Ark Initiative v. Thomas Tidwell , 816 F.3d 119 ( 2016 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued January 19, 2016 Decided March 8, 2016
No. 14-5259
ARK INITIATIVE, ET AL.,
APPELLANTS
v.
THOMAS L. TIDWELL, CHIEF, U.S. FOREST SERVICE, ET AL.,
APPELLEES
Appeal from the United States District Court
for the District of Columbia
(No. 1:14-cv-00633)
William S. Eubanks II argued the cause for appellants.
With him on the briefs was Eric R. Glitzenstein.
James Maysonett, Attorney, U.S. Department of Justice,
argued the cause for federal appellees. With him on the brief
was John C. Cruden, Assistant Attorney General. Katherine
J. Barton, Attorney, entered an appearance.
Ezekiel J. Williams and Steven K. Imig were on the brief
for intervenor-appellee Aspen Skiing Company.
Cynthia H. Coffman, Attorney General, Office of the
Attorney General for the State of Colorado, Federick R.
Yarger, Solicitor General, Casey A. Shpall, Deputy Attorney
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General, and Scott Steinbrecher, Assistant Solicitor General,
were on the brief for amicus curiae the State of Colorado in
support of appellee.
John M. Bowlin and David S. Neslin were on the brief for
amicus curiae Colorado Ski Country USA, Inc. in support of
defendant-appellees and intervenor-appellee.
Before: BROWN, KAVANAUGH and PILLARD, Circuit
Judges.
Opinion for the Court filed by Circuit Judge PILLARD.
PILLARD, Circuit Judge: The U.S. Forest Service in the
Department of Agriculture generally prohibits road building
and timber cutting on its inventoried “roadless” national forest
lands. Responding to a petition by the State of Colorado, in
2012 the Service promulgated a rule adopting State-specific
standards for the designation and management of the
inventoried roadless areas within Colorado’s borders. Special
Areas; Roadless Area Conservation; Applicability to the
National Forests in Colorado (2012 Colorado Rule), 77 Fed.
Reg. 39,576 (July 3, 2012) (codified at 36 C.F.R. §§ 294.40-
294.49). At issue in this case is the 2012 Colorado Rule’s
exclusion from the 4.2 million acres of inventoried roadless
land in Colorado of about 8,300 acres of land that the Service
also has designated for recreational skiing. The practical
effect of the decision is to exempt that skiing acreage from the
Service’s ban against road building and timber cutting on
roadless lands, although any such developments remain
subject to environmental review under the National
Environmental Policy Act.
The plaintiffs—environmental organizations and two
individuals—challenge the Service’s application of the 2012
3
Colorado Rule to allow development of a proposed egress ski
trail on once-roadless land within the Special Use Permit
boundary for the Snowmass Ski Resort in Aspen. The
proposed trail is not a paved road, but a trail approximately
3,000 feet long and averaging 35 feet wide that would require
some spot grading and tree and brush cutting to make it
usable by skiers and emergency-response patrollers and to
open part of it to grooming vehicles. Plaintiffs contend that
the Service adopted the ski-area exclusion with reference to
factors other than the on-the-ground, undeveloped condition
of the 8,300 affected acres, thereby deviating from its own
established policy without sufficient explanation. The
plaintiffs also claim that the Service gave them insufficient
notice of the rulemaking. The District Court disagreed,
concluding that the Service offered ample reasons for its
decision to exclude existing designated ski areas from the
Colorado roadless inventory, and that the Service’s six-year
public rulemaking process satisfied all applicable notice
requirements. See Ark Initiative v. Tidwell, 64 F. Supp. 3d 81
(D.D.C. 2014). Because we agree that the Service adequately
explained the limited ski-area exclusion and did not violate
any applicable notice requirements, we affirm.
I.
A.
The Service generally manages its national forest lands
for multiple uses, as authorized by a layered set of national
forest management laws reaching back more than a century.
See generally Wyoming v. U.S. Dep’t of Agric., 661 F.3d
1209, 1221-22 (10th Cir. 2011); Montanans for Multiple Use
v. Barbouletos, 568 F.3d 225, 226-27 (D.C. Cir. 2009). The
Organic Administration Act of 1897, 16 U.S.C. §§ 473 et
seq., requires the Service to manage national forests to secure
4
favorable conditions of water flows and to furnish the nation
with a continuous supply of timber, id. § 475. The 1960
Multiple-Use Sustained-Yield Act, 16 U.S.C. §§ 528 et seq.,
adds “outdoor recreation, range, timber, watershed, and
wildlife and fish purposes” to the list of the Service’s
objectives for forest land management, id. § 528, and
specifies that renewable surface resources must be
administered “for multiple use and sustained yield,” id. § 529.
To serve those goals, the National Forest Management Act of
1976, 16 U.S.C. §§ 1600 et seq., requires the Service to
develop land and resource management plans, also called
forest plans, which, much like zoning restrictions, designate
certain areas of national forest lands for specified uses, id.
