Hells Canyon Alliance v. United States Forest Service

227 F.3d 1170, 2000 Cal. Daily Op. Serv. 7681, 31 Envtl. L. Rep. (Envtl. Law Inst.) 20108, 2000 Daily Journal DAR 10223, 51 ERC (BNA) 1449, 2000 U.S. App. LEXIS 23210, 2000 WL 1290370
CourtCourt of Appeals for the Ninth Circuit
DecidedSeptember 14, 2000
DocketNos. 99-35675, 99-35683
StatusPublished
Cited by6 cases

This text of 227 F.3d 1170 (Hells Canyon Alliance v. United States Forest Service) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Hells Canyon Alliance v. United States Forest Service, 227 F.3d 1170, 2000 Cal. Daily Op. Serv. 7681, 31 Envtl. L. Rep. (Envtl. Law Inst.) 20108, 2000 Daily Journal DAR 10223, 51 ERC (BNA) 1449, 2000 U.S. App. LEXIS 23210, 2000 WL 1290370 (9th Cir. 2000).

Opinion

McKEOWN, Circuit Judge:

This appeal brings to mind the maxim that you can please all of the people some of the time, and some of the people all of the time, but you can’t please all of the people all of the time. At issue are the regulations for motorized water craft adopted by the United States Forest Service (“Forest Service”) for portions of the Snake River within the diverse and spec-[1173]*1173taeular area known as the Hells Canyon National Recreation Area. Balancing the competing and often conflicting interests of motorized water craft users, including jetboaters, and non-motorized water craft users, such as rafters and kayakers, is no easy task. The legislative framework contemplates not only that such craft are legitimate recreational uses in Hells Canyon but that the area should be preserved and conserved for the public benefit. In 1998, after a lengthy environmental impact process and extensive public comment, the Forest Service implemented a recreation management plan that included a “non-motorized window” — a three-day period every other week throughout the primary season during which motorized water craft would be barred from part of the “wild” section of the river. The Hells Canyon Preservation Council (the “Council”),2 representing the non-motorized craft users or “floaters,” and the Hells Canyon Alliance (the “Alliance”), representing primarily the motorized boaters, challenged the plan under a variety of statutes. We affirm the district court’s grant of summary judgment upholding the plan.

BACKGROUND

Hells Canyon is the deepest river canyon in North America; through it runs the Snake River, which divides Idaho and Oregon as it flows northward. In 1975, Congress established the Hells Canyon National Recreation Area (the “Hells Canyon NRA”) to preserve this area, designating portions of the Snake River as “wild” and “scenic” and designating certain adjacent areas as wilderness. Hells Canyon National Recreation Area Act (the “Hells Canyon Act” or “the Act”), Pub.L. 94-199, 89 Stat. 1117 (1975) (codified at 16 U.S.C. §§ 460gg-460gg-13).

Visitor use has soared since the Hells Canyon NRA was established, increasing 147% during the primary (summer) season from 1979-1991. Motorboat use during the primary season has grown at over 400%, from about 300 launches in 1979 to more than 1500 in 1994. Use of non-motorized water craft has also grown, from less than 100 float trips in 1973 to over 450 in 1992. Use restrictions for non-motorized water craft have been in place since 1977, but motorized use remained essentially unregulated until the Forest Service in 1998 implemented the Wild and Scenic Snake River Recreation Management Plan (“Recreation Management Plan”) prepared in 1994.3

The Recreation Management Plan, developed in response to litigation challenging the agency’s failure to regulate motorized water craft,4 has a lengthy and complex history. In 1993, after issuing a notice of intent to prepare such a plan and an environmental impact statement for the river corridor, the agency released a draft environmental impact statement (“EIS”) identifying eight outstandingly remarkable values (“values,” or “ORVs”) in the corridor — -scenic, recreational, geologic, fish, wildlife, cultural, botanic/vegetative, and ecological values — and presenting six alternatives for consideration. Most of these alternatives restricted motorized use levels; two also contemplated the elimination of motorized water craft from the wild part of the river. In response to comments on the draft EIS, Forest Supervisor R.M. Richmond asked the agency to develop a seventh alternative. ‘Alternative G,” denominated the [1174]*1174“preferred alternative” in the final environmental impact statement (“FEIS”) issued in July 1994, included not only motorized use-level restrictions - but also a non-motorized window in part of the “wild” river for three-day periods from Monday-Wednesday every other week in July and August for a total of 24 motor-free days.

In October 1994, Richmond issued a Record of Decision (“ROD”) selecting Alternative G, with certain modifications we need not enumerate here. Implementation of the Recreation Management Plan was stayed pending the resolution of numerous administrative appeals that followed. On July 19, 1995, Deputy Regional Forester Richard Ferraro partially affirmed and partially reversed the ROD. He affirmed “the programmatic decision to provide a non-motorized window to achieve more primitive conditions in the wild river segment” but delayed implementation of the Recreation Management Plan pending a new assessment of commercial use addressing, among other issues, the “specifics of timing and duration of a non-motorized window.” Ferraro also directed the agency to conduct a new analysis of access to private lands.5

In December 1995, the Forest Service gave notice of its intent to analyze the issues on remand in an environmental assessment (“EA”) regarding the economic effects of the Recreation Management Plan’s use limitations on individual commercial river permits (the “Outfitter EA”). One month later, in January 1996, the Council filed suit in the District of Oregon, claiming that the agency had unduly delayed implementation of the Recreation Management Plan and had failed to adequately regulate motorized river craft in the Hells Canyon. See Hells Canyon Preservation Council v. Williams, No. CV 96-68-RE (D. Or. 1996). In April 1996, Judge Redden denied the Council’s request for a preliminary injunction ordering the agency to implement the Recreation Management Plan for the 1996 summer season but indicated that: 1) he would retain jurisdiction over the case; 2) the agency’s failure to issue the EA promptly could prove the Council’s case of delay; and 3) the agency should anticipate implementing the plan for the 1997 summer season.

By April 1996, agency personnel began to have second thoughts about the wisdom of the window and consequently evaluated options, including its elimination. The Outfitter EA, released in June 1996, contained three alternatives: (1) a no-action alternative, which was windowless, and had no restrictions on motorized water craft; (2) an alternative mirroring Alternative G; and (3) and a new, preferred Alternative C that modified the window by limiting it to 21 days. Following public comment, agency personnel, apparently concerned by opposition to the window, actively researched ways to remove it but ultimately did not alter the options in the EA.6 Richmond issued a Decision Notice (“DN”) in September 1996, selecting Alternative C and declaring a Finding of No Significant Impact, which obviated any need for a full-blown EIS.

In transmitting the numerous administrative appeals that resulted from this decision, Richmond wrote Ferraro a letter, dated November 25, 1996, in which he stated that he “could not eliminate the non-motorized period for the commercial outfitters without going through another NEPA process ... because you upheld the non-motorized period ... in your July [1175]*11751995 decision.” Explaining that the time necessary to complete such a process “would preclude implementation of the Plan during the 1997 primary use season,” Richmond concluded that he was “unable to resolve the non-motorized issue and also meet Judge Redden’s expectations for implementing the Plan [during the 1997 season].”

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227 F.3d 1170, 2000 Cal. Daily Op. Serv. 7681, 31 Envtl. L. Rep. (Envtl. Law Inst.) 20108, 2000 Daily Journal DAR 10223, 51 ERC (BNA) 1449, 2000 U.S. App. LEXIS 23210, 2000 WL 1290370, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hells-canyon-alliance-v-united-states-forest-service-ca9-2000.