# Ark Initiative v. Tidwell

> District Court, District of Columbia · August 18, 2014 · 64 F. Supp. 3d 81

URL: https://www.frixlaw.com/law-library/cases/2718639

## Case

- **Full name:** The ARK INITIATIVE, Et Al., Plaintiffs, v. Thomas TIDWELL, Chief, United States Forest Service, Et Al., Defendants, and Aspen Skiing Company, Intervenor-Defendant
- **Court:** District Court, District of Columbia
- **Decided:** August 18, 2014
- **Citations:** 64 F. Supp. 3d 81; 2014 U.S. Dist. LEXIS 114152; 2014 WL 4059878
- **Precedential status:** Published
- **Opinion:** Opinion by Boasberg
- **Judges:** Judge James E. Boasberg
- **Nature of suit:** Civil
- **Cited by:** 9 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
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## Opinion text

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

THE ARK INITIATIVE, et al.,

Plaintiffs,
v. Civil Action No. 14-633 (JEB)
THOMAS TIDWELL, Chief, United States
Forest Service, et al.,

Defendants,

and

ASPEN SKIING COMPANY,

Intervenor-Defendant.

MEMORANDUM OPINION

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

1
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

2
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, “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

1
Because there are two agency decisions at issue in this case – the promulgation of the Colorado Rule and the
approval of the Egress-Trail Project – there are two administrative records. The record for the Colorado Rule is
denoted with the citation “CRR,” and the record for the Egress-Trail Project is denoted “BME.”

3
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

4
Rule,” which sought “to provide, 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. Ark 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 (D.C. Cir.

2014).

5
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, 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.

2
Although the Ninth Circuit subsequently struck down the State Petitions Rule and reinstated the 2001 Roadless
Rule, see California ex rel. Lockyer v. Dept. of Agric., 575 F.3d 999, 1020-21 (9th Cir. 2009), Colorado submitted
its petition pursuant to both the State Petitions Rule and § 553(e) of the APA. See CRR-008884. Accordingly,
despite the fact that the State Petitions Rule was struck down, Colorado remains subject to the state-specific rules
promulgated in response to its petition under § 553(e). Aside from Idaho, roadless areas in all other states are
currently governed by the 2001 Roadless Rule. See BME-04667.

6
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

7
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 Exclusion contained in the Colorado Rule

and the Service’s approval of the Egress-Trail Project. Plaintiffs allege violations of the

Administrative Procedure Act, the Wilderness Act, and the National Environmental Policy Act.

See Am. Compl., ¶¶ 62-74. Plaintiffs, Defendants, and Intervenor have all cross-moved for

summary judgment. Defendants and Intervenor have further moved to strike Plaintiffs’

Amended Complaint. The briefing was completed on a somewhat expedited schedule as the

tree-cutting is slated to begin imminently.

Before turning to the substance of the parties’ arguments, the Court notes that Plaintiffs’

briefs, and to some extent Defendants’, contain a superfluity of footnotes, many of which are

quite lengthy and advance substantive arguments distinct from and additional to those contained

8
in the body text. In restricting the length of the parties’ briefs, see Minute Order of June 4, 2014;

Minute Order of June 26, 2014, the Court did not intend for them to simply reformat their

pleadings by transferring text to single-spaced footnotes. This practice proves both highly

distracting to the reader and a transparent effort to circumvent the Court’s page limitations. The

Court will therefore focus its analysis on those arguments the parties thought worthy enough to

include in the main text of their pleadings.

II. Legal Standard

Challenges under the APA and NEPA proceed under the familiar “arbitrary and

capricious” standard of review. See 5 U.S.C. § 706(2)(A); Baltimore Gas and Elec. Co. v.

Natural Res. Def. Council, Inc., 462 U.S. 87, 97-98 (1983). Although all three parties have filed

Motions for Summary Judgment, the limited role federal courts play in reviewing such

administrative decisions means that the typical Federal Rule 56 summary-judgment standard

does not apply. See Sierra Club v. Mainella, 459 F. Supp. 2d 76, 89–90 (D.D.C. 2006) (citing

Nat’l Wilderness Inst. v. United States Army Corps of Eng’rs, 2005 WL 691775, at *7 (D.D.C.

2005)). Instead, in APA and NEPA cases, “the function of the district court is to determine

whether or not . . . the evidence in the administrative record permitted the agency to make the

decision it did.” Id. (internal citations omitted). Summary judgment thus serves as the

mechanism for deciding, as a matter of law, whether an agency action is supported by the

administrative record and otherwise consistent with the standard of review. See Bloch v. Powell,

227 F. Supp. 2d 25, 31 (D.D.C. 2002) (citing Richards v. INS, 554 F.2d 1173, 1177 (D.C. Cir.

1977)).

The APA requires courts to “hold unlawful and set aside agency action, findings, and

conclusions” that are “arbitrary, capricious, an abuse of discretion, or otherwise not in

9
accordance with law.” 5 U.S.C. § 706(2)(A). Under this “narrow” standard of review – which

appropriately encourages courts to defer to the agency’s expertise, see Motor Vehicle Mfrs.

Ass’n of United States, Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983) – an

agency is required 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.” Id.

(internal quotation marks omitted). In other words, courts “have held it an abuse of discretion

for [an agency] to act if there is no evidence to support the decision or if the decision was based

on an improper understanding of the law.” Kazarian v. Citizenship and Immigration Services,

596 F.3d 1115, 1118 (9th Cir. 2010).

It is not enough, then, that the court would have come to a different conclusion from the

agency. See Nat’l Ass’n of Home Builders v. Norton, 340 F.3d 835, 841 (9th Cir. 2003). The

reviewing court “is not to substitute its judgment for that of the agency,” id., nor to “disturb the

decision of an agency that has examine[d] the relevant data and articulate[d] . . . a rational

connection between the facts found and the choice made.” Americans for Safe Access v. DEA,

706 F.3d 438, 449 (D.C. Cir. 2013) (internal quotation marks and citation omitted). A decision

that is not fully explained, moreover, may be upheld “if the agency’s path may reasonably be

discerned.” Bowman Transp., Inc. v. Arkansas–Best Freight Sys., Inc., 419 U.S. 281, 286

(1974).

III. Analysis

The Court will begin its analysis by addressing Defendants and Intervenor’s Motion to

Strike the Amended Complaint. It will then move on to their contentions concerning the Court’s

purported lack of jurisdiction to adjudicate this lawsuit. Finding those arguments wanting, the

Court will finally take on the merits of the case.

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A. Motion to Strike

The first issue the Court must resolve is the propriety of Plaintiffs’ Amended Complaint.

That seemingly innocuous point is particularly hard fought here because the pleading, although it

does not add any new claims against Defendants, does include a new Plaintiff – the

environmental group Rocky Mountain Wild – who is central to the question of Plaintiffs’

standing to bring this case, a matter discussed further in the next section.

Rule 15(a)(1)(A) of the Federal Rules of Civil Procedure allows a party to amend its

complaint as a matter of course before trial within “21 days after serving it.” Plaintiffs filed their

original Complaint on April 16, 2014. See ECF No. 1. Apparently due to some confusion in the

Clerk’s Office, however, Defendants and Intervenor were not served with that pleading until

June 16 and 17. See ECF Nos. 28, 30; Sur-Reply, Exh. A (Emails). Plaintiffs filed their

Amended Complaint on June 5, 2014. See ECF No. 16.

The Amended Complaint was therefore filed at least eleven days before Defendants and

Intervenor were ever served with the original. The practice, in such cases, appears to favor

allowing amendment. See, e.g., McIntrye v. United States, No. 13-2404, 2014 WL 1653146, at

*3 (M.D. Pa. Apr. 23, 2014) (“Since Plaintiff filed his Motion for Leave to File a Second

Amended Complaint before Defendants were served with his original or Amended Complaint,

we find that Plaintiff was not required to file a Motion for Leave to File a Second Amended

Complaint.”); see also Little v. E. Dist. Police Station, No. 13-1514, 2014 WL 271628, at *3 (D.

Md. Jan. 22, 2014); Park v. TD Ameritrade Trust Co., No. 10-188, 2010 WL 1410563, at *1 (D.

Colo. Apr. 1, 2010); Brown v. SCDC Kirland R & E, No. 10-1169, 2010 WL 3940981, at *1

(D.S.C. Oct. 5, 2010). Because there is no indication that Plaintiffs deliberately manipulated the

11
levers of judicial bureaucracy to engineer this result, the Court is inclined to follow that practice

and permit their Amended Complaint.

