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American Whitewater v. Thomas Tidwell, 4th Cir. (2014)
American Whitewater v. Thomas Tidwell, 4th Cir. (2014)
No. 13-1960
No. 13-2016
No. 13-2017
AMERICAN
CANOEING
WHITEWATER; AMERICAN
ASSOCIATION; ATLANTA
Appeals from the United States District Court for the District
of South Carolina, at Anderson. Mary G. Lewis, District Judge.
(8:09-cv-02665-MGL)
Argued:
Decided:
November 5, 2014
ARGUED:
James Nathan Galbreath, NELSON GALBREATH, LLC,
Greenville,
South
Carolina,
for
Appellants/Cross-Appellees.
Rachel Susanna Doughty, GREENFIRE LAW, Berkeley, California;
Richard Stephen Doughty, Hendersonville, Tennessee; Nina C.
Robertson, UNITED STATES DEPARTMENT OF JUSTICE, Washington,
D.C., for Appellees/Cross-Appellants.
ON BRIEF:
R. Brian
Hendrix, Collin O'Connor Udell, JACKSON LEWIS LLP, Reston,
Virginia;
Cecil
H.
Nelson,
Jr.,
NELSON
GALBREATH,
LLC,
Greenville,
South
Carolina,
for
Appellants/Cross-Appellees.
Robert G. Dreher, Acting Assistant Attorney General, John P.
Tustin, Ellen J. Durkee, Appellate Section, Environment &
Natural Resources Division, UNITED STATES DEPARTMENT OF JUSTICE,
Washington, D.C.; John H. Douglas, OFFICE OF THE UNITED STATES
ATTORNEY, Charleston, South Carolina; Matthew A Tilden, UNITED
STATES
DEPARTMENT
OF
AGRICULTURE,
Washington,
D.C.,
for
Appellees/Cross-Appellants. D. Kent Safriet, Mohammad O. Jazil,
HOPPING GREEN & SAMS, P.A., for Intervenors-Appellees/CrossAppellants
Richard
Rust,
Henry
Rust,
and
Goodenow
LLC.
Alexander
M.
Bullock,
KILPATRICK
TOWNSEND
&
STOCKTON,
Washington,
D.C.,
for
Intervenor-Appellee/Cross-Appellant
Georgia ForestWatch.
(the
Chattooga
or
the
River)
and
15,432
acres
of
adjacent land for preservation under the Wild and Scenic Rivers
Act (the WSRA or the Act), 16 U.S.C. 1274 et seq. (2006).
Since
then,
the
United
States
Forest
Service
(the
Forest
but
prohibited
the
practice
on
the
lengthy
review,
the
Forest
Service
21-mile
In 2012,
revised
its
plan
does
not
go
far
enough
and
that
the
remaining
(the APA).
environmental
group,
and
the
Rust
family
(the
already
goes
too
far.
They
contend
that
the
WSRA
that
the
Forest
Service's
revised
plan
carefully
We agree with
I.
A.
The WSRA establishes a national policy to preserve rivers
of outstandingly remarkable value.
the
condition
Forest
and
generations.
Service
preserve
to
their
prevent
pristine
degradation
quality
of
for
their
future
The
statutory
command
is
twofold:
the
outstandingly
remarkable
The
Forest
Service
manages
the
Chattooga
through
the
As relevant here,
In 2005, a Forest
that
adequate
the
basis
Headwaters.
2004
for
development
continuing
J.A. at 587. 3
the
plan
ban
did
on
not
provide
floating
on
an
the
study the issue and prepare a new plan in accordance with its
results.
Id.
It then
meetings
feedback.
to
explain
the
review
The Forest
and
solicit
the
opportunit[y]
for
remoteness
in
J.A. at 962.
significant
anglers
likelihood
were
completely.
the
of
user
Headwaters
conflict
floating
between
ban
floaters
to
be
and
lifted
are
heavy,
and
that
fishing
connection
with
conditions
are
less
ideal
J.A. at 974-76.
these
findings,
the
Forest
Service
leaving
lifting
the
the
ban
on
floating
ban
completely.
The
8
in
place
and
alternative
unchanged
it
to
selected,
It
The Forest
J.A. at 1402-03.
found
that
Environmental
NEPA
Impact
did
not
Statement.
require
preparation
Instead,
the
Forest
of
an
Service
Significant
Impact
(together
with
the
2012
Environmental
Whitewater
filed
its
first
complaint
in
this
action on October 14, 2009, while the study process was still
9
American
the
Whitewater
allegations
filed
related
to
an
amended
the
complaint,
portion
of
the
dismissed
the
Rusts'
claims
for
lack
of
case
or
American
moved
to
intervene
in
August
of
2011,
in
restrictions.
American
Whitewater
10
v.
Tidwell,
No.
on
floating
violate
the
WSRA.
