Wilderness Soc. v. Tyrrel

Page 813

918 F.2d 813

21 Envtl. L. Rep. 20,157

The WILDERNESS SOCIETY; Sierra Club; Pacific Coast

Federation of Fishermen's Associations, Inc.;

California Trout, Plaintiffs-Appellees, Sierra Pacific Industries, Intervenor-Appellant, v. Robert TYRREL, Forest Supervisor of the United States Forest

Service for the Shasta-Trinity National Forests; Paul

Barker, Regional Forester of the United States Forest

Service for Region Five, Defendants.

The WILDERNESS SOCIETY; Sierra Club, a California

Non-Profit Corporation; Pacific Coast Federation

of Fishermen's Associations, Inc.;

California Trout, Plaintiffs-Appellees, v. Robert TYRREL, Forest Supervisor of the United States Forest

Service for the Shasta-Trinity National Forests; Paul

Barker, Regional Forester of the United States Forest

Service for Region Five, Defendants-Appellants.

Nos. 90-15221, 90-15251.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Sept. 11, 1990.

Decided Nov. 6, 1990.

Elizabeth Ann Peterson, U.S. Dept. of Justice, Washington, D.C., for defendants-appellants.

Stephan C. Volker, Sierra Club Legal Defense Fund, San Francisco, Cal., for plaintiffs-appellees.

David H. Dun, Dun & Martinek, Eureka, Cal., for intervenor-appellant.

Appeal from the United States District Court for the Eastern District of California.

Before CHOY, FARRIS and THOMPSON, Circuit Judges.

FARRIS, Circuit Judge:

OVERVIEW

The Forest Service appeals the grant of Wilderness Society's summary judgment motion to permanently enjoin implementation of the South Fork Fire Recovery Sale Project. The district court found that the Forest Service's plan to allow a sale of burned timber on Forest Service land near the South Fork of the Trinity River, a river protected under the Wild and Scenic Rivers Act, was in violation of that Act. 16 U.S.C. Secs. 1271-1287.

This case requires us to define the requirements imposed by the Wild and Scenic Rivers Act on the Forest Service in "administering" and "managing" federal land adjacent to or within a river area designated for protection by the Secretary of the Interior pursuant to 16 U.S.C. Sec. 1273(a)(ii).

The district court held that the Act requires the Forest Service to create a management plan for the river and enjoined the proposed sale of the burned timber because no such plan had been formulated. There is no dispute that a management plan was not prepared.

We take full cognizance of the discussions of management plans contained in the Wild and Scenic Rivers Act and the Forest Service regulations. Nonetheless, we find that the district court erred in holding that the government was required to prepare a comprehensive management plan prior to conducting land management activities on federal land adjacent to or within a Secretary designated river area. Although the Forest Service is obligated to conduct itself in a manner that respects the goals of the Act and preserves the values for which the area received protected status, neither the Act nor the Forest Service's own regulations require that it prepare a management plan for the South Fork.

JURISDICTION

The district court had general federal question jurisdiction pursuant to 28 U.S.C. Sec. 1331. The court of appeals has jurisdiction pursuant to 28 U.S.C. Sec. 1291. The notice of appeal was properly filed within 60 days of the district court's final judgment, pursuant to Fed.R.App.P. 4(a)(1).

ISSUES

Three issues are before the court:

1) Does the Wild and Scenic Rivers Act require that a federal agency prepare a comprehensive management plan prior to undertaking land management activities on federal land adjacent to or within a Secretary designated river area?

2) Do the Forest Service's own internal guidelines mandate that a comprehensive plan be prepared?

3) If the Forest Service has no such duty, (a) what is the extent of its legal duty to protect a river that has been designated by the Secretary under the Wild and Scenic Rivers Act and (b) have such obligations been satisfied?

FACTS

This appeal is from a grant of summary judgment. The facts are not in dispute.

The South Fork of the Trinity River is included in the National Wild and Scenic Rivers System. The Forest Service wishes to conduct a sale of fire damaged timber on National Forest land located in the area immediately around portions of the South Fork. In district court, the plaintiffs successfully challenged the proposed salvage sale as violating the Wild and Scenic Rivers Act.

Of particular interest in this appeal are sections 1(b), 2, 3, 10, and 12 of the Act. The parties cite no case law interpreting section 2(a)(ii), the pivotal provision, because there is none. The case is one of first impression.

