American Whitewater v. Thomas Tidwell

Filing

PUBLISHED AUTHORED OPINION filed. Motion disposition in opinion dismissing Motion to strike filed by Appellees Richard Rust, Henry Rust and Goodenow LLC, Appellants Richard Rust, Henry Rust and Goodenow LLC [999434828-2] Originating case number: 8:09-cv-02665-MGL. [999469606]. [13-1960, 13-2016, 13-2017]

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PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 13-1960

AMERICAN WHITEWATER; AMERICAN CANOE ASSOCIATION; GEORGIA
CANOEING ASSOCIATION; ATLANTA WHITEWATER CLUB; FOOTHILLS
PADDLING CLUB; WESTERN CAROLINA PADDLERS; JOSEPH C. STUBBS;
BRUCE A. HARE; KENNETH L. STRICKLAND,
Plaintiffs – Appellants,
v.
THOMAS TIDWELL, in his official capacity as Chief of the
United States Forest Service; UNITED STATES FOREST SERVICE,
an agency of the United States Department of Agriculture;
THOMAS J. VILSACK, in his official capacity as Secretary of
the United States Department of Agriculture; UNITED STATES
DEPARTMENT OF AGRICULTURE,
Defendants – Appellees,
and
ELIZABETH AGPAOA, Regional Forester Southern Region United
States Forest Service; MONICA J. SCHWALBACH, Acting Forest
Supervisor Francis Marion and Sumter National Forests;
MARISUE HILLARD, Forest Supervisor National Forests in North
Carolina; GEORGE M. BAIN, Forest Supervisor ChattahoocheeOconee National Forests,
Defendants,
RICHARD RUST; HENRY RUST; GOODENOW LLC; GEORGIA FORESTWATCH,
Intervenors – Appellees.

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No. 13-2016

AMERICAN WHITEWATER; AMERICAN CANOE ASSOCIATION; GEORGIA
CANOEING ASSOCIATION; ATLANTA WHITEWATER CLUB; FOOTHILLS
PADDLING CLUB; WESTERN CAROLINA PADDLERS; JOSEPH C. STUBBS;
BRUCE A. HARE; KENNETH L. STRICKLAND,
Plaintiffs – Appellees,
v.
THOMAS TIDWELL, in his official capacity as Chief of the
United States Forest Service; UNITED STATES FOREST SERVICE,
an agency of the United States Department of Agriculture;
THOMAS J. VILSACK, in his official capacity as Secretary of
the United States Department of Agriculture; UNITED STATES
DEPARTMENT
OF
AGRICULTURE;
ELIZABETH
AGPAOA,
Regional
Forester Southern Region United States Forest Service;
MONICA J. SCHWALBACH, Acting Forest Supervisor Francis
Marion and Sumter National Forests; MARISUE HILLARD, Forest
Supervisor National Forests in North Carolina; GEORGE M.
BAIN,
Forest
Supervisor
Chattahoochee-Oconee
National
Forests,
Defendants,
GEORGIA FORESTWATCH,
Intervenor,
and
RICHARD RUST; HENRY RUST; GOODENOW LLC,
Intervenors – Appellants.

No. 13-2017

AMERICAN
CANOEING

WHITEWATER; AMERICAN
ASSOCIATION; ATLANTA

CANOE ASSOCIATION; GEORGIA
WHITEWATER CLUB; FOOTHILLS

2

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PADDLING CLUB; WESTERN CAROLINA PADDLERS; JOSEPH C. STUBBS;
BRUCE A. HARE; KENNETH L. STRICKLAND,
Plaintiffs – Appellees,
v.
THOMAS TIDWELL, in his official capacity as Chief of the
United States Forest Service; UNITED STATES FOREST SERVICE,
an agency of the United States Department of Agriculture;
THOMAS J. VILSACK, in his official capacity as Secretary of
the United States Department of Agriculture; UNITED STATES
DEPARTMENT
OF
AGRICULTURE;
ELIZABETH
AGPAOA,
Regional
Forester Southern Region United States Forest Service;
MONICA J. SCHWALBACH, Acting Forest Supervisor Francis
Marion and Sumter National Forests; MARISUE HILLARD, Forest
Supervisor National Forests in North Carolina; GEORGE M.
BAIN,
Forest
Supervisor
Chattahoochee-Oconee
National
Forests,
Defendants,
RICHARD RUST; HENRY RUST; GOODENOW LLC,
Intervenors,
and
GEORGIA FORESTWATCH,
Intervenor – Appellant.

Appeals from the United States District Court for the District
of South Carolina, at Anderson. Mary G. Lewis, District Judge.
(8:09-cv-02665-MGL)

Argued:

September 17, 2014

Decided:

November 5, 2014

Before KING and HARRIS, Circuit Judges, and HAMILTON, Senior
Circuit Judge.

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Affirmed by published opinion. Judge Harris wrote the opinion,
in which Judge King and Senior Judge Hamilton joined.

