was not a “significant” alteration of the Forest Management Plan.5
III
A
We review de novo the district court’s determination that plaintiff lacked standing to
pursue its First Amendment claims. See Hackford v. Babbitt, 14 F.3d 1457, 1465 (10th Cir.
1994).
The district court also held that the plaintiff lacked standing to bring the claim alleged in
5
the complaint under the National Environmental Policy Act, and ruled against plaintiff on the
merits of its claim under the Federal Advisory Committee Act. Plaintiff has not appealed these
holdings of the district court.
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[T]he irreducible constitutional minimum of standing contains three elements.
First, the plaintiff must have suffered an “injury in fact” – an invasion of a
legally protected interest which is (a) concrete and particularized, and (b)
“actual or imminent, not ‘conjectural’ or ‘hypothetical.’” Second, there must
be a causal connection between the injury and the conduct complained of – .
. . . Third, it must be “likely,” as opposed to merely “speculative,” that the
injury will be “redressed by a favorable decision.”
Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992) (internal citations omitted). The
burden is on the plaintiff, as the party asserting jurisdiction, to establish these elements. Id.
at 561. Further, “each element must be supported in the same way as any other matter on
which the plaintiff bears the burden of proof, i.e., with the manner and degree of evidence
required at the successive stages of the litigation.” Id.
The district court held that plaintiff had met its burden at the pleading stage of
showing an injury in fact because plaintiff had pleaded that it had lost the right to bid on
timber contracts as a result of the adoption of the HPP. The complaint also alleges that this
deprivation of opportunity was a constitutional injury because it was based on the Service’s
decision to manage Medicine Mountain as a sacred site in violation of the First Amendment’s
Establishment Clause. Plaintiff asserts on appeal that the district court was correct in this
determination but that the court erred in rejecting plaintiff’s argument that it also was injured
because it was “directly affected” by the management of Medicine Mountain as a sacred site.6
We address this latter point first.
6
In the district court plaintiff also claimed other injuries, but its appellate contentions are
limited to the two alleged injuries stated in the text.
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B
Plaintiff contends that it has standing to complain of the alleged violation of the
Establishment Clause – independent of the alleged loss of opportunity to bid on timber sales,
which is discussed infra – because it is “directly affected” by the Service’s adoption of the
HPP, representing the decision to manage Medicine Mountain as a sacred site. Plaintiff
relies on Abbington School Dist. v. Schempp, 374 U.S. 203, 224 n.9 (1963), and its progeny,
including two cases from this court, Robinson v. City of Edmond, 68 F.3d 1226 (10th Cir.
1995), and Foremaster v. City of St. George, 882 F.2d 1485, 1489 (10th Cir. 1989).
The Forest Service, in its brief, expresses doubt as to whether a for-profit corporation
can sustain a non-economic injury under the Establishment Clause. Whatever the answer to
that question may be, we conclude that this plaintiff has not alleged such an injury. In its
attempt to explain how it has been directly affected, plaintiff repeatedly refers to the alleged
restrictions on timber cutting which it says will follow from the HPP. Plaintiff asserts that
it is directly affected “by the loss of the right to have federal land classified consistently with
the Establishment Clause and the loss of the opportunity to bid for timber contracts.”
Plaintiff-Appellant’s Opening Brief at 20. Similarly, plaintiff says that it “directed its
complaint against . . . the decision of the Forest Service to close 50,000 acres . . . to timber
harvesting” as a result of the adoption of the HPP. Id. at 21, n.8. Elsewhere, plaintiff very
similarly asserts that “the lost opportunity to bid demonstrates that Wyoming Sawmills is
‘directly affected’ by the HPP and therefore has standing.” Plaintiff-Appellant’s Reply Brief
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at 4.