§ 1604(a), (e)(1). The Service also may issue permits for
development within national forests pursuant to various
authorities, consistent with governing forest plans. Id.
§ 1604(i). As relevant here, under the National Forest Ski
Area Permit Act of 1986, 16 U.S.C. § 497b, the Service issues
long-term special-use permits for skiing and other recreational
activities on lands within the National Forest System.
Approximately 6,600 acres of land at issue in this case were
covered by special-use ski-area permits, with the remaining
1,700 excluded acres designated for skiing under forest plans.
Some national forest lands are subject to especially
stringent management constraints. In 1964, Congress passed
the Wilderness Act, 16 U.S.C. §§ 1131 et seq., obligating the
Service to review “primitive” lands in the National Forest
System to determine their suitability for preservation as
“wilderness,” id.§ 1132(b)-(c), a designation that carries with
it strict development and use prohibitions for permanent
protection of an area’s “recreational, scenic, scientific,
educational, conservation, and historical use,” id. § 1133(b).
In the 1970s, the Forest Service completed its Roadless Area
Review and Evaluation project to fulfill the Wilderness Act’s
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mandate that it inventory extensive primitive areas of federal
lands potentially suitable for congressional wilderness
designation. See Wyoming, 661 F.3d at 1221-22. As a result
of that effort and the wilderness designations included in the
Wilderness Act itself, see 16 U.S.C. § 1132(a), Congress has
designated approximately 35 million acres as wilderness
lands, see Wyoming, 661 F.3d at 1222.
The Service by 2001 had inventoried as “roadless” 58.5
million acres of relatively undisturbed land nationwide that
did not make the congressional wilderness-designation cut, an
area constituting about a third of national forest lands and 2%
of the land mass of the continental United States. See id. at
1222, 1225; Special Areas; Roadless Area Conservation
(2001 Roadless Rule), 66 Fed. Reg. 3244, 3245-46 (Jan. 12,
2001). Before 2001, the Service regulated those inventoried
roadless areas under governing forest plans, dictating their use
and development on a local, “site-specific basis,” with no
nationwide management standards. Wyoming, 661 F.3d at
1222; see 66 Fed. Reg. at 3246. During that time,
roadbuilding degraded approximately 2.8 million acres of
inventoried roadless areas. 66 Fed. Reg. at 3246.
Concerned about further degradation, the Service
promulgated the 2001 Roadless Rule, a national roadless
policy that looked at “the ‘whole picture’ regarding the
management of the National Forest System.” Id. at 3246.
Subject to preexisting permits, the 2001 Roadless Rule
generally “prohibits road construction, reconstruction, and
timber harvest in inventoried roadless areas because [those
activities] have the greatest likelihood of altering and
fragmenting landscapes, resulting in immediate, long-term
loss of roadless area values and characteristics.” Id. at 3244.
By “roadless area characteristics,” the Service refers not only
to the absence of roads as such, but also to beneficial
6
environmental features typical of roadless areas or otherwise
relatively undisturbed forest lands, such as high-quality and
undisturbed soil, water, and air; plant and animal diversity
and habitat for various sensitive categories of species; and
scenic and cultural properties. See id. at 3245.
In 2005, the Service again changed course, shifting to a
state-centered regime for managing roadless areas by inviting
states to petition for federal approval of state-specific
management approaches to inventoried roadless lands within
their borders. See Special Areas; State Petitions for
Inventoried Roadless Area Management (State Petitions
Rule), 70 Fed. Reg. 25,654 (May 13, 2005). The State
Petitions Rule was short-lived. In response to challenges by a
handful of Western states and many environmental
organizations, the Ninth Circuit sustained a district court
order enjoining the State Petitions Rule because it had been
adopted without the requisite environmental analysis under
the National Environmental Policy Act (NEPA), 42 U.S.C.
§§ 4321 et seq., as enforced through the Administrative
Procedures Act (APA), 5 U.S.C. §§ 701 et seq., and without
consultation about potential effects on endangered species as
required by the Endangered Species Act (ESA), 16 U.S.C.
§§ 1531 et seq. See Cal. ex rel. Lockyer v. U.S. Dep’t of
Agric., 575 F.3d 999, 1011-19 (9th Cir. 2009), aff’ing Cal. ex
rel. Lockyer v. U.S. Dep’t of Agric., 459 F. Supp. 2d 874
(N.D. Cal. 2006). The court order reinstated the 2001
Roadless Rule that had previously been in force nationwide.
See id. at 1019-21.