ARGUED:
James Nathan Galbreath, NELSON GALBREATH, LLC,
Greenville,
South
Carolina,
for
Appellants/Cross-Appellees.
Rachel Susanna Doughty, GREENFIRE LAW, Berkeley, California;
Richard Stephen Doughty, Hendersonville, Tennessee; Nina C.
Robertson, UNITED STATES DEPARTMENT OF JUSTICE, Washington,
D.C., for Appellees/Cross-Appellants.
ON BRIEF:
R. Brian
Hendrix, Collin O'Connor Udell, JACKSON LEWIS LLP, Reston,
Virginia;
Cecil
H.
Nelson,
Jr.,
NELSON
GALBREATH,
LLC,
Greenville,
South
Carolina,
for
Appellants/Cross-Appellees.
Robert G. Dreher, Acting Assistant Attorney General, John P.
Tustin, Ellen J. Durkee, Appellate Section, Environment &
Natural Resources Division, UNITED STATES DEPARTMENT OF JUSTICE,
Washington, D.C.; John H. Douglas, OFFICE OF THE UNITED STATES
ATTORNEY, Charleston, South Carolina; Matthew A Tilden, UNITED
STATES
DEPARTMENT
OF
AGRICULTURE,
Washington,
D.C.,
for
Appellees/Cross-Appellants. D. Kent Safriet, Mohammad O. Jazil,
HOPPING GREEN & SAMS, P.A., for Intervenors-Appellees/CrossAppellants
Richard
Rust,
Henry
Rust,
and
Goodenow
LLC.
Alexander
M.
Bullock,
KILPATRICK
TOWNSEND
&
STOCKTON,
Washington,
D.C.,
for
Intervenor-Appellee/Cross-Appellant
Georgia ForestWatch.

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PAMELA HARRIS, Circuit Judge:
In 1974, Congress selected the 57 miles of the Chattooga
River

(the

“Chattooga”

or

the

“River”)

and

15,432

acres

of

adjacent land for preservation under the Wild and Scenic Rivers
Act (the “WSRA” or the “Act”), 16 U.S.C. § 1274 et seq. (2006).
Since

then,

the

United

States

Forest

Service

(the

“Forest

Service”) has managed the Chattooga under the WSRA.
Prior to 2012, longstanding Forest Service policy allowed
non-motorized rafting or “floating” 1 on the lower portions of the
Chattooga,

but

prohibited

the

practice

on

the

northernmost section of the River (the “Headwaters”).
after

a

lengthy

review,

the

Forest

Service

21-mile
In 2012,

revised

its

management plan for the Chattooga to allow floating on most of
the Headwaters during the winter months, when flows are highest
and conditions are best.
American Whitewater, 2 Plaintiff-Appellant, argues that the
revised

plan

does

not

go

far

enough

and

that

the

remaining

limits on floating are inconsistent with the WSRA and arbitrary
and capricious in violation of the Administrative Procedure Act

1

We use the term “floating” throughout to refer to the
class of hand-powered, river-going recreational activities that
includes canoeing, kayaking, and whitewater rafting.
2

Together with several other not-for-profit hobbyist
organizations and interested individuals, “American Whitewater.”

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(the “APA”).

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5 U.S.C. § 702 et seq. (2006).

On the other hand,

two intervening parties, Georgia ForestWatch (“ForestWatch”), a
not-for-profit

environmental

group,

and

the

Rust

family

(the

“Rusts”), argue that the Forest Service's decision to allow any
floating

already

goes

too

far.

They

contend

that

the

WSRA

prohibits any floating on the Headwaters whatsoever, and that
the Forest Service violated the National Environmental Policy
Act (“NEPA”), 42 U.S.C. § 4321 et seq. (2006), in the course of
reaching its decision.
The district court rejected both sets of challenges and
found

that

the

Forest

Service's

revised

plan

“carefully

balance[s] the wide-ranging interests advocated by the several
parties and participants.”

American Whitewater v. Tidwell, 959

F. Supp. 2d 839, 860 (D.S.C. 2013) (“Tidwell”).

We agree with

the district court's well-reasoned opinion and affirm.

I.
A.
The WSRA establishes a national policy to preserve rivers
of “outstandingly remarkable value.”

Once designated under the

WSRA, rivers are managed by an administrative agency — in this
case,

the

condition

Forest
and

generations.

Service

preserve

—

to

their

prevent
pristine

degradation
quality

of

for

their
future

See 16 U.S.C. §§ 1271, 1274, 1281(a) (2006).

6

The

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statutory

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command

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is

the

twofold:

outstandingly

remarkable

values, or “ORVs,” that led Congress to designate the river must
be “protecte[d] and enhance[d],” while other uses may be limited
if they substantially interfere with the public’s use of those
ORVs.

16 U.S.C. §§ 1271, 1281(a).

The

Forest

Service

manages

the

Chattooga

Chattooga Wild and Scenic Development Plan.

through

the

As relevant here,

the original 1976 version of the plan — as well as each of the
subsequent versions published in 1985, 2002 and 2004 — limited
floating to the lower portions of the Chattooga.
American Whitewater first challenged the Forest Service's
ban on floating on the Headwaters in 2002.

In 2005, a Forest

Service Reviewing Officer agreed with American Whitewater and
found

that

adequate

the

basis

Headwaters.

2004
for

development

continuing

J.A. at 587. 3

the

plan
ban”

did
on

not

“provide

floating

on

an
the

He directed the Forest Service to

study the issue and prepare a new plan in accordance with its
results.

Id.

To comply with the Reviewing Officer’s ruling, the Forest
Service began by preparing an action plan to establish capacity
limits for use of the Chattooga and to measure the expected

3

Citations herein to “J.A. at __” refer to the contents of
the Joint Appendix filed by the parties in this matter.

