F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
January 12, 2006
UNITED STATES COURT OF APPEALS Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
THE SILVERTON SNOWMOBILE CLUB,
on behalf of its members; THE COLORADO
SNOWMOBILE ASSOCIATION, on behalf
of its members; COLORADO OFF-
HIGHWAY VEHICLE COALITION, on
behalf of its members,
Plaintiffs - Appellants,
v. No. 05-1005
UNITED STATES FOREST SERVICE;
RICK D. CABLES, in his official capacity as
Regional Forester, Region 2, U.S. Forest
Service; MARK STILES, in his official
capacity as Forest Supervisor, San Juan
National Forest, U.S. Forest Service;
PAULINE ELLIS, in her official capacity as
District Ranger, Columbine Ranger District,
San Juan National Forest, U.S. Forest
Service, and as Field Office Manager, San
Juan Field Office, the U.S. Bureau of Land
Management; UNITED STATES BUREAU
OF LAND MANAGEMENT; RON
WENKER, in his official capacity as
Colorado State Director, U.S. Bureau of Land
Management,
Defendants - Appellees,
SAN JUAN CITIZENS ALLIANCE and
COLORADO MOUNTAIN CLUB,
Defendants - Intervenors -
Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
(D.C. NO. 02-RB-325)
Paul A. Turcke, Moore Smith Buxton & Turcke, Chartered, Boise, Idaho
(D. Andrew Wight, Colorado Off-Highway Vehicle Coalition, Denver, Colorado,
with him on the briefs) for Plaintiffs-Appellants.
Matthew J. Sanders, United States Department of Justice, Environment & Natural
Resources Division, Washington, D.C. (Lois Witte, Of Counsel, Office of General
Counsel, United States Department of Agriculture, Golden, Colorado; John Kunz,
Of Counsel, Office of the Regional Solicitor, United States Department of the
Interior, Lakewood, Colorado; Kelly A. Johnson, Acting Assistant Attorney
General, Denver, Colorado; William J. Leone, Acting United States Attorney,
Denver, Colorado; Jerry N. Jones and Mark S. Pestal, Assistant United States
Attorneys, Denver, Colorado; and Todd S. Aagaard, Attorney, United States
Department of Justice, Environment & Natural Resources Division, Washington,
D.C., with him on the briefs) for Federal Defendants-Appellees.
Amelia S. Whiting, Western Resource Advocates, Boulder, Colorado (Michael
Chiropolos, Western Resource Advocates, Boulder, Colorado; and Jeffrey C.
Parsons, Lyons, Colorado, with her on the briefs) for Defendants-Intervenors-
Appellees.
Before HENRY, ANDERSON, and O’BRIEN, Circuit Judges.
ANDERSON, Circuit Judge.
This case involves an environmental law challenge to actions by various
federal agencies regarding changes in winter recreational access to an area,
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known as the Molas Pass area, near Highway 550 in Colorado. The district court
ruled in favor of the agencies on all claims.
More particularly, plaintiffs Silverton Snowmobile Club (“SSC”), the
Colorado Snowmobile Association (“CSA”) and the Colorado Off-Highway
Vehicle Coalition (“COHVCO”) appeal an order of the United States District
Court for the District of Colorado affirming a Decision Notice and Finding of No
Significant Impact (“Decision”), and accompanying Final Environmental
Assessment (“EA”), issued by the United States Forest Service (“Forest Service”)
and the United States Bureau of Land Management (“BLM”). SSC alleges that
the Decision was issued in violation of the National Environmental Policy Act
(“NEPA”), 42 U.S.C. §§ 4321-4370f, the National Forest Management Act of
1976 (“NFMA”), 16 U.S.C. §§ 1600-1614, and the Federal Land Policy and
Management Act of 1976 (“FLPMA”), 43 U.S.C. §§ 1701-1782. The San Juan
Citizens Alliance (“SJCA”) and the Colorado Mountain Club (“CMC”) were
granted permission by the district court to intervene in this action and they
participate on appeal as appellee-intervenors. We affirm the district court’s
decision.
BACKGROUND
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The Molas Pass area consists of approximately thirty-seven square miles of
public land, with elevations ranging from 9,000 to more than 13,000 feet, located
forty-two miles north of Durango, Colorado. EA at 5, Administrative Record
(“AR”) at 848. It includes both sides of a stretch of U.S. Highway 550. It lies
partly within the San Juan National Forest, which is managed by the Forest
Service and partly within public lands that are managed by the BLM. Id.
Prior to the Decision challenged in this appeal, the area was used by both
motorized and nonmotorized recreationists. The San Juan National Forest Land
and Resource Management Plan (“Forest Plan”) of 1983, as amended in 1992,
designated a zone of up to one-and-one-half miles on each side of Highway 550
as 2B Management Area Prescription. The 2B Prescription states that “activities
such as . . . snowmobiling . . . are possible.” AR at 337. The 1985 BLM San
Juan Resource Area Management Plan (“RMP”) limited motorized use to certain
roads and trails in the Silverton Special Recreation Management Area. In April
1994 the SSC entered into a Memorandum of Understanding (“MOU”) with the
San Juan National Forest for the purpose of setting out the responsibilities of both
parties with regard to maintenance and grooming of trails in the Forest. Under
the MOU, the SSC agreed, inter alia, to groom and maintain certain trails, and the
Forest Service agreed, inter alia, to “[m]ake selected areas available for
snowmobiling activities and facilities.” MOU, Appellant’s App. at 30.
