American Whitewater v. Thomas Tidwell , 770 F.3d 1108 ( 2014 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-1960
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 – Appellants,
v.
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.
No. 13-2016
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 – Appellees,
v.
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.
No. 13-2017
AMERICAN WHITEWATER; AMERICAN CANOE ASSOCIATION; GEORGIA
CANOEING ASSOCIATION; ATLANTA WHITEWATER CLUB; FOOTHILLS
2
PADDLING CLUB; WESTERN CAROLINA PADDLERS; JOSEPH C. STUBBS;
BRUCE A. HARE; KENNETH L. STRICKLAND,
Plaintiffs – Appellees,
v.
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.
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: September 17, 2014 Decided: November 5, 2014
Before KING and HARRIS, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
3
Affirmed by published opinion. Judge Harris wrote the opinion,
in which Judge King and Senior Judge Hamilton joined.
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.
4
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
1
We use the term “floating” throughout to refer to the
class of hand-powered, river-going recreational activities that
includes canoeing, kayaking, and whitewater rafting.
2
Together with several other not-for-profit hobbyist
organizations and interested individuals, “American Whitewater.”
5
(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
6
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
3
Citations herein to “J.A. at __” refer to the contents of
the Joint Appendix filed by the parties in this matter.
7
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,
8
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 opportunities,” while
also preserving “opportunities for year round boat-free, cold
water angling” in the reach that “attracts the highest angling
use” and “provides the least challenging area for whitewater
boating.” J.A. at 1402-03.
Because the Forest Service determined that Alternative 13A
would not have a “significant impact on the human environment,”
it found that NEPA did not require preparation of an
Environmental Impact Statement. Instead, the Forest Service
released its decision through a Decision Notice and Finding of
No Significant Impact (together with the 2012 Environmental
Assessment, the “2012 Decision”).
B.
American Whitewater filed its first complaint in this
action on October 14, 2009, while the study process was still
9
ongoing and before the Forest Service decided to partially lift
the restrictions on floating. The Rusts, who own approximately
1.7 miles of the Headwaters' shoreline, intervened, seeking a
declaratory judgment that the portion of the Headwaters running
through their property is not navigable and thus outside the
Forest Service's authority, and an injunction against any future
attempt by the Forest Service to manage this portion of the
Chattooga. American Whitewater filed an amended complaint,
eliminating the allegations related to the portion of the
Chattooga running through the Rusts' property, and the district
court dismissed the Rusts' claims for lack of a “case or
controversy” under Article III of the Constitution. American
Whitewater v. Tidwell, No. 8:09-cv-02665-JMC, ECF No. 151 (Feb.
22, 2012).
ForestWatch moved to intervene in August of 2011, in
support of the Forest Service's then-existing ban on Headwaters
floating. The district court granted ForestWatch's motion on
May 1, 2012, after publication of the 2012 Decision partially
lifting the floating ban. However, the district court limited
the scope of ForestWatch's intervention to defending the Forest
Service against American Whitewater's challenge to the remaining
floating restrictions. American Whitewater v. Tidwell, No.
8:09-cv-02665-JMC, ECF No. 168 (May 1, 2012).
10
After publication of the 2012 Decision, American Whitewater
filed its second amended complaint, arguing that the remaining
limits on floating violate the WSRA. In the alternative,
American Whitewater argued that the Forest Service's decision
violates the APA because the Forest Service did not have an
adequate basis for its conclusion that restrictions on floating
are needed to balance competing recreational uses on the
Chattooga. See 5 U.S.C. § 706(2)(A) (2006).
ForestWatch and the Rusts also were dissatisfied with the
2012 Decision. ForestWatch, arguing that the remaining limits
on floating are insufficiently strict to meet the WSRA's
mandate, filed a separate action in the district court. See
Georgia ForestWatch v. Bradley, No. 8:12-cv-3455-MGL (Dec. 6,
2012). The district court denied a motion to consolidate the
two actions, and ForestWatch’s lawsuit remains pending today.