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impact of Headwaters floating on the Chattooga's ORVs.

It then

integrated a wide range of data on compatible recreational uses
of the Headwaters in a 2007 report entitled Capacity & Conflict
on the Upper Chattooga River (the “2007 Report”).
Service also actively involved the public.
attended

meetings

feedback.

to

explain

the

review

The Forest

It held six wellprocess

and

solicit

Over seven years, members of the public submitted

more than 4,300 responses and comments.
These efforts culminated in a 2012 Environmental Assessment
presenting the Forest Service’s findings.
reached three conclusions of note here.
solitude,

the

“opportunit[y]

for

The Forest Service
First, it found that

remoteness

.

.

.

in

a

spectacular scenic setting,” was important to many users of the
Headwaters.

J.A. at 962.

significant
anglers

likelihood

were

completely.

the

Second, it found that there was a

of

user

Headwaters

conflict
floating

J.A. at 981-82, 1273.

between
ban

floaters

to

be

and

lifted

Third, it determined that

floating conditions are optimal during the winter months when
flows

are

heavy,

and

that

fishing

during that same time period.
In

connection

with

conditions

are

less

ideal

J.A. at 974-76.

these

findings,

the

Forest

Service

analyzed several alternative plans for the Headwaters, ranging
from

leaving

lifting

the

the

ban

on

floating

ban

completely.

The
8

in

place

and

alternative

unchanged
it

to

selected,

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numbered Alternative 13A, falls in the middle of that range.

It

permits floating on the Headwaters, an activity that the Forest
Service had not allowed since 1976, but subjects that floating
to certain limits.

Specifically, floating is permitted on most

of the Headwaters between December 1 and April 30, on days when
flows are greater than 350 cubic feet per second.

The Forest

Service explained that this would allow for floating “in the
section of the Chattooga . . . that boaters rated highest for
creek boating” and at the time of year “historically offer[ing]
the best flows for these types of boating opportunities,” while
also preserving “opportunities for year round boat-free, cold
water angling” in the reach that “attracts the highest angling
use” and “provides the least challenging area for whitewater
boating.”

J.A. at 1402-03.

Because the Forest Service determined that Alternative 13A
would not have a “significant impact on the human environment,”
it

found

that

Environmental

NEPA

Impact

did

not

Statement.

require

preparation

Instead,

the

Forest

of

an

Service

released its decision through a Decision Notice and Finding of
No

Significant

Impact

(together

with

the

2012

Environmental

Assessment, the “2012 Decision”).
B.
American

Whitewater

filed

its

first

complaint

in

this

action on October 14, 2009, while the study process was still
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ongoing and before the Forest Service decided to partially lift
the restrictions on floating.

The Rusts, who own approximately

1.7 miles of the Headwaters' shoreline, intervened, seeking a
declaratory judgment that the portion of the Headwaters running
through their property is not navigable and thus outside the
Forest Service's authority, and an injunction against any future
attempt by the Forest Service to manage this portion of the
Chattooga.
eliminating

American
the

Whitewater

allegations

filed

related

to

an

amended

the

complaint,

portion

of

the

Chattooga running through the Rusts' property, and the district
court

dismissed

the

Rusts'

claims

for

lack

of

a

controversy” under Article III of the Constitution.

“case

or

American

Whitewater v. Tidwell, No. 8:09-cv-02665-JMC, ECF No. 151 (Feb.
22, 2012).
ForestWatch

moved

to

intervene

in

August

of

2011,

in

support of the Forest Service's then-existing ban on Headwaters
floating.

The district court granted ForestWatch's motion on

May 1, 2012, after publication of the 2012 Decision partially
lifting the floating ban.

However, the district court limited

the scope of ForestWatch's intervention to defending the Forest
Service against American Whitewater's challenge to the remaining
floating

restrictions.

American

Whitewater

8:09-cv-02665-JMC, ECF No. 168 (May 1, 2012).

10

v.

Tidwell,

No.

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After publication of the 2012 Decision, American Whitewater
filed its second amended complaint, arguing that the remaining
limits

on

floating

violate

the

WSRA.

In

the

alternative,

American Whitewater argued that the Forest Service's decision
violates the APA because the Forest Service did not have an
adequate basis for its conclusion that restrictions on floating
are

needed

Chattooga.

to

balance

competing

recreational

uses

on

the

See 5 U.S.C. § 706(2)(A) (2006).

ForestWatch and the Rusts also were dissatisfied with the
2012 Decision.
on

floating

ForestWatch, arguing that the remaining limits

are

insufficiently

strict

to

meet

the

WSRA's

mandate, filed a separate action in the district court.

See

Georgia ForestWatch v. Bradley, No. 8:12-cv-3455-MGL (Dec. 6,
2012).

The district court denied a motion to consolidate the

two actions, and ForestWatch’s lawsuit remains pending today.
The Rusts also refiled their cross-claims, seeking a declaration
that

the

Headwaters

running

through

their

property

are

non-

navigable and asserting that the Forest Service's analysis did
not satisfy NEPA.
The district court granted the Forest Service’s motion for
judgment

on

the

administrative

record

on

April

16,

2013.

It

rejected each of American Whitewater’s claims, as well as the
Rusts'

NEPA

claims,

holding

that

the

record

provided

ample

support for the Forest Service's determination that conflicts
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between

Filed: 11/05/2014

floaters

remaining

and

floating

other

Pg: 12 of 31

recreational

restrictions

and

users

that

the

justified
Forest

the

Service

complied with NEPA.