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During the winters of 1998-99 and 1999-2000, a lack of snow at lower
elevations in Colorado caused an increased concentration of motorized and non-
motorized recreation in the Molas Pass area. Decision at 1-2, AR at 987-88.
Conflicts between these two groups of recreationists led to letters to the editor of
a local newspaper and complaints to Federal land managers and the San Juan
County Commissioners. This in turn prompted the Forest Service and the BLM to
initiate a public process to evaluate whether changes were necessary in the winter
recreation management protocols applicable to the Molas Pass area. The agencies
accordingly held two open houses and a workshop in early 1999 and formed an
interdisciplinary team (“IT”), whose mission was “to review the public input;
develop alternatives to address the issues; and analyze the environmental, social,
and economic effects of all alternatives.” Decision at 3, id. at 989. During the
open houses and through comments the agencies received from the public, the
nonmotorized users of the area expressed their desire to “recreate safely in an
area free of noise, fumes, and intrusion of motorized vehicles,” EA at 7, id. at
854, while motorized users expressed their desire not to lose any areas currently
available for motorized use, and to expand motorized use in the area near
Silverton.
The agencies developed the following goal for management of the Molas
Pass area: “To provide visitors with an opportunity for a quality motorized and
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nonmotorized winter recreational experience, where both user groups have safe
highway access to their sport of choice, and where both private and commercial
uses are appropriately balanced.” Decision at 2, id. at 988. The IT held a public
workshop in June 1999 in which participants broke into three small working
groups and assessed various alternatives. In July and August 1999 the agencies
mailed summaries of the workshop results and a timeline for a draft
environmental assessment to everyone who had attended the open houses and
workshops or who had indicated some interest in the matter. Numerous articles,
editorials and letters from interested citizens appeared in local newspapers.
In November 1999, the agencies issued a draft environmental assessment
(“Draft EA”), which presented four alternatives for winter use management of the
Molas Pass area: (1) no action, which would leave winter management of the area
unchanged; (2) maintaining the area west of Highway 550 for motorized winter
use and making the area east of the highway a strictly nonmotorized area; (3)
maintaining the area east of the highway for motorized use and making the area
west of the highway a strictly nonmotorized area; and (4) expanding by 3600
acres the motorized area west of the highway, designating the area east of the
highway and south of the top of Molas Pass a strictly nonmotorized area, and
permitting grooming from the top of Molas Pass north and west of the highway.
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The agencies provided a sixty-day period for comments on the Draft EA.
They received 815 comment letters, of which 40% favored Alternative 1, 6%
favored Alternative 2, 1% favored Alternative 3, 27% favored Alternative 4, and
26% expressed no preference. Additionally, 60% of the comments favored some
sort of segregation of motorized and nonmotorized uses.
The agencies also consulted with the United States Fish and Wildlife
Service (“FWS”) about what effects the alternatives might have on the twenty-
four species listed as sensitive, threatened, or endangered under the Endangered
Species Act, 16 U.S.C. §§ 1531-1544. In November 2000, the FWS issued a
Biological Evaluation and Biological Assessment (“BE/BA”) addressing those
effects. The BE/BA concluded that the proposed alternatives “[m]ay affect the
Canada lynx, but is not likely to adversely affect the continued existence of the
species or result in destruction or adverse modification of critical habitat.” EA at
61, AR at 910. The BE/BA explained that the Molas Pass area “contains potential
foraging, denning, and travel habitat [for the Canada lynx], especially the
spruce/fir ecosystem surrounding the large open meadows of the area.” EA at 48,
id. at 897. A map included in the BE/BA indicates that 8,461 acres out of a total
of 27,388 acres in the relevant area provide a suitable habitat for lynx. EA at 55,
id. at 904. As discussed more fully infra, there was an ongoing effort to re-
introduce lynx into the area.
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In assessing the impact of the proposed alternatives on the lynx, the BE/BA
noted that “[s]now compaction may cause a direct effect on lynx by potentially
increasing predator competition” but that because “lynx seldom venture more than
330 feet into open areas, . . . the area that is being considered for motorized use
will have very little, if any, additional effect on any individual lynx than what
currently exists.” EA at 51, id. at 900. The BE/BA also noted that the
prohibition of nighttime commercial activities would permit the lynx “nocturnal
periods of foraging without disruption by human activities.” EA at 61, id. at 910.
Operating under the principle that “if there is potential habitat, . . . we
assume the species is present” the BE/BA listed mitigation measures. EA at 52,
id. at 901. The two mitigation measures relevant to this case are a prohibition on
night-time grooming and the prohibition of “groomed tracks within 330 feet of
late-seral spruce-fir.” EA at 48, id. at 897.