By that time, however, the State of Colorado already had
seized the opportunity to request federal approval of
management of its 4.2 million acres of roadless areas in a
manner tailored to state needs. The State created a bipartisan
task force in 2005 to compile recommendations for a
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Colorado-specific roadless-area management rule. In 2006,
Colorado filed a petition for rulemaking with the Service. By
the time Colorado filed its petition, the Ninth Circuit had
struck down the State Petitions Rule and reinstated the 2001
Roadless Rule, Cal. ex rel. Lockyer, 575 F.3d at 1020-21, but
Colorado submitted its rulemaking petition under both the
State Petitions Rule, in the event it was later reinstated, and
section 553(e) of the Administrative Procedure Act, 5 U.S.C.
§ 553(e), in case the State Petitions Rule remained invalid, as
it has to date. Colorado’s petition requested, as relevant here,
a roadless area “boundary adjustment” to eliminate a
relatively small area of overlap of designated ski areas and
roadless lands by excluding those overlapping portions from
roadless inventory. Colorado Roadless Petition (2006) at 7,
17, J.A. 232, 242.
After a lengthy rulemaking process involving numerous
layers of environmental review, broad public participation,
and consideration of four alternatives, the Service
promulgated the 2012 Colorado Rule. Special Areas;
Roadless Area Conservation; Applicability to the National
Forests in Colorado, 77 Fed. Reg. 39,576 (July 3, 2012). The
2012 Colorado Rule emphasized the need to “provide for the
conservation and management of roadless area
characteristics,” especially from tree cutting or removal and
road construction, but also revised the inventory and
management of roadless lands in Colorado based on
Colorado’s representation that “flexibility is needed to
accommodate State-specific situations and concerns in
Colorado’s roadless areas.” Id. at 39,577. The 2012
Colorado Rule displaces for that State the nationwide 2001
Roadless Rule. 1 See 36 C.F.R. § 294.48(g).
1
Idaho is the only other State subject to a state-specific roadless
rule. See Special Areas; Roadless Area Conservation; Applicability
8
In some ways, the 2012 Colorado Rule is more protective
than the national rule. For example, it adds 409,500 new
acres to the Colorado roadless inventory, 77 Fed. Reg. at
39,577, and designates more than a million acres of
inventoried roadless areas as “upper-tier” roadless lands
subject to more stringent restrictions on roadbuilding, tree
cutting, and linear construction (such as power and
telecommunication lines) than the national rule imposes, see
36 C.F.R. §§ 294.42(b), 294.43(b), 249.44(b); 77 Fed. Reg. at
39,577-78. The Service explicitly included those features “to
offset the limited exceptions for Colorado-specific concerns
so that the final rule is more protective than the 2001
Roadless Rule.” 77 Fed. Reg. at 39,578.
The 2012 Colorado Rule has other, less protective
features. For example, it makes certain exceptions from its
road-building and timber-cutting prohibitions to facilitate
wildfire management, see 36 C.F.R. §§ 294.42(c)(1)-(2),
294.43(c)(1)(vi)-(vii), and removes from the roadless
inventory 459,100 acres the Service “determined to be
substantially altered,” 77 Fed. Reg. at 39,577-78. As
pertinent here, and as requested by the State, the 2012
Colorado Rule also removed from the roadless inventory
approximately 8,300 acres of land the Service already had
designated “for ski area management” through special-use
permits or forest plans. Id.at 39,578.
The Service explained in the preamble to the final rule its
reasons for adopting the ski-area exclusion—the centerpiece
of this case. Id. According to the Service, the twenty-two ski
areas located in part on public lands managed by the Service
“received about 11.7 million skier visits during the 2010-2011
to the National Forests in Idaho, 73 Fed. Reg. 61,456 (Oct. 16,
2008); see also Jayne v. Sherman, 706 F.3d 994 (9th Cir. 2013).
9
ski season” and “Colorado skiers spend about $2.6 billion
annually, about one third of the annual tourist dollars spent in
the State.” Id. The Service noted that the existing roadless
inventory encompassed lands within parts of thirteen ski areas
that also fall within a permit boundary (about 6,600 acres) or
an area that a forest plan allocates for management as a ski
area (about 1,700 acres). Id. at 39,578, 39,594. Those 8,300
acres amount to less than 0.2% of Colorado’s inventoried
roadless areas. Id. at 39,578. The Service also asserted that
the 8,300 acres at issue here “include[] roadless acres with
degraded roadless area characteristics due to the proximity to
a major recreational development.” Id. The ski-area
exclusion, the Service reasoned, “will ensure future ski area
expansions within existing permit boundaries and forest plan
allocations are not in conflict with desired conditions
provided through the final rule and address one of the State-
specific concerns” Colorado identified. Id. The Service
emphasized, however, that the 2012 Colorado Rule does not
constitute approval of any future ski-area expansions; such
expansions remain subject to “site-specific environmental
analysis, appropriate public input, and independent approval.”
Id.
B.