Defendants and Intervenor object, however, that the Amended Complaint contravenes the

parties’ Joint Stipulation, approved by the Court at the very beginning of this case. See ECF No.

11; Minute Order, Apr. 28, 2014. There, they all agreed to set the litigation on a 97-day

expedited schedule, specifying deadlines for the filing of the administrative record and cross-

motions for summary judgment. See Joint Stipulation at 1-3. Plaintiffs filed the Amended

Complaint on day 50 of that schedule and moved for summary judgment just two days later,

leaving their opponents with only a few weeks to incorporate the new pleading into their cross-

motions in order to meet the agreed-upon deadlines.

While this may well violate the spirit of Rule 15(a)(1)(A) and the Joint Stipulation, that

agreement nowhere forbids Plaintiffs from filing an Amended Complaint. Rule 15(a)(1)(A),

moreover, does not empower the Court to deny leave to amend on grounds of undue delay or

prejudice – it permits amendment “as a matter of course.” Cf. Foman v. Davis, 371 U.S. 178,

182 (1962) (laying out grounds to deny leave to amend under Rule 15(a)(2)). The letter of the

law, which favors Plaintiffs’ Amended Complaint, therefore wins the day. This outcome may

unfortunately require Defendants and Intervenor to be more specific in joint stipulations that they

enter in the future.

B. Jurisdiction

Having denied the Motion to Strike Plaintiffs’ Amended Complaint and deemed that

document filed, thereby adding Rocky Mountain Wild as a Plaintiff to this case, the Court next

moves to the question of jurisdiction. The Amended Complaint lodges three counts against

Defendants: Count 1 challenges the Service’s application of the Colorado Rule to its Egress-Trail

12
decision, see Am. Compl., ¶¶ 62-66, Count 2 claims that the Egress-Trail approval violated

NEPA, see id., ¶¶ 67-71, and Count 3 advances a general attack on the legality of the Colorado

Rule. See id., ¶¶ 72-74. Defendants move to dismiss Counts 1 and 3 of the Complaint – the so-

called “as-applied” and “facial” challenges to the Colorado Rule – because, they say, none of the

Plaintiffs has standing to pursue either of those claims. Defendants appear to concede that

Plaintiffs do have standing to bring Count 2. See Def. Mot. at 2, 24.

The doctrine of “standing” reflects the Constitution’s restriction of the power of federal

courts to decide only “cases or controversies.” See Whitmore v. Arkansas, 495 U.S. 149, 154-55

(1990); U.S. Const. art. III, § 2, cl. 1. To have standing to bring a lawsuit in federal court, a

plaintiff must establish that: (1) he has suffered a concrete and particularized injury that is actual

or imminent, not conjectural or hypothetical; (2) there is a causal relationship between his injury

and the defendant’s conduct; and (3) it is likely that a victory in court will redress his injury.

Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992). An organizational plaintiff, such

as the Ark Initiative or RMW, may have standing to sue both on its own behalf, known as

“organizational standing,” and also on its members’ behalf, which is called “representational

standing.” See Abigail Alliance for Better Access to Developmental Drugs v. Eschenbach, 469

F.3d 129, 132 (D.C. Cir. 2006).

Having considered the arguments, the Court concludes that, at the very least, Plaintiff

RMW has standing to bring both Count 1 and Count 3. Since “the presence of one party with

standing is sufficient to satisfy Article III’s case-or-controversy requirement,” the Court need

“not determine whether the other plaintiffs have standing.” Rumsfeld v. Forum for Acad. & Inst.

Rights, 547 U.S. 47, 52 n.2 (2006); Bowsher v. Synar, 478 U.S. 714, 721 (1986).

13
1. Count 1: “As-Applied” Challenge

Defendants first claim that RMW lacks standing to challenge the Service’s application of

the Colorado Rule in the context of its approval of the Burnt Mountain Egress Trail. They rest

this argument on three grounds. First, RMW has not suffered a concrete injury as a result of the

Egress Trail. Second, RMW failed either to submit a comment on the Egress-Trail Project or to

identify any specific concerns with the Burnt Mountain parcel when it submitted comments on

the Colorado Rule. And third, RMW failed to exhaust its administrative remedies. The Court

will address each point in turn.

a. Injury-in-Fact

According to Defendants, the injury RMW will allegedly suffer as a result of the Egress

Trail is insufficiently concrete to satisfy the requirements of Article III standing. RMW has

claimed “representational standing” to challenge the Trail, submitting two declarations from its

staff attorney and member, Matthew Sandler, describing the harm he will suffer if the project is

completed. See Pl. Mot., Exh. C (Declaration of Matthew Sandler); see also Pl. Opp., Exh. E

(Supplemental Declaration of Matthew Sandler).

In the Declaration, Sandler explains:

As a RMW member, I personally and professionally value and
visit wilderness-quality lands and roadless areas in Colorado.
Among other roadless areas adversely affected by the CRR’s ski
area exclusion, I have been to the Snowmass ski resort and the area
in the vicinity of Burnt Mountain and used it for recreational and
other purposes. I have concrete plans to return to this area in
January 2015, at which time the egress trail could be constructed
absent judicial relief in this case, therefore impairing my ability to
continue enjoying this area in its natural, undeveloped condition
that existed prior to CRR promulgation.

Sandler Decl., ¶ 8. In his Supplemental Declaration, he offers more specifics:

14
[W]hen I have visited the Snowmass ski resort, I have often hiked
up from the main ski resort, traversed over to Burnt Mountain . . .
and skied down Burnt Mountain in a backcountry fashion before
traversing back over to the main ski resort and then hiking up to
the top of Burnt Mountain again. Although, like most skiers, I do
not carry a GPS device when I go backcountry skiing, I can attest
that based on my review of maps of Burnt Mountain, I am
confident that on several occasions I skied through and otherwise
used for recreational purposes the 80-acre parcel that the Service
removed from the roadless inventory through the CRR. And, as
previously stated, I have concrete plans to return in January 2015
to the Snowmass ski resort, and Burnt Mountain in particular
(including the 80-acre parcel), and I will likely continue to return
approximately once per year thereafter. The loss of roadless
qualities as a result of the CRR ski area exclusion in conjunction
with egress trail construction will therefore affect my recreational
and aesthetic interests in using this parcel for backcountry skiing
and other purposes.

Sandler Supp. Decl., ¶ 3.

This harm confers standing on RMW. “[E]nvironmental plaintiffs adequately allege

injury in fact when they aver that they use the affected area and are persons ‘for whom the

aesthetic and recreational values of the area will be lessened’ by the challenged activity.”

Friends of the Earth v. Laidlaw Environmental Services (TOC), 528 U.S. 167, 183 (2000)

(quoting Sierra Club v. Morton, 405 U.S. 727, 735 (1972)). In his declarations, Sandler avers

that he uses the portion of the Burnt Mountain parcel in question and that the construction of the

Egress Trail will interfere with his aesthetic and recreational enjoyment of the area. Defendants

claim that Sandler’s “subjective experience” of the land in question “is not sufficiently concrete.”

Def. Reply at 6. Yet “aesthetic” and “recreational” values are nearly always “subjective,” and

the Supreme Court has affirmed that such concerns may constitute cognizable harms. Sandler

has therefore suffered an injury-in-fact, caused by the Service’s approval of the Egress-Trail

Project, which would be redressed if the Court reversed that decision. That gives RMW standing

to litigate on his behalf.

15
b. Comments

Defendants next maintain that RMW lacks standing because it never submitted a

comment expressing its objections to the Egress-Trail Project. Because other commenters

articulated similar concerns, however, this argument is unavailing.

The D.C. Circuit has described as “black-letter administrative law that ‘[a]bsent special

circumstances, a party must initially present its comments to the agency during the rulemaking in

order for the court to consider the issue.’” Appalachian Power Co. v. EPA, 251 F.3d 1026, 1036

(D.C. Cir. 2001) (quoting Tex Tin Corp. v. EPA, 935 F.2d 1321, 1323 (D.C. Cir. 1991)). This

waiver rule reflects the principle that “courts should not topple over administrative decisions

unless the administrative body . . . has erred against objection made at the time appropriate under

its practice.” Advocates for Highway and Auto Safety v. Federal Motor Carrier Safety Admin.¸

429 F.3d 1136, 1150 (D.C. Cir. 2005) (quoting United States v. L.A. Tucker Truck Lines, 344

U.S. 33, 37 (1952)).

Yet the Court of Appeals also quite frequently makes exceptions to this rule, permitting

plaintiffs who did not participate in rulemaking processes to file challenges if, for example, other

commenters raised the same concerns, see, e.g., Sierra Club v. EPA, 353 F.3d 976, 982 (D.C.

