Opinion by Judge GOULD; Partial Concurrence and Partial Dissent by Judge KLEINFELD.
GOULD, Circuit Judge:
This case involves procedural challenges to a United States Forest Service rule, known commonly as the "Roadless Rule," with a potential environmental impact restricting development in national forest lands representing about two percent of the United States land mass.
But we must start closer to the beginning: This appeal arises out of litigation that began on January 8, 2001 when Kootenai Tribe of Idaho and Boise Cascade Corporation, joined by motorized recreation groups, livestock companies, and two Idaho counties
We hold that the district court had discretion to permit intervention, under Fed. R.Civ.P. 24(b), and intervenors now can bring this appeal under Fed.R.Civ.P. 24(b); that plaintiffs have standing to challenge the Roadless Rule; and, assessing the merits, that the district court abused its discretion in granting preliminary injunction against implementation of the Roadless Rule.
History of the Roadless Rule
In the 1970s, the United States Forest Service ("Forest Service") began to study and evaluate roadless areas in national forests. The Forest Service developed an "inventory" of roadless areas, each larger than five thousand acres. There are now 58.5 million acres of inventoried roadless areas in the National Forest System.
The Forest Service, in an odd semantic twist,
On October 13, 1999, President William Jefferson Clinton ordered the United States Forest Service to initiate a nationwide plan to protect inventoried and uninventoried roadless areas within our treasured national forests. Within a week of President Clinton's directive, the Forest Service published a Notice of Intent ("NOI") to prepare an Environmental Impact Statement ("EIS") for a nationwide Roadless Rule. The NOI gave sixty days for scoping and public comment. 64 Fed. Reg. 56,306 (Oct. 19, 1999). The Forest Service denied requests to extend the sixty-day scoping period.
After this period, the State of Idaho brought an action, which preceded this one, against the Forest Service on December 30, 1999, alleging that the information presented in the NOI was insufficient and that the Forest Service's refusal to extend the scoping period was arbitrary and capricious. Shortly thereafter, on January 7, 2000, the State of Idaho moved to enjoin the release of the Draft EIS (DEIS) until the Forest Service provided maps of the roadless areas that would be subject to the Proposed Rule. Although the district court in that action urged the Forest Service to allow meaningful participation by the public, the district court dismissed the State's action as unripe because the DEIS and Proposed Rule had not yet been published. No appeal was taken.
On May 10, 2000, the Forest Service published a 700 page DEIS, along with a Proposed Rule. The Proposed Rule identified 54.3 million acres of "inventoried roadless areas." Of these, 51.5 million acres were "unroaded" and 2.8 million acres were classified as "roaded."
On November 13, 2000, the Forest Service published a final EIS ("FEIS"). The FEIS identified 58.5 million acres of "inventoried roadless areas" subject to the Roadless Rule's prohibition on road construction. Included were 4.2 million acres of inventoried roadless areas not identified in the DEIS and Proposed Rule. Also, the Proposed Rule now applied to the 2.8 million acres of "roaded" inventoried roadless areas, while relaxing standards for timber harvest in "roaded" areas. No maps in the FEIS identified the 2.8 million acres of "roaded" land.
On January 5, 2001, the Forest Service issued the Final [Roadless] Rule, applicable to the 58.5 million acres identified in the FEIS. It was to be implemented on March 13, 2001. It generally banned road building subject to limited exceptions including: the preservation of "reserved or outstanding rights" or discretionary Forest Service construction necessary for public
On January 8, 2001, three days after the Final Rule was issued, the Kootenai Tribe, and the private and county plaintiffs joined with it, filed suit alleging that the Roadless Rule was illegal. On January 9, 2001, the Idaho plaintiffs filed suit with similar claims. Both sets of plaintiffs alleged violations of the NEPA and the APA.
On January 20, 2001, newly-inaugurated President George Walker Bush issued an order postponing by sixty days the effective date of all the prior administration's regulations and rules not yet implemented. The effective date of the Roadless Rule was thus postponed until May 12, 2001. Before then, on February 20, 2001, the Kootenai Tribe and its co-plaintiffs moved for a preliminary injunction against implementation of the Roadless Rule. The Idaho plaintiffs did the same on March 7, 2001. Both sets of plaintiffs argued that the Roadless Rule would cause them irreparable harm by preventing their access to the national forests for proper purposes. Plaintiffs argued that such access was necessary to counter wildfires and threats from insects and disease. The plaintiffs based their motion for preliminary injunction upon alleged violations of NEPA, National Forest Management Act ("NFMA") and the APA.
Thereafter, on March 14, 2001, the district court granted the motion of the Idaho Conservation League, joined by other environmental organizations
On April 5, 2001, the district court issued an order in each case, holding that the plaintiffs had a likelihood of success on their motions for a preliminary injunction. However, the district court reserved ruling on plaintiffs' preliminary injunction motions until the administration of President Bush updated the court on its ongoing review of the Roadless Rule. On May 4, 2001, eight days before the Roadless Rule was to go into effect, the Forest Service told the district court that because of "concerns about the process through which the Rule was promulgated," the Forest Service planned to "initiate an additional public process that [would] ... examine possible modifications to the Rule." Although the Forest Service would let the Roadless Rule go into effect, the Forest Service told the district court that it would also "develop proposed amendments to the Rule that will seek to maintain the protections embodied in the current rule." In particular, the Forest Service planned to amend the Rule to allow "limited activities to prevent the negative effects of unnaturally severe wildfires, insect infestation and disease."
