American Whitewater v. Thomas Tidwell, No. 13-1960 (4th Cir. 2014)
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The Forest Service manages the Chatooga River under the Wild and Scenic Rivers Act (WSRA), 16 U.S.C. 1274 et seq. In 2012, the Forest Service revised its management plan for the Chatooga to allow floating on most of the Headwaters during the winter months, when flows are highest and conditions are best. American Whitewater 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. Two intervening parties, ForestWatch and the Rusts, argue that the Forest Service's decision to allow floating goes too far, contending 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. The court agreed with the district court's well-reasoned opinion where the district court rejected both sets of challenges and found that the Forest Service's revised plan carefully balanced the wide-ranging interests advocated by the several parties and participants. The court affirmed the judgment.
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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 ChattahoocheeOconee 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 CANOEING WHITEWATER; AMERICAN ASSOCIATION; ATLANTA CANOE ASSOCIATION; GEORGIA 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/CrossAppellants 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 northernmost section of the River (the “Headwaters”). after a lengthy review, the Forest Service 21-mile In 2012, 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 condition Forest and generations. Service preserve — to their prevent pristine degradation quality of for their future See 16 U.S.C. §§ 1271, 1274, 1281(a) (2006). 6 The 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 Chattooga Wild and Scenic Development Plan. through the 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 adequate the basis Headwaters. 2004 for development continuing J.A. at 587. 3 the plan ban” did on not “provide floating on an the 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”). Service also actively involved the public. attended meetings feedback. to explain the review The Forest It held six wellprocess and solicit 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. reached three conclusions of note here. solitude, the “opportunit[y] for The Forest Service First, it found that remoteness . . . in a spectacular scenic setting,” was important to many users of the Headwaters. J.A. at 962. significant anglers likelihood were completely. the Second, it found that there was a of user Headwaters conflict floating J.A. at 981-82, 1273. between ban floaters to be and lifted Third, it determined that floating conditions are optimal during the winter months when flows are heavy, and that fishing during that same time period. In connection with conditions are less ideal J.A. at 974-76. these findings, the Forest Service analyzed several alternative plans for the Headwaters, ranging from leaving lifting the the ban on floating ban completely. The 8 in place and alternative unchanged it to selected, 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 Environmental NEPA Impact did not Statement. require preparation of Instead, the Service Forest an 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. eliminating American the Whitewater allegations filed related to an amended the complaint, portion of the Chattooga running through the Rusts' property, and the district court dismissed the Rusts' claims for lack of a controversy” under Article III of the Constitution. “case or 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 8:09-cv-02665-JMC, ECF No. 168 (May 1, 2012). 10 v. Tidwell, No. 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 Chattooga. to balance competing recreational uses on the See 5 U.S.C. § 706(2)(A) (2006). ForestWatch and the Rusts also were dissatisfied with the 2012 Decision. on floating ForestWatch, arguing that the remaining limits 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 remaining and floating other recreational restrictions and users that the justified Forest the Service complied with NEPA. It also dismissed the Rusts' request for declaratory as judgment ForestWatch's claims premature, against the and refused Forest Service to consider because went beyond the limited scope of its intervention. they 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 2003). F.3d court's, 211, our 217 review highly deferential.” (4th Cir. under the APA is But like the “ultimately district narrow and Webster v. U.S. Dep’t of Agric., 685 F.3d 12 411, 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.” § 706(2)(A) (2006). 5 U.S.C. 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 should be sustained. and the choice made,” its decision 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,” Valley Envtl. Coal., 556 F.3d at 192. by the Forest Service opens Ohio The alternative selected 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. the same time, by retaining the ban on J.A. at 1459. floating At 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 conditions are best for fishing and hiking. environment when 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. Contrary amply to supports American the Whitewater's Forest Service's 14 J.A. at 1458. assertions, conclusions the record regarding potential Service conflicts relied between in among part recreational recreational on a history users, users. of reviewing The previous Forest conflicts 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, analyzing a developing wealth of expected public encounter comments estimates, including many and from current users who expressed a preference for solitude and an isolated experience. 1273-74; J.A. at 966, 959-1038, 1031-32, 960-62, 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 Headwaters. assess the likelihood of conflicts on the 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. accept this Br. for American Whitewater at 35. counter-intuitive argument. Where We cannot the agency’s conclusion otherwise rests on a firm factual basis, nothing in the APA requires it to experiment continuing preexisting policies. with practice before We will not second guess an agency’s reasonable choice of methodology. 