In 2003, Intervenor Aspen Skiing Company sought
permission from the Service to construct a trail for skier
egress from Burnt Mountain, the easternmost portion of the
Snowmass Ski Resort. The Company sought to build the
egress trail across part of an eighty-acre portion of Burnt
Mountain that the Service previously had inventoried as
roadless. Plaintiff Ark Initiative challenged the Service’s
Environmental Assessment for that project under NEPA and
prevailed before the agency on the ground that the assessment
failed to analyze the project’s anticipated impact on the area’s
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roadless characteristics. In August 2013, after promulgating
the 2012 Colorado Rule, the Service completed a new
Environmental Assessment for the proposed Burnt Mountain
trail. The Service explained that the 2012 Colorado Rule had
removed the roadless designation from the acreage at issue
because it was within the boundaries of an existing ski-permit
area, but nonetheless considered whether the trail would
affect the area’s roadless characteristics and determined that it
would not. See Snowmass Ski Area Environmental
Assessment for the Burnt Mountain Egress Trail (Aug. 2013)
at 3-18 to 3-20, J.A. 675-77. In particular, the Service
determined that other applicable standards and guidelines
adequately would protect the area’s soil, water, and air
resources, and its plant and animal diversity, among other
features. In September 2013, the Service approved the egress
trail project, concluding that the Environmental Assessment
sufficed, so no Environmental Impact Statement (EIS) was
warranted, and again noting that the area at issue is no longer
“located in [a] designated inventoried roadless area.” 2 Burnt
Mountain Decision Notice and Finding of No Significant
Impact (Sept. 2013) at RTC-5, J.A. 759. Ark appealed that
decision within the agency, and the Service affirmed.
Ark Initiative and another environmental organization,
Rocky Mountain Wild, and two individual plaintiffs who
frequent Burnt Mountain to enjoy its aesthetic and
recreational qualities (together, Ark or the plaintiffs)
challenged the Service’s decision in federal district court
under the Wilderness Act, NEPA, and the APA. As relevant
to this appeal, Ark alleged that the Service’s application of the
2012 Colorado Rule to the egress-trail proposal was arbitrary
and capricious and in violation of agency policy because the
Service had conducted no site-specific inquiry into the area’s
on-the-ground conditions before excluding it from the
roadless inventory. If the Service had acknowledged the
11
relatively undeveloped character of the Burnt Mountain
acreage, Ark asserted, the Service would have been required
by its own policy to keep the acreage in the roadless
inventory. Ark also contended that, by failing to send it
individualized notice of the proposed 2012 Colorado Rule, the
Service violated NEPA’s notice requirements.
On August 18, 2014, the District Court granted summary
judgment to the Service and the Company, denying Ark’s
cross-motion. Ark Initiative, 64 F. Supp. 3d at 110. The court
concluded that the Service proffered sufficient justifications
for the ski-area exclusion: facilitating recreational use of the
land; assisting Colorado’s ski industry, an important source of
revenue for the State; reducing land-management conflicts
and confusion for the ski industry; responding to a request by
the State; removing degraded areas from the roadless
inventory; and making only a minor impact on the State’s
overall roadless management. Id. at 102-04. The Service had
not deviated from its roadless policy in the manner Ark
contended, the court explained, because even if the agency
handbook on which Ark relied governed roadless
inventorying as well as wilderness designation (the Service
contends it does not), the Handbook explicitly applies only to
placement in the inventory of roadless or potential wilderness
lands, not to ongoing management of that inventory. Id. at
104-05. The court also rejected the contention that Ark was
entitled to individualized notice of the 2012 Colorado Rule
and related NEPA proceedings, highlighting that the Service
went to great lengths to notify and involve the public in its
six-year decision-making process for the rule and received
approximately 312,000 public comments. Id. at 109-10. The
plaintiffs timely appealed to this court.
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II.
A.
The question before us is of a type ubiquitous to
administrative law: Whether the Colorado rule is permissible
under federal law, not whether we believe as a matter of
environmental policy it is the best rule, or even a good one.
We review de novo the District Court’s grant of summary
judgment and may affirm on any ground properly raised and
supported by the record. See Ark Initiative v. Tidwell, 749
F.3d 1071, 1074 (D.C. Cir. 2014).
Ark challenges the 2012 Colorado Rule under the APA as
“arbitrary, capricious, an abuse of discretion, or otherwise not
in accordance with law.” 5 U.S.C. § 706(2)(A). The scope of
judicial review under the arbitrary-and-capricious standard “is
narrow and a court is not to substitute its judgment for that of
the agency,” but the court must confirm that the agency has
fulfilled its duty to “examine the relevant data and articulate a
satisfactory explanation for its action including a ‘rational
connection between the facts found and the choice made.’”