Cir. 2004); Natural Res. Def. Council v. EPA, 824 F.2d 1146, 1151 (D.C. Cir. 1987), or their

objections related to “key assumptions” underlying the agencies’ decisions. Natural Res. Def.

Council v. EPA, Nos. 98-1379, 98-1429, 98-1431, 2014 WL 2895943, at *9 (D.C. Cir. June 27,

2014). The principle animating these exceptions seems to be that, if the agency knew or should

have known about the specific concerns, then the plaintiff need not have personally raised them

during the comment period. Indeed, in an earlier iteration of this very case, the Court of Appeals

recognized that Plaintiff Ark Initiative “did not choose to comment” on the Colorado Rule and

16
yet simultaneously affirmed that the group “ha[d] Article III standing” to challenge it. Ark

Initiative v. Tidwell, 749 F.3d 1071, 1073, 1079 (D.C. Cir. 2014).

Here, although RMW itself did not comment on the Egress-Trail Project, see BME-

03811-04046, a number of other commenters raised the same kind of environmental and

administrative concerns alleged in Count 1 of the Amended Complaint. See, e.g., BME-03828-

39, 3967-78. The Court, consequently, finds that RMW has not waived its right to bring this

challenge.

c. Exhaustion

Defendants last assert – in an almost cursory fashion – that RMW lacks standing because

it failed to exhaust its administrative remedies with regard to the Egress-Trail Project. While the

three other Plaintiffs in this lawsuit filed an administrative appeal of the Decision Notice for the

Project, RMW did not. See Am. Compl., ¶¶ 58-61; BME-03811-4046, 04838. Federal law

requires a litigant to “exhaust all administrative appeal procedures established by the Secretary

[of Agriculture] or required by law” before he may sue the Forest Service – an agency of the

Department of Agriculture – or its officers. 7 U.S.C. § 6912(e)(3).

Against this charge, Plaintiffs note that several district courts have permitted plaintiffs to

pursue claims against the Forest Service, even when they have not exhausted their administrative

remedies, so long as another organization or a co-plaintiff did file an appeal that raised the same

concerns. In such cases, these courts have reasoned, “Since the purpose of the exhaustion

requirement is to ensure that agency ‘be given first shot at resolving a claimant's difficulties,’ . . .

the underlying rationale supporting the exhaustion requirement” has been satisfied. Sierra Club

v. Bosworth, 465 F. Supp. 2d 931, 937 (N.D. Cal. 2006); see also Conservation Congress v.

Forest Serv., 555 F. Supp. 2d 1093, 1106-07 (E.D. Cal. 2008). In this case, accordingly, the

17
appeal filed by the three other Plaintiffs would fulfill the exhaustion requirement for RMW.

Defendants counter by citing cases holding that the exhaustion requirement is mandatory and

that administrative remedies sought by other parties cannot satisfy it. See, e.g., Wildland CPR v.

Forest Serv., 872 F. Supp. 2d 1064, 1073-74 (D. Mon. 2012); Chattooga River Watershed Coal

v. Forest Serv., 93 F. Supp. 2d 1246, 1251 (N.D. Ga. 2000).

The Court need not weigh in on this debate. According to the D.C. Circuit, the

exhaustion requirement in § 6912(e) is non-jurisdictional, meaning that a court may in certain

circumstances excuse a plaintiff’s failure to satisfy it, or may bypass the issue if the plaintiff

ultimately loses the case on other grounds. See Munsell v. Dept. of Agric., 509 F.3d 572, 579

(D.C. Cir. 2007); see also Dawson Farms, LLC v. Farm Service Agency, 504 F.3d 592, 602-06

(5th Cir. 2007). Because, as explained below, the Court ultimately concludes that Plaintiffs’

claims fail on the merits, it need not tarry over the administrative-exhaustion point. Even

assuming that the appeals filed by RMW’s co-plaintiffs satisfied this non-jurisdictional

requirement, they still lose the case.

2. Count 3: “Facial” Challenge

Defendants raise three related objections to RMW’s standing to bring the “facial”

challenge to the validity of the Colorado Rule alleged in Count 3. First, they contend that the

APA does not provide for judicial review of the Rule, independent of a challenge to a specific

application of it. Second, they argue that RMW cannot use the Egress-Trail Project as a specific

application of the Colorado Rule that affects its interests because it failed to comment on the

Project and to exhaust its administrative remedies. Finally, they assert that RMW has suffered

no injury as a result of the Rule. Because the Court’s holding in the prior section resolves the

third point in RMW’s favor, see Part III.B.1.a, supra, and the second is easily dispatched, given

18
that RMW’s co-plaintiffs commented on the Project and RMW submitted extensive comments in

opposition to the Colorado Rule, see CRR-016832-71, 106963-7001, 134141-84, 134663-706,

157993-97, the Court need only address Defendants’ first argument.

The APA provides for judicial review of “[a]gency action made reviewable by statue and

final agency action for which there is no other adequate remedy in a court.” 5 U.S.C. § 704. As

the Supreme Court has explained:

Some statutes permit broad regulations to serve as the “agency
action,” and thus to be the object of judicial review directly, even
before the concrete effects normally required for APA review are
felt. Absent such a provision, however, a regulation is not
ordinarily considered the type of agency action “ripe” for judicial
review under the APA until the scope of the controversy has been
reduced to more manageable proportions, and its factual
components fleshed out, by some concrete action applying the
regulation to the claimant's situation in a fashion that harms or
threatens to harm him. (The major exception, of course, is a
substantive rule which as a practical matter requires the plaintiff to
adjust his conduct immediately. Such agency action is “ripe” for
review at once, whether or not explicit statutory review apart from
the APA is provided.)

Lujan, 497 U.S. at 891. According to Defendants, since there is no statute permitting direct

judicial review of the Colorado Rule, and since the Rule standing alone does not require RMW

to adjust its conduct in any way, the regulation is not independently reviewable. Defendants

concede that the Colorado Rule could be reviewed in the context of a challenge to a specific

application of it, such as the Egress-Trail Project, but they claim that “the action that the court

[would] ultimately uphold[] or set[] aside is the site-specific decision [i.e., the Trail] . . . rather

than the regulation itself [i.e., the Colorado Rule].” Def. Mot. at 18.

Even if RMW were barred from bringing an “independent” challenge to the Colorado

Rule, it may still attack that regulation – and have it invalidated as unlawful – in the context of a

challenge to one of the Rule’s specific applications. The specific application in this case would

19
be the Egress-Trail Project, which Plaintiffs have alleged was improper both on its own terms

and because the Colorado Rule on which it was based was invalid. Plaintiffs’ challenge to the

Egress-Trail Project, in other words, provides the avenue through which they may attack the

Colorado Rule as well. “As the Supreme Court has made clear, such ‘as applied’ challenges are

the appropriate means by which a party may challenge a broad agency policy document.” Center

for Native Ecosystems v. Salazar, 711 F. Supp. 2d 1267, 1273 (D. Col. 2010); see also Ohio

Forestry Ass’n v. Sierra Club, 523 U.S. 726, 734-35 (1998) (“[O]ne initial site-specific victory

(if based on the [underlying regulation’s] unlawfulness)” can “through preclusion principles,

effectively carry the day” against that rule.).

In sum, the Court concludes that RMW has standing to bring Counts 1 and 3. Because

only one plaintiff needs standing for a case to satisfy Article III, the Court need not inquire into

the remaining Plaintiffs. See Forum, 547 U.S. at 52 n.2; Bowsher, 478 U.S. at 721. Defendants,

moreover, as mentioned earlier, concede that Plaintiffs have standing to bring Count 2.

Jurisdictional issues thus resolved, the Court may now move to the merits of the case.

C. Merits

In considering the merits, the Court will proceed from the specific to the general, first

analyzing the Egress Trail and then the Ski-Area Exclusion as a whole.

1. The Egress-Trail Project

The Court begins with Plaintiffs’ challenge to the Service’s approval of the Egress-Trail

Project. According to their Motion, such approval was unlawful for two main reasons: first,

because the Service failed to prepare an Environmental Impact Statement for its decision, as

required by the National Environmental Policy Act, 42 U.S.C. § 4321 et seq., and second,

20
because the Environmental Assessment that the Service did prepare was insufficient. The Court

will address each contention separately.

a. Environmental Impact Statement

“NEPA itself does not mandate particular results.” Robertson v. Methow Valley Citizens

Council, 490 U.S. 332, 349 (1989). Instead, it requires federal agencies to follow certain

specified procedures before they take actions that may intrude on Mother Nature.