ICL and FSEEE filed their Notices of Appeal on May 11 and May 15, 2001, respectively. The federal defendants did not appeal.
This appeal presents an unusual procedural setting: The federal defendants, enjoined from "implementing all aspects of the Roadless Area Conservation Rule," have not appealed the injunctions. The interlocutory appeals before us were brought by the environmental groups granted status as defendant-intervenors by the district court. We must determine whether the intervenors may defend the government's alleged violations of NEPA and the APA when the federal defendants have decided not to appeal the district court's preliminary injunction against implementation of the Roadless Rule. Stated another way, if the federal government no longer contests the plaintiffs' positions and the court's ruling, may interested persons as intervenors defend the challenged government processes?
This case requires us to apply Federal Rule of Civil Procedure 24, governing intervention. We must consider standards in section (a) for intervention as of right and in section (b) for permissive intervention.
We first assess Rule 24(a), as the district court heavily relied on it in the district court's analysis sustaining intervention as a matter of right. Our prior precedent establishes a four part test for determining, under Rule 24(a), if an applicant has a right to intervene: (1) the motion must be timely; (2) the applicant must assert a "significantly protectable" interest relating to property or a transaction that is the subject matter of litigation; (3) the applicant must be situated so that disposition
The district court, noting ambiguity in our precedents and welcoming "clarification" from the Ninth Circuit, concluded that the intervenor "Applicants have demonstrated a legally protectable interest related to the claims in issue," specifically that environmental, conservation and wildlife interests asserted by intervenors "are necessarily related to the interests intended to be protected by the NEPA, the statute at issue, and as disposition of this suit might, as a practical matter, impair the ability of the Applicant organizations to protect their interests, the Court finds that the Applicants have demonstrated a legally protectable interest related to the claims at issue."
Our prior case law is not perhaps crystal clear, and we understand the district court's recognition of the important interests at stake. However, we see it a different way, respectfully disagree with the district court's conclusions, and conclude that the district court erred in applying Rule 24(a). We read our precedent to hold that the private intervenors in this NEPA action may not intervene as of right pursuant to Rule 24(a). "As a general rule, `the federal government is the only proper defendant in an action to compel compliance with NEPA.'" Wetlands, 222 F.3d 1105, 1114 (quoting Churchill County v. Babbitt, 150 F.3d 1072, 1082, as amended by 158 F.3d 491 (9th Cir.1998)); see also Portland Audubon Society v. Hodel, 866 F.2d 302, 309 (9th Cir.1989). This rule is based on the premise that private parties do not have a "significant protectable interest" in NEPA compliance actions. As explained in Wetlands: "The rationale for our rule is that, because NEPA requires action only by the government, only the government can be liable under NEPA. Because a private party can not violate NEPA, it can not be a defendant in a NEPA compliance action." Wetlands, 222 F.3d at 1114 (internal quotations and citations omitted). Based on this precedent, we conclude that the district court erred to the extent it permitted intervention as of right under Rule 24(a).
There remains for consideration the possibility, which was not addressed in Wetlands, that permissive intervention under Rule 24(b), which also was relied upon by the district court, sustains the ability of intervenors to proceed before the district court and in this appeal to give "defense" of the government's rulemaking. Unlike Rule 24(a), a "significant protectable interest" is not required by Rule 24(b) for intervention; all that is necessary for permissive intervention is that intervenor's "claim or defense and the main action have a question of law or fact in common." Fed.R.Civ.P. 24(b). Rule 24(b) "plainly dispenses with any requirement that the intervenor shall have a direct personal or pecuniary interest in the subject of the litigation." SEC v. U.S. Realty & Improvement Co., 310 U.S. 434, 459, 60 S.Ct. 1044, 84 L.Ed. 1293 (1940). A leading treatise has explained:
7C Wright, Miller & Kane, Federal Practice and Procedure § 1911, 357-63 (2d ed.1986). The argument appellees make based on cases addressing intervention as of right under Rule 24(a), is not controlling as to the analysis under Rule 24(b) of the district court's alternative holding that permissive intervention was appropriate.
Before we address whether the district court erred in granting intervention under Federal Rule of Civil Procedure 24(b), we must first determine whether intervenors have Article III standing to pursue this appeal in defense of the Roadless Rule without the government as an appellant, leaving intervenors as the only parties on appeal adverse to plaintiffs. In this unusual context, our precedent requires that we find "independent jurisdictional grounds" for the defendant-intervenors' appeal. Didrickson v. United States Dep't of the Interior, 982 F.2d 1332, 1337-38 (9th Cir.1992) (internal quotations and citations omitted) ("A permissive defendant-intervenor must have independent jurisdictional grounds on which to pursue an appeal, absent an appeal by the party on whose side the intervenor intervened. An interest strong enough to permit intervention is not necessarily a sufficient basis to pursue an appeal abandoned by the other parties.").
To establish standing, the defendant-intervenors must first show that they have suffered an injury in fact, "`an invasion of a legally-protected interest' that is concrete and particularized, and actual or imminent." Didrickson, 982 F.2d at 1340 (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1991)); see also Friends of the Earth, Inc. v. Laidlaw Envtl. Serv., 528 U.S. 167, 180-81, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000). Considering standing of intervenors, specifically, we have held that "[i]ntervenors in environmental litigation satisfy the injury in fact requirement by showing that group members have direct contact with the environmental subject matter threatened by the adverse decision." Idaho Farm Bureau Fed'n v. Babbitt, 58 F.3d 1392, 1398 (9th Cir.1995) (citing Didrickson, 982 F.2d at 1340). In Didrickson, where intervenors were appealing a decision striking down a regulation protecting Alaskan sea otters, intervenors satisfied the injury in fact requirement by demonstrating that their members were Alaska residents who studied, observed, and enjoyed the otters in Alaska. Didrickson, 982 F.2d at 1340-41.