We discern no allegation of cognizable injury separate from the alleged loss of
opportunity for profitable logging. Plaintiff’s invocation of such religious symbolism cases
as Foremaster is unpersuasive. As an artificial person, plaintiff has not shown how it
experienced the kind of constitutional injury that has been found in such cases. Instead, its
arguments repeatedly refer to and rely on the alleged economic injury. We therefore
conclude that plaintiff’s claim for standing must turn on the alleged economic injury of the
loss of opportunity for logging, to which we now turn.
C
We consider here the question whether plaintiff has suffered an economic injury. The
district judge held that the loss of the opportunity to bid on future timber sales was an injury
in fact sufficient to satisfy the first prong of the standing analysis and that the injury was
caused by the defendant’s conduct. On appeal, the Forest Service argues, as an alternative
ground for affirming the judgment below, that plaintiff has not pleaded an injury in fact. We
have previously observed that “each of the three standing elements blends into the others,”
Ash Creek Mining Co. v. Lujan, 969 F.2d 868, 875 (10th Cir. 1992), and we think that the
district judge cannot be faulted for his holding that the plaintiff’s attempt to establish
standing faltered at the third requirement rather than the first. In previous cases we have
applied the standing analysis in this manner, and the district judge faithfully applied our
precedents.
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In Ash Creek the plaintiff was a coal mining company which desired to bid for leases
in an area under federal control. The Secretary of the Interior had decided to remove the tract
from competitive coal leasing so that the tract could be used in a property exchange. The
plaintiff’s attempt to prevent the exchange had previously been rejected on the basis that
there was no final agency action. The exchange was effected and the plaintiff again brought
a legal challenge. We held that the loss of the possibility of obtaining a federal lease for coal
mining was an “injury not redressable by a favorable decision” and so did not give the
plaintiff standing to object to the exchange of lands. 969 F.2d at 874. Indeed, we considered
the issue so clear cut that we noted “detailed discussion” was not necessary. Id. See also
Wyoming v. Lujan, 969 F.2d 877, 880-82 (10th Cir. 1992).
In Mount Evans Co. v. Madigan, 14 F.3d 1444, 1451 (10th Cir. 1994), we similarly
held that plaintiffs who merely hoped to obtain a contractual benefit, but who had no
entitlement to the benefit, lacked standing “because their injuries are not redressable by a
favorable decision.” Plaintiffs in that case had previously held the right to operate the Crest
House on top of Mount Evans, a facility that provided food and souvenir sales, among other
services. The Crest House had been destroyed by fire, and the Forest Service had decided
not to rebuild on the summit. Plaintiffs filed suit to challenge that decision. They argued that
a decision in their favor would require the Service to rebuild, which would give them the
opportunity to compete for the concession contract. Citing Ash Creek, we rejected this
argument, noting that even if a new facility were to be built as plaintiffs desired, there was
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“no guarantee” that plaintiffs would be the successful bidder for the concession contract and
that no court could order the Service to award them the contract. Id.
We cited Ash Creek and Mount Evans with approval in Baca v. King, 92 F.3d 1031,
1036-37 (10th Cir. 1996), in which we held that the plaintiff’s alleged injuries were not
redressable because the only two actions that would remedy the alleged wrongs were an order
for the government to sell the disputed land to the plaintiff or an order compelling the
government to renew the plaintiff’s grazing permit, neither of which were within the power
of the courts to impose because either action was completely within the discretion of the
Secretary of the Interior.
Plaintiff’s arguments on this issue are not persuasive. Plaintiff contends that the
wrongful denial of the opportunity to bid competitively for federal contracts is a sufficient
basis for standing, citing Aderand Constructors, Inc. v. Pena, 515 U.S. 200, 211 (1995).
Plaintiff misstates the holding of that case. Aderand involved a federal program in which
contractors were given financial incentives to hire subcontractors controlled by “socially and
economically disadvantaged individuals,” with “race-based presumptions” included in the
process for identifying such subcontractors. 515 U.S. at 204. The Court said that the “injury
in cases of this kind is that a ‘discriminatory classification prevent[s] the plaintiff from
competing on an equal footing.’” Id. at 211 (quoting Northeastern Fla. Chapter, Associated
Gen. Contractors of America v. Jacksonville, 508 U.S. 656, 667 (1993)). For this type of
case, the Court said, “the aggrieved party ‘need not allege that he would have obtained the
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benefit but for the barrier in order to establish standing.’” Id. (quoting Jacksonville, 508 U.S.
at 666). Plaintiff Wyoming Sawmills has not alleged that it was treated differently from any
other timber company. Aderand is thus inapposite.