Most relevant to this case, NEPA requires that when an agency is considering an action

that will “significantly affect[] the quality of the human environment,” it must first prepare a

detailed “Environmental Impact Statement” assessing the consequences of that action and any

alternatives that may be available. Dept. of Transp. v. Public Citizen, 541 U.S. 752, 757 (2004)

(quoting 42 U.S.C. § 4332(2)(C)); see also Sierra Club v. Peterson, 717 F.2d 1409, 1412 (D.C.

Cir. 1983). When an agency is uncertain of whether an EIS is necessary, it may prepare a more

concise “Environmental Assessment” to determine the “significan[ce]” of the action it is

considering. 40 C.F.R. §§ 1501.4, 1508.27. If the Environmental Assessment concludes that the

proposed action will not have a “significant impact” on the environment, no EIS is necessary.

Peterson, 717 F.2d at 1412-13; see also 40 C.F.R. § 1501.4(e). In such a case, the agency must

document that conclusion in a “Finding of No Significant Impact” (FONSI). TOMAC,

Taxpayers of Michigan Against Casinos v. Norton, 433 F.3d 852, 857 (D.C. Cir. 2006). The

decision not to prepare an EIS may be overturned “only if it was arbitrary, capricious, or an

abuse of discretion.” Cabinet Mountains Wilderness/Scotchman’s Peak Grizzly Bears v.

Peterson, 685 F.2d 678, 681 (D.C. Cir. 1982).

In this case, the Service prepared an EA for the Egress-Trail Project and found that no

EIS was necessary. See BME-04621-732. It then issued a FONSI documenting that conclusion.

21
See BME-04818-912. Plaintiffs contend that that decision was flawed because, first, the

Service’s own regulations require an EIS for all decisions affecting a roadless area, and, second,

the Project would in fact “significantly affect” the environment.

On the first point, according to Plaintiffs, Forest Service regulations require the agency to

prepare an EIS before making decisions regarding a roadless area that will have a discernable

impact on the area’s roadless or wilderness qualities. This proposition is not disputed: Service

regulations do mandate an EIS for proposals that “would substantially alter the undeveloped

character” of a designated roadless area. 36 C.F.R. §§ 220.5(a)(2), 294.45(a). The problem for

Plaintiffs, as Defendant and Intervenor are quick to point out, is that the Burnt Mountain parcel

lost its “roadless” designation and was removed from the inventory as a result of the Ski-Area

Exclusion in the Colorado Rule. See BME-04673. These regulations therefore no longer apply

to the Egress-Trail Project.

Plaintiffs contend, however, that whether a parcel is officially designated “roadless” is

irrelevant; so long as the land is empirically roadless, they say, an EIS is required, regardless of

the administrative label. In support of this position, they cite two Ninth Circuit decisions. In

each case, that court reviewed the sufficiency of an EIS prepared by the Forest Service to

evaluate the effects of a proposed project involving, in one case, two “uninventoried roadless

area[s],” Lands Council v. Martin, 529 F.3d 1219, 1230 (9th Cir. 2008), and, in the other, a

“roadless area that [was] partially inventoried.” Smith v. Forest Serv., 33 F.3d 1072, 1077 (9th

Cir. 1994). Those decisions do not bind this Court, however, and they are not particularly

compelling anyway. In each case, the court simply reviewed the sufficiency of an EIS that the

Service had decided to prepare for projects in undesignated roadless areas; neither decision held

22
that the EIS was required, and, in fact, Smith specifically stated the opposite. See id. at 1079

(“[A]n EIS may not be per se required under such circumstances.”).

Even if the Court accepted Plaintiffs’ theory of the law, moreover, the Service regulations

in question only require an EIS for actions that “substantially alter the undeveloped character” of

a roadless area. 36 C.F.R. §§ 220.5(a)(2), 294.45(a) (emphasis added). The EA the Service

prepared for the Egress Trail, however, concluded, after 26 pages of analysis, that the project

“would not affect the nine roadless characteristics to the point of altering the characteristics of

the Burnt Mountain [roadless area].” BME-04677. Given that the regulations and case law do

not support Plaintiffs’ claim, and that even if they did, the Service’s conclusions about the effects

of the Egress-Trail Project would render an EIS unnecessary, this first argument fails.

Plaintiffs’ second argument for why an EIS was necessary focuses on the so-called

NEPA “significance factors,” set out in 40 C.F.R. § 1508.27. Fund for Animals v. Norton, 281

F. Supp. 2d 209, 218 (D.D.C. 2003). As mentioned earlier, under NEPA, an agency must

prepare an EIS for actions that will “significantly” affect the environment, which, according to

federal regulations, requires consideration of both “context” and “intensity.” 40 C.F.R. §

1508.27(a) & (b). “Context” means “that the significance of an action must be analyzed in

several contexts such as society as a whole (human, national), the affected region, the affected

interests, and the locality. Significance varies with the setting of the proposed action.” Id., §

1508.27(a). “Intensity” means “the severity of impact,” and is defined in relation to ten factors:

(1) Impacts that may be both beneficial and adverse. A significant
effect may exist even if the Federal agency believes that on
balance the effect will be beneficial.
(2) The degree to which the proposed action affects public health
or safety.
(3) Unique characteristics of the geographic area such as proximity
to historic or cultural resources, park lands, prime farmlands,
wetlands, wild and scenic rivers, or ecologically critical areas.

23
(4) The degree to which the effects on the quality of the human
environment are likely to be highly controversial.
(5) The degree to which the possible effects on the human
environment are highly uncertain or involve unique or unknown
risks.
(6) The degree to which the action may establish a precedent for
future actions with significant effects or represents a decision in
principle about a future consideration.
(7) Whether the action is related to other actions with individually
insignificant but cumulatively significant impacts. Significance
exists if it is reasonable to anticipate a cumulatively significant
impact on the environment. Significance cannot be avoided by
terming an action temporary or by breaking it down into small
component parts.
(8) The degree to which the action may adversely affect districts,
sites, highways, structures, or objects listed in or eligible for listing
in the National Register of Historic Places or may cause loss or
destruction of significant scientific, cultural, or historical
resources.
(9) The degree to which the action may adversely affect an
endangered or threatened species or its habitat that has been
determined to be critical under the Endangered Species Act of
1973.
(10) Whether the action threatens a violation of Federal, State, or
local law or requirements imposed for the protection of the
environment.

Id., § 1508.27(b). “Some courts have found that ‘[t]he presence of one or more of these factors

should result in an agency decision to prepare an EIS.’” Fund for Animals, 281 F. Supp. 2d at

218 (quoting Pub. Citizen v. Dept. of Transp., 316 F.3d 1002, 1023 (9th Cir. 2003)); see also

Humane Soc’y of the U.S. v. Johanns, 520 F. Supp. 2d 8, 20 (D.D.C. 2007). Plaintiffs contend

here that the Service’s decision to approve the Egress Trail triggered several of the significance

factors, thus necessitating an EIS.

Plaintiffs train their sights on three significance factors in particular. First, they say the

Project will affect the land’s “[u]nique characteristics” and “ecologically critical areas” by

degrading the parcel’s roadless and wilderness qualities and fragmenting habitat used by elk,

lynx, and other species. 40 C.F.R. § 1508.27(b)(3). Second, they claim it will set a “precedent

24
for future actions with significant effects” because it is the first-ever site-specific application of

the Colorado Rule’s Ski-Area Exclusion. Id., § 1508.27(b)(6). Finally, they argue that the

Project may “adversely affect an endangered or threatened species” because it will erode the

habitat of the Canadian lynx. Id., § 1508.27(b)(9). Plaintiffs raised these three issues in their

comments on the Project, see BME-04798-801, but, they claim, “[r]ather than seriously grapple

with these concerns, the agency brushed them aside.” Mot. at 48.