DISCUSSION

I. Introduction to the Wild and Scenic Rivers Act

The purpose of the Wild and Scenic Rivers Act is to select and protect certain rivers "which, with their immediate environments, possess outstandingly remarkable scenic, recreational, geologic, fish and wildlife ... or other similar values ... in free-flowing condition." 16 U.S.C. Sec. 1271. The Wild and Scenic Rivers Act was enacted in 1968.

Rivers become part of the National Wild and Scenic Rivers System through one of two methods. They may be included by an Act of Congress after appropriate study reveals that the river warrants protection. 16 U.S.C. Sec. 1273(a)(i). This is by far the most common method by which rivers are included in the national system. A second method is through the application of a state governor to the Secretary of the Interior. Because this method is set forth in section 1273(a)(ii) and requires the approval of the Secretary of the Interior, we refer to it as the (a)(ii), or Secretary designated, method of inclusion. Such rivers must not only meet the federal requirement of "outstandingly remarkable" qualities, see 16 U.S.C. Sec. 1273(b); 47 Fed.Reg. 39,454-59 (Sept. 7, 1982), but the state legislature must designate them as wild, scenic, or recreational, and provide that they will be permanently administered as such by the state. A key requirement is that each Secretary designated river "shall be administered by the State or political subdivision thereof without expense to the United States other than for administration and management of federally owned lands." 16 U.S.C. Sec. 1273(a).

The South Fork of the Trinity River was designated for inclusion in the national system by the Secretary of the Interior in the waning hours of the Carter administration. 46 Fed.Reg. 7484 (Jan. 23, 1981). There were numerous complaints that the process was unduly rushed for political reasons, see Fairfax, Andrews & Buchsbaum, Federalism & the Wild & Scenic Rivers Act: Now You See It, Now You Don't, 59 Wash.L.Rev. 417 (1984), but legal challenges to the designation were ultimately defeated, see County of Del Norte v. United States, 732 F.2d 1462 (9th Cir.1984).

The central benefits extended by Wild and Scenic Rivers Act designation are restrictions on water resource projects by federal agencies, especially the Federal Energy Regulatory Commission, see 16 U.S.C. Sec. 1278, and on federal mining and mineral leasing that affects lands within the system, see 16 U.S.C. Sec. 1280. In addition, the river area's administration must protect the values that justified the river's initial designation under the Act. There is limited provision for purchase and exchange of land around the designated river as well as mention of using state and local zoning laws. Restrictions are also placed on federal agencies engaged in projects around designated rivers, requiring respect be paid to the protected values. See 16 U.S.C. Sec. 1283(a).

II. The Requirement of a Management Plan

Courts have limited authority to impose procedural requirements upon a federal agency which seeks to exercise the responsibilities committed to it by Congress. A history of statutory and decisional law cautions "reviewing courts against engrafting their own notions of proper procedures upon agencies entrusted with substantive functions by Congress." Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, Inc., 435 U.S. 519, 525, 98 S.Ct. 1197, 1202, 55 L.Ed.2d 460 (1978). In the absence of constitutional constraints or extremely compelling circumstances a court may not fashion procedural obligations beyond those explicitly enumerated in the pertinent statutes. Id. at 525, 543, 558, 98 S.Ct. at 1202, 1211, 1219.

The district court relied primarily upon two textual bases in requiring that the Forest Service have a management plan for the South Fork. It found that the Wild and Scenic Rivers Act, itself, mandated that the Forest Service prepare a management plan prior to conducting land management activities. ¹ The district court also garnered support for its holding by reference to the Forest Service's own manual. ² We find that, in both instances, the district court read the provisions out of context and failed to analyze them in a manner consistent with established constraints on judicial authority.

A. The Wild and Scenic Rivers Act

The district court's finding that the Wild and Scenic Rivers Act requires the Forest Service to prepare a management plan for the South Fork rests upon a misinterpretation of 16 U.S.C. Sec. 1283(a). Section 1283, entitled "Management policies," states in part:

The Secretary of the Interior, the Secretary of Agriculture, and the head of any other Federal department or agency having jurisdiction over any lands which include, border upon, or are adjacent to, any river included within the National Wild and Scenic Rivers System or under consideration for such inclusion ... shall take such action respecting management policies, regulations, contracts, plans, affecting such lands ... as may be necessary to protect such rivers in accordance with the purposes of this chapter.

16 U.S.C. Sec. 1283(a) (emphasis added).

In reading the highlighted text to require the Secretary to create "management policies, regulations,...