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

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 road-less 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 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 rule-making 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 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 Sendee 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 Ü.S.C. §§ 1181 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 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.

Concérned about further degradation, the Service promulgated the 2Ü01’ 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 areá 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 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 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. See 36 C.F.R. § 294.48(g).

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 roadbuild-ing, 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), 294.44(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 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 ah 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 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 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 road-less 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,

II.

A.

The question before us is of a type ubiquitous to administrative law: Whether the Colorado rule is permissible under fed