It also dismissed the Rusts' request for

declaratory

as

judgment

ForestWatch's

claims

premature,

against

the

and

refused

Forest

Service

to

consider

because

went beyond the limited scope of its intervention.

they

These timely

appeals followed.

II.
The crux of American Whitewater's claim is that the Forest
Service struck the wrong balance when it opened the Headwaters
to

floating

partially

but

not

entirely,

maintaining

some

restrictions on floating in order to avoid conflicts with other
recreational users.

According to American Whitewater, there is

no basis in the record for the Forest Service's concern about
potential

conflicts,

and

the

remaining

restrictions

are

arbitrary and capricious under the APA as well as contrary to
the WSRA.

Like the district court, we disagree.
A.

We review the district court’s grant of judgment on the
administrative record de novo.

Crutchfield v. Cnty. of Hanover,

325

2003).

F.3d

court's,

211,
our

217

review

highly deferential.”

(4th

Cir.

under

the

APA

is

But

like

the

“ultimately

district

narrow

and

Webster v. U.S. Dep’t of Agric., 685 F.3d

12

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411, 422 (4th Cir. 2012).

Pg: 13 of 31

We may set aside an agency's action

under the APA only if it is “arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with law.”
§ 706(2)(A) (2006).

5 U.S.C.

In determining whether an agency action is

arbitrary, capricious, or otherwise an abuse of discretion under
the

APA,

a

reviewing

court

must

ensure

that

the

agency

has

“examine[d] the relevant data and articulate[d] a satisfactory
explanation for its action.”

N.C. Wildlife Fed'n v. N.C. Dep't

of Transp., 677 F.3d 596, 601 (4th Cir. 2012) (alteration in
original) (quoting F.C.C. v. Fox Television Stations, Inc., 556
U.S. 502, 513 (2009)).

But so long as the agency “provide[s] an

explanation of its decision that includes a rational connection
between

the

facts

found

should be sustained.

and

the

choice

made,”

its

decision

Ohio Valley Envtl. Coal. v. Aracoma Coal

Co., 556 F.3d 177, 192 (4th Cir. 2009) (quoting Motor Vehicle
Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43
(1983))

(internal

quotation

marks

omitted).

Our

review

is

particularly deferential when, as is the case here, “resolution
of

th[e]

dispute

involves

primarily

issues

of

fact”

that

implicate “substantial agency expertise,” Marsh v. Or. Natural
Res. Council, 490 U.S. 360, 376-77 (1989), and the agency is
tasked

with

balancing

often-competing

interests.

See

Hells

Canyon Alliance v. U.S. Forest Serv., 227 F.3d 1170, 1182 (9th
Cir. 2000).
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We do not doubt that in this case there is a “rational
connection between the facts found and the choice made,”
Valley Envtl. Coal., 556 F.3d at 192.
by

the

Forest

Service

opens

Ohio

The alternative selected

substantial

portions

of

the

Headwaters for the first time to floating, from the months of
December to April on days when flows exceed 350 cubic feet per
second.

As the 2012 Decision explains, this option allows for

floating when water conditions are best, and also easiest to
predict, so that users can plan ahead to take advantage of the
best opportunities for Headwaters floating.
the

same

time,

by

retaining

the

ban

on

J.A. at 1459.
floating

At

during

the

spring and summer months, the Forest Service has addressed the
documented concerns expressed by other recreational users of the
Headwaters,

providing

for

a

floater-free

conditions are best for fishing and hiking.

environment

when

J.A. at 1460-61.

The Forest Service also tailored the remaining restrictions by
reach, reserving four miles of the Headwaters with the least
challenging floating conditions, but some of the best angling
opportunities,

for

fishermen.

J.A.

at

1460.

Finally,

as

described in the 2012 Decision, the Forest Service's balance
between competing uses also complies with the maximum capacities
for the Headwaters as set out in the 2007 Report.
Contrary
amply

to

supports

American
the

Whitewater's

Forest

Service's
14

J.A. at 1458.

assertions,
conclusions

the

record

regarding

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potential
Service

Filed: 11/05/2014

conflicts

relied

between

in

among
part

recreational

Pg: 15 of 31

recreational

on

a

history

users,

users.
of

reviewing

The

previous

Forest

conflicts

evidence

from

the

Headwaters prior to the floating ban, from the lower portion of
the Chattooga where floating always has been permitted, and from
several

proxy

rivers.

And

it

assembled

significant

data

pointing to the potential for future conflicts, counting cars to
estimate

usage,

analyzing

a

developing

wealth

of

expected

public

encounter

comments

estimates,

including

many

and
from

current users who expressed a preference for solitude and an
isolated experience.
1273-74;

J.A. at 966, 959-1038, 1031-32, 960-62,

see also Tidwell, 959 F. Supp. 2d at 853.

American

Whitewater

argues

that

the

Forest

Service

was

required to authorize floating during the study period before it
could

accurately

Headwaters.

assess

the

likelihood

of

conflicts

on

the

In other words, in order to justify maintenance of

its existing restrictions, the Forest Service first would have
to eliminate them so that recreational users could experience
actual conflicts.
accept

this

Br. for American Whitewater at 35.

counter-intuitive

argument.