Plaintiff asserts that Bryant v. Yellen, 447 U.S. 352, 366-68 (1980), stands for the
proposition that standing is established if the plaintiff seeks to bid for property that “might
become available.” But again, we find that plaintiff has stated the holding of the case in
overly general terms and that the holding does not support plaintiff’s claim for standing in
this matter. The facts of that case are not at all analogous to the facts before this court and
are rather unusual and complicated, but it is sufficient to say that the plaintiffs in that case
sought to purchase lands that the Court held would “likely” become available if the plaintiffs
prevailed. Wyoming Sawmills has not shown that a timber lease would “likely” become
available on the lands within the area of consultation if plaintiff were to have the HPP set
aside. As in Baca, the federal agency has complete discretion as to whether to offer the
opportunity sought by the plaintiff, and accordingly the courts do not have the power to grant
the only relief that would rectify the alleged injury.
Plaintiff similarly contends that the loss of an opportunity to bid was held sufficient
to confer standing in Watt v. Energy Action Educational Foundation, 454 U.S. 151 (1981).
Again, we disagree with plaintiff’s characterization of the holding of the case. In Watt, the
Court noted that the State of California claimed standing on two grounds – first, as an
“involuntary ‘partner’” with the Federal Government in oil and gas leasing, and second, as
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a competitor with the Federal Government in the same endeavor. The Court held that
California had standing on the first basis and did not consider the second claim of standing,
contrary to Wyoming Sawmills’ description of the case. Wyoming Sawmills does not claim
to be an “involuntary partner” with the Forest Service, and its argument is not supported by
Watt.
Wyoming Sawmills also relies on Arkla Exploration Company v. Texas Oil & Gas
Corp., 734 F.2d 347 (8th Cir. 1984). Of course, we are bound by our precedents, discussed
supra, and so would not be free to follow Arkla if it supported plaintiff’s argument, but we
also note that the case is distinguishable. The plaintiff in that case sought the right to bid on
lands which had been offered. 734 F.2d at 353-54.7
We therefore affirm the district court’s holding that plaintiff Wyoming Sawmills does
not have standing to bring its First Amendment claim.
IV
A
In its complaint, plaintiff alleged that Amendment 12 to the Bighorn Forest Plan (the
mechanism by which the HPP was implemented) was a de facto change in the designation
of lands within the Area of Consultation which were previously designated as suitable for
7
In its reply brief, plaintiff cites two cases which do support its argument, Wyoming
Timber Industry Ass’n v. United States Forest Service, 80 F.Supp.2d 1245 (D. Wyo. 2000), and
Mountain States Legal Foundation v. Glickman, 92 F.3d 1228, 1233 (D.C. Cir. 1996), but we
are, of course, bound by our precedents. We note that our position is consistent with that of
another circuit in a case relied on by the Forest Service, Region 8 Forest Service Timber
Purchasers Council v. Alcock, 993 F.2d 800, 808-09 (11th Cir. 1993).
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wood fiber production (i.e., logging).8 Plaintiff alleged, and argues on appeal, that the Forest
Service failed to inquire into and disclose the effects of the HPP when it solicited public
comment on the HPP. Plaintiff also maintains that the Service failed to follow its own Forest
Service Handbook standards for amending the Forest Plan, in violation of the Administrative
Procedures Act (APA).
The district court first found that plaintiff had standing to assert this claim. 179
F.Supp.2d at 1297-98. The judge noted that, because the NFMA does not provide for
judicial review of decisions by the Forest Service, the general provisions of the APA apply.
