American Whitewater v. Thomas Tidwell

PUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 13-1960

AMERICAN WHITEWATER; AMERICAN CANOE ASSOCIATION; GEORGIA
CANOEING ASSOCIATION; ATLANTA WHITEWATER CLUB; FOOTHILLS
PADDLING CLUB; WESTERN CAROLINA PADDLERS; JOSEPH C. STUBBS;
BRUCE A. HARE; KENNETH L. STRICKLAND,

Plaintiffs – Appellants,

v.

THOMAS TIDWELL, in his official capacity as Chief of the
United States Forest Service; UNITED STATES FOREST SERVICE,
an agency of the United States Department of Agriculture;
THOMAS J. VILSACK, in his official capacity as Secretary of
the United States Department of Agriculture; UNITED STATES
DEPARTMENT OF AGRICULTURE,

Defendants – Appellees,

and

ELIZABETH AGPAOA, Regional Forester Southern Region United
States Forest Service; MONICA J. SCHWALBACH, Acting Forest
Supervisor Francis Marion and Sumter National Forests;
MARISUE HILLARD, Forest Supervisor National Forests in North
Carolina; GEORGE M. BAIN, Forest Supervisor Chattahoochee-
Oconee National Forests,

Defendants,

RICHARD RUST; HENRY RUST; GOODENOW LLC; GEORGIA FORESTWATCH,

Intervenors – Appellees.
 No. 13-2016

AMERICAN WHITEWATER; AMERICAN CANOE ASSOCIATION; GEORGIA
CANOEING ASSOCIATION; ATLANTA WHITEWATER CLUB; FOOTHILLS
PADDLING CLUB; WESTERN CAROLINA PADDLERS; JOSEPH C. STUBBS;
BRUCE A. HARE; KENNETH L. STRICKLAND,

Plaintiffs – Appellees,

v.

THOMAS TIDWELL, in his official capacity as Chief of the
United States Forest Service; UNITED STATES FOREST SERVICE,
an agency of the United States Department of Agriculture;
THOMAS J. VILSACK, in his official capacity as Secretary of
the United States Department of Agriculture; UNITED STATES
DEPARTMENT OF AGRICULTURE; ELIZABETH AGPAOA, Regional
Forester Southern Region United States Forest Service;
MONICA J. SCHWALBACH, Acting Forest Supervisor Francis
Marion and Sumter National Forests; MARISUE HILLARD, Forest
Supervisor National Forests in North Carolina; GEORGE M.
BAIN, Forest Supervisor Chattahoochee-Oconee National
Forests,

Defendants,

GEORGIA FORESTWATCH,

Intervenor,

and

RICHARD RUST; HENRY RUST; GOODENOW LLC,

Intervenors – Appellants.

No. 13-2017

AMERICAN WHITEWATER; AMERICAN CANOE ASSOCIATION; GEORGIA
CANOEING ASSOCIATION; ATLANTA WHITEWATER CLUB; FOOTHILLS

2
PADDLING CLUB; WESTERN CAROLINA PADDLERS; JOSEPH C. STUBBS;
BRUCE A. HARE; KENNETH L. STRICKLAND,

Plaintiffs – Appellees,

v.

THOMAS TIDWELL, in his official capacity as Chief of the
United States Forest Service; UNITED STATES FOREST SERVICE,
an agency of the United States Department of Agriculture;
THOMAS J. VILSACK, in his official capacity as Secretary of
the United States Department of Agriculture; UNITED STATES
DEPARTMENT OF AGRICULTURE; ELIZABETH AGPAOA, Regional
Forester Southern Region United States Forest Service;
MONICA J. SCHWALBACH, Acting Forest Supervisor Francis
Marion and Sumter National Forests; MARISUE HILLARD, Forest
Supervisor National Forests in North Carolina; GEORGE M.
BAIN, Forest Supervisor Chattahoochee-Oconee National
Forests,

Defendants,

RICHARD RUST; HENRY RUST; GOODENOW LLC,

Intervenors,

and

GEORGIA FORESTWATCH,

Intervenor – Appellant.

Appeals from the United States District Court for the District
of South Carolina, at Anderson. Mary G. Lewis, District Judge.
(8:09-cv-02665-MGL)

Argued: September 17, 2014 Decided: November 5, 2014

Before KING and HARRIS, Circuit Judges, and HAMILTON, Senior
Circuit Judge.