In June 2001, the agencies released their Decision, final EA and Finding of
No Significant Impact (“FONSI”), which discussed the same four alternatives and
considered their direct, indirect and cumulative effects. The Decision blended
Alternatives 1 and 4 as follows: it prohibited motorized activity on 200 acres in
the Andrews Lake area, leaving motorized users with 6,900 acres (97%) of the
acreage previously open for that use; it prohibited trail grooming and commercial
motorized uses on National Forest System lands from the Molas Pass Overlook
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south to Lime Creek on the east side of Highway 550; it converted the 1994 MOU
to a special-use permit with annual approvals by the Forest Service; it eliminated
the prohibition on motorized use off of designated roads and trails on certain
BLM lands and the BLM agreed to revise its RMP through a “Maintenance
Document” to reflect that change; and it prohibited motorized activities in the
Bear Creek drainage in order to protect Silverton’s water source. Additionally,
the Decision implemented mitigation measures, including prohibiting night-time
motorized operations and prohibiting new groomed trails with 330 feet of late-
seral spruce-fir forests.
Tracy Beck, the Acting District Ranger who signed the Decision, explained
his reasons for the Decision as follows:
In designing the selected alternative, I tried to address the needs of
both motorized and nonmotorized user groups. The motorized users
did not want to lose many acres to nonmotorized users, while the
nonmotorized users wanted the Andrews Lake area free of motorized
use.
I believe that the blending of Alternatives 1 and 4 with mitigation
measures from the EA is the most responsive of all alternatives to the
purpose of and need for this analysis.
Decision at 10, AR at 996. He further explained that the problem the Decision
addressed was “primarily a social issue, not an environmental one.” Id.
Plaintiffs, non-profit organizations whose members enjoy engaging in
winter motorized activities, including snowmobiling, in the Molas Pass area,
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appealed the Decision to both the Forest Service, through the Regional Forester,
and the BLM, through the Interior Board of Land Appeals (“IBLA”). On
September 10, 2001, the Forest Service upheld the Decision. On April 5, 2005,
the IBLA upheld the Decision.
Meanwhile, on February 19, 2002, the plaintiffs filed suit in the federal
district court in Colorado. 1 They alleged that the agencies had violated: the
Administrative Procedure Act, 5 U.S.C. §§ 701 - 706 (“APA”), by taking actions,
making findings and reaching conclusions that were arbitrary, capricious, an
abuse of discretion or otherwise not in accordance with applicable law; NEPA,
and its supporting regulations, by reaching a predetermined result, failing to take
the requisite “hard look” at the environmental consequences of their actions, and
failing to prepare an Environmental Impact Statement (“EIS”); NFMA, and its
supporting regulations, by failing to follow the requirements for compliance with
and amendment of the Forest Plan; and FLPMA, and its supporting regulations, by
failing to follow the requirements for compliance with and amendment of the
1
Besides the Forest Service and the BLM, the plaintiffs named as
defendants Rick D. Cables, the Regional Forester of Region 2, which includes the
San Juan National Forest; Calvin N. Joyner, the Forest Supervisor of the San Juan
National Forest; Bruce R. Short, the District Ranger for the Columbine Ranger
District of the San Juan National Forest; Ann Morgan, the State Director of the
Colorado BLM; and Tracy Beck, the Field Office Manager for the San Juan Field
Office of the BLM.
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RMP. They requested declaratory and injunctive relief to prevent implementation
of the Decision.
On April 24, 2002, the SJCA and the CMC filed a motion to intervene as
defendants, which the district court granted on December 11, 2002. On July 3,
2002, the plaintiffs moved for a preliminary injunction, which the district court
denied on October 20, 2003. On December 3, 2003, the parties filed a joint
motion to have the court dispose of the case on its merits. The court heard oral
argument on March 19, 2004, and issued an order upholding the Decision on
November 1, 2004. Plaintiffs appeal, alleging that the court erred in holding that
the agencies did not violate the APA or NEPA, that it further erred in holding
that, although the agencies did violate the NFMA by failing to conform to or
amend the Forest Plan, that violation was harmless error, and by dismissing their
FLPMA claim for failure to exhaust their administrative remedies.
The agencies and the appellee-intervenors SJCA and the CMC have filed a
motion to strike the portion of the plaintiffs’ reply brief which argues that “the
Molas Pass Decision’s ‘lynx-based restrictions fail arbitrary and capricious
review’” under the APA. J. Mot. to Strike at 2 (quoting Appellants’ Reply Br. at
7). We address this motion infra, in connection with our analysis of the
Decision’s discussion about lynx.
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DISCUSSION
We review the agencies’ compliance with NEPA, NFMA and FLPMA
pursuant to the APA, which “‘empowers a reviewing court to hold unlawful and
set aside [final] agency action, findings, and conclusions found to be arbitrary,
capricious, an abuse of discretion, or otherwise not in accordance with law.’”
Greater Yellowstone Coal. v. Flowers, 359 F.3d 1257, 1268 (10th Cir. 2004)
(quoting Utahns for Better Transp. v. U.S. Dep’t of Transp., 305 F.3d 1152, 1164
(10th Cir. 2002), modified on reh’g, 319 F.3d 1207 (10th Cir. 2003)). In
reviewing the agencies’ action, “we apply the same deferential standard to the
administrative record as did the district court.” Id. We may set aside agency
action “only for substantial procedural or substantive reasons.” Id. (further
citation omitted).