The Rusts also refiled their cross-claims, seeking a declaration
that the Headwaters running through their property are non-
navigable and asserting that the Forest Service's analysis did
not satisfy NEPA.
The district court granted the Forest Service’s motion for
judgment on the administrative record on April 16, 2013. It
rejected each of American Whitewater’s claims, as well as the
Rusts' NEPA claims, holding that the record provided ample
support for the Forest Service's determination that conflicts
11
between floaters and other recreational users justified the
remaining floating restrictions and that the Forest Service
complied with NEPA. It also dismissed the Rusts' request for
declaratory judgment as premature, and refused to consider
ForestWatch's claims against the Forest Service because they
went beyond the limited scope of its intervention. 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
restrictions on floating in order to avoid conflicts with other
recreational users. According to American Whitewater, there is
no basis in the record for the Forest Service's concern about
potential conflicts, and the remaining restrictions are
arbitrary and capricious under the APA as well as contrary to
the WSRA. Like the district court, we disagree.
A.
We review the district court’s grant of judgment on the
administrative record de novo. Crutchfield v. Cnty. of Hanover,
325 F.3d 211, 217 (4th Cir. 2003). But like the district
court's, our review under the APA is “ultimately narrow and
highly deferential.” Webster v. U.S. Dep’t of Agric., 685 F.3d
12411, 422 (4th Cir. 2012). We may set aside an agency's action
under the APA only if it is “arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with law.” 5 U.S.C.
§ 706(2)(A) (2006). In determining whether an agency action is
arbitrary, capricious, or otherwise an abuse of discretion under
the APA, a reviewing court must ensure that the agency has
“examine[d] the relevant data and articulate[d] a satisfactory
explanation for its action.” N.C. Wildlife Fed'n v. N.C. Dep't
of Transp., 677 F.3d 596, 601 (4th Cir. 2012) (alteration in
original) (quoting F.C.C. v. Fox Television Stations, Inc., 556
U.S. 502, 513 (2009)). But so long as the agency “provide[s] an
explanation of its decision that includes a rational connection
between the facts found and the choice made,” its decision
should be sustained. Ohio Valley Envtl. Coal. v. Aracoma Coal
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
particularly deferential when, as is the case here, “resolution
of th[e] dispute involves primarily issues of fact” that
implicate “substantial agency expertise,” Marsh v. Or. Natural
Res. Council, 490 U.S. 360, 376-77 (1989), and the agency is
tasked with balancing often-competing interests. See Hells
Canyon Alliance v. U.S. Forest Serv., 227 F.3d 1170, 1182 (9th
Cir. 2000).
13
We do not doubt that in this case there is a “rational
connection between the facts found and the choice made,” Ohio
Valley Envtl. Coal., 556 F.3d at 192. The alternative selected
by the Forest Service opens substantial portions of the
Headwaters for the first time to floating, from the months of
December to April on days when flows exceed 350 cubic feet per
second. As the 2012 Decision explains, this option allows for
floating when water conditions are best, and also easiest to
predict, so that users can plan ahead to take advantage of the
best opportunities for Headwaters floating. J.A. at 1459. At
the same time, by retaining the ban on floating during the
spring and summer months, the Forest Service has addressed the
documented concerns expressed by other recreational users of the
Headwaters, providing for a floater-free environment when
conditions are best for fishing and hiking. J.A. at 1460-61.
The Forest Service also tailored the remaining restrictions by
reach, reserving four miles of the Headwaters with the least
challenging floating conditions, but some of the best angling
opportunities, for fishermen. J.A. at 1460. Finally, as
described in the 2012 Decision, the Forest Service's balance
between competing uses also complies with the maximum capacities
for the Headwaters as set out in the 2007 Report. J.A. at 1458.