3
Affirmed by published opinion. Judge Harris wrote the opinion,
in which Judge King and Senior Judge Hamilton joined.

ARGUED: James Nathan Galbreath, NELSON GALBREATH, LLC,
Greenville, South Carolina, for Appellants/Cross-Appellees.
Rachel Susanna Doughty, GREENFIRE LAW, Berkeley, California;
Richard Stephen Doughty, Hendersonville, Tennessee; Nina C.
Robertson, UNITED STATES DEPARTMENT OF JUSTICE, Washington,
D.C., for Appellees/Cross-Appellants. ON BRIEF: R. Brian
Hendrix, Collin O'Connor Udell, JACKSON LEWIS LLP, Reston,
Virginia; Cecil H. Nelson, Jr., NELSON GALBREATH, LLC,
Greenville, South Carolina, for Appellants/Cross-Appellees.
Robert G. Dreher, Acting Assistant Attorney General, John P.
Tustin, Ellen J. Durkee, Appellate Section, Environment &
Natural Resources Division, UNITED STATES DEPARTMENT OF JUSTICE,
Washington, D.C.; John H. Douglas, OFFICE OF THE UNITED STATES
ATTORNEY, Charleston, South Carolina; Matthew A Tilden, UNITED
STATES DEPARTMENT OF AGRICULTURE, Washington, D.C., for
Appellees/Cross-Appellants. D. Kent Safriet, Mohammad O. Jazil,
HOPPING GREEN & SAMS, P.A., for Intervenors-Appellees/Cross-
Appellants Richard Rust, Henry Rust, and Goodenow LLC.
Alexander M. Bullock, KILPATRICK TOWNSEND & STOCKTON,
Washington, D.C., for Intervenor-Appellee/Cross-Appellant
Georgia ForestWatch.

4
PAMELA HARRIS, Circuit Judge:

In 1974, Congress selected the 57 miles of the Chattooga

River (the “Chattooga” or the “River”) and 15,432 acres of

adjacent land for preservation under the Wild and Scenic Rivers

Act (the “WSRA” or the “Act”), 16 U.S.C. § 1274 et seq. (2006).

Since then, the United States Forest Service (the “Forest

Service”) has managed the Chattooga under the WSRA.

Prior to 2012, longstanding Forest Service policy allowed

non-motorized rafting or “floating” 1 on the lower portions of the

Chattooga, but prohibited the practice on the 21-mile

northernmost section of the River (the “Headwaters”). In 2012,

after a lengthy review, the Forest Service revised its

management plan for the Chattooga to allow floating on most of

the Headwaters during the winter months, when flows are highest

and conditions are best.

American Whitewater, 2 Plaintiff-Appellant, argues that the

revised plan does not go far enough and that the remaining

limits on floating are inconsistent with the WSRA and arbitrary

and capricious in violation of the Administrative Procedure Act

1
We use the term “floating” throughout to refer to the
class of hand-powered, river-going recreational activities that
includes canoeing, kayaking, and whitewater rafting.
2
Together with several other not-for-profit hobbyist
organizations and interested individuals, “American Whitewater.”

5
(the “APA”). 5 U.S.C. § 702 et seq. (2006). On the other hand,

two intervening parties, Georgia ForestWatch (“ForestWatch”), a

not-for-profit environmental group, and the Rust family (the

“Rusts”), argue that the Forest Service's decision to allow any

floating already goes too far. They contend that the WSRA

prohibits any floating on the Headwaters whatsoever, and that

the Forest Service violated the National Environmental Policy

Act (“NEPA”), 42 U.S.C. § 4321 et seq. (2006), in the course of

reaching its decision.

The district court rejected both sets of challenges and

found that the Forest Service's revised plan “carefully

balance[s] the wide-ranging interests advocated by the several

parties and participants.” American Whitewater v. Tidwell, 959

F. Supp. 2d 839, 860 (D.S.C. 2013) (“Tidwell”). We agree with

the district court's well-reasoned opinion and affirm.

I.

A.

The WSRA establishes a national policy to preserve rivers

of “outstandingly remarkable value.” Once designated under the

WSRA, rivers are managed by an administrative agency — in this

case, the Forest Service — to prevent degradation of their

condition and preserve their pristine quality for future

generations. See 16 U.S.C. §§ 1271, 1274, 1281(a) (2006). The

6
statutory command is twofold: the outstandingly remarkable

values, or “ORVs,” that led Congress to designate the river must

be “protecte[d] and enhance[d],” while other uses may be limited

if they substantially interfere with the public’s use of those

ORVs. 16 U.S.C. §§ 1271, 1281(a).

The Forest Service manages the Chattooga through the

Chattooga Wild and Scenic Development Plan. As relevant here,

the original 1976 version of the plan — as well as each of the

subsequent versions published in 1985, 2002 and 2004 — limited

floating to the lower portions of the Chattooga.

American Whitewater first challenged the Forest Service's

ban on floating on the Headwaters in 2002. In 2005, a Forest

Service Reviewing Officer agreed with American Whitewater and

found that the 2004 development plan did not “provide an

adequate basis for continuing the ban” on floating on the

Headwaters. J.A. at 587. 3 He directed the Forest Service to

study the issue and prepare a new plan in accordance with its

results. Id.