I. NEPA
NEPA, 42 U.S.C. §§ 4321-4370f, “‘prescribes the necessary process’ by
which federal agencies must ‘take a “hard look” at the environmental
consequences’ of the proposed courses of action.” Pennaco Energy, Inc. v. U.S.
Dep’t of Interior, 377 F.3d 1147, 1150 (10th Cir. 2004) (quoting Utahns for
Better Transp., 305 F.3d at 1162-63). It imposes no “substantive limits on agency
conduct.” Friends of the Bow v. Thompson, 124 F.3d 1210, 1213 (10th Cir.
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1997) (citing Robertson v. Methow Valley Citizens’ Council, 490 U.S. 332, 350
(1989)). “Rather, once environmental concerns are adequately identified and
evaluated by the agency, NEPA places no further constraint on agency actions.”
Pennaco Energy, Inc., 377 F.3d at 1150 (further quotation omitted).
Before an agency may take “major Federal actions significantly affecting
the quality of the human environment,” 42 U.S.C. § 4332(2)(C), an agency must
prepare an environmental impact statement (“EIS”) in which the agency considers
the environmental impacts of the proposed action and evaluate “alternatives to the
proposed action,” id. § 4332(2)(C)(iii), including the option of taking “no action,”
40 C.F.R. § 1502.14(d). However, “[a]gencies need not prepare a full EIS . . . if
they initially prepare the less detailed environmental assessment (‘EA’) and,
based on the EA, issue a finding of no significant impact (‘FONSI’), concluding
that the proposed action will not significantly affect the environment.” Lee v.
U.S. Air Force, 354 F.3d 1229, 1237 (10th Cir. 2004) (further quotation omitted);
see also 40 C.F.R. § 1501.4 (providing that the agency shall prepare an EA to
determine whether an EIS is required). An agency’s decision to issue a FONSI
rather than prepare an EIS “is a factual determination which implicates agency
expertise and accordingly, is reviewed under the deferential arbitrary and
capricious standard of review.” Comm. to Preserve Boomer Lake Park v. Dep’t
of Transp., 4 F.3d 1543, 1555 (10th Cir. 1993).
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The agencies in this case issued an EA and a FONSI. The plaintiffs argue
that, in doing so, the agencies violated the APA and NEPA because (1) the
outcome was predetermined; (2) the agencies failed to take the requisite “hard
look” at the potential environmental consequences of the proposed action; and (3)
the agencies failed to prepare an EIS.
1. Predetermined result
The plaintiffs argue that the agencies violated NEPA in issuing the
Decision because they “structured the analysis and framed the issues to ensure
that additional restrictions on the use of snowmobiles in the area would be an
inevitable result of the analysis.” Appellants’ Opening Br. at 14. We disagree.
The agencies articulated the goal for their review of winter use in the
Molas Pass area as being “[t]o provide visitors with an opportunity for a quality
motorized and nonmotorized winter recreational experience, where both user
groups have safe highway access to their sport of choice.” Decision at 2, AR at
988 (emphasis added). Nonmotorized users defined a “quality experience” for
them to be “the ability to recreate safely in an area free of noise, fumes, and
intrusion of motorized vehicles.” Id. Motorized users indicated they did “not
want to lose any areas currently designated as motorized, and also they would like
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additional terrain in the Silverton area.” Id. The Decision explained the
difficulty in accommodating the desires of both groups:
We would rather have had people work together to solve their joint
social issues, while being sensitive to each other’s needs. Both
motorized and nonmotorized recreationists should strive to show
more tolerance for one another and more inclination to work in a
spirit of cooperation.
....
When user groups do not want to give up what they feel is theirs, and
become polarized, the fairest solution becomes compromise (and all
users inevitably give up something). Given the diversity of public
opinions regarding winter recreation at Molas Pass, the selected
alternative became the compromise alternative.
Decision at 11, id. at 997. Far from ignoring motorized users’ wishes, one of the
“Project Guidelines” stated that the project would “address the need for additional
suitable terrain for motorized recreation.” EA at 7, id. at 854.
In the end, the alternative selected took away 200 acres from motorized
recreationists—approximately 3% of the total available for motorized use—but
opened up additional terrain for motorized use by allowing such use off-trail in
the BLM’s Silverton Special Recreation Management Area. The agencies rejected
alternatives which would have resulted in greater reductions in the acreage
available to motorized users. In short, the agencies were faced with the difficult
task of trying to accommodate different groups of users who were reluctant to
give up what they had become accustomed to using. After hearing input from the
public and considering a number of alternatives, the agencies reached a
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compromise solution, not one that was predetermined by their method of
analysis. 2
2. Hard look
The plaintiffs further argue that the agencies failed to take a “hard look” at
the potential environmental consequences of the alternatives, as NEPA requires.
As we have previously stated, documents prepared as part of NEPA’s “hard look”
requirement “must not only reflect the agency’s thoughtful and probing reflection
of the possible impacts associated with the proposed project, but also provide a
reviewing court with the necessary factual specificity to conduct its review.”
Comm. to Preserve Boomer Lake Park, 4 F.3d at 1553. Plaintiffs allege that
“[t]he EA for Molas Pass Winter Recreation Management is inadequate because it
neither reflects the required ‘thoughtful and probing’ analysis nor provides the
‘necessary factual specificity’ to permit a proper review by this Court.”