Contrary to American Whitewater's assertions, the record
amply supports the Forest Service's conclusions regarding
14
potential conflicts among recreational users. The Forest
Service relied in part on a history of previous conflicts
between recreational users, reviewing evidence from the
Headwaters prior to the floating ban, from the lower portion of
the Chattooga where floating always has been permitted, and from
several proxy rivers. And it assembled significant data
pointing to the potential for future conflicts, counting cars to
estimate usage, developing expected encounter estimates, and
analyzing a wealth of public comments including many from
current users who expressed a preference for solitude and an
isolated experience. J.A. at 966, 959-1038, 1031-32, 960-62,
1273-74; see also Tidwell, 959 F. Supp. 2d at 853.
American Whitewater argues that the Forest Service was
required to authorize floating during the study period before it
could accurately assess the likelihood of conflicts on the
Headwaters. In other words, in order to justify maintenance of
its existing restrictions, the Forest Service first would have
to eliminate them so that recreational users could experience
actual conflicts. Br. for American Whitewater at 35. We cannot
accept this counter-intuitive argument. Where the agency’s
conclusion otherwise rests on a firm factual basis, nothing in
the APA requires it to experiment with a practice before
continuing preexisting policies. We will not second guess an
agency’s reasonable choice of methodology. See Hughes River
15
Watershed Conservancy v. Johnson, 165 F.3d 283, 289 (4th
Cir. 1999).
At bottom, American Whitewater disagrees with the Forest
Service’s factual conclusions and the balance it chose to
strike. But the APA does not give us license to second-guess an
agency’s well-reasoned decision simply because a party disagrees
with the outcome. The Forest Service has provided a cogent
justification for the remaining limits on Headwaters floating,
supported by the record, and that is sufficient to sustain its
decision under the APA.
B.
American Whitewater also contends that the Forest Service's
remaining restrictions on Headwaters floating violate § 1281 of
the WSRA, which requires the Forest Service to “protect and
enhance the values which caused” the Chattooga to be designated
for preservation “without, insofar as is consistent therewith,
limiting other uses that do not substantially interfere with
public use and enjoyment of these values.” 16 U.S.C. § 1281(a).
American Whitewater argues, first, that “floating” is a value
that led Congress to designate the Chattooga, and that under the
“protect and enhance” standard, the Forest Service has no choice
but to lift all restrictions on floating. Second, American
Whitewater argues that floating cannot be limited because it
does not “substantially interfere” with any protected
16
recreational use of the Headwaters. Like the district court, we
disagree on both counts.
1.
When 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 interagency guidelines. See Interagency Wild and
Scenic Rivers Coordinating Council, The Wild & Scenic River
Study Process 12-15 (1999). Here, the Forest Service identified
“recreation” generally, as opposed to specific recreational uses
such as floating or fishing, as an ORV of the Chattooga. J.A.
at 915. American Whitewater argues that the Forest Service
erred, and that floating itself is an ORV subject to the Act's
“protect and enhance” standard. Like the district court, we
find that the Forest Service's decision to designate
“recreation” as the relevant ORV was entirely reasonable, and
that floating is not a Chattooga River value that must be
“protecte[d] and enhance[d]” under the WSRA.
To begin with, although the WSRA does not define
“outstandingly remarkable values,” its text seems to contemplate
general categories such as “recreational value,” rather than
specific uses such as “hiking” and “fishing.” Section 1271 of
the WSRA lists the “outstandingly remarkable” values that are to
17
be protected by the Act: “scenic, recreational, geologic, fish
and wildlife, historic, cultural, or other similar values.” 16
U.S.C. § 1271 (2006). “Floating value” is not “similar” to,
say, “historical value”; it is pitched at an entirely different
level of specificity. The phrase “other similar values” is most
naturally read to refer to ORVs at the same level of categorical
generality as the examples listed before it. See Washington
State Dep't of Soc. & Health Servs. v. Guardianship Estate of
Keffeler, 537 U.S. 371, 384 (2003) (“[W]here general words
follow specific words in a statutory enumeration, the general
words are construed to embrace only objects similar in nature to
those objects enumerated by the preceding specific words.”)