Here, both sets of intervenors have demonstrated injury in fact. FSEEE's members work in the National Forests containing the roadless areas and regularly use them for a variety of outdoor recreation and nature appreciation, as found by the district court. Similarly, ICL's staff and members hunt, hike, fish and camp in roadless areas. These areas were to be protected by the Roadless Rule but will have less protection from development if the district court's injunction is sustained. This is sufficient to establish an injury in fact. See Idaho Farm Bureau Fed'n, 58 F.3d at 1398-99 (finding injury in fact where ICL members' use of endangered species habitat would be impaired by district court ruling overturning species protection).
In addition to injury in fact, to establish standing intervenors must show a causal connection between the injury and the conduct complained of and that the injury will likely be redressed by the relief requested. Id. at 1399. For standing on appeal, intervenors need not show that they independently could have sued the party who prevailed in district court. Didrickson, 982 F.2d at 1338. "Intervenors can allege a threat of injury stemming from the order they seek to reverse, an injury which would be redressed if they win on appeal." Idaho Farm Bureau Fed'n, 58 F.3d at 1399 (citing Yniguez v. Arizona, 939 F.2d 727, 731-32 (9th Cir. 1991)).
Applying these standards, the intervenors satisfy standing requirements. The injury to both FSEEE and ICL, an increased risk of road development affecting conservation and environmental interests of applicants and their members, is "traceable" to the district court's order granting the injunction. This "injury" would be redressed by a decision of this Court lifting the injunction and allowing the Roadless Rule to have force. We hold that FSEEE and ICL have Article III standing to bring this appeal.
We now analyze permissive intervention under Rule 24(b). A district court's decision to grant or deny permissive intervention under Rule 24(b) is reviewed for an abuse of discretion. See Beckman Indus. Inc. v. Int'l Ins. Co., 966 F.2d 470, 472 (9th Cir.1992). Under Rule 24(b) the question here is whether the applicants to intervene assert a claim or defense in common with the main action. Here, the intervenors asserted their interests related to the Roadless Rule in moving to intervene, and after intervention was granted asserted defenses of the Roadless Rule directly responsive to the claims for injunction asserted by plaintiffs.
As a rule of construction, Federal Rules of Civil Procedure are given their plain meaning. Bus. Guides, Inc. v. Chromatic Comm. Enterp., Inc., 498 U.S. 533, 540, 111 S.Ct. 922, 112 L.Ed.2d 1140 (1991). Rule 24(b)(2) provides that on timely application the court may allow an absentee to intervene "when an applicant's claim or defense and the main action have a question of law or fact in common." The language of the rule makes clear that if the would be intervenor's claim or defense contains no question of law or fact that is raised also by the main action, intervention under Rule 24(b)(2) must be denied. But, if there is a common question of law or fact, the requirement of the rule has been satisfied and it is then discretionary with the court whether to allow intervention. That appears to be precisely the case here.
Moreover, the court expressly noted that "the magnitude of this case is such that both Applicants' intervention will contribute to the equitable resolution of this case," permitting permissive intervention; thus the court gave a good and substantial reason for exercising its discretion to permit the permissive intervention.
Intervenors allege that the district court erred by determining that plaintiffs have constitutional standing to assert their claims.
Intervenors argue that plaintiffs have no Article III standing, urging inadequate basis on each of several required standards. For the reasons outlined below, we conclude that neither the constitution nor our "zone of interests" test stands in the way of plaintiffs' suit.
Injury in Fact
Plaintiffs assert procedural injury based on the Forest Service's alleged violation of NEPA. "To satisfy the injury in fact requirement, [the] plaintiffs asserting a procedural injury must show that the `procedures in question are designed to protect some threatened concrete interest ... that is the ultimate basis of [their] standing'." Cantrell, 241 F.3d at 679 (quoting Lujan, 504 U.S. at 573, 112 S.Ct. 2130 (emphasis added)). Under NEPA, plaintiffs can show "threatened concrete interests" by demonstrating a "geographic nexus" between their NEPA claims and the land allegedly suffering an environmental impact. See id.; Douglas County, 48 F.3d at 1500 n. 5. Because the Idaho plaintiffs' lawsuit and the lawsuit filed by Kootenai Tribe and those joined with it allege different types of injuries, we address injury in fact for plaintiffs in each suit separately.
The Idaho plaintiffs have ownership interests in land next to the national forests. They allege that implementation of the Roadless Rule will lead to the spread of wildfire, destructive insects and significant harms to their land. The evidence before the district court suggested that implementation of the Roadless Rule and a resulting reduction in active forest management practices could lead to the spread of unnaturally severe wildfires, insect infestation and forest disease from the national forests to adjacent lands. As adjacent landowners, the Idaho plaintiffs have a "sufficient geographic nexus to the site of the challenged project that [they] may be expected to suffer whatever environmental consequences" may result from implementation of the Roadless Rule. City of Davis v. Coleman, 521 F.2d 661, 671 (9th Cir.1975).