Where

We cannot

the

agency’s

conclusion otherwise rests on a firm factual basis, nothing in
the

APA

requires

it

to

experiment

continuing preexisting policies.

with

practice

before

We will not second guess an

agency’s reasonable choice of methodology.
15

a

See Hughes River

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Watershed

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Conservancy

v.

Pg: 16 of 31

Johnson,

165

F.3d

283,

289

(4th

Cir. 1999).
At bottom, American Whitewater disagrees with the Forest
Service’s
strike.

factual

conclusions

and

the

balance

it

chose

to

But the APA does not give us license to second-guess an

agency’s well-reasoned decision simply because a party disagrees
with the outcome.

The Forest Service has provided a cogent

justification for the remaining limits on Headwaters floating,
supported by the record, and that is sufficient to sustain its
decision under the APA.
B.
American Whitewater also contends that the Forest Service's
remaining restrictions on Headwaters floating violate § 1281 of
the

WSRA,

which

requires

the

Forest

Service

to

“protect

and

enhance the values which caused” the Chattooga to be designated
for preservation “without, insofar as is consistent therewith,
limiting other uses that do not substantially interfere with
public use and enjoyment of these values.”

16 U.S.C. § 1281(a).

American Whitewater argues, first, that “floating” is a value
that led Congress to designate the Chattooga, and that under the
“protect and enhance” standard, the Forest Service has no choice
but

to

lift

all

restrictions

on

floating.

Second,

American

Whitewater argues that floating cannot be limited because it
does

not

“substantially

interfere”
16

with

any

protected

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recreational use of the Headwaters.

Like the district court, we

disagree on both counts.
1.
When

Congress

designated

the

Chattooga

for

preservation

under the WSRA, it did not expressly identify the River's ORVs.
In such cases, that task falls to the relevant administrative
agency, which must define a river's “values” in accordance with
published
Scenic

interagency

Rivers

guidelines.

Coordinating

Study Process 12-15 (1999).

See

Council,

The

Interagency
Wild

&

Wild

Scenic

and

River

Here, the Forest Service identified

“recreation” generally, as opposed to specific recreational uses
such as floating or fishing, as an ORV of the Chattooga.
at

915.

American

Whitewater

argues

that

the

Forest

J.A.

Service

erred, and that floating itself is an ORV subject to the Act's
“protect and enhance” standard.
find

that

the

Forest

Like the district court, we

Service's

decision

to

designate

“recreation” as the relevant ORV was entirely reasonable, and
that

floating

is

not

a

Chattooga

River

value

that

must

be

“protecte[d] and enhance[d]” under the WSRA.
To

begin

with,

although

the

WSRA

does

not

define

“outstandingly remarkable values,” its text seems to contemplate
general

categories

such

as

“recreational

value,”

specific uses such as “hiking” and “fishing.”

rather

than

Section 1271 of

the WSRA lists the “outstandingly remarkable” values that are to
17

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be protected by the Act:

Pg: 18 of 31

“scenic, recreational, geologic, fish

and wildlife, historic, cultural, or other similar values.”
U.S.C. § 1271 (2006).

16

“Floating value” is not “similar” to,

say, “historical value”; it is pitched at an entirely different
level of specificity.

The phrase “other similar values” is most

naturally read to refer to ORVs at the same level of categorical
generality as the examples listed before it.

See Washington

State Dep't of Soc. & Health Servs. v. Guardianship Estate of
Keffeler,

537

U.S.

371,

384

(2003)

(“[W]here

general

words

follow specific words in a statutory enumeration, the general
words are construed to embrace only objects similar in nature to
those

objects

enumerated

by

the

preceding

specific

words.”)

(citations omitted); Sokol v. Kennedy, 210 F.3d 876, 879 n.5
(8th Cir. 2000) (reading “values” in § 1281(a) together with the
list of enumerated values in § 1271).
Notwithstanding

the

awkward

textual

fit,

American

Whitewater insists that Congress intended to identify floating
as a protected value when it designated the Chattooga under the
WSRA.

In

fact,

the

Forest

Service's

decision

to

identify

“recreation” as the relevant value is fully consistent with the
congressional

record.

For

example,

the

1971

Forest

Service

report that led to Congress's designation of the Chattooga as a
protected river does not single out floating from other forms of
recreation; instead, it identifies “hiking, floating — including
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canoeing and rafting — and primitive camping” as potential uses
of the Chattooga “recreation resource.”
desirable,

according

to

the

1971

Designation would be

report,

because

it

would

preserve not just one particular form of recreation, but rather
“full

enjoyment

of

river-related

general.

The

Senate

Chattooga's

designation

and

recreation

House

under

the

Reports
WSRA

activities”
accompanying

likewise

refer

in
the

to

a

variety of “recreational” possibilities without giving special
status to any one recreational use or pursuit.
The out-of-context references to floating cited by American
Whitewater do not persuade us otherwise.

For example, American

Whitewater quotes this passage from the 1971 report:
and

enjoy

effort

much

from

of

the

the

river

requires

recreationist,

canoeist, hiker or camper.”

considerable

whether

he

be

“To see
time

and

fisherman,

But this passage, like the others

cited by American Whitewater, actually is more consistent with
the Forest Service's identification of recreation writ large as
the relevant ORV, in its description of floating as only one
recreational use among many.
American Whitewater has not challenged the Forest Service’s
discretion to identify ORVs when Congress has not done so.

