Silverton Snowmobile Club v. United States Forest Service

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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