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Initiative v. Tidwell

United States District Court, D. Columbia.

August 18, 2014

THE ARK INITIATIVE, et al., Plaintiffs,
THOMAS TIDWELL, Chief, United States Forest Service, et al., Defendants, and ASPEN SKIING COMPANY, Intervenor-Defendant

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For Ark. Initiative, Donald Duerr, Scott Schlesinger, Plaintiffs: Eric Robert Glitzenstein, LEAD ATTORNEY, William Stewart Eubanks , II, MEYER GLITZENSTEIN & CRYSTAL, Washington , DC.

For Rocky Mountain Wild, Plaintiff: William Stewart Eubanks , II, MEYER GLITZENSTEIN & CRYSTAL, Washington , DC.

For Thomas L. Tidwell, Chief, U.S. Forest Service, Scott Fitzwilliams, Supervisor, White River National Forest, U.S. Forest Service, Maribeth Gustafson, Deputy Regional Forester, U.S. Forest Service, Rocky Mountain Region, Defendants: Christine A. Hill, LEAD ATTORNEY, U.S. DEPARTMENT OF JUSTICE, Land & Natural Resources Division, Washington , DC; John Pershing Tustin, LEAD ATTORNEY, U.S. DEPARTMENT OF JUSTICE, Washington , DC; Beverly F. Li, U.S. DEPARTMENT OF JUSTICE, Environment & Natural Resources Division, Washington , DC.

For Aspen Skiing Company, Intervenor Defendant: Ezekiel J. Williams, LEAD ATTORNEY, LEWIS, BESS, WILLIAMS & WEESE P.C., Denver , CO; Steven K. Imig, PRO HAC VICE, LEWIS, BESS, WILLIAMS & WEESE P.C., Denver , CO.

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JAMES E. BOASBERG, United States District Judge.

The modern administrative state reaches just about everywhere. Even, as this

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case demonstrates, into the wilds of the Colorado Rockies.

Federal rules create two special classes of protection for the national forests: " wilderness areas" and " roadless areas." Designating a parcel " roadless" makes it harder to cut down trees there; " wilderness" makes it harder still. This case involves a decision by the United States Forest Service to remove the " roadless" designation from approximately 8,300 acres of land in Colorado that fall inside the boundaries of permitted ski areas. Having removed that classification, the Service then authorized Aspen Skiing Company to fell trees on approximately 80 acres of that formerly " roadless" land in order to build a new ski trail.

Plaintiffs -- two environmental groups and two individuals -- filed suit to challenge both the removal of the " roadless" designation from the 8,300 acres and the approval of the 80-acre construction project. They claim that the Service's actions contravened the Administrative Procedure Act, the Wilderness Act, and the National Environmental Policy Act. Defendants -- joined by Aspen as an Intervenor -- contend that Plaintiffs lack standing to bring such challenge and that the agency violated no law. The parties have now cross-moved for summary judgment.

The Court concludes that Plaintiffs do have standing to bring this case, but that their claims are fatally flawed on the merits. Although Plaintiffs offer several worthy challenges to the Service's actions, in the end, the agency made its decision in accordance with the law and following a multi-year, comprehensive, public process. Plaintiffs may have good policy arguments against removing environmental protections from the land in question or approving Aspen's ski trail, but this Court cannot overturn the Service's decisions unless they were unlawful. As they were not, the Court will grant Defendants' and Intervenor's Motions and dismiss this case.

I. Background

A. The Law of the Wild

Congress passed the Wilderness Act in 1964, Pub. L. No. 88-577, 78 Stat. 890 (1964) (codified at 16 U.S.C. § § 1131-1136), directing the Forest Service within the next ten years to review whether certain areas in the National Forest System were suitable " for preservation as wilderness." 16 U.S.C. § 1132(b). The Service was to report those findings to the President, who, in turn, would advise Congress on his recommendations on which regions should be officially designated " wilderness areas." See id., § 1132(a)-(b). The Act defines " wilderness" as:

[A]n area of undeveloped Federal land retaining its primeval character and influence, without permanent improvements or human habitation, which is protected and managed so as to preserve its natural conditions and which (1) generally appears to have been affected primarily by the forces of nature, with the imprint of man's work substantially unnoticeable; (2) has outstanding opportunities for solitude or a primitive and unconfined type of recreation; (3) has at least five thousand acres of land or is of sufficient size as to make practicable its preservation and use in an unimpaired condition; and (4) may also contain ecological, geological, or other features of scientific, educational, scenic, or historical value.