Notwithstanding, intervenors contend that these alleged harms cannot satisfy the injury in fact requirement because such harms are "not impending." We disagree. That no environmental harm has yet occurred on plaintiffs' land is not controlling. To require that plaintiffs prove particular environmental effects for standing purposes is overmuch and "would in essence be requiring that the plaintiff conduct the same environmental investigation that he seeks in his suit to compel the agency to undertake." City of Davis, 521 F.2d at 670-671; see also Ecological Rights Found. v. Pac. Lumber Co., 230 F.3d 1141, 1151 (9th Cir.2000) ("requiring the plaintiff to show actual environmental harm as a condition for standing confuses the jurisdictional inquiry ... with the merits inquiry").
We next address whether the Kootenai Tribe and its co-plaintiffs have adequately alleged an injury in fact. The Supreme Court has held that "environmental plaintiffs adequately allege injury in fact when they aver that they use the affected area and are persons `for whom
Causation and Redressability
Intervenors argue that even if the plaintiffs demonstrate a cognizable injury in fact, they cannot establish the requisite causal connection to the alleged NEPA violation. We disagree.
In NEPA cases, causation need only be established with "reasonable probability." See Douglas County, 48 F.3d at 1501 n. 6. As noted above, the district court had evidence that uncontrollable wildfires, the spread of insects and increased forest disease could result from the implementation of the Roadless Rule. This is sufficient to satisfy the causation requirement for both sets of plaintiffs.
The Intervenors further contend that a favorable decision of the court will not redress plaintiffs' alleged injuries because enjoining the Roadless Rule will not necessarily prevent the spread of wildfire, insects and forest disease. In cases of procedural injury, however, plaintiffs "need not demonstrate that the ultimate outcome following proper procedures will benefit them." Cantrell, 241 F.3d at 682; see also Seattle Audubon Soc'y v. Espy, 998 F.2d 699, 702 (9th Cir.1993); Defenders of Wildlife, 504 U.S. at 572 n. 7, 112 S.Ct. 2130. It is enough that a revised EIS may redress plaintiffs' alleged injuries.
Zone of Interests
We have previously held that the protection of the environment falls within NEPA's zone of interests. See Douglas County, 48 F.3d at 1501; see also City of Davis, 521 F.2d at 672 ("the environmental interests [NEPA] seeks to protect are shared by all citizens."). Here, plaintiffs assert that the environmental health of their lands and the land they use for aesthetic, recreational or spiritual purposes will be threatened by implementation of the Roadless Rule. Plaintiffs' threatened interests fall within NEPA's interest in preventing
Intervenors claim that, apart from standing, plaintiffs cannot assert a claim under the APA.
Under NEPA, a federal agency is required to prepare an EIS for all "major Federal actions significantly affecting the quality of the human environment." 42 U.S.C. § 4332(2)(C) (emphasis added). "Human environment," in turn, is defined in NEPA's implementing regulations as "the natural and physical environment and the relationship of people with that environment." 40 C.F.R. § 1508.14. See also Wetlands, 222 F.3d at 1105. The dispositive issue here is whether the Roadless Rule sufficiently affected the quality of the human environment to trigger the procedural requirements of NEPA.
We have explained that NEPA procedures do not apply to federal actions that maintain the environmental status quo. See Burbank Anti-Noise Group v. Goldschmidt, 623 F.2d 115, 116-17 (9th Cir.1981) (NEPA does not apply when an agency financed the purchase of an airport already built); Nat'l Wildlife Fed'n v. Espy, 45 F.3d 1337, 1343-1344 (9th Cir. 1995) (NEPA does not apply when agency transferred title to wetlands already used for grazing); Bicycle Trails Council of Marin v. Babbitt, 82 F.3d 1445, 1446 (9th Cir.1996) (closure of bicycle trails does not trigger EIS). In other words, "an EIS is not required in order to leave nature alone." Douglas County, 48 F.3d at 1505 (citation and internal quotation marks omitted). The touchstone of the EIS requirement is whether the change in the status quo is "effected by humans." Id. at 1506.
Here, both plaintiffs' and intervenors' arguments have some force. Plaintiffs argue that the decrease in development and the transition to less active management of the national forests that would result from the Roadless Rule constitute a change in the environmental status quo that will be effected by humans. In other words, plaintiffs argue that the decrease in forest management capabilities that will result from the Roadless Rule will likely have deleterious natural consequences (e.g., forest fires, insect infestation etc.), and that
Because human intervention, in the form of forest management, has been part of the fabric of our national forests for so long, we conclude that, in the context of this unusual case, the reduction in human intervention that would result from the Roadless Rule actually does alter the environmental status quo. We agree with the district court that, accordingly, in promulgating the Roadless Rule, the Forest Service was required to adhere to the procedural requirements set forth in NEPA. By altering how the Forest Service manages inventoried roadless areas, the Roadless Rule will have a demonstrable impact on the physical environment. See Metropolitan Edison Co. v. People Against Nuclear Energy, 460 U.S. 766, 772, 103 S.Ct. 1556, 75 L.Ed.2d 534 (1983). The Forest Service's Roadless initiative thus required an EIS under NEPA.
We next address whether the district court erred in issuing a preliminary injunction against the implementation of the Roadless Rule. We review the district court's grant of a preliminary injunction to determine if the district court abused its discretion or based its decision on an erroneous legal standard or clearly erroneous findings of fact. Desert Citizens Against Pollution v. Bisson, 231 F.3d 1172, 1176 (9th Cir.2000). See also Gregorio T. v. Wilson, 59 F.3d 1002, 1004 (9th Cir.1995).