Cf.

Interagency Wild and Scenic Rivers Coordinating Council, supra,
at 12-15; Sokol, 210 F.3d at 879-80 (in setting boundaries for
protected

river

areas,

agencies
19

must

identify

and

seek

to

Appeal: 13-1960

protect

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Filed: 11/05/2014

ORVs).

determination
administrative

In

this

after

case,

Pg: 20 of 31

the

careful

guidance

and

Forest

consideration

voluminous

Chattooga's characteristics.

Service
of

reports

J.A. at 913-19.

made

its

relevant

describing

the

We find that the

Forest Service reasonably and lawfully identified “recreational
value” as the relevant ORV, and that floating is not a value of
the Chattooga that must be protected and enhanced under § 1281.
2.
As the Forest Service recognized, its determinations about
how best to protect and enhance the Chattooga's recreational ORV
necessarily
uses.

involve

“trade-offs”

J.A. at 915.

among

competing

recreational

Congress left the requisite calibration to

the Forest Service, providing in § 1281 that agency management
plans

“may

establish

varying

degrees

of

intensity”

for

protection based on “special attributes” of a river, 16 U.S.C. §
1281(a), and the balance struck by the Forest Service here is
entitled to substantial deference.

See Hells Canyon Alliance,

227 F.3d at 1174-75.
Nevertheless,

American

Whitewater

argues

that

under

the

terms of § 1281, the Forest Service may not restrict floating in
any way because it has not shown that floating “substantially
interferes” with other recreational uses.

The district court

rejected this claim, holding that the record supported a finding
of “substantial interference.”

Tidwell, 959 F. Supp. 2d at 85220

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54.

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Pg: 21 of 31

While we agree with that assessment, we also think that

American

Whitewater's

argument

is

flawed

in

its

premise:

Floating is itself a “public use” of the recreational value, not
an “other use” subject to the substantial interference standard.
Section 1281(a) divides “uses” of designated rivers into
two mutually exclusive categories:

There are “public use[s]” of

ORVs, like the recreational value identified in this case; and
then there are “other use[s],” to be limited when they interfere
substantially with public use and enjoyment of an ORV.
instance,

hiking

recreational
might

be

would

value;

an

be

a

operating

“other

use”

“public
a

use”

highway,

subject

to

of
on

the
the

For

Chattooga's
other

restriction

hand,
if

it

substantially interfered with hiking or any other component of
the recreational ORV.

Floating clearly is a form of “public use

and enjoyment” of the Chattooga's recreational value.

It cannot

also be an “other use” or the statutory scheme would make no
sense, directing the Forest Service to limit floating in order
to protect it.

Because floating is not an “other use” for

purposes of § 1281(a), limits on floating are not governed by
the substantial interference standard. 4

4

In its brief, the Forest Service addressed this claim by
defending the record on “substantial interference,” which we
address in turn. At oral argument, however, the Forest Service
made clear that it was not conceding American Whitewater's
(Continued)
21

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In any event, we agree with the district court that the
record

evidence

of

user

conflict

developed

by

the

Forest

Service, discussed above, is sufficient to show that floating
can

interfere

substantially

with

Tidwell, 959 F. Supp. 2d at 853-54.
we

hold

that

the

remaining

other

recreational

uses.

For that reason, as well,

restrictions

on

floating

on

the

Headwaters are consistent with the WSRA. 5

III.
The

Rusts

present

a

narrower

challenge

to

the

2012

Decision, intended to protect what they see as their private
property rights in land along the Headwaters.

First, they ask

us to declare the 1.7-mile portion of the Headwaters running
through their land non-navigable, which would make it private
property rather than a public waterway and preclude any Forest
Service attempt to provide public access.

Second, the Rusts

argue that the 2012 Decision is invalid under NEPA because the

reading of the statute
interference standard.

or

application

5

of

the

substantial

We reject American Whitewater's remaining claims for the
reasons given by the district court.
The record adequately
supports the continued ban on floating on the Chattooga's
tributaries. Tidwell, 959 F. Supp. 2d at 857-58. And American
Whitewater's challenges based on the Forest Service's policy
manual fail at the outset because the policy manual does not
have the force of law. Id. at 864.

22

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Forest

Service

Filed: 11/05/2014

failed

to

Pg: 23 of 31

provide

a

sufficiently

detailed

analysis of the risk that floaters would trespass across their
land to reach newly opened portions of the Headwaters.
A.
To

be

clear,

the

2012

Decision

floating on the Rusts' property.

does

not

authorize

any

It does not cover the portion

of the Headwaters that concerns the Rusts at all, in accordance
with Forest Service policy treating rivers as non-navigable and
private until found otherwise.

J.A. at 943.

Nor has the Forest

Service taken any steps toward a determination of navigability.
Absent

any

groundwork

attempt
for

an

by

the

exercise

Forest
of

Service

its

even

regulatory

to

lay

the

authority,

the

Rusts' request for a declaratory judgment fails to present a
justiciable controversy.
We

may

address

only

disputes

that

are

“definite

and

concrete, touching the legal relations of parties having adverse
interests.”
41

Aetna Life Ins. Co. v. Haworth, 300 U.S. 227, 240-

(1937).