To comply with the Reviewing Officer’s ruling, the Forest

Service began by preparing an action plan to establish capacity

limits for use of the Chattooga and to measure the expected

3
Citations herein to “J.A. at __” refer to the contents of
the Joint Appendix filed by the parties in this matter.

7
impact of Headwaters floating on the Chattooga's ORVs. It then

integrated a wide range of data on compatible recreational uses

of the Headwaters in a 2007 report entitled Capacity & Conflict

on the Upper Chattooga River (the “2007 Report”). The Forest

Service also actively involved the public. It held six well-

attended meetings to explain the review process and solicit

feedback. Over seven years, members of the public submitted

more than 4,300 responses and comments.

These efforts culminated in a 2012 Environmental Assessment

presenting the Forest Service’s findings. The Forest Service

reached three conclusions of note here. First, it found that

solitude, the “opportunit[y] for remoteness . . . in a

spectacular scenic setting,” was important to many users of the

Headwaters. J.A. at 962. Second, it found that there was a

significant likelihood of user conflict between floaters and

anglers were the Headwaters floating ban to be lifted

completely. J.A. at 981-82, 1273. Third, it determined that

floating conditions are optimal during the winter months when

flows are heavy, and that fishing conditions are less ideal

during that same time period. J.A. at 974-76.

In connection with these findings, the Forest Service

analyzed several alternative plans for the Headwaters, ranging

from leaving the ban on floating in place and unchanged to

lifting the ban completely. The alternative it selected,

8
numbered Alternative 13A, falls in the middle of that range. It

permits floating on the Headwaters, an activity that the Forest

Service had not allowed since 1976, but subjects that floating

to certain limits. Specifically, floating is permitted on most

of the Headwaters between December 1 and April 30, on days when

flows are greater than 350 cubic feet per second. The Forest

Service explained that this would allow for floating “in the

section of the Chattooga . . . that boaters rated highest for

creek boating” and at the time of year “historically offer[ing]

the best flows for these types of boating opportunities,” while

also preserving “opportunities for year round boat-free, cold

water angling” in the reach that “attracts the highest angling

use” and “provides the least challenging area for whitewater

boating.” J.A. at 1402-03.

Because the Forest Service determined that Alternative 13A

would not have a “significant impact on the human environment,”

it found that NEPA did not require preparation of an

Environmental Impact Statement. Instead, the Forest Service

released its decision through a Decision Notice and Finding of

No Significant Impact (together with the 2012 Environmental

Assessment, the “2012 Decision”).

B.

American Whitewater filed its first complaint in this

action on October 14, 2009, while the study process was still

9
ongoing and before the Forest Service decided to partially lift

the restrictions on floating. The Rusts, who own approximately

1.7 miles of the Headwaters' shoreline, intervened, seeking a

declaratory judgment that the portion of the Headwaters running

through their property is not navigable and thus outside the

Forest Service's authority, and an injunction against any future

attempt by the Forest Service to manage this portion of the

Chattooga. American Whitewater filed an amended complaint,

eliminating the allegations related to the portion of the

Chattooga running through the Rusts' property, and the district

court dismissed the Rusts' claims for lack of a “case or

controversy” under Article III of the Constitution. American

Whitewater v. Tidwell, No. 8:09-cv-02665-JMC, ECF No. 151 (Feb.

22, 2012).

ForestWatch moved to intervene in August of 2011, in

support of the Forest Service's then-existing ban on Headwaters

floating. The district court granted ForestWatch's motion on

May 1, 2012, after publication of the 2012 Decision partially

lifting the floating ban. However, the district court limited

the scope of ForestWatch's intervention to defending the Forest

Service against American Whitewater's challenge to the remaining

floating restrictions. American Whitewater v. Tidwell, No.

8:09-cv-02665-JMC, ECF No. 168 (May 1, 2012).

10
 After publication of the 2012 Decision, American Whitewater

filed its second amended complaint, arguing that the remaining

limits on floating violate the WSRA. In the alternative,

American Whitewater argued that the Forest Service's decision

violates the APA because the Forest Service did not have an

adequate basis for its conclusion that restrictions on floating

are needed to balance competing recreational uses on the

Chattooga. See 5 U.S.C. § 706(2)(A) (2006).

ForestWatch and the Rusts also were dissatisfied with the

2012 Decision. ForestWatch, arguing that the remaining limits

on floating are insufficiently strict to meet the WSRA's

mandate, filed a separate action in the district court. See

Georgia ForestWatch v. Bradley, No. 8:12-cv-3455-MGL (Dec. 6,

2012). The district court denied a motion to consolidate the

two actions, and ForestWatch’s lawsuit remains pending today.

The Rusts also refiled their cross-claims, seeking a declaration

that the Headwaters running through their property are non-

navigable and asserting that the Forest Service's analysis did

not satisfy NEPA.

