Whitewater v. Tidwell

770 F.3d 1108

AMERICAN WHITEWATER ;

American Canoe Association ;

Georgia Canoeing Association ;

Atlanta Whitewater Club;

Foothills Paddling Club;

Western Carolina Paddlers;

Joseph C. Stubbs;

Bruce A. Hare;

Kenneth L. Strickland, Plaintiffs–Appellantsv.Thomas TIDWELL, in his official capacity as Chief of the United States Forest Service;

United States Forest Service, an agency of the United States Department of Agriculture;

Thomas J. Vilsack, in his official capacity as Secretary of the United States Department of Agriculture;

United States Department of Agriculture, Defendants–Appellees

and

Elizabeth Agpaoa, Regional Forester Southern Region United States Forest Service;

Monica J. Schwalbach, Acting Forest Supervisor Francis Marion and Sumter National Forests;

Marisue Hillard, Forest Supervisor National Forests in North Carolina;

George M. Bain, Forest Supervisor Chattahoochee–Oconee National Forests, Defendants

Richard Rust ;

Henry Rust;

Goodenow LLC;

Georgia ForestWatch, Intervenors–Appellees.

American Whitewater ;

American Canoe Association ;

Georgia Canoeing Association ;

Atlanta Whitewater Club;

Foothills Paddling Club;

Western Carolina Paddlers;

Joseph C. Stubbs;

Bruce A. Hare;

Kenneth L. Strickland, Plaintiffs–Appelleesv.Thomas Tidwell, in his official capacity as Chief of the United States Forest Service;

United States Forest Service, an agency of the United States Department of Agriculture;

Thomas J. Vilsack, in his official capacity as Secretary of the United States Department of Agriculture;

United States Department of Agriculture;

Elizabeth Agpaoa, Regional Forester Southern Region United States Forest Service;

Monica J. Schwalbach, Acting Forest Supervisor Francis Marion and Sumter National Forests;

Marisue Hillard, Forest Supervisor National Forests in North Carolina;

George M. Bain, Forest Supervisor Chattahoochee–Oconee National Forests, Defendants

Georgia ForestWatch, Intervenor

and

Richard Rust ;

Henry Rust;

Goodenow LLC, Intervenors–Appellants.

American Whitewater ;

American Canoe Association ;

Georgia Canoeing Association ;

Atlanta Whitewater Club;

Foothills Paddling Club;

Western Carolina Paddlers;

Joseph C. Stubbs;

Bruce A. Hare;

Kenneth L. Strickland, Plaintiffs–Appelleesv.Thomas Tidwell, in his official capacity as Chief of the United States Forest Service;

United States Forest Service, an agency of the United States Department of Agriculture;

Thomas J. Vilsack, in his official capacity as Secretary of the United States Department of Agriculture;

United States Department of Agriculture;

Elizabeth Agpaoa, Regional Forester Southern Region United States Forest Service;

Monica J. Schwalbach, Acting Forest Supervisor Francis Marion and Sumter National Forests;

Marisue Hillard, Forest Supervisor National Forests in North Carolina;

George M. Bain, Forest Supervisor Chattahoochee–Oconee National Forests, Defendants

Richard Rust ;

Henry Rust;

Goodenow LLC, Intervenors

and

Georgia ForestWatch, Intervenor–Appellant.

Nos. 13–1960

13–2016

13–2017.

United States Court of Appeals, Fourth Circuit.

Argued: Sept. 17, 2014.

Decided: Nov. 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/Cross–Appellants Richard Rust, Henry Rust, and Goodenow LLC. Alexander M. Bullock, Kilpatrick Townsend & Stockton, Washington, D.C., for Intervenor–Appellee/Cross–Appellant Georgia ForestWatch.

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

Opinion

Affirmed by published opinion. Judge HARRIS wrote the opinion, in which Judge KING and Senior Judge HAMILTON joined.

PAMELA HARRIS, Circuit Judge:

In 1974, Congress selected the 57 miles of the Chattooga River (the “Chattooga” or the “River”) and 15,432 acres of adjacent land for preservation under the Wild and Scenic Rivers Act (the “WSRA” or the “Act”), 16 U.S.C. § 1274 et seq. (2006). Since then, the United States Forest Service (the “Forest Service”) has managed the Chattooga under the WSRA.