Id., § 1131(c). Only Congress has the power to designate a wilderness area. See id., § 1131(a); Wyoming v. Dept. of Agric., 661 F.3d 1209, 1221 (10th Cir. 2011). The moniker confers special legal protections on the land in order to ensure that such places remain, as the Act poetically describes,

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" area[s] where the earth and its community of life are untrammeled by man, where man himself is a visitor who does not remain." 16 U.S.C. § § 1131(c) & 1133.

On the Service's second attempt to follow through with the Wilderness Act's command, an undertaking known as the " Roadless Area Review and Evaluation project" (RARE II), it finally completed the inventory in 1979, describing the 62 million acres of prospective wilderness regions it had identified as " roadless areas." Wyoming, 661 F.3d at 1221-22; CRR-023380.[1] Based on the Service's report and the President's recommendations, Congress ultimately designated a total of 35 million acres of such land as wilderness, see Wyoming, 661 F.3d at 1222, including approximately 1.4 million acres in Colorado. See Colorado Wilderness Act, Pub. L. No. 96-560, § 102, 94 Stat. 3265, 3265-68 (1980).

Around the same time, in 1976, Congress passed the National Forest Management Act, Pub. L. No. 94-588, 90 Stat. 2949 (codified as amended in scattered sections of 16 U.S.C.), which instructs the Forest Service to create and continuously update " land and resource management plans" -- also known as " Forest Plans" -- for each unit of the National Forest System. 16 U.S.C. § 1604(a). Per the Service's own regulations, part of the Forest Plan development process includes an evaluation of a unit's suitability as a wilderness or roadless area. See CRR-008859; 36 C.F.R. § 219.27(b) (2001); 36 C.F.R. § 219.17(a) (1982).

Particularly relevant to this case is the Service's 1997-2002 evaluation of the White River National Forest in Colorado. There, the Service identified " 90 roadless areas . . . totaling 640,000 acres." BME-04668. " Of these 90 areas, 37 (totaling approximately 298,000 acres) were found capable and available for recommended wilderness. The remaining 53 areas were identified as roadless but lacking sufficient wilderness characteristics." Id. As part of this evaluation, the Service determined that a 1,700-acre parcel of land within White River known as " Burnt Mountain," which included the 80 acres of land inside the Snowmass ski-permit area that is the subject of Plaintiffs' Complaint, was " roadless" but not suitable for designation as " wilderness." See BME-01041, 04225-26, 04633.

B. Roadless Rules

After Congress reviewed the Forest Service's RARE II report and designated certain regions as " wilderness areas," the agency was left with a large inventory of " roadless areas" that, while not officially designated " wilderness," were still " worthy of some level of protection." Wyoming, 661 F.3d at 1222. For the first several years, then, the Service managed roadless lands on a site-specific, individual basis, see BME-04666, forbidding industrial development in some areas, while allowing it in others. See Wyoming, 661 F.3d at 1222; Kootenai Tribe of Idaho v. Veneman, 313 F.3d 1094, 1105 (9th Cir. 2002), abrogated in part on other grounds by, Wilderness Society v. Forest Service, 630 F.3d 1173, 1180 (9th Cir. 2011).

In 2001, however, the Service decided to take a broader, national approach to the management of its roadless inventory. It thus promulgated a " Roadless Area Conservation Rule," which sought " to provide,

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within the context of multiple-use management, lasting protection for inventoried roadless areas within the National Forest System." 66 Fed.Reg. 3,244, 3,272 (Jan. 12, 2001). The Rule prohibited, with a few exceptions, road construction and timber removal on approximately 58.5 million acres of roadless areas across the country " identified in a set of inventoried roadless area maps." Id. at 3,244; see also id. at 3,272-73; BME-04667. " These nationally-applied prohibitions superceded [ sic ] the management prescriptions for roadless areas applied through the development of individual forest plans." CRR-023382.

The maps of the 58.5 million acres subject to the Roadless Rule were based on the Service's 1979 RARE II inventory of prospective wilderness areas -- i.e., the leftover land that Congress had not designated as wilderness -- along with some regions that the Service had subsequently designated as roadless as part of its Forest Plan development process. See 66 Fed.Reg. at 3,246. The Service made clear that although the Rule was intended to conserve roadless areas, it would not afford the same protection as a " wilderness" designation: " The Roadless Area Conservation rule, unlike the establishment of wilderness areas, will allow a multitude of activities including motorized uses, grazing, and oil and gas development." Id. at 3,249. In effect, this created three levels of protection for land in the National Forest System. " Wilderness" receives the most protection, " roadless" the second most, and land with no designation the least. Cf. Initiative v. Tidwell, 895 F.Supp.2d 230, 240 (D.D.C. 2012) (" 'Roadless area' . . . is a heightened designation, presumably meaning that cutting trees in a national forest is easier than cutting trees in a roadless area." ), aff'd, 749 F.3d 1071, 409 U.S.App.D.C. 346 (D.C. Cir. 2014).