(citations omitted); Sokol v. Kennedy, 210 F.3d 876, 879 n.5
(8th Cir. 2000) (reading “values” in § 1281(a) together with the
list of enumerated values in § 1271).
Notwithstanding the awkward textual fit, American
Whitewater insists that Congress intended to identify floating
as a protected value when it designated the Chattooga under the
WSRA. In fact, the Forest Service's decision to identify
“recreation” as the relevant value is fully consistent with the
congressional record. For example, the 1971 Forest Service
report that led to Congress's designation of the Chattooga as a
protected river does not single out floating from other forms of
recreation; instead, it identifies “hiking, floating — including
18
canoeing and rafting — and primitive camping” as potential uses
of the Chattooga “recreation resource.” Designation would be
desirable, according to the 1971 report, because it would
preserve not just one particular form of recreation, but rather
“full enjoyment of river-related recreation activities” in
general. The Senate and House Reports accompanying the
Chattooga's designation under the WSRA likewise refer to a
variety of “recreational” possibilities without giving special
status to any one recreational use or pursuit.
The out-of-context references to floating cited by American
Whitewater do not persuade us otherwise. For example, American
Whitewater quotes this passage from the 1971 report: “To see
and enjoy much of the river requires considerable time and
effort from the recreationist, whether he be fisherman,
canoeist, hiker or camper.” But this passage, like the others
cited by American Whitewater, actually is more consistent with
the Forest Service's identification of recreation writ large as
the relevant ORV, in its description of floating as only one
recreational use among many.
American Whitewater has not challenged the Forest Service’s
discretion to identify ORVs when Congress has not done so. Cf.
Interagency Wild and Scenic Rivers Coordinating Council, supra,
at 12-15; Sokol, 210 F.3d at 879-80 (in setting boundaries for
protected river areas, agencies must identify and seek to
19
protect ORVs). In this case, the Forest Service made its
determination after careful consideration of relevant
administrative guidance and voluminous reports describing the
Chattooga's characteristics. J.A. at 913-19. We find that the
Forest Service reasonably and lawfully identified “recreational
value” as the relevant ORV, and that floating is not a value of
the Chattooga that must be protected and enhanced under § 1281.
2.
As the Forest Service recognized, its determinations about
how best to protect and enhance the Chattooga's recreational ORV
necessarily involve “trade-offs” among competing recreational
uses. J.A. at 915. Congress left the requisite calibration to
the Forest Service, providing in § 1281 that agency management
plans “may establish varying degrees of intensity” for
protection based on “special attributes” of a river, 16 U.S.C. §
1281(a), and the balance struck by the Forest Service here is
entitled to substantial deference. See Hells Canyon Alliance,
227 F.3d at 1174-75.
Nevertheless, American Whitewater argues that under the
terms of § 1281, the Forest Service may not restrict floating in
any way because it has not shown that floating “substantially
interferes” with other recreational uses. The district court
rejected this claim, holding that the record supported a finding
of “substantial interference.” Tidwell, 959 F. Supp. 2d at 852-
20
54. While we agree with that assessment, we also think that
American Whitewater's argument is flawed in its premise:
Floating is itself a “public use” of the recreational value, not
an “other use” subject to the substantial interference standard.