Under the APA, a person “suffering legal wrong because of agency action” may obtain
judicial review. 5 U.S.C. § 701. The Forest Service did not dispute that the HPP and
Amendment 12 were final agency actions, nor that timber interests are within the zone of
interests protected or regulated by the NFMA. The judge then noted that the standing
requirement of redressability is applied less strictly when, as with this claim, a party is
seeking to enforce a “procedural right.” See id. at 1298 (citing and quoting Lujan v.
Defenders of Wildlife, 504 U.S. 555, 572 n.7 (1992)).
The intervenor-appellee, Medicine Wheel Coalition on Sacred Sites of North America,
challenges plaintiff’s standing to bring its claim under the NFMA, although the Forest
Service does not contest the district court’s ruling on this point. We see no error in the
district court’s holding on this point, however, and proceed to review the merits.
8
Plaintiff alleged that a de facto change of designation was also imposed on some areas
outside the Area of Consultation which were serviced by FDR 11.
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B
Our standard of review is a deferential one, and we will reverse the Forest Service’s
action only if it is “‘arbitrary, capricious, otherwise not in accordance with the law, or not
supported by substantial evidence.’” Citizens’ Committee To Save Our Canyons v. United
States Forest Service, 297 F.3d 1012, 1021 (10th Cir. 2002) (quoting Hoyl v. Babbitt, 129
F.3d 1377, 1382 (10th Cir. 1997)). No deference is due to the district court’s decision in
review of the agency’s action, however. Id.
The National Forest Management Act (NFMA) provides that once enacted, forest
plans may “be amended in any manner whatsoever.” 16 U.S.C. § 1604(f)(4). As we
explained in some detail two years ago, if
an amendment to a forest plan would be “significant,” however, then NFMA
mandates substantial public involvement, planning, and input, requiring, in
essence, the Forest Service “to conduct the same complex planning process
applicable to promulgation of the original plan.” Sierra Club v. Cargill, 11
F.3d 1545, 1551 (10th Cir. 1993) (Seymour, J., dissenting); see 36 C.F.R. §
219.10(f). Among other things, for significant amendments, NFMA requires
the Forest Service to “mak[e] plans or revisions available to the public at
convenient locations in the vicinity of the affected unit for a period of at least
three months before final adoption.” 16 U.S.C. § 1604(d).
Citizens’ Committee, 297 F.3d at 1032-33 (footnote omitted). We have noted before that the
Act does not provide guidance as to what amendments are “significant.” Cargill, 11 F.3d at
1548.
Indeed, applicable regulations “expressly commend[ ] the determination of the
significance of an amendment to the Forest Supervisor's judgment.” Id.
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According to the regulations, “Based on an analysis of the objectives,
guidelines, and other contents of the forest plan, the Forest Supervisor shall
determine whether a proposed amendment would result in a significant change
in the plan.” 36 C.F.R. § 219.10(f) (emphasis added). If the Forest Supervisor
concludes that an amendment is nonsignificant, “[he] may implement the
amendment following appropriate public notification and satisfactory
completion of [National Environmental Policy Act] procedures.” Id.
(emphasis added).
Citizens Committee, 297 F.3d at 1033.
In the absence of specific direction from Congress, the Forest Service has adopted
guidelines in its Forest Service Handbook (FSH) for consideration of the significance of
amendments to a forest plan:
Although the Forest Supervisor has wide discretion in deciding whether an
amendment is significant, the FSH outlines factors the Supervisor must
consider when assessing the significance of a proposed amendment, including
1) the timing of the proposed change relative to the expiration or next
scheduled revision of the Forest Plan (the shorter the remaining life of the
plan, the less significant the amendment); 2) “the location and size of the area
involved in the change” in comparison to the “overall planning area”; 3) the
long-term significance of the project relative to the goals and objectives of the
forest plan; and 4) the impact of the amendment on “management prescription”
– whether the change applies only to a specific situation or whether it likely
will affect future decisions as well. FSH 1909.12 § 5.32(3)(a)-(d).
