Rocky Mountain Wild v. Dallas

98 F.4th 1263

ROCKY MOUNTAIN WILD; San Luis Valley Ecosystem Council; San Juan Citizens Alliance; Wilderness Workshop, Petitioners-Appellees, v. Dan DALLAS, in his official capacity as Forest Supervisor; Brian Ferebee, in his official capacity as Regional Forester; Anne Timberman, in her official capacity as Western Colorado Supervisor, United States Forest Service, a Federal Agency within the U.S. Department of Agriculture; U.S. Fish and Wildlife Service, a federal agency within the Department of the Interior. Respondents-Appellants, and Tamara Whittington, in her official capacity as Deputy Regional Forester, et al., Respondents.

Leavell-McCombs Joint Venture, Intervenor Respondent.

Rocky Mountain Wild; San Luis Valley Ecosystem Council; San Juan Citizens Alliance; Wilderness Workshop, Petitioners-Appellees, v. Dan Dallas, in his official capacity as Forest Supervisor; Tamara Whittington, in her official capacity as Deputy Regional Forester; Brian Ferebee, in his official capacity as Regional Forester; United States Forest Service, a Federal Agency within the U.S. Department of Agriculture; Anne Timberman, in her official capacity as Western Colorado Supervisor; U.S. Fish and Wildlife Service, a federal agency within the Department of the Interior, Respondents.

Leavell-McCombs Joint Venture, Intervenor Respondent-Appellant.

No. 22-1438

No. 22-1439

United States Court of Appeals, Tenth Circuit

FILED April 19, 2024

Appeals from the United States District Court for the District of Colorado, (D.C. No. 1:19-CV-01512-CMA)

Katelin Shugart-Schmidt, Environment and Natural Resources Division, U.S. Department of Justice, Washington, D.C. (Todd Kim, Assistant Attorney General, with her on the briefs), for Respondents-Appellants.

Aaron D. Van Oort, Faegre Drinker Biddle & Reath LLP, Minneapolis, Minnesota (William Leone, Norton Rose Fulbright US LLP, Denver, Colorado, with

him on the briefs), for Intervenor Respondent-Appellant.

Travis E. Stills, Energy & Conservation Law, Durango, Colorado (Matthew Sandler, Rocky Mountain Wild, Denver, Colorado, and Matt Kenna, Public Interest Environmental Law, Durango, Colorado, with him on the brief), for Petitioners-Appellees.

Before McHUGH, EID, and ROSSMAN, Circuit Judges.

McHUGH, Circuit Judge.

Intervenor Leavell-McCombs Joint Venture ("LMJV")¹ owns a 300-acre parcel of land within the Rio Grande National Forest in Colorado, abutting the Wolf Creek Ski Area ("LMJV Parcel" or "Parcel"). LMJV obtained the Parcel through a land exchange with Appellant U.S. Forest Service ("USFS") in 1987. The LMJV Parcel was encumbered with an easement, placing some restrictions on development ("Scenic Easement"). Development of the LMJV Parcel into a ski resort village was hindered because the Parcel can be reached only by a gravel road managed by the USFS that is unusable by vehicles in the winter.

In 2007, after the Colorado Court of Appeals required LMJV to secure year-round road access to the Parcel before developing it, LMJV invoked the Alaska National Interest Lands Conservation Act ("ANILCA"), claiming it requires the USFS to grant access to inholdings within USFS land. The USFS initially proposed a second land exchange with LMJV to secure access to Highway 160, the highway that serves the Wolf Creek Ski Area and is closest to the Parcel. To ensure compliance with the Endangered Species Act ("ESA"), in 2013, the USFS prepared an Environmental Impact Statement ("EIS") and worked with Appellant U.S. Fish and Wildlife Service ("FWS") to secure a biological opinion ("BiOp") and an incidental take statement ("ITS"). In 2015, USFS issued a final Record of Decision ("ROD") and approved the land exchange. Rocky Mountain Wild ("RMW"), San Luis Valley Ecosystem Council, San Juan Citizens Alliance, and Wilderness Workshop (collectively, the "Conservation Groups") challenged this action in the United States District Court for the District of Colorado under the Administrative Procedure Act ("APA"), alleging that it violated the National Environmental Policy Act ("NEPA") and the ESA, among other allegations. In 2017, the district court vacated the USFS decision and remanded to the agency.

The USFS subsequently abandoned the land exchange option and instead considered a new alternative in the form of a right-of-way easement to LMJV across USFS land between the Parcel and Highway 160. The USFS consulted with the FWS to secure a new BiOp and ITS for the proposed action in 2018. The USFS then issued a final ROD in 2019, approving the easement.