Section 1281(a) divides “uses” of designated rivers into
two mutually exclusive categories: There are “public use[s]” of
ORVs, like the recreational value identified in this case; and
then there are “other use[s],” to be limited when they interfere
substantially with public use and enjoyment of an ORV. For
instance, hiking would be a “public use” of the Chattooga's
recreational value; operating a highway, on the other hand,
might be an “other use” subject to restriction if it
substantially interfered with hiking or any other component of
the recreational ORV. Floating clearly is a form of “public use
and enjoyment” of the Chattooga's recreational value. It cannot
also be an “other use” or the statutory scheme would make no
sense, directing the Forest Service to limit floating in order
to protect it. Because floating is not an “other use” for
purposes of § 1281(a), limits on floating are not governed by
the substantial interference standard. 4
4
In its brief, the Forest Service addressed this claim by
defending the record on “substantial interference,” which we
address in turn. At oral argument, however, the Forest Service
made clear that it was not conceding American Whitewater's
(Continued)
21
In any event, we agree with the district court that the
record evidence of user conflict developed by the Forest
Service, discussed above, is sufficient to show that floating
can interfere substantially with other recreational uses.
Tidwell, 959 F. Supp. 2d at 853-54. For that reason, as well,
we hold that the remaining restrictions on floating on the
Headwaters are consistent with the WSRA. 5
III.
The Rusts present a narrower challenge to the 2012
Decision, intended to protect what they see as their private
property rights in land along the Headwaters. First, they ask
us to declare the 1.7-mile portion of the Headwaters running
through their land non-navigable, which would make it private
property rather than a public waterway and preclude any Forest
Service attempt to provide public access. Second, the Rusts
argue that the 2012 Decision is invalid under NEPA because the
reading of the statute or application of the substantial
interference standard.
5
We reject American Whitewater's remaining claims for the
reasons given by the district court. The record adequately
supports the continued ban on floating on the Chattooga's
tributaries. Tidwell, 959 F. Supp. 2d at 857-58. And American
Whitewater's challenges based on the Forest Service's policy
manual fail at the outset because the policy manual does not
have the force of law. Id. at 864.
22
Forest Service failed to provide a sufficiently detailed
analysis of the risk that floaters would trespass across their
land to reach newly opened portions of the Headwaters.
A.
To be clear, the 2012 Decision does not authorize any
floating on the Rusts' property. It does not cover the portion
of the Headwaters that concerns the Rusts at all, in accordance
with Forest Service policy treating rivers as non-navigable and
private until found otherwise. J.A. at 943. Nor has the Forest
Service taken any steps toward a determination of navigability.
Absent any attempt by the Forest Service even to lay the
groundwork for an exercise of its regulatory authority, the
Rusts' request for a declaratory judgment fails to present a
justiciable controversy.
We may address only disputes that are “definite and
concrete, touching the legal relations of parties having adverse
interests.” Aetna Life Ins. Co. v. Haworth, 300 U.S. 227, 240-
41 (1937). The same standard applies to a request for
declaratory relief and requires a controversy of “sufficient
immediacy and reality [as] to warrant the issuance of a
declaratory judgment.” White v. Nat’l Union Fire Ins. Co. 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
The Rusts’ claims do not meet this standard. The Rusts
acknowledge that the Forest Service would need to take
additional action before it could manage this portion of the
Chattooga. The Forest Service has not done so. Nor has it
argued that this portion of the Chattooga is subject to Forest
Service oversight. In fact, the Rusts agree that the Forest
Service has consistently treated this segment of the Chattooga
as non-navigable, private, and outside its authority. J.A. at
943; S.J.A. at 2199. To the extent that American Whitewater
could be considered an adverse party in this context — which we
doubt — it too disavows any attempt to declare this section of
the Chattooga navigable. Reply Br. for American Whitewater at
21, 22.
We will not issue an advisory opinion, addressing a
question that is not in actual dispute. Flast v. Cohen, 392
U.S. 83, 96 (1968) (“[T]he oldest and most consistent thread in
the federal law of justiciability is that the federal courts
will not give advisory opinions.”); Shenandoah Valley Network v.
Capka, 669 F.3d 194, 202 (4th Cir. 2012) (“[A] dispute is
lacking here — and because we cannot issue an advisory opinion —
we have no authority to adjudicate this suit.”). The Rusts'
declaratory judgment claim is dismissed.