The

declaratory

relief

immediacy

and

same
and

reality

declaratory judgment.”

standard
requires
[as]

to

applies
a

to

controversy

warrant

the

a
of

request

for

“sufficient

issuance

of

a

White v. Nat’l Union Fire Ins. Co. of

Pittsburgh, Pa., 913 F.2d 165, 167-68 (4th Cir. 1990) (quoting
Maryland Cas. Co. v. Pac. Coal & Oil Co., 312 U.S. 270, 273
(1941)).
23

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The Rusts’ claims do not meet this standard.
acknowledge

that

the

Forest

Service

would

The Rusts

need

to

take

additional action before it could manage this portion of the
Chattooga.

The Forest Service has not done so.

Nor has it

argued that this portion of the Chattooga is subject to Forest
Service oversight.

In fact, the Rusts agree that the Forest

Service has consistently treated this segment of the Chattooga
as non-navigable, private, and outside its authority.
943; S.J.A. at 2199.

J.A. at

To the extent that American Whitewater

could be considered an adverse party in this context — which we
doubt — it too disavows any attempt to declare this section of
the Chattooga navigable.

Reply Br. for American Whitewater at

21, 22.
We

will

not

issue

an

advisory

opinion,

question that is not in actual dispute.

addressing

a

Flast v. Cohen, 392

U.S. 83, 96 (1968) (“[T]he oldest and most consistent thread in
the federal law of justiciability is that the federal courts
will not give advisory opinions.”); Shenandoah Valley Network v.
Capka,

669

F.3d

194,

202

(4th

Cir.

2012)

(“[A]

dispute

is

lacking here — and because we cannot issue an advisory opinion —
we have no authority to adjudicate this suit.”).
declaratory judgment claim is dismissed.

24

The Rusts'

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B.
The Rusts also argue that the Forest Service violated NEPA
by failing to analyze the risk that opening portions of the
Headwaters to floating could lead to trespass on Rust property.
They insist that floaters are likely to attempt to reach the
River by crossing their property illicitly, instead of using the
trails and parking lots already available to the public.
district

court

correctly

held

that

this

prospect

is

The
so

speculative that no NEPA analysis is required.
NEPA

encourages

conservation

not

by

imposing

substantive

obligations on agencies, but by requiring that agencies consider
the environmental consequences of their actions and present them
to the public for debate.

Nat'l Audubon Soc'y v. Dep't of Navy,

422 F.3d 174, 184, 185 (4th Cir. 2005).

Accordingly, our review

under NEPA is limited to ensuring that an agency has taken a
“hard look” at the environmental impacts of a proposed action.
Id. at 185.
consider
decisions.

Moreover — and dispositive here — an agency need

only

the

“reasonably

foreseeable”

effects

of

its

See Webster, 685 F.3d at 429 (“[A]lthough agencies

must take into account effects that are reasonably foreseeable,
they

generally

need

not

do

so

with

effects

that

are

merely

speculative.”); see also 40 C.F.R. § 1508.8 (2008).
Any possible increase in the risk of trespass on the Rusts'
land does not meet this standard.
25

As the Forest Service points

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out, the uppermost portion of the Headwaters opened to floating
by

the

line.

2012

Decision

is

downstream

from

the

Rusts'

property

The uppermost put-in location is another quarter-mile

further downstream and easily accessible to the public via a
trail from the existing Green's Creek parking lot.

Nothing in

the record gives us reason to think that floaters would prefer a
less

direct

path

across

the

Rusts'

uncleared

land.

The

situation might be different if the Forest Service had allowed
floating upstream of the Rusts' land — but the agency rejected
that option, precisely because it might present an increased
risk of trespass.
The

Rusts'

unconvincing.

J.A. at 779, 911, 943.
response

to

this

common-sense

proposition

is

They rely on a few comments submitted by American

Whitewater during the review process predicting that floaters
would prefer to and eventually would launch from Grimshawe's
Bridge, north of the Rusts' property.
cry

from

expressing

an

intent

to

That, however, is a far
trespass

illegally,

and

American Whitewater has denied repeatedly that it intends to
violate the law.
account

from

Neither

explains

Otherwise, the Rusts point to a trespasser's

forty

years

why

ago

floaters

and

a

might

stray
be

newspaper

expected

to

report.
trespass

under the Headwaters' present conditions.
Even

assuming

that

a

heightened

risk

of

trespass

was

reasonably foreseeable, the Forest Service's discussion of that
26

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risk satisfies NEPA.

Pg: 27 of 31

The Forest Service presented the Rusts'

concerns to the public and explained that they were addressed by
the

continued

ban

Rusts' property.

on

floating

above

J.A. at 911, 943.

Green's

Creek,

and

the

In this context, that

discussion was sufficient; agencies have discretion to determine
which issues merit detailed discussion, and here the risk of
trespass

or

any

associated

environmental

significant that more was required.

impact

was

not

so

See Nat'l Audubon Soc'y,

422 F.3d at 186 (“A 'hard look' is necessarily contextual.”);
Izaak Walton League of Am. v. Marsh, 655 F.2d 346, 377 (D.C.
Cir. 1981) (“Detailed analysis is required only where impacts
are

likely.”).