Prior to 2012, longstanding Forest Service policy allowed non-motorized rafting or “floating”¹ on the lower portions of the Chattooga, but prohibited the practice on the 21–mile northernmost section of the River (the “Headwaters”). In 2012, after a lengthy review, the Forest Service revised its management plan for the Chattooga to allow floating on most of the Headwaters during the winter months, when flows are highest and conditions are best.

American Whitewater,² Plaintiff–Appellant, argues that the revised plan does not go far enough and that the remaining limits on floating are inconsistent with the WSRA and arbitrary and capricious in violation of the Administrative Procedure Act (the “APA”). 5 U.S.C. § 702 et seq. (2006). On the other hand, two intervening parties, Georgia ForestWatch (“ForestWatch”), a not-for-profit environmental group, and the Rust family (the “Rusts”), argue that the Forest Service's decision to allow any floating already goes too far. They contend that the WSRA prohibits any floating on the Headwaters whatsoever, and that the Forest Service violated the National Environmental Policy Act (“NEPA”), 42 U.S.C. § 4321 et seq. (2006), in the course of reaching its decision.

The district court rejected both sets of challenges and found that the Forest Service's revised plan “carefully balance[s] the wide-ranging interests advocated by the several parties and participants.” American Whitewater v. Tidwell, 959 F.Supp.2d 839, 860 (D.S.C.2013) (“Tidwell ”). We agree with the district court's well-reasoned opinion and affirm.

I.

A.

The WSRA establishes a national policy to preserve rivers of “outstandingly remarkable value.” Once designated under the WSRA, rivers are managed by an administrative agency—in this case, the Forest Service—to prevent degradation of their condition and preserve their pristine quality for future generations. See 16 U.S.C. §§ 1271, 1274, 1281(a) (2006). The statutory command is twofold: the outstandingly remarkable values, or “ORVs,” that led Congress to designate the river must be “protecte[d] and enhance[d],” while other uses may be limited if they substantially interfere with the public's use of those ORVs. 16 U.S.C. §§ 1271, 1281(a).

The Forest Service manages the Chattooga through the Chattooga Wild and Scenic Development Plan. As relevant here, the original 1976 version of the plan—as well as each of the subsequent versions published in 1985, 2002 and 2004—limited floating to the lower portions of the Chattooga.

American Whitewater first challenged the Forest Service's ban on floating on the Headwaters in 2002. In 2005, a Forest Service Reviewing Officer agreed with American Whitewater and found that the 2004 development plan did not “provide an adequate basis for continuing the ban” on floating on the Headwaters. J.A. at 587.³ He directed the Forest Service to study the issue and prepare a new plan in accordance with its results. Id.

To comply with the Reviewing Officer's ruling, the Forest Service began by preparing an action plan to establish capacity limits for use of the Chattooga and to measure the expected impact of Headwaters floating on the Chattooga's ORVs. It then integrated a wide range of data on compatible recreational uses of the Headwaters in a 2007 report entitled Capacity & Conflict on the Upper Chattooga River (the “2007 Report”). The Forest Service also actively involved the public. It held six well-attended meetings to explain the review process and solicit feedback. Over seven years, members of the public submitted more than 4,300 responses and comments.

These efforts culminated in a 2012 Environmental Assessment presenting the Forest Service's findings. The Forest Service reached three conclusions of note here. First, it found that solitude, the “opportunit[y] for remoteness ... in a spectacular scenic setting,” was important to many users of the Headwaters. J.A. at 962. Second, it found that there was a significant likelihood of user conflict between floaters and anglers were the Headwaters floating ban to be lifted completely. J.A. at 981–82, 1273. Third, it determined that floating conditions are optimal during the winter months when flows are heavy, and that fishing conditions are less ideal during that same time period. J.A. at 974–76.

In connection with these findings, the Forest Service analyzed several alternative plans for the Headwaters, ranging from leaving the ban on floating in place and unchanged to lifting the ban completely. The alternative it selected, numbered Alternative 13A, falls in the middle of that range. It permits floating on the Headwaters, an activity that the Forest Service had not allowed since 1976, but subjects that floating to certain limits. Specifically, floating is permitted on most of the Headwaters between December 1 and April 30, on days when flows are greater than 350 cubic feet per second. The Forest Service explained that this would allow for floating “in the section of the Chattooga ... that boaters rated highest for creek boating” and at the time of year “historically offer[ing] the best flows for these types of boating...