The Roadless Rule quickly became a target for litigation. See BME-04667; Wyoming, 661 F.3d at 1226. In 2005, the Forest Service decided to change tacks and adopt a more federalist approach to roadless-area management. It promulgated a " State Petitions Rule," which invited state governors to petition for state-specific regulations that would govern the roadless areas within their jurisdictions. See 70 Fed.Reg. 25,654, 25,654 (May 13, 2005); id. at 25,661. The Governor of Colorado took the Forest Service up on that invitation, and after a six-year rulemaking process, see Ark. Initiative, 895 F.Supp.2d at 234, the agency in 2012 finally promulgated a special roadless-area management rule specifically for the Rocky Mountain State: the " Colorado Roadless Areas Rule." See 77 Fed.Reg. 39,576, 39,577 (July 3, 2012).[2]

Graced with some of this continent's most impressive mountain ranges, Colorado is, not coincidentally, also home to some of the nation's most sought-after ski terrain. In fact, front and center in this dispute is the Colorado Rule's so-called " Ski Area Exclusion." The Forest Service's 2001 Roadless Rule had previously classified as " roadless" approximately 8,300 acres of land in Colorado that had also been allocated to ski-area special uses. See 77 Fed.Reg. at 39,578; CRR-008863,

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008897, 009654. Acquiescing in the requests of three successive Colorado Governors, see CRR-00863, 00897, 009654, the Colorado Rule removed the roadless classification from those 8,300 acres. See 77 Fed.Reg. at 39,578. " In other words, if a previous roadless area lay in a permitted ski area, its roadless designation was removed." Ark. Initiative, 895 F.Supp.2d at 235. This included the 80 acres of land in Snowmass at issue in this case. See BME-04631, 04673.

The instant lawsuit involves a challenge to the legality of the Ski-Area Exclusion. Plaintiffs are concerned because, by removing the " roadless" designation from forests that fall within ski-area boundaries, the Service made it easier for companies like Aspen Skiing to cut down those trees. See Ark. Initiative, 895 F.Supp.2d at 240.

C. The Burnt Mountain Skier-Egress-Trail Project

In 2003, nine years before the issuance of the Colorado Rule, Aspen Skiing asked the Forest Service for permission to construct the " Burnt Mountain Skier Egress Trail" in the Snowmass Mountain Ski Area. See BME-00001. Aspen hoped that the Egress Trail would improve safety and convenience for skiers cruising in the " Burnt Mountain Glades," see BME-04635, a set of ski trails in Snowmass that was the subject of prior litigation before this Court. See id.; Ark. Initiative, 895 F.Supp.2d at 235-36. This would require timber removal (cutting down trees) and construction in Burnt Mountain, which, at the time, was a 1,600-acre designated roadless area. The trees stand on 80 acres of Burnt Mountain that lie within the Snowmass boundaries, where the Trail would be located. See BME-00001, 04225, 04673; 77 Fed.Reg. at 39,611. The Forest Service authorized Aspen to construct the Egress Trail in February 2006. See BME-04818-912.

Two months later, in April 2006, two of the Plaintiffs in this case -- The Ark. Initiative and Donald Duerr -- along with several other parties, filed an administrative appeal within the Forest Service requesting review of the agency's decision to approve the Trail. See BME-03261-458. That appeal was successful; the Service found that, because the Egress Trail fell within the Burnt Mountain roadless area, the decision to approve it required additional analysis of the " impacts" the Trail would have on the region. BME-03535. The 2006 Appeal Decision therefore ordered the Service to prepare a new environmental assessment on the matter, before any work could begin on the project. See id.

Seven years later, in August 2013, the Service completed that assessment. See BME-04621-732. Although, as the Service emphasized, see BME-04825, the 2012 Colorado Rule had in the interim removed the " roadless" designation from the 80-acre area in question -- because it fell within the boundaries of the Snowmass ski-permit area -- the Service nevertheless analyzed the Trail's potential impacts on the parcel's " roadless characteristics." See BME-04665-81. The Service concluded that even if the Egress Trail had fallen within a roadless area, it " would not affect the nine roadless area characteristics to the point of altering the characteristics of the Burnt Mountain [roadless area]." BME-04677. It therefore authorized Aspen to construct the Egress Trail. See BME-04818-912. That authorization is another subject of this litigation.

D. The Instant Case

In April 2014, Plaintiffs filed a three-count Complaint (and two months later, an Amended Complaint) challenging both the Ski-Area ...

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