The district court granted the Forest Service’s motion for

judgment on the administrative record on April 16, 2013. It

rejected each of American Whitewater’s claims, as well as the

Rusts' NEPA claims, holding that the record provided ample

support for the Forest Service's determination that conflicts

11
between floaters and other recreational users justified the

remaining floating restrictions and that the Forest Service

complied with NEPA. It also dismissed the Rusts' request for

declaratory judgment as premature, and refused to consider

ForestWatch's claims against the Forest Service because they

went beyond the limited scope of its intervention. These timely

appeals followed.

II.

The crux of American Whitewater's claim is that the Forest

Service struck the wrong balance when it opened the Headwaters

to floating partially but not entirely, maintaining some

restrictions on floating in order to avoid conflicts with other

recreational users. According to American Whitewater, there is

no basis in the record for the Forest Service's concern about

potential conflicts, and the remaining restrictions are

arbitrary and capricious under the APA as well as contrary to

the WSRA. Like the district court, we disagree.

A.

We review the district court’s grant of judgment on the

administrative record de novo. Crutchfield v. Cnty. of Hanover,

325 F.3d 211, 217 (4th Cir. 2003). But like the district

court's, our review under the APA is “ultimately narrow and

highly deferential.” Webster v. U.S. Dep’t of Agric., 685 F.3d

12
411, 422 (4th Cir. 2012). We may set aside an agency's action

under the APA only if it is “arbitrary, capricious, an abuse of

discretion, or otherwise not in accordance with law.” 5 U.S.C.

§ 706(2)(A) (2006). In determining whether an agency action is

arbitrary, capricious, or otherwise an abuse of discretion under

the APA, a reviewing court must ensure that the agency has

“examine[d] the relevant data and articulate[d] a satisfactory

explanation for its action.” N.C. Wildlife Fed'n v. N.C. Dep't

of Transp., 677 F.3d 596, 601 (4th Cir. 2012) (alteration in

original) (quoting F.C.C. v. Fox Television Stations, Inc., 556

U.S. 502, 513 (2009)). But so long as the agency “provide[s] an

explanation of its decision that includes a rational connection

between the facts found and the choice made,” its decision

should be sustained. Ohio Valley Envtl. Coal. v. Aracoma Coal

Co., 556 F.3d 177, 192 (4th Cir. 2009) (quoting Motor Vehicle

Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43

(1983)) (internal quotation marks omitted). Our review is

particularly deferential when, as is the case here, “resolution

of th[e] dispute involves primarily issues of fact” that

implicate “substantial agency expertise,” Marsh v. Or. Natural

Res. Council, 490 U.S. 360, 376-77 (1989), and the agency is

tasked with balancing often-competing interests. See Hells

Canyon Alliance v. U.S. Forest Serv., 227 F.3d 1170, 1182 (9th

Cir. 2000).

13
 We do not doubt that in this case there is a “rational

connection between the facts found and the choice made,” Ohio

Valley Envtl. Coal., 556 F.3d at 192. The alternative selected

by the Forest Service opens substantial portions of the

Headwaters for the first time to floating, from the months of

December to April on days when flows exceed 350 cubic feet per

second. As the 2012 Decision explains, this option allows for

floating when water conditions are best, and also easiest to

predict, so that users can plan ahead to take advantage of the

best opportunities for Headwaters floating. J.A. at 1459. At

the same time, by retaining the ban on floating during the

spring and summer months, the Forest Service has addressed the

documented concerns expressed by other recreational users of the

Headwaters, providing for a floater-free environment when

conditions are best for fishing and hiking. J.A. at 1460-61.

The Forest Service also tailored the remaining restrictions by

reach, reserving four miles of the Headwaters with the least

challenging floating conditions, but some of the best angling

opportunities, for fishermen. J.A. at 1460. Finally, as

described in the 2012 Decision, the Forest Service's balance

between competing uses also complies with the maximum capacities

for the Headwaters as set out in the 2007 Report. J.A. at 1458.

Contrary to American Whitewater's assertions, the record

amply supports the Forest Service's conclusions regarding

14
potential conflicts among recreational users. The Forest

Service relied in part on a history of previous conflicts

between recreational users, reviewing evidence from the

Headwaters prior to the floating ban, from the lower portion of

the Chattooga where floating always has been permitted, and from

several proxy rivers. And it assembled significant data

pointing to the potential for future conflicts, counting cars to

estimate usage, developing expected encounter estimates, and

analyzing a wealth of public comments including many from

current users who expressed a preference for solitude and an

isolated experience. J.A. at 966, 959-1038, 1031-32, 960-62,

1273-74; see also Tidwell, 959 F. Supp. 2d at 853.

