Wilderness Watch v. U.S. Forest Service

143 F.Supp.2d 1186

WILDERNESS WATCH, a non-profit corporation under the laws of Montana; William Worf, an individual; and Five Valleys Audubon, Inc., a non-profit corporation under the laws of Montana, Plaintiffs, v. UNITED STATES FOREST SERVICE, an agency of the United States Department of Agriculture; Bertha Gillam, Forest Supervisor of the Bitter-root National Forest; John Mumma, Regional Forester, Northern Region; John Burns, Forest Supervisor of the Salmon National Forest; and Gray Reynolds, Regional Forester, Inter-mountain Region, Defendants.

No. CV 91-103-M-SRT.

United States District Court, D. Montana, Missoula Division.

September 19, 2000.

COPYRIGHT MATERIAL OMITTED

Jack R. Tuholske, Missoula, MT, for Wilderness Watch, William Worf.

Lorraine D. Gallinger, Office of the U.S. Attorney, Billings, MT, for USFS, Bertha Gillam, John W. Mumma, John Burns, Gray Reynolds.

MEMORANDUM AND ORDER

SIDNEY R. THOMAS, Circuit Judge.

Distilled to its essence, this case concerns whether the United States Forest Service ("USFS") violated federal environmental law by allowing the construction of several permanent hunting and fishing lodges along the banks of the Salmon River after passage of the Central Idaho Wilderness Act.

Wilderness Watch, William Worf, and Five Valleys Audubon, Inc. (collectively, "Wilderness Watch") first filed a complaint challenging some of the USFS actions in 1991. Following the filing of cross-motions for summary judgment in 1992 and 1993, the USFS agreed to prepare an Environmental Impact Statement. Pursuant to the parties' stipulation, Judge Lovell stayed the action pending completion of the EIS. The final EIS ("FEIS") was issued in May 1995, and this litigation resumed.

In early 1996, Wilderness Watch filed a first amended complaint alleging violations of the Wild and Scenic Rivers Act, 16 U.S.C. § 1271 et seq., the National Forest Management Act ("NFMA"), 16 U.S.C. § 1600 et seq., the National Historic Preservation Act, ("NHPA"), 16 U.S.C. §§ 470-470w, the National Environmental Policy Act ("NEPA"), 42 U.S.C. § 4332, and the Administrative Procedure Act ("APA"), 5 U.S.C. § 706. Specifically, the complaint challenged both the issuance by the USFS of several "special-use" permits to hunting outfitters that have constructed permanent structures along portions of the Salmon River in Idaho designated as "wild" under the WSRA and the adequacy of the FEIS prepared by the USFS prior to the issuance of the special-use permits. Subsequently, Wilderness Watch voluntarily dismissed its NHPA claim.

The parties filed cross-motions for summary judgment in 1996. The case unfortunately lay dormant until July 17, 2000, when it was reassigned by Chief Judge Shanstrom to this court (sitting by designation pursuant to 28 U.S.C. § 291(b)) following the assumption of senior status by Judge Lovell. At request of the court, the parties filed supplemental briefs on August 11, 2000. Oral argument on the cross-motions for summary judgment was held on August 31, 2000, at which the court invited informal supplemental letter briefs to be filed no later than September 7, 2000.

The court has jurisdiction pursuant to 28 U.S.C. § 1331 and 5 U.S.C. §§ 701-706. Venue is proper in this district pursuant to 28 U.S.C. § 1391(e)(1). Having considered the parties' arguments and submissions, and for the reasons set forth below, the court enters the following memorandum and order.

FACTUAL AND PROCEDURAL HISTORY

A. The Salmon River: Legal Framework and Regulatory History

In 1931, to maintain the area surrounding the Middle Fork of the Salmon River "in its present undeveloped condition," the USFS designated slightly over one million acres as the "Idaho Primitive Area." (AR 1935; Appendix).¹ The object of the designation was "[t]o maintain in primitive condition ... National Forest land in central Idaho by closing the area to construction of public roads, buildings and other permanent improvements, and to occupancy under Special Use permit." (AR 1935; Appendix). With some later additions, the area of concern to us became jointly managed as part of the Idaho and Salmon River Breaks Primitive Areas.

The regulations applicable to the Idaho and Salmon River Breaks Primitive Areas provided that "there shall be no roads or other provision for motorized transportation, no commercial timber cutting and no occupancy under special use permits for hotels, stores, resorts, summer homes, organizational camps, hunting and fishing lodges or similar uses." 36 C.F.R. § 293.17 (1999).