Id. (footnote omitted). In this appeal, plaintiff accepts these criteria and frames its arguments
in their terms. Accordingly, our review will also focus on these factors.
Although as explained we review the agency’s decision deferentially but without
deference to the district court’s holdings, in this instance we see no error in the district
court’s analysis. The first factor set out above from the FSH is the timing of the amendment.
On this point, Wyoming Sawmills does not challenge the district court’s observation that the
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amendment came late in the planning period, after the period’s first decade. Nor does
Wyoming Sawmills dispute the conclusion that this factor favors a finding that the
amendment was not significant.
Wyoming Sawmills does contest the agency’s, and district court’s, conclusion on the
second factor, the size of the affected area compared to the overall planning area. The
district court agreed with the agency that the size of the affected area is relatively small,
observing that the Area of Consultation is only 18,000 acres or only 1.6% of the Bighorn
National Forest. Plaintiff disputes this conclusion by asserting that it is improper to use the
entire forest in the comparison and by contending that Amendment 12 in fact affects much
more than 18,000 acres.
First, plaintiff contends that the overall planning area which should be used to
determine the relative significance of the affected area should not be the entire forest but only
the slightly more than 200,000 acres that are deemed “available” for timber management.
But plaintiff offers neither reason nor authority to persuade us that the Service abused its
discretion in using the acreage of the entire forest in its analysis. The deference owed to the
Service does not permit us to find an abuse of discretion on this point.
Plaintiff emphatically contends that the decision to implement the HPP will affect an
area much greater than the 18,000 acre Area of Consultation. Plaintiff bases this contention
on the assertion that the decision to close FDR 12 and to bar the use of other roads passing
through the Area of Consultation effectively closes an additional 30,000 acres of the forest
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north and west of the Area of Consultation.
The Forest Service and the intervenor Coalition offer several points in response that
severely undercut the impact of plaintiff’s argument. First, we note that plaintiff has not
explained how it has determined that an additional 30,000 acres are affected. Second, the
district court observed that plaintiff had not shown that FDR 12 had ever been used for
timber hauling; plaintiff has not countered this point. Third, the Forest Service stated
expressly in the HPP that it would “continue to explore opportunities for alternative access
to National Forest System lands north of the Medicine Wheel,” an effort which it described
as the “long term goal” of its management efforts. II Aplt. App. 318. Perhaps most
significantly, the Service determined that implementation of the HPP “will not result in
significant changes to those levels of outputs projected under the current Bighorn National
Forest Plan.” III Aplt. App. 626.9
The HPP does not prohibit logging in the Area of Consultation. At least two roads
within the consultation area are not barred to timber hauling, although the HPP does require
a consultation process for approval of their use. Id. at 571. More generally, Amendment 12
did not change any actual management allocations (for timber or livestock grazing, for
example) but added standards and guidelines to be followed in pursuit of the existing
allocations. Of the 18,000 acres in the Area of Consultation, only about ten per cent was
deemed suitable for timber production. Id. at 347.
9
We note that the withdrawal of the Horse Creek timber sale was not a final agency
action; accordingly, that decision may not be reviewed at this time.
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As we have noted, the third factor is the long-term significance of the project relative
to the goals and objectives of the forest plan. Plaintiff’s inability to convince us that the
Forest Service abused its discretion in its determination of the size of the area involved is
doubly important because its argument on the third factor rests entirely on the premise that
the decision does affect a much larger area than just the Area of Consultation. Similarly,
plaintiff’s argument on the fourth factor is based largely on the same assertions. In view of
the deference due to the Service’s determination, we hold that plaintiff has failed to show
that the Service abused its considerable discretion in finding that Amendment 12 was not a
“significant” change to the overall forest plan.
This holding disposes of plaintiff’s NFMA claim. Plaintiff’s allegations of
deprivation of procedural rights are all dependent on the more stringent procedural
requirements applicable to significant amendments.
Conclusion
The judgment of the district court is AFFIRMED.
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