To be entitled to preliminary injunctive relief, the plaintiffs must demonstrate either: (1) a combination of probable success on the merits combined with a possibility of irreparable injury; or (2) that serious questions are raised and the balance of hardships tips in plaintiffs' favor. Idaho Sporting Cong. Inc. v. Alexander, 222 F.3d 562, 565 (9th Cir.2000).
Success on the Merits
The district court found that plaintiffs had shown probable success on the merits of their NEPA claim. We discuss the substantive grounds considered by the district court and reach a different conclusion.
Compliance with NEPA's Notice and Comment Procedures
It is settled that "NEPA is a procedural statute intended to ensure environmentally informed decision-making by federal agencies." Tillamook County v. U.S. Army Corps of Eng'rs, 288 F.3d 1140, 1142 (9th Cir.2002). For this reason, we have held that "NEPA `does not mandate particular results,' but `simply provides the necessary process' to ensure that federal agencies take a `hard look' at the environmental
To ensure that the Forest Service took a "hard look" at the consequences of the Roadless Rule initiative, the Forest Service was required to "involve the public in preparing and implementing their NEPA procedures." 40 C.F.R. § 1506.6(a); see also 5 U.S.C. § 553(c) (the Forest Service was under an obligation to afford "interested persons an opportunity to participate in the rule making."). NEPA regulations also required that the Forest Service invite the participation of affected state and local governments, as well as Indian Tribes. 40 C.F.R. § 1501.7(a)(1).
Upon our review of the record, we are persuaded that the Forest Service did provide the public with extensive, relevant information on the Roadless Rule. We also conclude that the Forest Service allowed adequate time for meaningful public debate and comment.
As one ground for decision, the district court stressed its view that the Forest Service did not provide detailed maps or descriptions of potentially affected areas during both the scoping and DEIS comment period. As the district court saw it, the public was denied appropriate access to information that was reasonably necessary for its meaningful participation in the NEPA process. The district court credited the arguments of plaintiffs that maps were not made available during the scoping period and the maps that were made available during the DEIS notice and comment period were inadequate. But we are not persuaded that maps were required during the scoping period or that the maps provided during the DEIS notice and comment period suffered from the grave inadequacies alleged by plaintiffs.
First, plaintiffs overstate NEPA's requirements for the scoping period. The primary purpose of the scoping period is to notify those who may be affected by a proposed government action which is governed by NEPA that the relevant entity is beginning the EIS process; this notice requirement ensures that interested parties are aware of and therefore are able to participate meaningfully in the entire EIS process, from start to finish. See Northwest Coalition for Alternatives to Pesticides
The Forest Service provided maps of the affected areas prior to issuing the DEIS. Moreover, the location of the affected areas was reasonably known to the plaintiffs prior to the receipt of the maps because the plaintiffs have been engaged in ongoing studies and discussions with the Forest Service about roadless areas for several years. Even if the maps provided in the DEIS and FEIS were less than ideal, plaintiffs cannot seriously dispute that they had actual notice as to the roadless areas that would be affected, by virtue of their prior contact with the Forest Service. This actual notice supplements notice from the maps provided to the public. Most importantly, the maps within the DEIS and FEIS in context gave reasonable notice of the roadless areas that would be affected by the rule. For the purposes of preliminary injunction analysis, we cannot say that the Forest Service's decision not to provide maps during the scoping period or that the alleged deficiencies in the maps provided prior to the DEIS demonstrate probable success on the merits of plaintiffs' NEPA claim.
The district court also was concerned about the fact that between publication
It is true that a supplemental EIS must be published when an agency makes substantial changes in an EIS. See 40 C.F.R. 1502.9(c)(1) (when an agency "makes substantial changes in the proposed action that are relevant to environmental concerns," the public must be given additional opportunity to comment through publication of a supplemental EIS). However, a supplemental EIS is not required for every change; it is not uncommon for changes to be made in a FEIS after receipt of comments on a DEIS and further concurrent study.
Also, members of the public had every right and ability after publication of the FEIS on November 13, 2000, to comment further before adoption of the final Rule on January 12, 2001. Moreover, the alleged defect at most could affect the propriety of implementation of the Rule on the 4.2 million acres added during the process; it could not provide a proper basis to enjoin implementation of the Rule in all respects, particularly as applied to the acreage identified in the DEIS.
The district court also noted that public comment received on the proposed Rule had included expressions of concern that Forest Service personnel were poorly informed and unable to adequately answer questions and describe the boundaries to affected acres. But the district court held no trial and made no findings of fact about the level of knowledge and preparation, for good or ill, of Forest Service staff involved in the public comment process. Mere griping or even serious complaints from a segment of the public are not sufficient to justify a judicial negation of the entire rulemaking process.
Also, plaintiffs argue that the Forest Service's failure to grant extensions of time is sufficient to justify the district court's finding of a likely NEPA violation. We disagree. The district court stressed that the FEIS is approximately 700 pages in length and is applicable to twenty-eight percent of National Forest Land Systems, a percentage which is equivalent to two percent of the land mass of the United States. The district court concluded that given the enormous impact of the Roadless Rule, it was not reasonable for the Forest Service to allow only 69 days for submission of public comment on the DEIS, concluding that "the comment period was grossly inadequate and thus deprived the public of any meaningful dialogue or input into the process — an obvious violation of NEPA."