American Whitewater argues that the Forest Service was

required to authorize floating during the study period before it

could accurately assess the likelihood of conflicts on the

Headwaters. In other words, in order to justify maintenance of

its existing restrictions, the Forest Service first would have

to eliminate them so that recreational users could experience

actual conflicts. Br. for American Whitewater at 35. We cannot

accept this counter-intuitive argument. Where the agency’s

conclusion otherwise rests on a firm factual basis, nothing in

the APA requires it to experiment with a practice before

continuing preexisting policies. We will not second guess an

agency’s reasonable choice of methodology. See Hughes River

15
Watershed Conservancy v. Johnson, 165 F.3d 283, 289 (4th

Cir. 1999).

At bottom, American Whitewater disagrees with the Forest

Service’s factual conclusions and the balance it chose to

strike. But the APA does not give us license to second-guess an

agency’s well-reasoned decision simply because a party disagrees

with the outcome. The Forest Service has provided a cogent

justification for the remaining limits on Headwaters floating,

supported by the record, and that is sufficient to sustain its

decision under the APA.

B.

American Whitewater also contends that the Forest Service's

remaining restrictions on Headwaters floating violate § 1281 of

the WSRA, which requires the Forest Service to “protect and

enhance the values which caused” the Chattooga to be designated

for preservation “without, insofar as is consistent therewith,

limiting other uses that do not substantially interfere with

public use and enjoyment of these values.” 16 U.S.C. § 1281(a).

American Whitewater argues, first, that “floating” is a value

that led Congress to designate the Chattooga, and that under the

“protect and enhance” standard, the Forest Service has no choice

but to lift all restrictions on floating. Second, American

Whitewater argues that floating cannot be limited because it

does not “substantially interfere” with any protected

16
recreational use of the Headwaters. Like the district court, we

disagree on both counts.

1.

When Congress designated the Chattooga for preservation

under the WSRA, it did not expressly identify the River's ORVs.

In such cases, that task falls to the relevant administrative

agency, which must define a river's “values” in accordance with

published interagency guidelines. See Interagency Wild and

Scenic Rivers Coordinating Council, The Wild & Scenic River

Study Process 12-15 (1999). Here, the Forest Service identified

“recreation” generally, as opposed to specific recreational uses

such as floating or fishing, as an ORV of the Chattooga. J.A.

at 915. American Whitewater argues that the Forest Service

erred, and that floating itself is an ORV subject to the Act's

“protect and enhance” standard. Like the district court, we

find that the Forest Service's decision to designate

“recreation” as the relevant ORV was entirely reasonable, and

that floating is not a Chattooga River value that must be

“protecte[d] and enhance[d]” under the WSRA.

To begin with, although the WSRA does not define

“outstandingly remarkable values,” its text seems to contemplate

general categories such as “recreational value,” rather than

specific uses such as “hiking” and “fishing.” Section 1271 of

the WSRA lists the “outstandingly remarkable” values that are to

17
be protected by the Act: “scenic, recreational, geologic, fish

and wildlife, historic, cultural, or other similar values.” 16

U.S.C. § 1271 (2006). “Floating value” is not “similar” to,

say, “historical value”; it is pitched at an entirely different

level of specificity. The phrase “other similar values” is most

naturally read to refer to ORVs at the same level of categorical

generality as the examples listed before it. See Washington

State Dep't of Soc. & Health Servs. v. Guardianship Estate of

Keffeler, 537 U.S. 371, 384 (2003) (“[W]here general words

follow specific words in a statutory enumeration, the general

words are construed to embrace only objects similar in nature to

those objects enumerated by the preceding specific words.”)

(citations omitted); Sokol v. Kennedy, 210 F.3d 876, 879 n.5

(8th Cir. 2000) (reading “values” in § 1281(a) together with the

list of enumerated values in § 1271).

Notwithstanding the awkward textual fit, American

Whitewater insists that Congress intended to identify floating

as a protected value when it designated the Chattooga under the

WSRA. In fact, the Forest Service's decision to identify

“recreation” as the relevant value is fully consistent with the

congressional record. For example, the 1971 Forest Service

report that led to Congress's designation of the Chattooga as a

protected river does not single out floating from other forms of

recreation; instead, it identifies “hiking, floating — including

18
canoeing and rafting — and primitive camping” as potential uses

of the Chattooga “recreation resource.” Designation would be

desirable, according to the 1971 report, because it would

preserve not just one particular form of recreation, but rather

“full enjoyment of river-related recreation activities” in

general. The Senate and House Reports accompanying the

Chattooga's designation under the WSRA likewise refer to a

variety of “recreational” possibilities without giving special

status to any one recreational use or pursuit.

The out-of-context references to floating cited by American

Whitewater do not persuade us otherwise. For example, American

Whitewater quotes this passage from the 1971 report: “To see

and enjoy much of the river requires considerable time and

effort from the recreationist, whether he be fisherman,

canoeist, hiker or camper.” But this passage, like the others

cited by American Whitewater, actually is more consistent with

the Forest Service's identification of recreation writ large as

the relevant ORV, in its description of floating as only one

recreational use among many.