Motor Vehicle Mfrs. Ass’n of the United States, Inc. v. State
Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983) (quoting
Burlington Truck Lines v. United States, 371 U.S. 156, 168
(1962)). “[A]n agency rule would be arbitrary and capricious
if the agency has relied on factors which Congress has not
intended it to consider, entirely failed to consider an important
aspect of the problem, offered an explanation for its decision
that runs counter to the evidence before the agency, or is so
implausible that it could not be ascribed to a difference in
view or the product of agency expertise.” Id. A reviewing
court may not “supply a reasoned basis for the agency’s
action that the agency itself has not given.” Id. (quoting SEC
v. Chenery Corp., 332 U.S. 194, 196 (1947)). But a court
13
“will . . . ‘uphold a decision of less than ideal clarity if the
agency’s path may reasonably be discerned.’” Id. (quoting
Bowman Transp. Inc. v. Arkansas-Best Freight Sys., Inc., 419
U.S. 281, 286 (1974)).
The 2012 Colorado Rule in general, and its ski-area
exclusion in particular, reflect a change in agency policy, as
the Service acknowledged in promulgating the rule. The
Service stated that the new, State-specific rule “adjusted
roadless area boundaries from the 2001 inventory” in several
ways, such as by “[e]xcluding ski areas under permit or lands
allocated in forest plans to ski area development.” 77 Fed.
Reg. at 39,576. The agency, for the first time, made a “state-
wide policy decision that roadless areas not overlap with ski
areas,” and accordingly removed the 8,300 qualifying acres
from the roadless inventory. Ark Initiative, 749 F.3d at 1077.
Where an agency changes a policy or practice, it “is
obligated to supply a reasoned analysis for the change.” State
Farm, 463 U.S. at 42. But no specially demanding burden of
justification ordinarily applies to a mere policy change. See
FCC v. Fox, 556 U.S. 502, 514-16 (2009). An agency “need
not demonstrate to a court’s satisfaction that the reasons for
the new policy are better than the reasons for the old one; it
suffices that the new policy is permissible under the statute,
that there are good reasons for it, and that the agency believes
it to be better, which the conscious change of course
adequately indicates.” Id. at 515. When a “new policy rests
upon factual findings that contradict those which underlay its
prior policy,” however, an agency must offer a “more detailed
justification than what would suffice for a new policy created
on a blank slate.” Id. As discussed below, no elevated
burden of justification applies to the Service’s decision
because, in approving the 2012 Colorado Rule, the Service
made no new factual findings contradictory to those
14
supporting the nationwide 2001 Roadless Rule. Consistent
with the holding of the district court, and contrary to Ark’s
contention, we conclude that the agency’s decision was valid
and non-arbitrary.
The Service lawfully exercised its “broad discretion to
determine the proper mix of uses permitted within [national
forest] lands.” Wyoming, 661 F.3d at 1268. There is no
question that the Service’s decision to include in its
management of Colorado’s forests some limited
accommodation of recreational skiing, together with new,
offsetting environmental protections, is permissible under the
multiple-use mandates reflected in the Organic Act, the
Multiple-Use Sustained-Yield Act, and the National Forest
Management Act. See, e.g., 16 U.S.C §§ 528-529 (requiring
administration of National Forest System lands for multiple
uses, including recreation); id. § 1604(e)(1) (requiring forest
plans to accommodate multiple uses, including recreation).
Those statutes simply do not constrain the Service’s discretion
to shift its designation and treatment of once-inventoried
roadless lands, as it did in approving the 2012 Colorado Rule.
Indeed, “[n]othing in th[e] [National Forest Management Act]
or any other federal statute obligates the Forest Service to
manage inventoried roadless areas as a distinct unit of
administration or resource value.” Lockyer, 575 F.3d at 1006.
More to the point, the Service’s explanation for its policy
change passes muster under the APA. The Service based its
decision on Colorado’s expressed interests in regulating
“long-term management of [Colorado’s inventoried roadless
areas] to ensure roadless area values are passed on to future
generations, while providing for Colorado-specific situations
and concerns that are important to the citizens and economy
of Colorado.” 77 Fed. Reg. at 39,577; see also id. at 39,590.
 15
The record supports the Service’s concern that on-the-
ground management conflicts could arise at the boundaries of
roadless lands and ski areas, and the Service reasonably relied
on the importance of recreational skiing to Colorado’s
economy. It noted that ski areas sited in part on public lands
managed by the Service attract millions of skiers a year, and
that Colorado skiers spend about a third of the approximately
$8 billion in tourist dollars the State attracts annually. 77 Fed.
Reg. at 39,578. A relatively small number of acres subject to
overlapping roadless and ski-area designations under the 2001
Roadless Rule affected thirteen ski areas, the Service
explained, and the exclusion aims to avoid management
conflict and confusion resulting from that dual designation.
Id.
The marginal and limited character of the boundary
adjustment helped to justify the Service’s treatment of it. The
ski-area exclusion applies to only 0.2% of all previously
inventoried roadless areas in the State, thus on the whole only
minimally affecting Colorado’s roadless acreage. Id.