The administrative record, however, tells a different tale. The EA and FONSI for the

Egress-Trail Project separately addressed each and every significance factor, including the three

noted by Plaintiffs, and concluded that none was triggered. With respect to Plaintiffs’ first point,

the EA, after significant analysis, found that the Project would not alter the roadless or

wilderness characteristics of the Burnt Mountain parcel. See BME-04656-81. The FONSI

noted, further, that “[t]he area affected by the approved project elements does not . . . contain . . .

ecologically critical areas,” and that “[t]he relatively small amount of habitat loss” would not

interfere with elk or lynx habitat. BME-04829-30; see also BME-04845, 04860. On the second,

the FONSI observed that the Egress Trail would be the first-ever application of the Ski-Area

Exclusion, but noted that “[t]he precedent was set by the [Colorado Rule], which eliminated the

roadless area designation” for the land in question, and that “similar projects have occurred on

NFS lands since NEPA was enacted.” BME-04846. Finally, the EA examined the impact the

Project would have on the Canadian lynx and found that while “there would be a loss of some

lynx habitat, . . . the surrounding habitat would be capable of providing lynx movements and

year-round foraging.” BME-04677; see also BME-04675, 04690-92. Though Plaintiffs may

disagree with these conclusions on their merits, the Court’s job is to decide only whether they are

25
“arbitrary, capricious, or an abuse of discretion.” Cabinet Mountains, 685 F.2d at 681. They are

not, which means no EIS was required.

b. Environmental Assessment

Plaintiffs are uncowed. Even if no EIS was required for the Egress Trail, they say, the

EA and FONSI the Service prepared were themselves inadequate. According to Plaintiffs,

although the EA may have analyzed the impact of the project on the 80-acre parcel where the

Trail would be constructed, it failed to consider the impact of the Project on the land adjacent to

that parcel – the region known as Burnt Mountain. Plaintiffs are particularly concerned about

increased human recreation on Burnt Mountain and the impact it may have on the area’s

prospects for future designation as a “wilderness area.” Defendants and Intervenor question

whether any of this analysis was necessary. Yet even if it was, the administrative record once

more belies Plaintiffs’ position on this matter.

A look at the EA and the FONSI shows that the Service repeatedly considered the effect

of the Egress Trail on the adjacent Burnt Mountain area, and that it concluded that any such

impact would be minimal. See BME-04649 (“Alternative 3 would not create a significant effect

to the Roadless Area Characteristics of the adjacent Burnt Mountain [roadless area].”); 04677

(“The action alternatives would not affect the nine roadless area characteristics to the point of

altering the characteristics of the Burnt Mountain [roadless area].”); 04873 (“The EA discloses

that the action alternatives would not affect the 9 Roadless area characteristics of the adjacent

[Burnt Mountain roadless area].”). The EA notes, further, that “skier visitation is not

contemplated to measurably increase overall,” BME-04685; see also BME-04845, and that the

Burnt Mountain area had already been judged “not capable and not available” for wilderness

designation. BME-04855-56 (internal quotation marks omitted). Again, Plaintiffs may disagree

26
with these conclusions, but the only question for the Court is whether the analysis the Service

used to reach them was “arbitrary, capricious, or an abuse of discretion.” Cabinet Mountains,

685 F.2d at 681. It was not. The EA, as prepared, was thus sufficient to satisfy the Service’s

obligations under the law.

2. The Colorado Rule’s Ski-Area Exclusion

Having found Plaintiffs’ challenge to the specific Egress-Trail Project wanting, the Court

next moves to their broader attack on the Colorado Rule’s Ski-Area Exclusion. Plaintiffs

advance this assault along three tracks. First, they claim that the Service’s decision to remove

the “roadless” designation from land falling within ski-area boundaries is arbitrary and

capricious, in violation of NEPA. Second, they argue that the decision contravenes substantive

provisions of the Wilderness Act. Finally, Plaintiffs complain that they were not invited to

participate in the decisionmaking process for the Colorado Rule, a supposed violation of NEPA.

As before, the Court will take each of these arguments in sequence.

a. Arbitrary and Capricious

Plaintiffs offer several reasons why the Ski-Area Exclusion in the Colorado Rule was

arbitrary and capricious. Before the Court can address those points, however, it must first deal

with Defendants’ surprising suggestion that such a claim is somehow “not justiciable.” Def.

Mot. at 31.

i. Justiciability

According to Defendants, “A court cannot evaluate” whether an agency action is

arbitrary and capricious without “an underlying statutory obligation” against which to measure

its rationale. Id. They thus deride this part of Plaintiffs’ challenge as a “free-floating” or “stand-

alone” APA claim, contending that because Plaintiffs have not identified a particular substantive

27
statute that the Service violated, their claim must be dismissed. Id.; Def. Reply at 13.

Intervenor, it should be noted, has declined to present this defense. That is a wise choice, since

Defendants’ argument contradicts clear statutory text and repeatedly affirmed Supreme Court

and D.C. Circuit precedent.

The Court begins with basic administrative law. Section 706(2)(A) of the APA

empowers a reviewing court to “hold unlawful and set aside agency action . . . found to be . . .

arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C.

§ 706(2)(A); see also Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 416 (1971).

The Supreme Court has interpreted the “arbitrary and capricious” bit of that provision as follows:

The scope of review under the “arbitrary and capricious” standard
is narrow and a court is not to substitute its judgment for that of the
agency. Nevertheless, the agency must examine the relevant data
and articulate a satisfactory explanation for its action including a
rational connection between the facts found and the choice made.
In reviewing that explanation, we must consider whether the
decision was based on a consideration of the relevant factors and
whether there has been a clear error of judgment. Normally, an
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.

Motor Vehicle Mfrs. Ass’n of U.S. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983)

(internal quotation marks and citations omitted). To put it more simply, “arbitrary and

capricious” review asks whether the agency provided “a reasoned analysis” for its decision. Id.

at 42.

Nowhere in that description is any mention of the need for the reviewing court to identify

and apply a substantive underlying statute, as Defendants claim. That makes sense, since, as the

D.C. Circuit has explained, “Reasoned decisionmaking is not a procedural requirement . . . It

28
stems directly from § 706 of the APA.” Butte County, Cal v. Hogen, 613 F.3d 190, 195 (D.C.

Cir. 2010) (emphasis added). Indeed, since State Farm, countless courts have issued opinions

analyzing whether challenged agency actions are “arbitrary and capricious in violation of the

Administrative Procedure Act” without relying on anything other than the APA, the

administrative record, and the relevant caselaw. See, e.g., Republican Nat. Committee v. Federal

Election Com’n, 76 F.3d 400, 407 (D.C. Cir. 1996). That includes the Court of Appeals in an

earlier iteration of this very case. See Ark Initiative, 749 F.3d at 1076-79.

Against all this, Defendants offer only a novel interpretation of the APA, along with a

D.C. Circuit case that they have seriously misunderstood.

First, Defendants invoke § 702 of the APA, which creates a right of action for persons

“suffering legal wrong because of agency action, or adversely affected or aggrieved by agency

action within the meaning of a relevant statute.” 5 U.S.C. § 702. Defendants focus on the last

piece of that phrase – “within the meaning of a relevant statute” – arguing that it “indicates that it

is some other statute, not the APA, that provides a basis for the cause of action.” Def. Reply at

13. Leave aside for a moment that such a reading flies in the face of established precedent. See,

e.g., Md. Dep’t of Human Res. v. Dep’t of Health & Human Servs., 763 F.2d 1441, 1445 n.1

(D.C. Cir. 1985) (“The Supreme Court has clearly indicated that the Administrative Procedure

Act itself . . . suppl[ies] a generic cause of action in favor of persons aggrieved by agency

action.”) (emphasis added). Defendants’ interpretation is plainly mistaken, since the placement

of the comma makes clear that the language in question modifies only the second half of the

sentence. As the Supreme Court has explained, “[T]he party seeking review under § 702 must

show that he has ‘suffer[ed] legal wrong’ because of the challenged agency action, or is

‘adversely affected or aggrieved’ by that action ‘within the meaning of a relevant statute.” Lujan

29
v. National Wildlife Federation, 497 U.S. 871, 883 (1990) (quoting 5 U.S.C. § 702) (emphasis

added). The Court has already found that Plaintiffs have suffered a “legal wrong” as a result of

the Colorado Rule, see Part III.B.1.a, supra, so § 702 poses no bar to their claim. Cf. Lujan, 497

U.S. at 883.

Second, Defendants cite Trudeau v. Federal Trade Comm’n, 456 F.3d 178 (D.C. Cir.

2006), noting that the panel in that case “looked to whether the challenged agency action was

‘contrary to constitutional right’ or ‘in excess of statutory . . . authority,” but that it “did not

adopt a ‘State Farm framework’ in analyzing the alleged generic APA claim.” Def. Reply at 13

(quoting Trudeau, 456 F.3d at 188). It might indeed seem curious that the Trudeau court applied

such a limited analysis; curious, that is, until one reads just a few paragraphs earlier in the

opinion and learns that those were the only claims the plaintiff in that case actually made. See

Trudeau, 456 F.3d at 188 (“Trudeau’s complaint asserts two claims against the FTC. First, he

contends that the FTC exceeded its statutory authority . . . Second, Trudeau claims that [the

agency] violated his First Amendment rights.”). Of course the Trudeau court did not inquire into

whether the challenged agency action was arbitrary and capricious – the challenger never

contended that it was. This argument is a loser. Plaintiffs’ claim is justiciable.

ii. Merits

Moving on to the merits of Plaintiffs’ claim, they offer four main reasons why

promulgation of the Ski-Area Exclusion was arbitrary and capricious: (1) Its proffered

justification was insufficient; (2) It abandoned established agency practice regarding roadless-

inventory management; (3) It treated similarly situated industries differently; and (4) It created a

“disjointed, contradictory nationwide roadless management system.” Pl. Mot. at 42. None

succeeds in demonstrating that the Service’s decision was either arbitrary or capricious.