American Whitewater has not challenged the Forest Service’s

discretion to identify ORVs when Congress has not done so. Cf.

Interagency Wild and Scenic Rivers Coordinating Council, supra,

at 12-15; Sokol, 210 F.3d at 879-80 (in setting boundaries for

protected river areas, agencies must identify and seek to

19
protect ORVs). In this case, the Forest Service made its

determination after careful consideration of relevant

administrative guidance and voluminous reports describing the

Chattooga's characteristics. J.A. at 913-19. We find that the

Forest Service reasonably and lawfully identified “recreational

value” as the relevant ORV, and that floating is not a value of

the Chattooga that must be protected and enhanced under § 1281.

2.

As the Forest Service recognized, its determinations about

how best to protect and enhance the Chattooga's recreational ORV

necessarily involve “trade-offs” among competing recreational

uses. J.A. at 915. Congress left the requisite calibration to

the Forest Service, providing in § 1281 that agency management

plans “may establish varying degrees of intensity” for

protection based on “special attributes” of a river, 16 U.S.C. §

1281(a), and the balance struck by the Forest Service here is

entitled to substantial deference. See Hells Canyon Alliance,

227 F.3d at 1174-75.

Nevertheless, American Whitewater argues that under the

terms of § 1281, the Forest Service may not restrict floating in

any way because it has not shown that floating “substantially

interferes” with other recreational uses. The district court

rejected this claim, holding that the record supported a finding

of “substantial interference.” Tidwell, 959 F. Supp. 2d at 852-

20
54. While we agree with that assessment, we also think that

American Whitewater's argument is flawed in its premise:

Floating is itself a “public use” of the recreational value, not

an “other use” subject to the substantial interference standard.

Section 1281(a) divides “uses” of designated rivers into

two mutually exclusive categories: There are “public use[s]” of

ORVs, like the recreational value identified in this case; and

then there are “other use[s],” to be limited when they interfere

substantially with public use and enjoyment of an ORV. For

instance, hiking would be a “public use” of the Chattooga's

recreational value; operating a highway, on the other hand,

might be an “other use” subject to restriction if it

substantially interfered with hiking or any other component of

the recreational ORV. Floating clearly is a form of “public use

and enjoyment” of the Chattooga's recreational value. It cannot

also be an “other use” or the statutory scheme would make no

sense, directing the Forest Service to limit floating in order

to protect it. Because floating is not an “other use” for

purposes of § 1281(a), limits on floating are not governed by

the substantial interference standard. 4

4
In its brief, the Forest Service addressed this claim by
defending the record on “substantial interference,” which we
address in turn. At oral argument, however, the Forest Service
made clear that it was not conceding American Whitewater's
(Continued)
21
 In any event, we agree with the district court that the

record evidence of user conflict developed by the Forest

Service, discussed above, is sufficient to show that floating

can interfere substantially with other recreational uses.

Tidwell, 959 F. Supp. 2d at 853-54. For that reason, as well,

we hold that the remaining restrictions on floating on the

Headwaters are consistent with the WSRA. 5

III.

The Rusts present a narrower challenge to the 2012

Decision, intended to protect what they see as their private

property rights in land along the Headwaters. First, they ask

us to declare the 1.7-mile portion of the Headwaters running

through their land non-navigable, which would make it private

property rather than a public waterway and preclude any Forest

Service attempt to provide public access. Second, the Rusts

argue that the 2012 Decision is invalid under NEPA because the

reading of the statute or application of the substantial
interference standard.
5
We reject American Whitewater's remaining claims for the
reasons given by the district court. The record adequately
supports the continued ban on floating on the Chattooga's
tributaries. Tidwell, 959 F. Supp. 2d at 857-58. And American
Whitewater's challenges based on the Forest Service's policy
manual fail at the outset because the policy manual does not
have the force of law. Id. at 864.

22
Forest Service failed to provide a sufficiently detailed

analysis of the risk that floaters would trespass across their

land to reach newly opened portions of the Headwaters.

A.

To be clear, the 2012 Decision does not authorize any

floating on the Rusts' property. It does not cover the portion

of the Headwaters that concerns the Rusts at all, in accordance

with Forest Service policy treating rivers as non-navigable and

private until found otherwise. J.A. at 943. Nor has the Forest

Service taken any steps toward a determination of navigability.

Absent any attempt by the Forest Service even to lay the

groundwork for an exercise of its regulatory authority, the

Rusts' request for a declaratory judgment fails to present a

justiciable controversy.

We may address only disputes that are “definite and

concrete, touching the legal relations of parties having adverse

interests.” Aetna Life Ins. Co. v. Haworth, 300 U.S. 227, 240-

41 (1937). The same standard applies to a request for

declaratory relief and requires a controversy of “sufficient

immediacy and reality [as] to warrant the issuance of a

declaratory judgment.” White v. Nat’l Union Fire Ins. Co. of

Pittsburgh, Pa., 913 F.2d 165, 167-68 (4th Cir. 1990) (quoting

Maryland Cas. Co. v. Pac. Coal & Oil Co., 312 U.S. 270, 273

(1941)).