Approximately 6,600 of those 8,300 acres had already been
grandfathered under special-use permits exempting them from
roadless-area development prohibitions, whether in the 2012
Colorado Rule, see 36 C.F.R. § 294.48(a), or the 2001
Roadless Rule, see 36 C.F.R. § 294.14(a), invalidated by 70
Fed. Reg. 25,654 (May 13, 2005), reinstated by Cal. ex rel.
Lockyer, 575 F.3d at 1020-21. It was thus only the remaining
1,700 overlapping acres, zoned for skiing under forest plans
but not covered by special-use permits, which—but for the
challenged ski-area exclusion—would have been subject to
the full protections against roadbuilding and timber removal
associated with roadless designation. See 77 Fed. Reg. at
39,594. The Service determined that the limited overlap,
which may have been the inadvertent result of imprecise
mapping, could hamper ski-area maintenance and expansion.
16
Importantly, and also contrary to Ark’s contention, the
Service addressed how the rule taken as a whole would fulfill
the Service’s conservation mandate. The 2012 Colorado Rule
contains increased protections in the form of new acreage
added to the State’s roadless inventory, and a new and more
restrictive upper-tier designation for some roadless lands.
Those provisions were included to “offset the limited
exceptions for Colorado-specific concerns so that the final
rule is more [environmentally] protective than the 2001
Roadless Rule.” Id. at 39,578.
The Service’s reasoning that the excluded acreage
“include[s] roadless acres with degraded roadless area
characteristics due to the proximity to a major recreational
development,” id., does little to aid our review, because it
lacks a factual basis in the record, and the Service’s
invocation of that rationale is ambiguous at best. The agency
has made no attempt to identify the location, scope, or degree
of any such degradation within the ski-area exclusion.
Indeed, elsewhere in its preamble to the 2012 Colorado Rule,
the Service asserted that the rule excludes other lands that
have been “substantially altered and 8,300 acres for ski area
management,” suggesting that the 8,300 ski-area acres at issue
were not among the acres removed on the basis of their
degraded condition. Id. at 39,577-78 (emphasis added). The
lack of any clear showing of degradation is of no moment,
however, as the balance of the Service’s reasoning adequately
supports the challenged exclusion.
Colorado’s concern for aligning the boundaries of ski
areas and roadless acreage, the relatively small amount of
land affected by the ski-area exclusion, and the rule’s
substantial offsetting measures provide sufficient, non-
arbitrary grounds for the rule. We need not accept the bare
fact that “the State of Colorado asked for it” as sufficient
17
justification for the ski-area exclusion, Br. of Federal
Appellees 20, because Colorado is well situated to identify
factors supporting desirable combinations of forest-land use
within its borders and has done so here. The reasons the
Service has provided for accepting Colorado’s proposal need
not be “so precise, detailed, or elaborate as to be a model for
agency explanation” in order for us to hold that they are “the
sort of reasons an agency may consider and act upon.” Fox,
556 U.S. at 538 (Kennedy, J., concurring in part and
concurring in the judgment).
Invoking the Ninth Circuit’s recent en banc decision in
Organized Village of Kake v. U.S. Department of Agriculture,
795 F.3d 956, 959 (9th Cir. 2015), Ark accuses the Service of
an unjustified about-face in its factual assessment. Ark argues
that the Service opted in the 2001 Roadless Rule not generally
to exempt ski areas and therefore was required when it
exempted ski-area acreage from the 2012 Colorado Rule to
“provide a more detailed justification than what would suffice
for a new policy created on a blank slate.” Fox, 556 U.S. at
515. We disagree. To begin with, Kake is not binding on this
court, and we take no position here on whether we agree with
that decision. In any event, as noted above, Fox demands
enhanced justification where a policy change rests on factual
findings that contradict the facts undergirding the prior policy,
circumstances not present here. Id. The rule at issue in Kake
created an exemption from the national 2001 Roadless Rule
for the 16.8 million acre Tongass National Forest that the
prior rulemaking had specifically considered and rejected, and
it did so by making new, contradictory factual findings
without any additional environmental analysis or material
change in “the overall decisionmaking picture.” 795 F.3d at
962 (internal quotation marks and citation omitted); see id. at
959-60. The 2012 Colorado Rule, in contrast, was based on
an entirely new record, including a new EIS, and supported
18
with new, State-specific findings. None of the Colorado
findings conflicts with the findings underlying the nationwide
2001 Roadless Rule, which looked at “the ‘whole picture’
regarding the management of the National Forest System,” 66
Fed. Reg. at 3246; see id. at 3246-48, and which, the Service
even then acknowledged, could affect states differently, id. at
3264. No enhanced justification was required for the
Service’s State-specific ski-area exclusion. Cf. Nat’l Ass’n of
Home Builders v. EPA, 682 F.3d 1032, 1037-38 (D.C. Cir.
2012) (more detailed justification is unnecessary where
“petitioners cannot point to any new findings, let alone
contradictory ones, upon which EPA relied”).