30
First, Plaintiffs claim that the Service’s explanation of its decision was inadequate. Much

of this argument stems from Plaintiffs’ contentions that “the only reason” for the Exclusion was

because the State of Colorado had requested it, see Pl. Opp. at 24 – an allegedly insufficient

justification for such a major change – and also that the Service’s “controlling, if not sole,

rationale” for the Exclusion was the economic interests of the ski industry, see Pl. Mot. at 25 –

also a purportedly inappropriate consideration. Obviously, those two points are in tension: either

the Service included the Exclusion in the Colorado Rule solely at the request of the Rocky

Mountain State, or it included the Exclusion solely for economic reasons, but not both. Happily

for Defendants, the answer is neither. During a prior round of litigation, in fact, Ark Initiative

itself recognized an additional justification the Service had offered for the Exclusion: that the

8,300 acres of land at issue “are in fact degraded and thus are no longer roadless.” Ark Initiative,

749 F.3d at 1077.

A look at the administrative record confirms that the Service offered several different

reasons, some concededly overlapping, for its decision to exclude areas within ski-area

boundaries from the roadless inventory:

• Facilitating recreational use of the land, see 77 Fed. Reg. at
39,578 (Colorado’s “22 ski areas received about 11.7 million
skier visits during the 2010-2011 ski season.”); CRR-153483
(“Colorado has the highest number of ski areas under permit on
national forests . . . and the highest number of annual skier
visits on national forests of any state.”).
• Assisting Colorado’s ski industry, an important source of
revenue for the State, see 77 Fed. Reg. at 39,578 (“Colorado
skiers spend about $2.6 billion annually, about one third of the
annual tourist dollars spent in the State.”);
• Reducing management conflicts and confusion, see id. (“The
roadless area inventory for the 2001 Roadless Rule included
portions of either the permit boundary and/or forest plan ski
area management allocation for 13 ski areas. The final rule
inventory excludes approximately 8,300 acre of permitted ski
area boundaries or ski area management allocations from

31
CRAs. . . . This 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.”); CRR-153484 (“The settings, experience, and activities
associated with developed ski areas are not always compatible
with roadless area characteristics.”); CRR-153486 (“The
authorization of roads in developed ski areas would facilitate
the implementation of required ski area vegetation
management plans to improve forest health, remove hazard
trees, and manage fuel hazards associated with the current
mountain pine beetle epidemic affecting lodgepole pine within
developed ski areas.”);
• Responding to a request by the State of Colorado, see 77 Fed.
Reg. at 39,578 (The Exclusion addresses “one of the State-
specific concerns identified by the State of Colorado.”); CRR-
106429 (“The State requested that the Forest Service take this
action in order to better balance the social and economic
importance of ski areas with the need to protect roadless area
characteristics.”);
• Removing degraded areas from the roadless inventory, see 77
Fed. Reg. at 39,578 (“The final rule inventory excludes
approximately 8,300 acres of permitted ski area boundaries or
ski area management allocations from CRAs, which include
roadless acres with degraded roadless area characteristics and
due to the proximity to a major recreational development.”);
and
• Making only a minor impact, see id. (area removed from the
roadless inventory “is less than 0.2% of the [total roadless area
in Colorado]”); CRR-153148-49 (“Even though these areas are
removed from the roadless inventory, site-specific NEPA
would be required for potential development . . . both prior to
development within permitted acres . . . and before any acres
are added to a ski area permit that are not currently within the
permit . . . All ski area expansion would require site-specific
analysis and have to be consistent with the Forest Plan[,] both
processes involve public participation.”).

These diverse justifications make clear that the Service’s decision was neither arbitrary nor

capricious. They also vitiate Plaintiffs’ related argument – that the Exclusion was not necessary

to serve the agency’s “only rationale” of benefiting Colorado’s ski industry. Pl. Opp. at 27.

Plaintiffs’ second argument is that, by promulgating the Exclusion, the Service both

contravened its “Land Management Planning Handbook,” see CRR-013684-728, and abandoned

32
past agency practice, all without recognizing or explaining this “dramatic shift in roadless

management.” Pl. Opp. at 28; see FCC v. Fox Television Stations, 556 U.S. 502, 515 (2009) (if

agency changes policy, it must recognize the change and explain the reason for it); Town of

Barnstable, Mass. v. FAA, 659 F.3d 28, 34-36 (D.C. Cir. 2011) (if agency departs from internal

guidelines, it must address the departure and explain the reason for it). This argument also fails.

Start with the Handbook. The section in question, Chapter 70, “describes the process for

identifying and evaluating potential wilderness in the National Forest System . . . [that is] used

by the Forest Service to determine whether areas are to be recommended for wilderness

designation by Congress.” CRR-013698. Plaintiffs note that, according to the Handbook, the

Service should identify and inventory potential wilderness areas based on the four criteria

enumerated in the Wilderness Act, 16 U.S.C. § 1131(c). See CRR-013698-702. Those criteria

do not include the economic factors the Service considered in adopting the Ski-Area Exclusion,

and Plaintiffs, accordingly, cry foul.

Even assuming that the Service’s “roadless inventory” is the same as its “potential

wilderness inventory,” however, this argument comes up short. The chapter of the Handbook

Plaintiffs cite plainly does not apply to the task at hand: it governs an area’s initial placement on

the potential-wilderness inventory, but does not constrain the Service’s ongoing management of

that inventory. The agency’s decision to recategorize a portion of its already-inventoried areas,

therefore, did not contradict the Handbook.

Plaintiffs observe that the Service invoked the Handbook in a different section of the

Colorado Rule, when it denied a request from the oil and gas industry to exclude from the

roadless inventory areas with high potential for extractive development. See 77 Fed. Reg. at

39,588. That may well be true, but because, as the Court just explained, the Handbook does not

33
govern the Service’s administration of its roadless inventory, the real victim here would be the

oil and gas industry, not Plaintiffs. Even if the Handbook did apply, moreover, this Court must

“uphold a[n agency] decision of less than ideal clarity if the agency’s path may reasonably be

discerned.” Bowman Transp., 419 U.S. at 286. The Service’s extensive justifications for the

Ski-Area Exclusion, outlined above, are enough for the Court to discern its reasons for departing

from the Handbook.

Moving next to past practice, Plaintiffs note that the Service’s prior roadless inventories

used objective criteria to identify qualifying roadless areas, without relying on economic

considerations, and that the Service previously declined to categorically remove from its roadless

inventory areas that fell within ski-area boundaries. See CRR-01131. Once again, however, this

argument is flawed. Even if the difference between the Colorado Rule and the Service’s

previous roadless-area management strategies qualified as a “chang[ed] position” that the agency

would be required to recognize and give “good reasons” for, Fox, 556 U.S. at 515, the Service

did just that, acknowledging that the Exclusion “adjusted roadless area boundaries from the 2001

inventory” by “[e]xcluding ski areas under permit or lands allocated in forest plans to ski area

development,” 77 Fed. Reg. at 39,576, and offering multiple reasons for that adjustment, as

already explained. There is no reason, then, to invalidate the Ski-Area Exclusion on these

grounds.

Third, Plaintiffs contend that the Exclusion is arbitrary and capricious “because it

prospectively and needlessly creates a disjointed, contradictory nationwide roadless management

system, whereby inventory inclusion or exclusion is based on different eligibility factors in one

state – Colorado – as compared to all other states which are managed pursuant to the [2001

Roadless Rule].” Pl. Mot. at 42. Plaintiffs fail to explain, however, precisely why the Court

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should consider it arbitrary or capricious for the Service to manage its roadless inventory through

a more federalist, decentralized process, instead of mandating a uniform standard for the entire

National Forest System. Indeed, federal law seems to encourage just this kind of state-by-state

approach to forest management. See, e.g., 16 U.S.C. §§ 530, 1604(a). This charge against the

Ski Area Exclusion, therefore, fails as well.