During the 1960's, Congress turned its attention to protection of primitive areas and wild rivers. Relevant to our inquiry, in 1968 Congress enacted the Wild and Scenic Rivers Act ("WSRA" or "Act"), Pub.L. No. 90-542, 82 Stat. 906 (1968) (codified at 16 U.S.C. §§ 1271 et seq.), as amended by the Central Idaho Wilderness Act ("CIWA"), Pub.L. No. 96-312, 94 Stat. 948 (1980), to "protect[] for the benefit and enjoyment of present and future generations" and "preserve[] in free-flowing condition" certain designated rivers and river areas that possess "outstandingly remarkable scenic, recreational, geologic, fish and wildlife, historic, cultural, or other similar values." See 16 U.S.C. § 1271. The WSRA allows for the classification of river areas into one of three designations depending on the degree of protection they are to receive: wild, scenic, and recreational. See id. § 1273(b). Rivers designated to be wild, scenic, or recreational must "possess[] one or more of the values" referred to in § 1271. Id. In addition, the WSRA requires designated rivers to be administered in such a manner as to protect and enhance the values which caused the river to be included in the WRSA system. See 16 U.S.C. § 1281(a); see also Hells Canyon Alliance v. U.S.F.S., 227 F.3d 1170, 1177-1178 (9th Cir.2000); Sokol v. Kennedy, 210 F.3d 876, 878 (8th Cir. 2000).

A "wild river area" is the most restrictive designation and is defined to be a river "or sections of rivers that are free of impoundments and generally inaccessible except by trail, with watersheds and shorelines essentially primitive and waters unpolluted." 16 U.S.C. § 1273(b)(1) (emphasis added). Rivers designated to be wild "represent vestiges of primitive America." Id. In contrast, river areas designated to be "scenic" or "recreational" receive much less protection. For example, "scenic river areas" should be "free of impoundments, with shorelines or watersheds still largely primitive and shorelines largely undeveloped, but accessible in places by roads." Id. § 1273(b)(2). "Recreational river areas," in accordance with the emphasis on recreation, receive the least protection: these are river areas "that are readily accessible by road or railroad, that may have some development along their shorelines, and that may have undergone some impoundment or diversion in the past." Id. § 1273(b)(3).

Section 4 of the WSRA, 16 U.S.C. § 1275, requires the Secretary of the Agriculture to prepare a report on the suitability of rivers designated by Congress under the Act to be "potential additions" to the wild and scenic rivers system. As previously noted, prior to the enactment of the WSRA, the USFS managed the Salmon River corridor at issue here as part of the Idaho and Salmon River Breaks Primitive Areas. Jt.Stmt. ¶ 17. Upon WSRA's passage and in keeping with § 1275, the USFS completed a report recommending that 237 miles of the Salmon River, including the portions at issue here, should be added to the wild and scenic river system. Def.Stmt. ¶ 8.

In 1977, the USFS adopted a Salmon River Management Plan ("Management Plan") pursuant to § 12 of the WSRA, 16 U.S.C. § 1283, to provide for interim protection for the Salmon River prior to its designation as a wild and scenic river.² Def.Stmt. ¶ 9; (AR 1967-2062). The Management Plan provided that "[e]xisting outfitter camps may be continued in their present location until classification occurs, provided they are kept neat and do not cause resource problems." Def.Stmt. ¶ 10; (AR 2013).

NOTE: OPINION CONTAINING TABLE OR OTHER DATA THAT IS NOT VIEWABLE

In 1980, Congress passed CIWA, which established the "Frank Church — River of No Return Wilderness" area. The newly created wilderness area, often colloquially referred to as "the Frank," included the former Idaho Primitive Area, the former Salmon River Breaks primitive area, and a number of other areas which had been under study. At almost 2.5 million acres, the Frank is the largest wilderness in the conterminous statues and National Forest System. (FEIS; Appendix C). It is slightly larger than the combined states of Rhode Island and Delaware. At the time of its creation, the Frank was located on twelve different Ranger Districts within six separate National Forests (Bitterroot, Boise, Challis, Nez Perce, Payette and Salmon) and two different National Forest Regions (I and IV). This administrative farrago was later lead to some of problems that occasioned this suit.

The CIWA also classified portions of the Salmon River at issue here as "wild" and adjacent portions of the Salmon River as "recreational" and charged the Secretary of Agriculture with the responsibility of managing the Salmon River. See CIWA § 9(b); 16 U.S.C. § 1274(a)(24); Pl.Stmt. ¶ 7. In enacting the CIWA, Congress determined that the statutory protection accorded to the Salmon River "can be provided without conflicting with established uses." CIWA § 2(a)(3). Moreover, Congress expressly recognized that "[t]he use of motorboats (including motorized jet-boats) within [the designated] segment of the Salmon River shall be permitted to continue at a level not less than the level of use" during 1978. Id. § 9(a). Under the WSRA, once a river area is included by Congress in the WSRA system, "area boundaries are automatically established, on a provisional basis, one-quarter mile from the river's banks." Sokol v. Kennedy, 210 F.3d 876, 879 n. 6 (8th Cir.2000) (citing 16 U.S.C. §...