24
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. The
district court correctly held that this prospect is so
speculative that no NEPA analysis is required.
NEPA encourages conservation not by imposing substantive
obligations on agencies, but by requiring that agencies consider
the environmental consequences of their actions and present them
to the public for debate. Nat'l Audubon Soc'y v. Dep't of Navy,
422 F.3d 174, 184, 185 (4th Cir. 2005). Accordingly, our review
under NEPA is limited to ensuring that an agency has taken a
“hard look” at the environmental impacts of a proposed action.
Id. at 185. Moreover — and dispositive here — an agency need
consider only the “reasonably foreseeable” effects of its
decisions. See Webster, 685 F.3d at 429 (“[A]lthough agencies
must take into account effects that are reasonably foreseeable,
they generally need not do so with effects that are merely
speculative.”); see also 40 C.F.R. § 1508.8 (2008).
Any possible increase in the risk of trespass on the Rusts'
land does not meet this standard. As the Forest Service points
25
out, the uppermost portion of the Headwaters opened to floating
by the 2012 Decision is downstream from the Rusts' property
line. The uppermost put-in location is another quarter-mile
further downstream and easily accessible to the public via a
trail from the existing Green's Creek parking lot. Nothing in
the record gives us reason to think that floaters would prefer a
less direct path across the Rusts' uncleared land. The
situation might be different if the Forest Service had allowed
floating upstream of the Rusts' land — but the agency rejected
that option, precisely because it might present an increased
risk of trespass. J.A. at 779, 911, 943.
The Rusts' response to this common-sense proposition is
unconvincing. They rely on a few comments submitted by American
Whitewater during the review process predicting that floaters
would prefer to and eventually would launch from Grimshawe's
Bridge, north of the Rusts' property. That, however, is a far
cry from expressing an intent to trespass illegally, and
American Whitewater has denied repeatedly that it intends to
violate the law. Otherwise, the Rusts point to a trespasser's
account from forty years ago and a stray newspaper report.
Neither explains why floaters might be expected to trespass
under the Headwaters' present conditions.
Even assuming that a heightened risk of trespass was
reasonably foreseeable, the Forest Service's discussion of that
26
risk satisfies NEPA. The Forest Service presented the Rusts'
concerns to the public and explained that they were addressed by
the continued ban on floating above Green's Creek, and the
Rusts' property. J.A. at 911, 943. In this context, that
discussion was sufficient; agencies have discretion to determine
which issues merit detailed discussion, and here the risk of
trespass or any associated environmental impact was not so
significant that more was required. See Nat'l Audubon Soc'y,
422 F.3d at 186 (“A 'hard look' is necessarily contextual.”);
Izaak Walton League of Am. v. Marsh, 655 F.2d 346, 377 (D.C.
Cir. 1981) (“Detailed analysis is required only where impacts
are likely.”). Review under NEPA is not a vehicle for
“flyspeck[ing]” agency analysis and discussion, Nat'l 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. The district court
6
In light of our disposition of the Rusts' claims we need
not address the Rusts' motion to strike from the record certain
features of maps included in the Forest Service's brief.
American Whitewater v. Tidwell, Case No. 13-1960, ECF No. 112
(Sept. 11, 2014). We have not relied on the contested features
and they have played no role in our decision. Accordingly, the
Rusts' motion to strike is dismissed.
27
limited the scope of ForestWatch’s intervention to defending the
Forest Service’s remaining restrictions on floating on the
Headwaters. ForestWatch now takes a different tack, arguing
that the Forest Service erred by permitting any floating at all,
and raising claims against the partial lifting of the floating
ban under NEPA and the WSRA. These claims, the subject of a
separate ForestWatch action against the Forest Service now
pending before the district court, go well beyond the scope of
ForestWatch's clearly delineated interest in this litigation and
are dismissed.