Finally, Plaintiffs attack the Ski-Area Exclusion as arbitrary and capricious on the ground

that the Service declined to also remove the roadless categorization from lands with high

potential for oil and gas development. Plaintiffs claim that the oil and gas industry is “similarly

situated” to the ski industry, Pl. Opp. at 31, and that it was thus inconsistent for the Service to

recategorize roadless areas within ski-area boundaries while refusing to do the same for roadless

areas with extractive promise.

This is a strange argument. The oil and gas industry differs significantly from the ski

industry; indeed, the old adage about “comparing apples and oranges” does not quite seem to do

the situation justice. The Court need not condescend to the reader by listing the manifold

differences between a ski resort and an oil well. The Service adequately explained its decision

not to recategorize roadless areas that had potential for oil and gas development, see 77 Fed.

Reg. at 39,588, and any variance in treatment between the oil and gas industry and the ski

industry did not require special recognition or explanation. There is, in short, nothing arbitrary

or capricious here.

Wrapping up, none of Plaintiffs’ arguments concerning the arbitrary and capricious

nature of the Ski-Area Exclusion hits the mark. The Service provided a well-reasoned

explanation for its decision to recategorize roadless areas that fell within ski-area boundaries and

thereby satisfied the requirements of the APA. See State Farm, 463 U.S. at 42-43.

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b. The Wilderness Act

Plaintiffs next claim that the Ski-Area Exclusion is invalid because it violates the

Wilderness Act. Unfortunately for Plaintiffs, however, that statute simply does not apply to the

Service’s management of its roadless inventory. Such an attack on the Service’s decision,

therefore, rings hollow.

To recap briefly, the Wilderness Act, passed in 1964, defines “wilderness” as land that

meets four criteria: it appears affected primarily by the forces of nature rather than humanity, it

has outstanding opportunities for solitude or unconfined recreation, it is at least five thousand

acres, and it has scientific, educational, scenic, or historical value. See 16 U.S.C. § 1131(c). The

Act instructs that within ten years of its enactment, the Forest Service should conduct a survey of

land in the National Forest System that meets those criteria and report its findings to the

President, who will then make recommendations to Congress about which areas should be

officially designated “wilderness.” See id., § 1132(b). The Service satisfied that obligation in

1979. See Wyoming, 661 F.3d at 1221-22. According to Plaintiffs, the Ski-Area Exclusion

violated the Wilderness Act because the Service took into account economic considerations,

which are absent from the Act’s four-point definition of “wilderness.” By removing land from

the roadless inventory that objectively met that definition, Plaintiffs say, the Service failed to

follow the procedure the Act set out for the identification of potential wilderness areas.

Merely explaining the Wilderness Act is practically enough to reveal the flaws in

Plaintiffs’ argument. The Act defines “wilderness areas,” not “roadless areas” – the latter,

apparently, is simply a label invented by the Service to cover lands that Congress had declined to

designate as the former. See Wyoming, 661 F.3d at 1222. The Act says nothing about how the

Service should manage its inventory of such areas. The statute’s command, moreover, that the

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Service should survey lands in the National Forest System for their suitability as wilderness

imposed only a single-shot, one-time obligation, which the agency fulfilled over thirty years ago.

The Wilderness Act, in short, has absolutely nothing to do with how the Forest Service manages

its roadless inventory today. The Service, accordingly, did not identify the Wilderness Act as the

basis of its authority when it promulgated the Colorado Rule, instead citing to the Organic Act

and the Multiple-Use Sustained-Yield Act, see 77 Fed. Reg. at 39,602 (citing 16 U.S.C. §§ 472,

529, 551, 1608, 1613; 23 U.S.C. §§ 201, 205), two statutes that the Court will discuss in greater

detail further on.

Perhaps recognizing the absence of any direct connection between the Wilderness Act

and the Service’s management of its roadless inventory, Plaintiffs offer a more atmospheric

argument to support their cause:

[T]o be clear, Plaintiffs are not arguing that the [Colorado Rule]
constituted a wilderness suitability evaluation concerning any
specific parcel . . . Nor, for that matter, are Plaintiffs asserting that
management of roadless areas [i]s equivalent to management [of]
wilderness or that the Wilderness Act trumps the authorizing
statutes. Rather, Plaintiffs have simply made the straightforward
argument that the roadless inventory was created in direct response
to the Wilderness Act for the explicit purpose of helping to guide
the implementation of the Act, and . . . the inventory still serves as
a critical starting point in each forest plan revision process under
NFMA for evaluating every inventoried roadless area for potential
future wilderness designation. On that basis, Plaintiffs have
demonstrated that it would contravene Congress’s intent in passing
the Act if the Service could totally disregard the Wilderness Act’s
criteria in excluding unroaded, unaltered areas from the roadless
inventory and in the process foreclose their consideration for
wilderness suitability in future NFMA reviews.

Pl. Opp. at 35 (internal quotation marks omitted).

Plaintiffs’ theory, boiled down, is that even though the Wilderness Act has no official

connection to the roadless inventory, the two have a conceptual relationship that this Court

37
should ratify. That, however, is not how courts decide cases. “The plain meaning of legislation

should be conclusive, except in the rare cases [in which] the literal application of a statute will

produce a result demonstrably at odds with the intentions of its drafters.” Engine Mfrs. Ass’n v.

EPA, 88 F.3d 1075, 1088 (D.C. Cir. 1996) (emphasis added and internal quotation marks

omitted). The meager legislative history Plaintiffs have dug up, which reveals some

Congressional opposition to excluding from the national-wilderness inventory part of the “San

Gorgonio Wild Area” in the San Bernardino National Forest in California, see Pl. Mot. at 33-34

(collecting sources), does not even come close to meeting that standard. The plain meaning of

the Wilderness Act says nothing about the Service’s management of its roadless inventory, and

that meaning is what controls here.

Grasping at straws, Plaintiffs offer two alternative theories for how the Ski-Area

Exclusion might contravene the Wilderness Act.

First, they invoke the 1980 Colorado Wilderness Act, in which Congress followed

through on the original promise of the 1964 Wilderness Act by officially designating certain land

in the State as “wilderness areas.” Pub. L. No. 96-560, § 102(a), 94 Stat. 3265, 3265 (Dec. 22,

1980). Plaintiffs claim that this Act “mandated that the Service conduct wilderness suitability

determinations of [roadless areas in Colorado] . . . when revising forest plans” in the State. Pl.

Opp. at 37. “[B]y preemptively stripping the roadless inventory protections from 8,260

empirically unroaded acres,” Plaintiffs contend, the Ski-Area Exclusion “contravenes Congress’s

intent” in the Colorado Wilderness Act “that parcels satisfying the [wilderness] suitability

criteria, as a factual matter, . . . must be considered and analyzed by the Service for wilderness

suitability.” Id. at 37-38 (citing Pub. L. No. 96-560, § 107(b)(2), 94 Stat. at 3270-71).

38
A look at the provision in question, however, undermines Plaintiffs’ argument. The law

states only that the Service’s 1979 wilderness-suitability review of national forests in Colorado

“shall be deemed for the purposes of the initial land management plans required for such lands to

be an adequate consideration of the suitability of such lands for inclusion [as wilderness areas],

and the [Service] shall not be required to review the wilderness option prior to the revision of the

initial plans.” Pub. L. No. 96-560, § 107(b)(2), 94 Stat. at 3271 (emphasis added). Plaintiffs,

presumably, read that last bit to imply that the Service will be required to periodically review the

wilderness suitability of roadless areas in Colorado whenever it revises their Forest Plans. But

the statute never actually says so. Even if the Colorado Wilderness Act did impose such a

mandate on the Service, moreover, it would still have no bearing on the agency’s authority to

remove land from its roadless inventory. Plaintiffs’ argument again amounts to legal hocus

pocus, summoning unseen restrictions on the Service’s management of its roadless inventory that

lack any clear basis in the actual text of the law. The Act offers no support for Plaintiffs’ case.

Second, Plaintiffs again invoke the Service’s “Land Management Planning Handbook.”

See CRR-013684-728. They note that the Handbook incorporates the Wilderness Act’s four-

point definition of “wilderness” and that Defendants have conceded that those criteria “were

utilized as a starting point for the Colorado roadless inventory.” Def. Mot. at 29. Plaintiffs

therefore assert that Defendants have “conced[ed] the pertinence of the Wilderness Act . . . to the

[Colorado Rule].” Pl. Opp. at 39. This argument fails for two reasons, already explained by the

Court. First, the Handbook, by its own terms, covers only the initial placement of land on the

roadless inventory, not the Service’s ongoing management of land in that inventory. Second,

Plaintiffs have still failed to identify any actual connection between the Wilderness Act and the

Service’s administration of its roadless inventory. Defendants’ admission that the Service

39
referred to the Wilderness Act when it crafted the Colorado Rule does not mean that the agency

was legally bound by that Act. Once more, Plaintiffs come up snake eyes.