In
the
alternative,
needed
Chattooga.
to
balance
competing
recreational
uses
on
the
floating
are
insufficiently
strict
to
meet
the
WSRA's
See
the
Headwaters
running
through
their
property
are
non-
on
the
administrative
record
on
April
16,
2013.
It
NEPA
claims,
holding
that
the
record
provided
ample
between
floaters
remaining
and
floating
other
recreational
restrictions
and
users
that
the
justified
Forest
the
Service
declaratory
as
judgment
ForestWatch's
claims
premature,
against
the
and
refused
Forest
Service
to
consider
because
they
These timely
appeals followed.
II.
The crux of American Whitewater's claim is that the Forest
Service struck the wrong balance when it opened the Headwaters
to
floating
partially
but
not
entirely,
maintaining
some
conflicts,
and
the
remaining
restrictions
are
325
2003).
F.3d
court's,
211,
our
217
review
highly deferential.
(4th
Cir.
under
the
APA
is
But
like
the
ultimately
district
narrow
and
12
5 U.S.C.
APA,
reviewing
court
must
ensure
that
the
agency
has
the
facts
found
should be sustained.
and
the
choice
made,
its
decision
Co., 556 F.3d 177, 192 (4th Cir. 2009) (quoting Motor Vehicle
Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43
(1983))
(internal
quotation
marks
omitted).
Our
review
is
th[e]
dispute
involves
primarily
issues
of
fact
that
with
balancing
often-competing
interests.
See
Hells
Canyon Alliance v. U.S. Forest Serv., 227 F.3d 1170, 1182 (9th
Cir. 2000).
13
the
Forest
Service
opens
Ohio
substantial
portions
of
the
same
time,
by
retaining
the
ban
on
J.A. at 1459.
floating
At
during
the
spring and summer months, the Forest Service has addressed the
documented concerns expressed by other recreational users of the
Headwaters,
providing
for
floater-free
environment
when
J.A. at 1460-61.
for
fishermen.
J.A.
at
1460.
Finally,
as
to
supports
American
the
Whitewater's
Forest
Service's
14
J.A. at 1458.
assertions,
conclusions
the
record
regarding
potential
Service
conflicts
relied
between
in
among
part
recreational
recreational
on
history
users,
users.
of
reviewing
The
previous
Forest
conflicts
evidence
from
the
proxy
rivers.
And
it
assembled
significant
data
usage,
analyzing
developing
wealth
of
expected
public
encounter
comments
estimates,
including
many
and
from
American
Whitewater
argues
that
the
Forest
Service
was
accurately
Headwaters.
assess
the
likelihood
of
conflicts
on
the
this
counter-intuitive
argument.
Where
We cannot
the
agencys
APA
requires
it
to
experiment
with
practice
before
Watershed
Conservancy
v.
Johnson,
165
F.3d
283,
289
(4th
Cir. 1999).
At bottom, American Whitewater disagrees with the Forest
Services
strike.
factual
conclusions
and
the
balance
it
chose
to
WSRA,
which
requires
the
Forest
Service
to
protect
and
16 U.S.C. 1281(a).
to
lift
all
restrictions
on
floating.
Second,
American
not
substantially
interfere
16
with
any
protected
Congress
designated
the
Chattooga
for
preservation
under the WSRA, it did not expressly identify the River's ORVs.
In such cases, that task falls to the relevant administrative
agency, which must define a river's values in accordance with
published
Scenic
interagency
Rivers
guidelines.
Coordinating
See
Council,
The
Interagency
Wild
&
Wild
Scenic
and
River
915.
American
Whitewater
argues
that
the
Forest
J.A.
Service
that
the
Forest
Service's
decision
to
designate
floating
is
not
Chattooga
River
value
that
must
be
begin
with,
although
the
WSRA
does
not
define
categories
such
as
recreational
value,
rather
than
Section 1271 of
16
See Washington
537
U.S.
371,
384
(2003)
([W]here
general
words
objects
enumerated
by
the
preceding
specific
words.)
the
awkward
textual
fit,
American
In
fact,
the
Forest
Service's
decision
to
identify
record.
For
example,
the
1971
Forest
Service
according
to
the
1971
Designation would be
report,
because
it
would
enjoyment
of
river-related
general.
The
Senate
Chattooga's
designation
and
recreation
House
under
the
Reports
WSRA
activities
accompanying
likewise
refer
in
the
to
enjoy
effort
much
from
of
the
the
river
requires
recreationist,
considerable
whether
he
be
To see
time
and
fisherman,
Cf.
river
areas,
agencies
19
must
identify
and
seek
to
protect
ORVs).
determination
administrative
In
this
after
case,
the
careful
guidance
and
Forest
consideration
voluminous
Chattooga's characteristics.
Service
of
reports
J.A. at 913-19.
made
its
relevant
describing
the
involve
trade-offs
J.A. at 915.
among
competing
recreational
may
establish
varying
degrees
of
intensity
for
American
Whitewater
argues
that
under
the
54.