23
 The Rusts’ claims do not meet this standard. The Rusts

acknowledge that the Forest Service would need to take

additional action before it could manage this portion of the

Chattooga. The Forest Service has not done so. Nor has it

argued that this portion of the Chattooga is subject to Forest

Service oversight. In fact, the Rusts agree that the Forest

Service has consistently treated this segment of the Chattooga

as non-navigable, private, and outside its authority. J.A. at

943; S.J.A. at 2199. To the extent that American Whitewater

could be considered an adverse party in this context — which we

doubt — it too disavows any attempt to declare this section of

the Chattooga navigable. Reply Br. for American Whitewater at

21, 22.

We will not issue an advisory opinion, addressing a

question that is not in actual dispute. Flast v. Cohen, 392

U.S. 83, 96 (1968) (“[T]he oldest and most consistent thread in

the federal law of justiciability is that the federal courts

will not give advisory opinions.”); Shenandoah Valley Network v.

Capka, 669 F.3d 194, 202 (4th Cir. 2012) (“[A] dispute is

lacking here — and because we cannot issue an advisory opinion —

we have no authority to adjudicate this suit.”). The Rusts'

declaratory judgment claim is dismissed.

24
 B.

The Rusts also argue that the Forest Service violated NEPA

by failing to analyze the risk that opening portions of the

Headwaters to floating could lead to trespass on Rust property.

They insist that floaters are likely to attempt to reach the

River by crossing their property illicitly, instead of using the

trails and parking lots already available to the public. The

district court correctly held that this prospect is so

speculative that no NEPA analysis is required.

NEPA encourages conservation not by imposing substantive

obligations on agencies, but by requiring that agencies consider

the environmental consequences of their actions and present them

to the public for debate. Nat'l Audubon Soc'y v. Dep't of Navy,

422 F.3d 174, 184, 185 (4th Cir. 2005). Accordingly, our review

under NEPA is limited to ensuring that an agency has taken a

“hard look” at the environmental impacts of a proposed action.

Id. at 185. Moreover — and dispositive here — an agency need

consider only the “reasonably foreseeable” effects of its

decisions. See Webster, 685 F.3d at 429 (“[A]lthough agencies

must take into account effects that are reasonably foreseeable,

they generally need not do so with effects that are merely

speculative.”); see also 40 C.F.R. § 1508.8 (2008).

Any possible increase in the risk of trespass on the Rusts'

land does not meet this standard. As the Forest Service points

25
out, the uppermost portion of the Headwaters opened to floating

by the 2012 Decision is downstream from the Rusts' property

line. The uppermost put-in location is another quarter-mile

further downstream and easily accessible to the public via a

trail from the existing Green's Creek parking lot. Nothing in

the record gives us reason to think that floaters would prefer a

less direct path across the Rusts' uncleared land. The

situation might be different if the Forest Service had allowed

floating upstream of the Rusts' land — but the agency rejected

that option, precisely because it might present an increased

risk of trespass. J.A. at 779, 911, 943.

The Rusts' response to this common-sense proposition is

unconvincing. They rely on a few comments submitted by American

Whitewater during the review process predicting that floaters

would prefer to and eventually would launch from Grimshawe's

Bridge, north of the Rusts' property. That, however, is a far

cry from expressing an intent to trespass illegally, and

American Whitewater has denied repeatedly that it intends to

violate the law. Otherwise, the Rusts point to a trespasser's

account from forty years ago and a stray newspaper report.

Neither explains why floaters might be expected to trespass

under the Headwaters' present conditions.

Even assuming that a heightened risk of trespass was

reasonably foreseeable, the Forest Service's discussion of that

26
risk satisfies NEPA. The Forest Service presented the Rusts'

concerns to the public and explained that they were addressed by

the continued ban on floating above Green's Creek, and the

Rusts' property. J.A. at 911, 943. In this context, that

discussion was sufficient; agencies have discretion to determine

which issues merit detailed discussion, and here the risk of

trespass or any associated environmental impact was not so

significant that more was required. See Nat'l Audubon Soc'y,

422 F.3d at 186 (“A 'hard look' is necessarily contextual.”);

Izaak Walton League of Am. v. Marsh, 655 F.2d 346, 377 (D.C.

Cir. 1981) (“Detailed analysis is required only where impacts

are likely.”). Review under NEPA is not a vehicle for

“flyspeck[ing]” agency analysis and discussion, Nat'l Audubon

Soc'y, 422 F.3d at 186, and we find that the Forest Service has

met its NEPA obligations. 6

IV.

