Wyoming Sawmills Inc. v. United States Forest Service

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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