15 a See Hughes River Watershed Conservancy v. Johnson, 165 F.3d 283, 289 (4th Cir. 1999). At bottom, American Whitewater disagrees with the Forest Service’s strike. factual conclusions and the balance it chose to 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” 16 with any protected 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 Scenic interagency Rivers guidelines. Coordinating Study Process 12-15 (1999). See Council, The Interagency Wild & Wild Scenic and River Here, the Forest Service identified “recreation” generally, as opposed to specific recreational uses such as floating or fishing, as an ORV of the Chattooga. at 915. American Whitewater argues that the Forest J.A. Service erred, and that floating itself is an ORV subject to the Act's “protect and enhance” standard. find that the Forest Like the district court, we 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,” specific uses such as “hiking” and “fishing.” rather than 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.” U.S.C. § 1271 (2006). 16 “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.” desirable, according to the 1971 Designation would be report, because it would preserve not just one particular form of recreation, but rather “full enjoyment of river-related general. The Senate Chattooga's designation and recreation House under the Reports WSRA activities” accompanying likewise refer in the 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: and enjoy effort much from of the the river requires recreationist, canoeist, hiker or camper.” considerable whether he be “To see time and fisherman, 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 19 must identify and seek to protect ORVs). determination administrative In this after case, the careful guidance and Forest consideration voluminous Chattooga's characteristics. Service of reports J.A. at 913-19. made its relevant describing the 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 uses. involve “trade-offs” J.A. at 915. among competing recreational 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 85220 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. instance, hiking recreational might be would value; an be a operating “other use” “public a use” highway, subject to of on the the For Chattooga's other restriction hand, 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 Tidwell, 959 F. Supp. 2d at 853-54. we hold that the remaining other recreational uses. For that reason, as well, 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 interference standard. or application 5 of the substantial 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 floating on the Rusts' property. does not authorize any 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 groundwork attempt for an by the exercise Forest Service of regulatory its even to lay the 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.” 41 Aetna Life Ins. Co. v. Haworth, 300 U.S. 227, 240- (1937). The declaratory relief immediacy and same and reality declaratory judgment.” standard requires [as] to applies a to controversy warrant the a of request for “sufficient issuance of a 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. acknowledge that the Forest Service would The Rusts 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. 943; S.J.A. at 2199. J.A. at 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, question that is not in actual dispute. addressing a 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.”). declaratory judgment claim is dismissed. 24 The Rusts' 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. district court correctly held that this prospect is The 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. consider decisions. Moreover — and dispositive here — an agency need only the “reasonably foreseeable” effects of its 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. 25 As the Forest Service points out, the uppermost portion of the Headwaters opened to floating by the line. 2012 Decision is downstream from the Rusts' property 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. The Rusts' unconvincing. J.A. at 779, 911, 943. response to this common-sense proposition is 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. cry from expressing an intent to That, however, is a far trespass illegally, and American Whitewater has denied repeatedly that it intends to violate the law. account from Neither explains Otherwise, the Rusts point to a trespasser's forty years why ago floaters and a might stray be newspaper expected to report. 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 Rusts' property. on floating above J.A. at 911, 943. Green's Creek, and the 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 significant that more was required. impact was not so 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.”). “flyspeck[ing]” Review agency under analysis NEPA and is not discussion, a vehicle Nat'l for 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. 6 The district court 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 Headwaters. remaining restrictions on floating on the 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. separate ForestWatch action These claims, the subject of a 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 will against the Forest Service be considered by the district court in ForestWatch’s separate action, not by this court for the first time on appeal. Sys. Servs., 134 F.3d 1222, 1227 28 See Karpel v. Inova Health (4th Cir. 1998) (“[I]ssues raised for the first time on appeal generally will not be considered.”) (internal quotation marks omitted). What ForestWatch may appeal, however, is the district court ruling on its motion to intervene. underlying The district court granted ForestWatch’s motion to intervene as of right but also limited ForestWatch Whitewater’s] claim to for “[d]efending declaratory and against [American injunctive relief.” American Whitewater v. Tidwell, No. 8:09-cv-02665-JMC, ECF No. 168 (May 1, 2012). court erred in intervention. ForestWatch now argues that the district imposing that limit on the scope of its 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 because, as standard. We ForestWatch’s need counsel not reach candidly this admitted question 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. the record differently, and believe that the We read district court amply preserved ForestWatch’s opportunity to assert its claims in its pending consolidate lawsuit. ForestWatch’s First, action in with denying the a present motion to 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 7 passages uphold the 2012 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. we should understood note, as should resolving anything in ForestWatch’s our opinion separate today claims Nor, be against the Forest Service. V. For the reasons set forth above, we affirm the judgment of the district court. AFFIRMED 31
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