Having determined that the Wilderness Act did not restrict the Service’s decision to

remove from its roadless inventory lands falling within ski-area boundaries in Colorado, the

question remains: Did the agency have the statutory authority to take such action? For an

answer, the Court looks to the two statutes the agency cited in promulgating the Colorado Rule:

the Organic Act and the Multiple-Use Sustained-Yield Act. See 77 Fed. Reg. at 39,602 (citing

16 U.S.C. §§ 472, 529, 551, 1608, 1613; 23 U.S.C. §§ 201, 205).

The Organic Act, 16 U.S.C. §§ 473-82, 551, enacted in 1897, created the predecessor to

the Forest Service, authorizing the agency to “make such rules and regulations . . . as will insure

the objects of [the National Forest System]” and to “regulate their occupancy and use and to

preserve the forests thereon from destruction.” Id., § 551. The Act thus “gives the Forest

Service broad discretion to regulate the national forests.” Wyoming, 661 F.3d at 1234. The

Multiple-Use Sustained-Yield Act, 16 U.S.C. §§ 528-31, passed in 1960, further empowered the

Service to “administer the renewable surface resources of the national forests for multiple use

and sustained yield,” including for the purposes of “outdoor recreation, range, timber, watershed,

and wildlife and fish purposes.” Id., §§ 528, 529. Congress explained that the MUSYA was “to

be supplemental to, but not in derogation of,” the Organic Act. Id., § 528. Like the Organic Act,

the MUSYA gives the Service “broad discretion to determine the proper mix of uses permitted

within” the national forests. Wyoming, 661 F.3d at 1268; see also Strickland v. Morton, 519

F.2d 467, 469 (9th Cir. 1975) (MUSYA “breathe[s] discretion at every pore”).

These statutes “delegated authority to the agency generally to make rules carrying the

force of law,” United States v. Mead Corp., 533 U.S. 218, 226-27 (2001), thus entitling the

40
Service’s interpretations of them to deference under Chevron U.S.A. v. Natural Resources

Defense Council, 467 U.S. 837 (1984). As the reader is very likely aware, Chevron sets out a

two-step test for evaluating an agency’s interpretation of a statute it administers. “Under

Chevron’s first step,” the Court asks “‘whether Congress has directly spoken to the precise

question at issue,’ for if ‘the intent of Congress is clear, that is the end of the matter . . . [T]he

court, as well as the agency, must give effect to the unambiguously expressed intent of

Congress.’” Nuclear Energy Inst. v. EPA, 373 F.3d 1251, 1269 (D.C. Cir. 2004) (quoting

Chevron, 467 U.S. at 842-43). If, however, “the statute is ‘silent or ambiguous with respect to

the specific issue,’” the Court moves “to Chevron’s second step, asking whether the agency’s

interpretation ‘is based on a permissible construction of the statute.’” Id. (quoting Chevron, 467

U.S. at 843).

Applying step one of Chevron, it is clear that neither the Organic Act nor the MUSYA

addresses how the Forest Service should manage its roadless inventory, nor whether it may

remove land from that inventory based in part on economic considerations. Both laws give the

agency “broad discretion” to decide how best to administer the National Forest System.

Wyoming, 661 F.3d at 1234, 1268. Moving on to step two of Chevron, it is also clear that the

agency reasonably interpreted both laws to allow it to remove the roadless designation of lands

falling within ski-area boundaries in Colorado. The MUSYA, in particular, instructs that the

Service should administer the national forests “for multiple use,” including for “outdoor

recreation,” plainly empowering the agency to take the action that it did. 16 U.S.C. §§ 528, 529.

Indeed, Plaintiffs practically concede the point, never once addressing the scope of the agency’s

authority under the Organic Act or the MUSYA, and instead devoting their energy to chasing the

41
ethereal – and ultimately, irrelevant – connections between the Wilderness Act and the Colorado

Rule.

Summing up, Plaintiffs’ contention that the Ski-Area Exclusion violated the Wilderness

Act does not prevail. The Service, moreover, was empowered to promulgate the Exclusion

under both the Organic Act and the MUSYA. Plaintiffs have thus failed to present any reason

for the Court to invalidate the Exclusion on these grounds.

c. Notification

For their last assault on the Colorado Rule, Plaintiffs take issue with the Service’s failure

to notify them about its decisionmaking process. Federal regulations require an agency engaged

in a NEPA-related rulemaking to “[i]nvite the participation of affected Federal, State, and local

agencies, any affected Indian tribe, the proponent of the action, and 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). Plaintiffs claim that their successful 2006 challenge to the Service’s

authorization of the Egress Trail made them “interested persons” entitled to a personal invitation

to participate in the administrative process for the Colorado Rule. See 5 U.S.C. § 706(2)(D)

(providing that agency action undertaken “without observance of procedure required by law”

may be set aside).

The law requires no such thing. Nothing in the cited regulation demands that an agency

individually notify each and every potentially “interested person” about a NEPA-related

rulemaking process, and Plaintiffs have failed to identify a single case so holding. They have

invoked one decision in support of their argument, Northwest Coalition for Alternatives to

Pesticides v. Lyng, 844 F.2d 588 (9th Cir. 1988), but the circumstances there were a far cry from

this case. In Lyng, an anti-pesticide group had obtained an injunction against an agency’s use of

42
pesticides on the ground that the agency had not performed the required environmental analysis

under NEPA. See id. at 590. The agency went back and did the necessary inquiry, but in so

doing, it did not personally notify the anti-pesticide group that had obtained the injunction. See

id. 594. The Ninth Circuit held that the group, “as a litigant earlier in this action,” was “clearly

an interested person” entitled to personal notice under § 1501.7. Id. at 595. It therefore

concluded that the agency had violated the law, although it upheld the agency action in question

because the group had not demonstrated any prejudice as a result of its lack of notice. See id. at

595-96.

Here, by contrast, Plaintiffs’ participation in the 2006 Egress Trail case involved an

entirely different decisionmaking process from the Colorado Rule, and they therefore were not

“litigant[s] earlier in this action” entitled to personal notice. Id. at 595. It is not enough, as

Plaintiffs insist, that the 2006 case may have had some influence on the Service’s decision to

promulgate the Colorado Rule – if that were so, agencies considering new rules would be obliged

to personally notify the numberless parties who could have possibly played some role in

influencing federal policymaking. No regulation would be safe from subsequent review and

invalidation on such grounds. Even if Plaintiffs were entitled to personal notice, moreover, they

have failed to show – or even mention – how the lack of notice in this case prejudiced them. See

id. at 595. This is particularly true since RMW did comment on the Colorado Rule.

As Defendants and Intervenor have documented, the Forest Service went to great lengths

to involve the public – and Plaintiffs – in the decisionmaking process for the Colorado Rule.

This included:

• Five formal public-involvement processes, generating a total of
312,000 public comments, 77 Fed. Reg. at 39,581; Ark, 895 F.
Supp. 2d at 234;

43
• The creation of a bipartisan task force in Colorado, which held
nine public meetings and six deliberative meetings open to the
public, and received over 40,000 public comments, 77 Fed.
Reg. at 39,581;
• Numerous notices published in the Federal Register, among
them a notice of intent to prepare an EIS on roadless-area
conservation in national forests in Colorado, a proposed rule to
establish State-specific management direction for roadless
areas in Colorado, a notice of availability for the draft EIS, a
revised proposed rule and notice of availability for the revised
draft EIS, and a notice of availability for the final EIS, see id.;
and
• Three Roadless Area Conservation National Advisory
Committee meetings, open to the public, in which both the
Forest Service and the State of Colorado participated. See id.

The Service’s impressive efforts to reach out to the public as it worked out the contours of the

Colorado Rule were sufficient to satisfy its notice obligations to Plaintiffs. Their final attack on

the Rule is therefore unconvincing.

IV. Conclusion

The Court does not intend its decision in this case to minimize the natural beauty of

Colorado’s mountainsides, nor the imperative of conserving them for future generations.

Instead, what the Court holds here is that, as a steward of these lands, the Forest Service has

ultimately arrived at a well-considered and lawful decision. As a result, the Court will issue a

contemporaneous Order that will deny Defendants’ and Intervenor’s Motion to Strike the

Amended Complaint and grant their Motions for Summary Judgment.

/s/ James E. Boasberg
JAMES E. BOASBERG
United States District Judge
Date: August 18, 2014

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/2718639. Public record. Not legal advice.