Finally, we have the claims of ForestWatch, which, like

the Rusts, intervened in this case below. The district court

6
In light of our disposition of the Rusts' claims we need
not address the Rusts' motion to strike from the record certain
features of maps included in the Forest Service's brief.
American Whitewater v. Tidwell, Case No. 13-1960, ECF No. 112
(Sept. 11, 2014). We have not relied on the contested features
and they have played no role in our decision. Accordingly, the
Rusts' motion to strike is dismissed.

27
limited the scope of ForestWatch’s intervention to defending the

Forest Service’s remaining restrictions on floating on the

Headwaters. ForestWatch now takes a different tack, arguing

that the Forest Service erred by permitting any floating at all,

and raising claims against the partial lifting of the floating

ban under NEPA and the WSRA. These claims, the subject of a

separate ForestWatch action against the Forest Service now

pending before the district court, go well beyond the scope of

ForestWatch's clearly delineated interest in this litigation and

are dismissed.

The district court carefully cabined ForestWatch's

involvement in this litigation to the terms of its intervention

order, striking ForestWatch’s plea for relief against the Forest

Service as beyond the scope of its intervention. See American

Whitewater v. Tidwell, No. 8:09-cv-02665-MGL, ECF No. 254 (Feb.

25, 2013) (text order). It did not reach ForestWatch’s

arguments against the Forest Service and the partial opening of

the Headwaters to floating, instead explicitly “limit[ing] its

findings to the parties with claims pending” in the case.

Tidwell, 959 F. Supp. 2d at 850. The merits of ForestWatch’s

claims against the Forest Service will be considered by the

district court in ForestWatch’s separate action, not by this

court for the first time on appeal. See Karpel v. Inova Health

Sys. Servs., 134 F.3d 1222, 1227 (4th Cir. 1998) (“[I]ssues

28
raised for the first time on appeal generally will not be

considered.”) (internal quotation marks omitted).

What ForestWatch may appeal, however, is the underlying

district court ruling on its motion to intervene. The district

court granted ForestWatch’s motion to intervene as of right but

also limited ForestWatch to “[d]efending against [American

Whitewater’s] claim for declaratory and injunctive relief.”

American Whitewater v. Tidwell, No. 8:09-cv-02665-JMC, ECF No.

168 (May 1, 2012). ForestWatch now argues that the district

court erred in imposing that limit on the scope of its

intervention. Finding no reversible error, we affirm.

The parties dispute the appropriate standard for our review

of the limits on ForestWatch’s intervention, with ForestWatch

arguing for de novo review and the Forest Service for an abuse

of discretion standard. We need not reach this question

because, as ForestWatch’s counsel candidly admitted at oral

argument, our review ultimately hinges on whether the district

court's decision to limit intervention was fundamentally unfair.

See Columbus-America Discovery Grp. v. Atlanta Mut. Ins. Co.,

974 F.2d 450, 470 (4th Cir. 1992). Under any standard of

review, there has been no fundamental unfairness here.

ForestWatch’s argument to the contrary is that the district

court did in fact address its claims against the Forest Service

in resolving this case, so that ForestWatch will be denied the

29
opportunity to raise them again in its separate suit. We read

the record differently, and believe that the district court

amply preserved ForestWatch’s opportunity to assert its claims

in its pending lawsuit. First, in denying a motion to

consolidate ForestWatch’s action with the present case, the

district court expressly found that “the outcome or result in

one case i[s] not dispositive or dependent on the outcome of the

other.” J.A. at 1886-88. 7 It then proceeded to insulate one

case from the other by explicitly limiting its decision below so

as to exclude ForestWatch’s claims against the Forest Service.

Tidwell, 959 F. Supp. 2d at 850 (“[A]lthough the court has

considered Georgia ForestWatch’s arguments and will discuss them

herein, the court limits its findings to the parties with claims

pending in this case.”).

ForestWatch points to snippets of language in the district

court opinion affirming the 2012 Decision as evidence that its

claims against that decision already have been decided against

it. But read in context, those passages uphold the 2012

7
To the extent that ForestWatch appeals from the district
court's denial of its motion to consolidate, we affirm. The
district court ably managed the range of parties and interests
involved in this case, and we see no basis for disturbing its
judgment about how best to manage its docket. See Arnold v. E.
Airlines, Inc., 681 F.2d 186, 192 (4th Cir. 1982) (consolidation
decisions are “necessarily committed to trial court discretion”
and reviewed only for abuse of discretion).

30
Decision only as against the Rusts' or American Whitewater's

claims, referenced in each case on the same page, if not in the

same paragraph, as the cited language. We are confident that

nothing in the district court's careful opinion will preclude

ForestWatch from pressing its claims in its separate suit. Nor,

we should note, should anything in our opinion today be

understood as resolving ForestWatch’s separate claims against

the Forest Service.

V.

For the reasons set forth above, we affirm the judgment of

the district court.

AFFIRMED

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