The Conservation Groups challenged this latest ROD under NEPA, the ESA, and ANILCA. The district court vacated and remanded under the law of the case doctrine, concluding that it was bound by the reasoning of the district court's 2017 order. According to the district court, the USFS and FWS (collectively, the "Agencies") relied on the same flawed EIS and utilized the same flawed reasoning in the 2018 BiOp and 2019 ROD that the district court previously addressed concerning the 2013 BiOp and the 2015 ROD.

The Agencies appeal the district court's decision vacating the 2018 BiOp and 2019 ROD. At the outset, they argue this court has jurisdiction despite the district court's remand to the agency under the practical finality rule. The Agencies also assert that the district court erred in its application of the law of the case doctrine. As to the merits, the Agencies defend their actions under NEPA and the ESA. LMJV joins as an intervenor in the Agencies' arguments and advances separate arguments defending the Agencies' interpretation of ANILCA and responding to other objections presented to the district court.

The Conservation Groups challenge our subject matter jurisdiction and defend the district court's reasoning under the law of the case doctrine. They further respond that the Agencies' actions were arbitrary and capricious under NEPA and the ESA, and that the USFS improperly extended the reach of ANILCA beyond parcels located in Alaska.

After reviewing the parties' submissions and pertinent authorities, we vacate the district court's order and affirm the Agencies' decisions. We first conclude we have jurisdiction over the matter under the practical finality rule, and that the Conservation Groups have standing. We then hold that the district court incorrectly applied the law of the case doctrine because the Agencies considered a different alternative when issuing the 2019 ROD, and much of the cited reasoning from the district court's 2017 order was either specifically tailored to the land exchange proposal—as opposed to a right-of-way proposal—or was expressed in dicta.

Next, under this court's binding precedent, we conclude ANILCA requires the USFS to grant access to the LMJV Parcel. Further, we determine that even if the Conservation Groups could show error under NEPA, they have not shown that any alleged error was harmful. Finally, we hold that the Conservation Groups fail to successfully challenge the 2018 BiOp under the ESA, and that the Agencies correctly allowed the ITS to cover not only the proposed easement, but also LMJV's proposed development.²

I. BACKGROUND

A. Factual History

In 1986, LMJV's predecessor and USFS prepared to enter a land exchange, in which LMJV would trade 1,631 acres of land for 420 acres of USFS land in the Rio Grande National Forest adjacent to Wolf Creek Ski Area. Rocky Mountain Wild v. Dallas, No. 15-cv-01342-RPM, 2017 WL 6350384, at *1-*2 (D. Colo. May 19, 2017). The 420 acres USFS offered in the exchange would overlay Highway 160 and facilitate LMJV's development of a ski village adjacent to the Wolf Creek Ski Area. Id. at *1-*3. USFS reduced the conveyance to 300 acres after finalization of the relevant appraisals, and the parcel became an inholding which could access Highway 160 only by a USFS-managed road closed to "motorized traffic" during the winter. Id. The final exchange occurred in 1987. Id. at *1.

The USFS also imposed the Scenic Easement on the plot conveyed to LMJV, limiting development on the property to residential, commercial, and recreational uses "typical to an all-season resort village." Agencies App. Vol. I at 236. The Scenic Easement dictates the architecture of the structures, the building materials that may be used, and the height of buildings, and prohibits several uses, including feed lots, commercial greenhouses, airports, and permanent hazardous product storage. The Scenic Easement also requires the Supervisor of the Rio Grande National Forest to approve proposed development on the property, which is subject both to waiver by the supervisor and negotiation and arbitration in the event of a disagreement.

Litigation ensued when LMJV attempted to develop the Parcel, ultimately curtailing LMJV's development plans. Wolf Creek Ski Corp. v. Bd. of Cnty. Comm'rs of Mineral Cnty., 170 P.3d 821 (Colo. App. 2007) (affirming the trial court order voiding approval of LMJV's resort development plans). The Colorado Court of Appeals held that state law "require[d] at a minimum year-around wheeled[-]vehicle access between State Highway 160" and the planned development. Id. at 830. Because the USFS road "is not usable by wheeled vehicles during the winter," the court held the development plan did not satisfy state law. Id.

In 2010, LMJV submitted a land exchange proposal to the USFS and requested that the USFS analyze an access road across USFS lands, invoking the USFS's obligations to provide access to the Parcel to secure "reasonable use and enjoyment thereof" under ANILCA. LMJV App. Vol. IX at 2346. ANILCA directs the USFS to "provide such access to nonfederally owned land within the boundaries of the National Forest System as [it] deems adequate to secure to the owner the reasonable use and enjoyment thereof." 16 U.S.C. § 3210(a). As part of the land exchange proposal, LMJV offered to trade approximately 177 acres of the upland portion of its inholding for 205 acres of USFS's low-lying land that abutted Highway 160....