We must respectfully disagree. The regulations implementing NEPA establish a minimum of only 45 days required for public comment. 40 C.F.R. § 1506.10(c). The 69 day period is more than 50% beyond the minimum. Whether still more time might have been beneficial to some parties is not the issue. When "the comment period ... last[s] substantially longer than the minimum 45 days required," the EIS ordinarily may not be challenged based on an allegedly inadequate comment period. See County of Del
It is true, as the district court noted, that "[t]he 45 day requirement for public comment under NEPA is statutorily contemplated as a minimum time frame to be set apart for meaningful disclosure and comment." Idaho, ex rel. Kempthorne v. U.S. Forest Serv., 142 F.Supp.2d 1248, 1261 (D.Idaho 2001). However, the proposed invalidation of an agency action under NEPA when the lead agency provided substantially more than the required 45 day minimum comment period prescribed by regulations is unprecedented. There are cases where government properly may work to deadline in seeking to advance the public's interest. Here, the foundations of the Roadless Rule concept were first studied in the 1970s; President Clinton's directive for a nationwide plan to protect roadless areas in national forests issued in October 1999; after a formal Notice of Intent and sixty days scoping period for public comment, and other proceedings, a DEIS was issued in May 2000 with 69 days for public comment; an FEIS was issued in November 2000, again permitting public comment; and the final Roadless Rule was issued on January 5, 2001.
The periods permitted for public comment exceeded regulatory minimums, and the entire process spanned over a year. NEPA requires that agencies give a hard look to environmental impact of proposed major actions, but not necessarily an interminably long look. We decline to affirm the district court's conclusion that plaintiffs have shown likely success on the merits based on a novel allegation that the periods for comment, though compliant with regulations, were too brief to permit meaningful comment.
We conclude that the district court erred in holding that the plaintiffs had shown likely success on the merits based on their allegation that the 69 day comment period deprived the public of information necessary for its meaningful participation in the NEPA process. See Florida Power & Light Co. v. United States, 846 F.2d 765, 771 (D.C.Cir.1988) (holding that, not only must an agency give adequate time for comments, but it also "must provide sufficient factual detail and rationale for the
Consideration of a Reasonable Range of Alternatives
Plaintiffs allege that the alternatives to the Roadless Rule proposed by the Forest Service in the DEIS and FEIS were impermissibly narrow under NEPA. The district court held that the Forest Service failed to consider the full range of reasonable alternatives consonant with its policy objectives, stressing that the Forest Service considered only three viable alternatives, all of which included a total ban on road construction within roadless areas. We disagree with the district court's conclusion in this regard. We conclude that the DEIS and FEIS analyzed an adequate range of alternatives. The NEPA alternatives requirement must be interpreted less stringently when the proposed agency action has a primary and central purpose to conserve and protect the natural environment, rather than to harm it. Certainly, it was not the original purpose of Congress in NEPA that government agencies in advancing conservation of the environment must consider alternatives less restrictive of developmental interests. See 42 U.S.C. §§ 4231 et seq. The reason for a proper concern with alternatives here is that plaintiffs have urged that an excess of conservation will be harmful to the environment by precluding appropriate actions in developing roads useful for fighting fires, or insects, or other hazards.
Under NEPA, the Forest Service was under a mandate to "study, develop, and describe appropriate alternatives to recommended courses of action." 42 U.S.C. § 4332(E). The Forest Service was also required to include in its EIS a "detailed statement ... on ... alternatives to the proposed action." 42 U.S.C. § 4332(C)(iii). NEPA regulations describe this alternatives requirement as the "heart" of the EIS and require the agency to produce an IS that "[r]igorously explore[s] and objectively evaluate[s] all reasonable alternatives" so that the agency can "sharply defin[e] the issues and provid[e] a clear basis for choice among options by the decisionmaker and the public." 40 C.F.R. § 1502.14. In this case, the DEIS and FEIS considered three action alternatives for the inventoried roadless areas:
We disagree. We think that defendant-intervenors are correct in arguing that any inclusion of alternatives that allowed road construction outside of the few exceptions
The district court also paid no heed to other interests asserted by intervenors such as FSEEE which, through its declarants, pointed out that there were inadequate funds available to maintain with safety existing Forest Service roads. The Roadless Rule ban would help ensure that adequate resources were available to keep existing roads in roaded areas safe. Stated another way, budget and safety considerations were offered by Forest Service to justify the Roadless Rule, in addition to the compelling environmental, conservation and wilderness values asserted by declarants and by Forest Service.
The district court's opinion, in our view, gives inadequate weight to analysis of the conservation and environmental values supporting the Rule and of the budgetary and safety considerations pertinent to it. All these values are worthy and they deserve consideration. As explained in the Final Rule, roadless areas contribute to the health of the public because they help preserve the forest system's watersheds, the rivers, streams, lakes, and wetlands that "are the circulatory system of ecosystems, and water is the vital fluid for inhabitants of these ecosystems, including people." The roadless areas also provide "important habitat for a variety of terrestrial and aquatic wildlife and plants, including hundreds of threatened, endangered, and sensitive species." Roadless areas in our national forests also help conserve some of the last unspoiled wilderness in our country. The unspoiled forest provides not only sheltering shade for the visitor and sustenance for its diverse wildlife but also pure water and fresh oxygen for humankind. In contrast, road construction and reconstruction facilitates forest management by timber harvest and possibly aiding fire prevention, but it is to a degree inimical to conservation. Given the importance of roadless lands as a resource and the ease with which they may be irretrievably damaged, and the amount of forest land already crossed by roads that facilitate active management of vast acreages, a near total ban on further road construction in the remaining and precious roadless areas within our national forests is not the drastic measure that the plaintiffs make it out to be. In contrast to the development of roads sought by plaintiffs, which may inevitably and finally alter the character of developed forest land, the Roadless Rule is benign in that it can be undone so that any development that has been forestalled under the rule may be resumed, or limited development may proceed under the exceptions it contemplates.