Appellants’ Opening Br. at 19 (quoting Comm. to Preserve Boomer Lake Park, 4
F.3d at 1553). In particular, plaintiffs allege that the EA made the
In support of their argument that the result of the agencies’ analysis was
2
predetermined, the plaintiffs cite Metcalf v. Daley, 214 F.3d 1135 (9th Cir. 2000).
In Metcalf, the court held that the federal agency had violated NEPA by preparing
an untimely and inadequate EA analyzing the environmental impacts of a whale
hunt, where the federal agency had already entered into an agreement permitting
the whale hunt. Id. at 1144. That is a very different situation from this case,
where the agencies had no preexisting agreement with any user group.
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unsubstantiated assumption that the Molas Pass area included Canada lynx habitat
and that snowmobile use and trail grooming adversely affect the lynx.
The BE/BA contained in the EA did, in fact, proceed upon the following
assumption with respect to the lynx and all other species identified as relevant to
the Decision: “[t]here have been no structured inventories completed, specifically
for this proposal, in the area because the Forest has taken the position that if there
is potential habitat, then we assume the species is present.” EA at 52, AR at 901.
Plaintiffs in essence argue that this assumption violates NEPA’s “hard look”
requirement. We disagree.
As we have stated many times, NEPA mandates procedural steps, not
particular substantive results or outcomes.
A disagreement among experts or in the methodologies employed is
generally not sufficient to invalidate an EA. . . . Courts are not in a
position to decide the propriety of competing methodologies . . . but
instead, should determine simply whether the challenged method had
a rational basis and took into consideration the relevant factors.
Comm. to Preserve Boomer Lake Park, 4 F.3d at 1553. The lynx was listed in
March 2000 as a “threatened” species under the Endangered Species Act. The
agencies concluded that “[t]he area contains potential foraging, denning, and
travel habitat [for lynx], especially the spruce/fir ecosystem surrounding the large
open meadows of the area.” EA at 48, AR at 897. The agencies further noted
that in 1998, “the Colorado Division of Wildlife conducted extensive field
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surveys to determine if there are enough snowshoe hares [on whom lynx prey] to
support a reintroduction of lynx during the winters of 1999 and 2000.” Id. “The
determination was positive enough throughout southwest Colorado to support the
re-introduction process.” Id. Accordingly, ninety-six lynx were reintroduced into
the area and were being tracked. Of the ninety-six re-introduced lynx, thirty-one
were known to have died as of February 2001. AR at 768. The tracking showed
that “one of the transplanted lynx is known to occupy an area” some ten miles
from the Molas Pass area. EA at 49, id. at 898.
The EA further indicated that, among the reasons for minimizing snow
compacting in potential lynx habitat is the desire not to “preclude the ability to re-
establish” lynx in the area. EA at 50, id. at 899. The EA noted that “[i]t is
unclear from the literature the degree of tolerance lynx have to human uses.” EA
at 51, id. at 121. It further noted that “[r]ecreational use of the area is currently
considered moderate, but . . . will probably increase dramatically in the next 10
years.” Id. Given all of this information—that there was an ongoing effort to re-
introduce lynx, a threatened species, into the area, that there was potential lynx
habitat in the area, that the effect of human activity on lynx was uncertain, but
that human activity in the area was expected to increase dramatically in the next
decade, and that at least one lynx had been sighted near the area—we cannot say
that the agencies’ determination to treat at least part of the area as lynx habitat
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and adopt appropriate mitigation measures did not have a rational basis or
consider relevant factors. It satisfied NEPA’s “hard look” requirement.
In their reply brief, plaintiffs, represented by different counsel, raise a
different argument concerning the agencies’ treatment of the lynx. They argue
that the decision to impose “lynx-based restrictions fail[s] arbitrary and capricious
review under the APA.” Appellants’ Reply Br. at 7. Citing for the first time a
Ninth Circuit decision, Ariz. Cattle Growers’ Ass’n v. U.S. Fish & Wildlife, 273
F.3d 1229 (9th Cir. 2001), they argue that “this management strategy [is] illegal
as a matter of law.” Appellants’ Reply Br. at 9.
The agencies and intervenors have filed a joint motion to strike this portion
of the reply brief, arguing that plaintiffs failed to make this argument “in their
administrative appeal, complaint, district court briefing, or opening appeal brief.”
Joint Mot. to Strike at 3. We agree with the agencies and intervenors that
plaintiffs have not made this argument before their reply brief. There are
accordingly multiple reasons why we will not address it. “Persons challenging an
agency’s compliance with NEPA must ‘structure their participation so that it . . .
alerts the agency to the [parties’] position and contentions,’ in order to allow the
agency to give the issue meaningful consideration.” Dep’t of Transp. v. Pub.
Citizen, 541 U.S. 752, 764 (2004) (quoting Vt. Yankee Nuclear Power Corp. v.
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Natural Res. Def. Council, 435 U.S. 519, 553 (1978)). The Supreme Court held
in Pub. Citizen that,
[b]ecause respondents did not raise these particular objections to the
EA, [the agency] was not given the opportunity to examine any
proposed alternatives to determine if they were reasonably available.