American
Whitewater's
argument
is
flawed
in
its
premise:
hiking
recreational
might
be
would
value;
an
be
operating
other
use
public
a
use
highway,
subject
to
of
on
the
the
For
Chattooga's
other
restriction
hand,
if
it
It cannot
evidence
of
user
conflict
developed
by
the
Forest
interfere
substantially
with
hold
that
the
remaining
other
recreational
uses.
restrictions
on
floating
on
the
III.
The
Rusts
present
narrower
challenge
to
the
2012
argue that the 2012 Decision is invalid under NEPA because the
or
application
of
the
substantial
22
Forest
Service
failed
to
provide
sufficiently
detailed
be
clear,
the
2012
Decision
does
not
authorize
any
J.A. at 943.
any
groundwork
attempt
for
an
by
the
exercise
Forest
of
Service
its
even
regulatory
to
lay
the
authority,
the
may
address
only
disputes
that
are
definite
and
(1937).
The
declaratory
relief
immediacy
and
same
and
reality
declaratory judgment.
standard
requires
[as]
to
applies
a
to
controversy
warrant
the
a
of
request
for
sufficient
issuance
of
Pittsburgh, Pa., 913 F.2d 165, 167-68 (4th Cir. 1990) (quoting
Maryland Cas. Co. v. Pac. Coal & Oil Co., 312 U.S. 270, 273
(1941)).
23
that
the
Forest
Service
would
The Rusts
need
to
take
Nor has it
J.A. at
21, 22.
We
will
not
issue
an
advisory
opinion,
addressing
669
F.3d
194,
202
(4th
Cir.
2012)
([A]
dispute
is
24
The Rusts'
B.
The Rusts also argue that the Forest Service violated NEPA
by failing to analyze the risk that opening portions of the
Headwaters to floating could lead to trespass on Rust property.
They insist that floaters are likely to attempt to reach the
River by crossing their property illicitly, instead of using the
trails and parking lots already available to the public.
district
court
correctly
held
that
this
prospect
is
The
so
encourages
conservation
not
by
imposing
substantive
only
the
reasonably
foreseeable
effects
of
its
generally
need
not
do
so
with
effects
that
are
merely
the
line.
2012
Decision
is
downstream
from
the
Rusts'
property
Nothing in
direct
path
across
the
Rusts'
uncleared
land.
The
Rusts'
unconvincing.
to
this
common-sense
proposition
is
from
expressing
an
intent
to
illegally,
and
from
Neither
explains
forty
years
why
ago
floaters
and
might
stray
be
newspaper
expected
to
report.
trespass
assuming
that
heightened
risk
of
trespass
was
continued
ban
Rusts' property.
on
floating
above
Green's
Creek,
and
the
or
any
associated
environmental
impact
was
not
so
likely.).
flyspeck[ing]
Review
agency
under
analysis
NEPA
and
is
not
discussion,
vehicle
Nat'l
for
Audubon
Soc'y, 422 F.3d at 186, and we find that the Forest Service has
met its NEPA obligations. 6
IV.
Finally, we have the claims of ForestWatch, which, like
the Rusts, intervened in this case below.
27
Services
Headwaters.
remaining
restrictions
on
floating
on
the
ForestWatch
action
the
Forest
Service
now
district
court
carefully
cabined
ForestWatch's
See American
2013)
(text
order).
It
did
not
reach
ForestWatchs
to
the
parties
with
claims
pending
in
the
case.
claims
will
against
the
Forest
Service
be
considered
by
the
Servs.,
134
F.3d
1222,
1227
28
Cir.
1998)
([I]ssues
raised
for
the
first
time
on
appeal
generally
will
not
be
ForestWatch
may
appeal,
however,
is
the
underlying
The district
limited
ForestWatch
Whitewaters]
claim
to
for
[d]efending
declaratory
and
against
[American
injunctive
relief.
erred
in
intervention.
imposing
that
limit
on
the
scope
of
its
discretion
because,
as
standard.
We
ForestWatchs
need
counsel
not
reach
candidly
this
admitted
question
at
oral
F.2d
450,
470
(4th
Cir.
1992).
Under
any
standard
of
record
differently,
and
believe
that
the
We read
district
court
its
pending
consolidate
lawsuit.
ForestWatchs
First,
action
in
with
denying
the
present
motion
case,
to
the
J.A. at 1886-88. 7
959
F.
Supp.
2d
at
850
([A]lthough
the
court
has
But
read
in
context,
those
passages
uphold
the
2012
30
should
understood
note,
as
should
resolving
anything
in
ForestWatchs
our
opinion
separate
today
claims
Nor,
be
against
V.
For the reasons set forth above, we affirm the judgment of
the district court.
AFFIRMED
31