The Forest Service was not required under NEPA to consider alternatives in the DEIS and FEIS that were inconsistent with its basic policy objectives. Muckleshoot Indian Tribe v. U.S. Forest Serv., 177 F.3d 800, 813 (9th Cir.1999). Although plaintiffs are correct that the Forest Service could not "define its objectives in unreasonably narrow terms," City of Carmel-by-the-Sea v. United States Dept. of Transp., 123 F.3d 1142, 1155 (9th Cir.1997), there is no indication that it did
The district court held that the Forest Service did not consider in the DEIS and FEIS less prohibitive restrictions that could have both protected roadless area values and permitted road construction that allowed for more active forest management. We conclude that this finding is clearly erroneous. The Forest Service's consideration of the three alternatives was adequate, and the selection of the preferred alternative does not appear to have been predetermined. Moreover, having considered additional alternatives in a preliminary manner, the Forest Service could reasonably conclude that only a near total ban on road construction in roadless areas could satisfy its policy objectives.
We conclude that the district court's determination that there was a strong likelihood that the Forest Service violated NEPA was not correct. Making this incorrect legal conclusion, the court compounded it by accepting only a minimal showing of irreparable harm. The court's view of the sliding scale standard was accurate but its assessment of likelihood of success on the merits, and hence degree of harm necessary for injunction, was not.
We also reject the district court's conclusion that the Forest Service failed adequately to evaluate the cumulative effects of the Roadless Rule and the potential mitigating measures. We agree with the defendant-intervenors that the potential cumulative effects of the Roadless Rule are too speculative to be amenable to in-depth analysis in the EIS. Similarly, we find the Forest Service's discussion of mitigating measures, with an extensive discussion of forest health and fire ecology, in the EIS to be adequate. Although plaintiffs urge that ills will ensue from the Roadless Rule, the situation is not black and white, and the balancing of all competing considerations is within the precise sphere of the Forest Service's expertise and mission. Access to roadless areas to prevent and control fires and to fight insect infestations may be more difficult under the Roadless Rule, but it will not be impossible.
Balance of Hardships
The intervenors argue that even if plaintiffs have shown probable success on the merits of their NEPA claims, the district court erred in issuing a preliminary injunction because the plaintiffs have not made the requisite showings that they will suffer "irreparable injury" and that they are favored by the balance of hardships.
In their status report to the district court, the Forest Service, now governed by a new presidential administration which is perhaps less sympathetic to the Roadless Rule, expressed concern "about the potential for irreparable harm in the longterm" caused by the Roadless Rule. Also, the district court made its own findings of irreparable injury based on the record before it. The district court based its finding of irreparable harm on a General Accounting Office Report, which found that the Roadless Rule would prevent officials in (1) Payette National Forest in Idaho from implementing a forest-wide plan to restore pine forests; (2) Shasta Trinity National Forest in California from rebuilding old jeep trails to provide short-term access for fire prevention measures; and (3) Routt National Forest in Colorado from undertaking fire prevention measures. As noted above, there is an argument that the evidence suggested that implementation of the Roadless Rule would restrict active management activities that have already been planned and would thus preclude Forest Service officials from considering management techniques designed to prevent harms, such as wildfires, disease outbreaks and insect infestation. See Forest Conservation Council v. U.S. Forest Serv., 66 F.3d 1489, 1496-98 (9th Cir. 1995) (ban of timber removal could cause state and county intervenors irreparable harm due to inability to undertake "their legal duties to protect the public safety by preventing and fighting wildfires"); see also Northern Cheyenne Tribe v. Hodel, 851 F.2d 1152, 1158 (9th Cir.1988) (cultural, social and economic harms to a tribe can constitute irreparable harm for purposes of NEPA injunction analysis).
This is an unusual case where an action, cessation of road development and repair in certain areas of our national forests, is being undertaken for the primary purpose of conservation, and the resulting benefit of the environment. There can be no serious argument that restrictions on human intervention in these wilderness areas will not result in immeasurable benefits from a
Moreover, as explained previously, restrictions on human intervention are not usually irreparable in the sense required for injunctive relief. Unlike the resource destruction that attends development, and that is bound to have permanent repercussions, restrictions on forest development and human intervention can be removed if later proved to be more harmful than helpful. Enforced inaction of the type we are presented with here poses no immediate threat of harm which must be forestalled. The fact that a three-year moratorium on road building was in place before the promulgation of the Roadless Rule makes plaintiffs' allegations of irreparable harm even harder to credit. Finally, and perhaps most importantly, the Forest Service's decision not to enforce the Roadless Rule until it has been amended after another full-scale notice and comment period makes plaintiffs' allegations of irreparable harm even more weak and questionable.
The district court in substance concluded that the Forest Service likely violated
Plaintiffs have demonstrated at best a serious question of liability on the merits of their NEPA claim, and plaintiffs cannot prevail at this stage when we assess prospects of irreparable harm to all parties and the balance of hardships that would flow from injunction. Because of its incorrect legal conclusion on prospects of success, the district court proceeded on an incorrect legal premise, applied the wrong standard for injunction, and abused its discretion in issuing a preliminary injunction.
KLEINFELD, Circuit Judge, concurring in part and dissenting in part:
I concur in the majority's rejection of the Idaho Conservation League's
Under Sports Form,
A. Permissive Intervention
The majority relies on Rule 24(b)(2), permitting intervention "when an applicant's claim or defense and the main action have a question of law or fact in common." There is no such commonality in this case.