Respondents have therefore forfeited any objection to the EA on the
ground that it failed adequately to discuss potential alternatives to the
proposed action.
Id. at 764-65; see also Barron v. Ashcroft, 358 F.3d 674, 677 (9th Cir. 2004) (“It
is a well-known axiom of administrative law that ‘if a petitioner wishes to
preserve an issue for appeal, he must first raise it in the proper administrative
forum.’”); Kleissler v. U.S. Forest Serv., 183 F.3d 196, 202 (3rd Cir. 1999)
(“[W]e hold that the claims raised at the administrative appeal and in the federal
complaint must be so similar that the district court can ascertain that the agency
was on notice of, and had an opportunity to consider and decide, the same claims
now raised in federal court.”); N.M. Envtl. Improvement Div. v. Thomas, 789
F.2d 825, 835 (10th Cir. 1986) (holding that an issue was waived because not
raised before the agency); Wilson v. Hodel, 758 F.2d 1369, 1372 (10th Cir. 1985)
(“Simple fairness to those who are engaged in the tasks of administration, and to
litigants, requires as a general rule that courts should not topple over
administrative decisions unless the administrative body not only has erred but
erred against objection made at the time appropriate under its practice.”).
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Furthermore, we have held that “[t]he failure to raise an issue in an opening
brief waives that issue.” Anderson v. U.S. Dep’t of Labor, 422 F.3d 1155, 1174
(10th Cir. 2005) (citing State Farm Fire & Cas. Co. v. Mhoon, 31 F.3d 979, 984
n.7 (10th Cir. 1994)). “Consistent with these principles is the general rule that
‘appellate courts will not entertain issues raised for the first time on appeal in an
appellant’s reply brief.’” Id. (quoting Headrick v. Rockwell Int’l Corp., 24 F.3d
1272, 1277-78 (10th Cir. 1994)).
It is clear that, throughout the administrative proceedings, before the
district court, and in their opening brief, plaintiffs’ argument about the absence of
lynx in the Molas Pass area was confined to an allegation that the agencies’
alleged failure to substantiate the existence of lynx in the area was a violation of
NEPA’s procedural obligation to take a “hard look” at the potential environmental
effects of the proposed action. Thus, plaintiffs’ administrative appeal frames the
issue as follows:
all of these references to lynx and lynx habitat are irrelevant because
the Forest Service has not provided the specific factual prerequisite
to their relevance: that lynx do, in fact, inhabit the analysis area.
This is precisely the type of factual defect that the Tenth [C]ircuit
has held renders an environmental analysis fatally flawed for failure
to take a “hard look.”
Appeal at 12, AR at 1021 (emphasis added). The district court analyzed their
lynx argument in the context of their allegation that the agencies failed to take a
“hard look” at the environmental consequences of the Decision. Order at 9,
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Appellant’s App. at 55. In their opening brief, plaintiffs framed the argument in
the identical fashion. Appellant’s Opening Br. at 19. Their argument has
consistently been that the agencies violated NEPA’s “hard look” requirement
when they assumed the existence of lynx in the Molas Pass area, without, they
claim, sufficient hard data supporting that assumption. They did not argue that
that assumption is a substantive violation of some other applicable law, or that it
is arbitrary and capricious under the APA outside of the NEPA “hard look”
context. We accordingly conclude that they have waived that argument. 3
Were we to address it, however, in our discretion, plaintiffs would fare no
better. Plaintiffs argue we should find the agencies’ Decision respecting the lynx
arbitrary and capricious, based upon the Ninth Circuit’s decision in Ariz. Cattle
Growers’ Ass’n, 273 F.3d 1229. Ariz. Cattle Growers’ Ass’n is distinguishable.
In that case, the court held that the FWS acted arbitrarily and capriciously under
the Endangered Species Act when it issued incidental take statements, pursuant to
the ESA, regarding harm to species listed as endangered when there was no
evidence the species existed in the relevant area. The court was interpreting
specific provisions of the ESA which have no application to this case. We see no
reason to impose those context-specific holdings to this case.
3
We can deem the issue waived without needing to strike any portion of
plaintiffs’ reply brief. We accordingly deny the motion by the agencies and the
intervenors to strike portions of that brief.
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Furthermore, the lack of evidence of the existence of the particular species
at issue in Ariz. Cattle Growers’ Ass’n was much more egregious than what
plaintiffs claim is present here. For example, the FWS in that case admitted that
“there have been no reported sightings of the razorback sucker in the area since
1991,” some six years prior, and that there had been “an unsuccessful attempt to
repopulate the project area between 1981-1987.” Id. at 1243-44. The court held
“[t]his speculative evidence, without more, is woefully insufficient to meet the
standards imposed by the governing statute.” Id. at 1244. As indicated, in this
case there was much more substantial and recent evidence of re-introduction
efforts and the viability of the habitat for lynx, as well as a sighting of lynx near
the Molas Pass area. More fundamentally, however, the agencies in this case
were fulfilling their obligation to take a “hard look” at the potential
environmental consequences of the proposed action. While that included
consultation with the FWS in order to ensure that the Decision did not violate the
ESA, the agencies were not making determinations regarding incidental take
statements under particular provisions of, and in the discharge of particular
obligations imposed by, the ESA.