“flyspeck[ing]”

Review
agency

under

analysis

NEPA
and

is

not

discussion,

a

vehicle
Nat'l

for

Audubon

Soc'y, 422 F.3d at 186, and we find that the Forest Service has
met its NEPA obligations. 6

IV.
Finally, we have the claims of ForestWatch, which, like
the Rusts, intervened in this case below.

6

The district court

In light of our disposition of the Rusts' claims we need
not address the Rusts' motion to strike from the record certain
features of maps included in the Forest Service's brief.
American Whitewater v. Tidwell, Case No. 13-1960, ECF No. 112
(Sept. 11, 2014). We have not relied on the contested features
and they have played no role in our decision. Accordingly, the
Rusts' motion to strike is dismissed.

27

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limited the scope of ForestWatch’s intervention to defending the
Forest

Service’s

Headwaters.

remaining

restrictions

on

floating

on

the

ForestWatch now takes a different tack, arguing

that the Forest Service erred by permitting any floating at all,
and raising claims against the partial lifting of the floating
ban under NEPA and the WSRA.
separate

ForestWatch

action

These claims, the subject of a
against

the

Forest

Service

now

pending before the district court, go well beyond the scope of
ForestWatch's clearly delineated interest in this litigation and
are dismissed.
The

district

court

carefully

cabined

ForestWatch's

involvement in this litigation to the terms of its intervention
order, striking ForestWatch’s plea for relief against the Forest
Service as beyond the scope of its intervention.

See American

Whitewater v. Tidwell, No. 8:09-cv-02665-MGL, ECF No. 254 (Feb.
25,

2013)

(text

order).

It

did

not

reach

ForestWatch’s

arguments against the Forest Service and the partial opening of
the Headwaters to floating, instead explicitly “limit[ing] its
findings

to

the

parties

with

claims

pending”

in

the

case.

Tidwell, 959 F. Supp. 2d at 850.

The merits of ForestWatch’s

claims

will

against

the

Forest

Service

be

considered

by

the

district court in ForestWatch’s separate action, not by this
court for the first time on appeal.
Sys.

Servs.,

134

F.3d

1222,

1227
28

See Karpel v. Inova Health
(4th

Cir.

1998)

(“[I]ssues

Appeal: 13-1960

raised

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for

Filed: 11/05/2014

the

first

time

Pg: 29 of 31

on

appeal

generally

will

not

be

considered.”) (internal quotation marks omitted).
What

ForestWatch

may

appeal,

however,

is

the

district court ruling on its motion to intervene.

underlying

The district

court granted ForestWatch’s motion to intervene as of right but
also

limited

ForestWatch

Whitewater’s]

claim

to

for

“[d]efending

declaratory

and

against

[American

injunctive

relief.”

American Whitewater v. Tidwell, No. 8:09-cv-02665-JMC, ECF No.
168 (May 1, 2012).
court

erred

in

intervention.

ForestWatch now argues that the district

imposing

that

limit

on

the

scope

of

its

Finding no reversible error, we affirm.

The parties dispute the appropriate standard for our review
of the limits on ForestWatch’s intervention, with ForestWatch
arguing for de novo review and the Forest Service for an abuse
of

discretion

because,

as

standard.

We

ForestWatch’s

need

counsel

not

reach

candidly

this

admitted

question
at

oral

argument, our review ultimately hinges on whether the district
court's decision to limit intervention was fundamentally unfair.
See Columbus-America Discovery Grp. v. Atlanta Mut. Ins. Co.,
974

F.2d

450,

470

(4th

Cir.

1992).

Under

any

standard

of

review, there has been no fundamental unfairness here.
ForestWatch’s argument to the contrary is that the district
court did in fact address its claims against the Forest Service
in resolving this case, so that ForestWatch will be denied the
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opportunity to raise them again in its separate suit.
the

record

differently,

and

believe

that

the

We read

district

court

amply preserved ForestWatch’s opportunity to assert its claims
in

its

pending

consolidate

lawsuit.

ForestWatch’s

First,
action

in

with

denying
the

a

present

motion
case,

to
the

district court expressly found that “the outcome or result in
one case i[s] not dispositive or dependent on the outcome of the
other.”

J.A. at 1886-88. 7

It then proceeded to insulate one

case from the other by explicitly limiting its decision below so
as to exclude ForestWatch’s claims against the Forest Service.
Tidwell,

959

F.

Supp.

2d

at

850

(“[A]lthough

the

court

has

considered Georgia ForestWatch’s arguments and will discuss them
herein, the court limits its findings to the parties with claims
pending in this case.”).
ForestWatch points to snippets of language in the district
court opinion affirming the 2012 Decision as evidence that its
claims against that decision already have been decided against
it.

But

read

in

context,

those

7

passages

uphold

the

2012

To the extent that ForestWatch appeals from the district
court's denial of its motion to consolidate, we affirm.
The
district court ably managed the range of parties and interests
involved in this case, and we see no basis for disturbing its
judgment about how best to manage its docket. See Arnold v. E.
Airlines, Inc., 681 F.2d 186, 192 (4th Cir. 1982) (consolidation
decisions are “necessarily committed to trial court discretion”
and reviewed only for abuse of discretion).

30

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Decision only as against the Rusts' or American Whitewater's
claims, referenced in each case on the same page, if not in the
same paragraph, as the cited language.

We are confident that

nothing in the district court's careful opinion will preclude
ForestWatch from pressing its claims in its separate suit.
we

should

understood

note,
as

should

resolving

anything

in

ForestWatch’s

our

opinion

separate

today

claims

Nor,
be

against

the Forest Service.

V.
For the reasons set forth above, we affirm the judgment of
the district court.
AFFIRMED

31