The majority correctly recognizes that "private parties do not have a `significant protectable interest' in NEPA compliance actions."
What our precedent does not countenance is how the majority can conclude the Conservation League and the Employees have no "protectable interest" and "can not be a defendant in a NEPA compliance action," but somehow then find a "question of law or fact in common" with the main action. What, exactly, would that "common question" be? The District Court granted the injunction for failure to comply with NEPA. This is a NEPA compliance action. Our precedent clearly holds private parties have no protectable interest as defendants in NEPA compliance actions. In Portland Audubon Society, we held NEPA provided "no protection" for the would-be private intervenors.
The majority admits that "the intervenors do not have an independent protectable interest."
Essentially, the majority holds that as long as a would-be intervenor asserts a defense that is "responsive" to the claims against the proper party defendant, intervention is proper. The majority's position would allow intervention by virtually anyone who has some affected interest, for anyone can say "I agree that the government has this particular defense." Such a result is absurd and robs the "common question" provision of Rule 24(b) of any meaning. Standing and Rule 24(b) intervention are not the same, but the majority collapses them into one test. It is telling, but unsurprising, that the majority offers no precedent of any sort to support this expansive reading of Rule 24(b).
B. The Preliminary Injunction
I, of course, would not reach the merits of this appeal as I believe intervention was improperly granted and the only proper defendant, the United States, did not appeal. Nevertheless, as the majority does reach the issue of the propriety of the injunction, I will respond to the majority's position. In the main, I agree with the numerous procedural problems in the implementation of the Roadless Rule identified by the district court, and would affirm for that reason, but I will point out some of the more egregious deficiencies.
The majority correctly notes that the Forest Service must consider alternatives to the proposed rule under NEPA, and appropriately recognizes that the regulations demand the Service produce a statement that "[r]igorously explore[s] and objectively evaulate[s] all reasonable alternatives."
The majority defends the "alternatives" offered by the Service on the ground that to offer other alternatives would have been "inconsistent" with the policy objectives of the Service. That contention is belied by the majority's own characterization of the Service's objective as preventing degradation of roadless areas. There are innumerable alternatives that would have met this objective. To name a few: allowing road construction with limits on density, allowing construction of roads made of certain materials only, or limiting use of the
The majority claims "The NEPA alternatives requirement must be interpreted less stringently when the proposed agency action has a primary and central purpose to conserve and protect the natural environment, rather than to harm it." No citation of authority for this proposition is provided. It makes no sense. The national forests were established to provide a source of timber and to protect the flow of water.
NEPA also requires that the Service involve the public and allow interested persons an opportunity to comment.
The District Court's factual findings are extensive and damning: "It appears from this record that the message disseminated during the development of the EIS was perceived by the public to be, at best, confusing and, at worst, inadequate. Public comment reflects concerns regarding the identity, and definition, of `unroaded areas' and inventoried roadless areas; the inadequacy of information presented during the scoping process, including the inadequacy of the Forest Service Staff who conducted the public comment meetings during this process; the failure to engage in meaningful consultation with the Kootenai tribe; and the brief comment periods, and failure to grant reasonable requests for time ... [T]he evidence is that the Forest Service did not, and in fact could not, provide such meaningful disclosure as descriptions and maps of the areas to be impacted by the rule were unavailable and Forest Service representatives were ill-prepared to answer the questions and concerns of the general public."
As to the maps, the majority credits the government for providing them at all, even while noting they might have been "less than ideal." The "less than ideal" maps are forgiven by the majority because the plaintiffs had been in "ongoing studies and discussions with the Forest Service about roadless areas for several years." So, the majority argues, even if the maps were inadequate, the plaintiffs had "actual notice" of the areas to be affected. Our precedent is to the contrary. "Moreover, the procedural requirements prescribed in NEPA and its implementing regulations are to be strictly interpreted to the fullest extent possible in accord with the policies embodied in the Act. Grudging, pro forma compliance will not do."
The district court did not abuse its discretion or clearly err on the facts in determining that the procedure followed by the government was "grossly inadequate." There is no basis for reversing the sound factual findings of the district court.
The district court was correct in its view that the plaintiffs had a strong likelihood of success on the merits, and was correct in concluding that the demonstration of harm sufficed to justify the injunction.
The Roadless Rule does not preserve the status quo. It changes it, massively, for two percent of the entire land area of the United States. And by increasing the risk of forest fires, it threatens additional land and people, such as the Kootenai Tribe and the people of Idaho who brought this suit.
What we have here is a case where the agency attempted a massive management change for two percent of the nation's land on the eve of an election, and shoved it through without the "hard look" NEPA
As for the forests themselves, which mankind itself needs to survive, they have not fared well in aggregate in recent decades. In a recent report, with comment on deforestation, the United Nations said 2.4 percent of the world's forests were destroyed during the 1990s; it estimated a total of 220 million acres of forest, an area larger that Venezuela, were lost. See United Nations Dep't of Econ. and Global Affairs, Global Challenge Global Opportunity: Trends in Sustainable Development 14, available at http://www.johannesburgsummit.org/html/documents/summit_docs/criticaltrends_1408.pdf. In the United States, our National Forests already are both benefitted and burdened by extensive road development, some 380,000 miles of roads. Certainly, it is a policy decision for Congress and the responsible federal agencies such as the Forest Service to decide the proper balance for U.S. National Forests between conservation of wilderness and managed use that results in forest loss.