Ark further contends that the Service acted arbitrarily
because, Ark asserts, it deviated from the inventory criteria
embodied in chapter 70 of its Land Management Planning
Handbook by adopting the ski-area exclusion without regard
to the affected areas’ on-the-ground conditions. See Chapter
70, FSH 1909.12 Land Management Planning Handbook
(2007 Handbook), J.A. 300-31; see National Forest System
Land Management Planning Directive for Wilderness
Evaluation, 72 Fed. Reg. 4478 (Jan. 31, 2007). Ark contends
that the Service’s decisions regarding management of roadless
areas must be determined solely by “objective criteria”
specified in the Handbook. Br. of Appellants 40. Those
criteria, which appear to derive from the Wilderness Act’s
inventorying directive to a different agency responsible for
national park land, see 16 U.S.C. § 1132(c), require the
inventorying of any area that contains no forest roads,
“contain[s] 5,000 acres or more,” or is at least: contiguous to
existing wilderness; a self-contained ecosystem; or subject to
preservation “due to physical terrain and natural conditions,”
2007 Handbook at 16-17, J.A. 302-03. The Service must
inventory and manage as roadless any land that fits that
19
objective description, Ark suggests, and it violated the APA
by failing to do so here.
Ark’s contentions are off-base, however, because—
consistent with the Wilderness Act, 16 U.S.C. § 1132(c)—the
Handbook by its own terms applies not to management of
roadless inventory, but to the Service’s initial inventorying of
potential wilderness areas. Chapter 70 of the Handbook,
entitled “Wilderness Evaluation,” begins by stating that it
“describes the process for identifying and evaluating potential
wilderness,” not any standards for conserving and managing
roadless areas. 2007 Handbook at 15, J.A. 301. Ark’s
confusion likely stems from the fact that the Service identified
much of today’s roadless inventory as part of its effort under
the Wilderness Act to compile a list of potential wilderness
areas. See Wyoming, 661 F.3d at 1221-22. The “inventory of
potential wilderness,” the Handbook explains, is “completed
with the express purpose of identifying all lands that meet the
criteria for being evaluated for wilderness suitability.” 2007
Handbook at 15-16, J.A. 301-02.
The Handbook itself seeks to clarify the Service’s
nomenclature: “Areas of potential wilderness identified
through this [inventorying] process are called potential
wilderness areas.” i.e., not roadless inventory. Id. at 15,
J.A. 301. “This inventory of potential wilderness is not a land
designation, nor does it imply any particular level of
management direction or protection in association with the
evaluation of these potential wilderness areas.” Id. In
adopting the current version of the Handbook in 2007, the
Service took further pains to spell out that “the term ‘potential
wilderness areas’ is used to avoid confusion with the term
‘inventoried roadless area’ used in the Roadless Area
Conservation Rule. . . . The Roadless Area Conservation
20
Rule definition is different from the criteria for ‘potential
wilderness areas.’” 72 Fed. Reg. at 4478.
Ark nevertheless urges that the Handbook, at least as the
Service has applied it, does not mean what it says. Ark
emphasizes in particular the Service’s mention of the
Handbook in its response to comments on the proposed 2012
Colorado Rule. Some commenters questioned the Service’s
denial of the oil-and-gas industry’s request for an exclusion of
acreage with high oil-and-gas development potential, while
others questioned the Service’s failure to prohibit oil-and-gas
leasing altogether. See 77 Fed. Reg. at 39,588. Ark
highlights that, in response to such comments, the Service
stated: “Roadless inventory procedures follow Forest Service
Handbook 1909.12, Land Management Handbook procedures.
Whether or not an area is identified as having high mineral
potential is not an inventory criterion.” Id. Ark contends that
the Service thereby applied the Handbook to “preclude[]” an
exclusion for oil-and-gas lands, and similarly should have
denied the ski-industry exclusion. Br. of Appellants 49.
The Service permissibly reads its own statement
differently than does Ark, as a description of the background
factors that bore on its initial inventorying of lands as
roadless. The presence of lands in the roadless inventory, the
2012 Colorado Rule preamble points out, simply did not
depend on facilitating or prohibiting oil-and-gas development,
and it was against that backdrop that the Service defended its
decision to leave existing oil-and-gas leases largely
undisturbed, neither supplementing leasing rights by
excluding oil-and-gas-rich lands from roadless inventory, nor
invalidating existing leases in the name of strengthening
environmental protection of roadless lands. In light of the
record and the deference we owe to the Service, we cannot
credit Ark’s claim of a “longstanding agency policy and
21
practice” reflected in the Handbook that “preclude[s]” or
“foreclose[s]” the Service from removing the ski area lands
from roadless inventory. Br. of Appellants 49, 51.