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3. Failure to issue an EIS
NEPA requires the preparation of an EIS, rather than the less detailed EA,
for “major Federal actions significantly affecting the quality of the human
environment.” 42 U.S.C. § 4332(2)(C); see Greater Yellowstone Coal., 359 F.3d
at 1274. The agencies in this case determined that an EIS was not necessary after
preparing an EA, and instead issued a FONSI. “‘An agency’s decision to issue a
FONSI and not prepare an EIS is a factual determination which implicates agency
expertise.’” Id. (quoting Utah Shared Access Alliance v. U.S. Forest Serv., 288
F.3d 1205, 1213 (10th Cir. 2002)) (further quotation omitted). Plaintiffs,
however, failed to raise this issue in the administrative proceedings. They have
accordingly waived it. See Pub. Citizen, 541 U.S. at 764-65; N.M. Envtl.
Improvement Div., 789 F.2d at 835; Wilson, 758 F.2d at 1372.
II. NFMA
NFMA provides for the “development and maintenance of land
management plans for use on units of the National Forest System.” 16 U.S.C.
§ 1604(b); see Lamb v. Thompson, 265 F.3d 1038, 1042 (10th Cir. 2001).
“NFMA establishes a two-step process for forest planning.” Id. First, the Forest
Service prepares a forest plan. The creation of a forest plan requires the
preparation of an EIS. 16 U.S.C. § 1604(g)(1); 42 U.S.C. § 4332(2)(C); see Colo.
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Off-Highway Vehicle Coal. v. U.S. Forest Serv., 357 F.3d 1130, 1132 (10th Cir.
2004). “Second, the Forest Service is required to implement the forest plan by
approving or disapproving specific projects. Projects must be consistent with the
governing forest plan and are subject to the procedural requirements of NEPA.”
Lamb, 265 F.3d at 1042 (citing 16 U.S.C. § 1604(i)).
NFMA provides that forest plans may
be amended in any manner whatsoever after final adoption after
public notice, and, if such amendment would result in a significant
change in such plan, in accordance with the provisions of subsections
(e) and (f) of this section and public involvement comparable to that
required by subsection (d) of this section.
16 U.S.C. § 1604(f)(4). “Any significant amendments to a forest plan must also
follow the same procedures required for the creation of the original forest plan.”
Colo. Off-Highway Vehicle Coal., 357 F.3d at 1132 (citing 36 C.F.R.
§ 219.8(b)). 4
4
The regulations which implement NFMA have been frequently amended.
At the time the agencies issued the Decision, the agencies represent that the
Forest Service was operating under an interim revised planning rule that the
Department of Agriculture had promulgated in 2000. See 65 Fed. Reg. 67,514
(Nov. 9, 2000) (codified at 36 C.F.R. pt. 219 (2001)). Under the 2000 rule, the
Forest Service could elect to prepare Forest Plan amendments under either the
provisions of the 1982 planning rule, see 47 Fed. Reg. 43,026 (Sept. 30, 1982)
(codified at 36 C.F.R. pt. 219 (1982)) or the provisions of the 2000 rule, see 36
C.F.R. § 219.35(b) (2000). The current 2005 version allows the Forest Service to
prepare Forest Plan amendments or revisions initiated before or during the
transition period established by the 2000 rule under the provisions of either the
1982 rule or under the 2005 rule. 36 C.F.R. § 219.14(d)-(e) (2005). See
(continued...)
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Plaintiffs claim the agencies violated NFMA because they changed the
Forest Plan at issue in this case without formally amending it. In particular, they
argue that, prior to the Decision, an area adjacent to Highway 550 and
surrounding Andrews Lake was designated 2B Management Area Prescription.
As such, “[m]otorized and non-motorized recreation activities such as . . .
snowmobiling . . . are possible. . . . Motorized travel may be prohibited or
restricted to designated routes, to protect physical and biological resources.” AR
at 790. Following the Decision, that area (part of a larger area designated as 2B
Prescription) was converted to an A travel management area on which motorized
use is banned. Plaintiffs argue that conversion was a significant change
necessitating an amendment to the Forest Plan. 5 The agencies assert that no such
amendment was necessary.
4
(...continued)
generally Utah Envtl. Cong. v. Bosworth, 421 F.3d 1105, 1110 (10th Cir. 2005).
5
The Decision explicitly stated that “[b]ecause the . . . changes in travel
management do not reflect any changes in Forest Plan Management Direction of
Prescriptions for the area, no Forest Plan amendment is required.” Decision at 5,
AR at 991. However, the EA noted that “the existing travel-management scheme
may need to be amended.” EA at 7, id. at 854. The Regional Forester Appeal
Deciding Officer who affirmed the Decision in plaintiffs’ administrative appeal to
the Forest Service noted that the Decision and EA contained some confusing
language: “[s]ome of the discussion pertaining to these different forms of
management direction is confusing, e.g., the EA begins by describing the Forest
Plan Management Area prescriptions . . . . However, . . . [later] the EA switches
to a discussion of the travel management designations, but never relates the two
sets of management direction to each other.” AR at 1056 (citations omitted).