The district court carefully cabined ForestWatch's
involvement in this litigation to the terms of its intervention
order, striking ForestWatch’s plea for relief against the Forest
Service as beyond the scope of its intervention. See American
Whitewater v. Tidwell, No. 8:09-cv-02665-MGL, ECF No. 254 (Feb.
25, 2013) (text order). It did not reach ForestWatch’s
arguments against the Forest Service and the partial opening of
the Headwaters to floating, instead explicitly “limit[ing] its
findings to the parties with claims pending” in the case.
Tidwell, 959 F. Supp. 2d at 850. The merits of ForestWatch’s
claims against the Forest Service will be considered by the
district court in ForestWatch’s separate action, not by this
court for the first time on appeal. See Karpel v. Inova Health
Sys. Servs., 134 F.3d 1222, 1227 (4th Cir. 1998) (“[I]ssues
28
raised for the first time on appeal generally will not be
considered.”) (internal quotation marks omitted).
What ForestWatch may appeal, however, is the underlying
district court ruling on its motion to intervene. The district
court granted ForestWatch’s motion to intervene as of right but
also limited ForestWatch to “[d]efending against [American
Whitewater’s] claim for declaratory and injunctive relief.”
American Whitewater v. Tidwell, No. 8:09-cv-02665-JMC, ECF No.
168 (May 1, 2012). ForestWatch now argues that the district
court erred in imposing that limit on the scope of its
intervention. Finding no reversible error, we affirm.
The parties dispute the appropriate standard for our review
of the limits on ForestWatch’s intervention, with ForestWatch
arguing for de novo review and the Forest Service for an abuse
of discretion standard. We need not reach this question
because, as ForestWatch’s counsel candidly admitted at oral
argument, our review ultimately hinges on whether the district
court's decision to limit intervention was fundamentally unfair.
See Columbus-America Discovery Grp. v. Atlanta Mut. Ins. Co.,
974 F.2d 450, 470 (4th Cir. 1992). Under any standard of
review, there has been no fundamental unfairness here.
ForestWatch’s argument to the contrary is that the district
court did in fact address its claims against the Forest Service
in resolving this case, so that ForestWatch will be denied the
29
opportunity to raise them again in its separate suit. We read
the record differently, and believe that the district court
amply preserved ForestWatch’s opportunity to assert its claims
in its pending lawsuit. First, in denying a motion to
consolidate ForestWatch’s action with the present case, the
district court expressly found that “the outcome or result in
one case i[s] not dispositive or dependent on the outcome of the
other.” J.A. at 1886-88. 7 It then proceeded to insulate one
case from the other by explicitly limiting its decision below so
as to exclude ForestWatch’s claims against the Forest Service.
Tidwell, 959 F. Supp. 2d at 850 (“[A]lthough the court has
considered Georgia ForestWatch’s arguments and will discuss them
herein, the court limits its findings to the parties with claims
pending in this case.”).
ForestWatch points to snippets of language in the district
court opinion affirming the 2012 Decision as evidence that its
claims against that decision already have been decided against
it. But read in context, those passages uphold the 2012
7
To the extent that ForestWatch appeals from the district
court's denial of its motion to consolidate, we affirm. The
district court ably managed the range of parties and interests
involved in this case, and we see no basis for disturbing its
judgment about how best to manage its docket. See Arnold v. E.
Airlines, Inc., 681 F.2d 186, 192 (4th Cir. 1982) (consolidation
decisions are “necessarily committed to trial court discretion”
and reviewed only for abuse of discretion).
30
Decision only as against the Rusts' or American Whitewater's
claims, referenced in each case on the same page, if not in the
same paragraph, as the cited language. We are confident that
nothing in the district court's careful opinion will preclude
ForestWatch from pressing its claims in its separate suit. Nor,
we should note, should anything in our opinion today be
understood as resolving ForestWatch’s separate claims against
the Forest Service.
V.
For the reasons set forth above, we affirm the judgment of
the district court.
AFFIRMED
31