Ark further contends that the Service arbitrarily
distinguished between similarly situated industries because it
granted ski-area boundary adjustment sought by the State
while denying the oil-and-gas industry’s requested exclusions.
The record shows otherwise. The Service recognized that the
ski-area boundary adjustment affected only 8,300 acres of
land. 77 Fed. Reg. at 39,578. The oil-and-gas industry’s
requested exclusion, in contrast, would have removed at least
150,000 acres from the roadless inventory. See 1 Final EIS
2012 Colorado Rule at 85, J.A. 431 (listing leased oil-and-gas
lands within Colorado’s inventoried roadless areas); see also
77 Fed. Reg. at 39,578 (noting that there are nearly 900,000
acres classified as having high or moderate-to-high oil-and-
gas potential within Colorado’s inventoried roadless areas).
The Service credited the offsetting protections of the 2012
Colorado Rule as a factor in the acceptability of the ski-area
exclusion, 77 Fed. Reg. at 39,578, but those added protections
would have been dwarfed by the scope of the requested oil-
and-gas exclusion. Accordingly, the Service’s decision to
exclude from the roadless inventory marginal portions of
designated ski areas, but not vast swaths of oil-and-gas lands,
was not arbitrary and capricious.
B.
Ark and the two individual plaintiffs also contend that, by
failing to send them individualized notice of the rulemaking
and NEPA proceedings relating to the 2012 Colorado Rule,
the Service violated NEPA’s scoping regulations, 40 C.F.R.
§§ 1501.7(a)(1), 1506.6(b)(1)-(3). As the District Court aptly
recounted, both Colorado and the Service made “impressive
22
efforts to reach out to the public as it worked out the contours
of the Colorado Rule.” Ark Initiative, 64 F. Supp. 3d at 110.
Those efforts included: five formal public-involvement
processes, generating 312,000 public comments; the creation
of a bipartisan task force in Colorado which held more than a
dozen meetings and considered more than 40,000 public
comments; publication of numerous notices in the Federal
Register; and three open meetings of the Roadless Area
Conservation National Advisory Committee. See 77 Fed.
Reg. at 39,581. It is difficult to see how any person or
organization with more than a passing interest in the
rulemaking could have missed a chance to participate.
Ark’s claim that it was entitled to individualized notice
falls short because none of the cited regulations demands any
such notice to entities in Ark’s circumstances. Section
1501.7(a)(1) provides that, in determining the scope and
significance of issues to be addressed in a NEPA process, an
agency “shall . . . [i]nvite the participation of” various
affected governments, agencies, and entities, as well as “other
interested persons (including those who might not be in
accord with the action on environmental grounds).” 40
C.F.R. § 1501.7(a)(1). Ark argues that its successful
administrative challenge to the Environmental Assessment for
the Burnt Mountain egress trail in 2006, which turned on the
agency’s failure to evaluate the area’s roadless characteristics,
rendered it an “interested” person under § 1501.7(a)(1) with
the same rights as the plaintiff in Northwest Coalition for
Alternatives to Pesticides v. Lyng, 844 F.2d 588 (9th Cir.
1988). But, as the District Court recognized, Ark Initiative,
64 F. Supp. 3d at 109, Ark’s partial and local administrative
victory concerning development on a single parcel of roadless
land, years before the Service’s state-wide rulemaking, is a far
cry from the interest of the plaintiff organization in Lyng “as a
litigant earlier in th[at] action”—the very action that
23
successfully mandated the new EIS of which the organization
sought notice. Lyng, 844 F.2d at 595. Were we to accept
Ark’s sweeping claim that NEPA requires the Service “to
give personal notice to any interested parties of any decision
that will affect their interests, irrespective of whether such
entities have ever previously litigated over the decision in
question,” Brief of Appellants 63, NEPA proceedings would
regularly, and often senselessly, be derailed for lack of notice.
Section 1506.6 provides that agencies “shall mail notice”
of NEPA proceedings both “to those who have requested it on
an individual action,” 40 C.F.R. § 1506.6(b)(1), and to
“national organizations reasonably expected to be interested
in the matter,” id. § 1506.6(b)(2), and that notice “may” be
given in various ways to specified types of potentially
interested groups or individuals for actions “with effects
primarily of local concern,” id. § 1506.6(b)(3). By its terms,
section 1506.6(b)(1) only applies to requested notice about
“an individual action,” and not to open-ended requests for
notice of any actions that could in any way affect a given plot
of land, such as the general request Ark purports to have made
here with respect to Burnt Mountain. Ark has made no
showing that it qualifies as a national organization under
section 1506.6(b)(2) or that it falls within the few categories
of entities listed in section 1506.6(b)(3), which for the most
part does not contemplate individualized notice in any event.
The Service’s failure individually to invite Ark to participate
in NEPA or rulemaking proceedings thus did not run afoul of
any NEPA notice requirement.
***
For the foregoing reasons, we affirm the judgment of the
District Court.
So ordered.