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Whichever version of the regulations concerning Forest Plan amendments
we apply, see supra note 4, it is clear that an amendment requires compliance with
NEPA provisions, consultation with other agencies and appropriate public
involvement. See 36 C.F.R. § 219.10 (1982); id. § 219.8(b) (2001); id. § 219.4(b)
(2005). That was clearly done in this case, whether it is called an amendment of
the Forest Plan or not. It is difficult to imagine what further analysis could have
been done, given the agencies’ compliance with NEPA, including the intense
focus placed on where snowmobiling would be permitted. For all reasonable
intents and purposes, there was no error committed here, other than perhaps the
failure to label the agencies’ action as accomplishing an “amendment.” NFMA
protects the meaningful and substantive procedures that fall under a label, not
mere nomenclature. In this case, the very change plaintiffs claim should have
been made by way of amendment was at the front and center of the view of the
agencies and the public as they followed NEPA’s required analysis. It would be
wasteful and meaningless to require the agencies at this point to merely label their
conduct as amending the Forest Plan. We therefore conclude that no NFMA error
occurred. 6
6
It follows from our analysis that, were we to conclude that an error had
occurred, we would consider it harmless. We acknowledge that “[t]he role of
harmless error in the context of agency review is constrained.” Nat. Res. Def.
Counsel v. U.S. Forest Serv., 421 F.3d 797, 807 (9th Cir. 2005); see also Gifford
(continued...)
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III. FLPMA
Finally, plaintiffs argue that the Decision violated FLPMA because it stated
that “[t]he BLM will adopt a travel-management policy for the Silverton Special
Recreation Management Area that specifically allows motorized use on
and off trails and roads in winter and revise its San Juan Resource Area
Management Plan through a ‘Maintenance Document’ to reflect that intent.”
Decision at 5, AR at 991. Plaintiffs argue that the issuance of a Maintenance
Document is insufficient under applicable regulations to implement such a
change. They assert that amendment of the Resource Area Management Plan is
required.
The district court held it lacked jurisdiction over this claim because
plaintiffs had failed to exhaust their administrative remedies, inasmuch as the
IBLA had not yet ruled on their appeal of the Decision to that body. The IBLA
has now ruled, affirming the Decision:
6
(...continued)
Pinchot Task Force v. U.S. Fish & Wildlife Serv., 378 F.3d 1059, 1071 (9th Cir.
2004). Thus, it “may be employed only ‘when a mistake of the administrative
body is one that clearly had no bearing on the procedure used or the substance of
the decision reached.’” Id. (quoting Buschmann v. Schweiker, 676 F.2d 352, 358
(9th Cir. 1982) (further quotation omitted)). In this case, assuming that the ban
on snowmobiling in the relevant areas did require an amendment of the Forest
Plan, we would conclude that the failure to prepare a formal amendment was
harmless. See Save Our Heritage, Inc. v. Fed. Aviation Admin., 269 F.3d 49, 61-
63 (1st Cir. 2001).
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BLM correctly points out that even if, as appellants argue, the change
in snowmobile use was more than minor but rather constituted an
expansion in resource use such that an amendment to the RMP is
required, all of the procedures attendant upon an amendment were
followed here. In fact, appellants do not and cannot dispute that the
challenged decision was made only (1) after preparation of an
environmental assessment of the proposed action and alternatives to
it as provided by 43 CFR 1610.4-6 and 1610.5-5, (2) full public
involvement in which BLM and the Forest Service received and
considered 815 comment letters as prescribed in 43 CFR 1610.2, and
(3) complete interagency coordination (and an interagency task force)
as required by 43 CFR 1610.3. . . . Although appellants state that the
procedures of 43 CFR 1610.5-5 ‘have not been followed,’ they
cannot point to any more procedure that was required for a plan
amendment than was provided by the agencies.
Order at 5, IBLA 2001-373, Br. of Fed. Appellees, Addendum B (citation
omitted). 7 Although the IBLA has now ruled, plaintiffs plainly had not exhausted
their administrative remedies when they filed their complaint in the district court.
7
As both the district court and the IBLA pointed out, plaintiffs’ claim to
have suffered an injury as a result of the expansion of snowmobiling in the
Silverton Special Recreation Management Area is suspect. After all, plaintiffs are
organizations of persons interested in snowmobiling, and have complained in the
rest of this lawsuit about reductions in the terrain available for snowmobiling.
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See 43 C.F.R. § 4.21(c). 8 We accordingly affirm the district court’s dismissal of
this claim.
CONCLUSION
For the foregoing reasons, the decision of the district court is AFFIRMED.
8
43 C.F.R. § 4.21(c) provides:
Exhaustion of administrative remedies. No decision which at the
time of its rendition is subject to appeal to the Director or an Appeals
Board shall be considered final so as to be agency action subject to
judicial review under 5 U.S.C. 704, unless a petition for a stay of
decision has been timely filed and the decision being appealed has
been made effective in the manner provided in paragraphs (a)(3) or
(b)(4) of this section or a decision has been made effective pending
appeal pursuant to paragraph (a)(1) of this section or pursuant to
other pertinent regulation.
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Silverton Snowmobile Club v. United States Forest Service
Court: Court of Appeals for the Tenth Circuit
Date filed: 2006-01-12
Citations: 433 F.3d 772
Copy CitationsCombined Opinion