The Ninth Circuit reviewed two separate challenges to the adoption by the United States Forest Service (USFS) of the roadless area conservation rule (Roadless Rule). USFS developed the Roadless Rule in response to President Clinton's 1999 order to the agency to develop a plan to protect inventoried and uninventoried roadless areas within national forests, which USFS had documented since the 1970s.[1] USFS initiated a notice and comment procedure under the Administrative Procedure Act (APA)[2] and developed an environmental impact statement (EIS) under the National Environmental Policy Act (NEPA)[3] to analyze the environmental effects of the proposed Roadless Rule. The final Roadless Rule banned road building on all 58.5 million acres of roadless areas subject to a number of limitations.[4]

In the first suit, Kootenai Tribe of Idaho and Boise Cascade Corporation[5] alleged that USFS violated NEPA and the APA by failing to provide adequate notice and opportunity for comment on the Roadless Rule EIS, failing to consider a reasonable range of alternatives to the proposed alternative, and failing to adequately consider cumulative impacts to the environment as a result of the proposed rule. The State of Idaho[6] filed a separate action against USFS, claiming similar injuries under NEPA and the APA. Environmental groups, led by the Idaho Conservation League (ICL),[7] intervened as defendants in both suits. Forest Service Employees for Environmental Ethics (FSEEE) intervened as defendants in the case brought by Kootenai Tribe.

The district court issued a preliminary injunction against the Roadless Rule in both cases. First, the district court ruled that ICL and FSEEE properly intervened as a matter of right[8] because they successfully demonstrated a legally protectable interest related to the issue in the case. The district court reasoned that the organizations' interest in conservation and wildlife protection were interests Congress contemplated when enacting NEPA. Second, the district court ruled that Idaho and Kootenai Tribe satisfied constitutional standing requirements. Third, the district court ruled that Idaho and Kootenai Tribe were entitled to preliminary injunctions halting implementation of the Roadless Rule because they demonstrated a likelihood of success on the merits and made an adequate showing of irreparable harm. The district court reasoned that USFS failed to provide an adequate time for public comment. Further, the court opined that USFS failed to provide a reasonable range of alternatives in the EIS because the agency only considered alternatives that included a ban on road building in all roadless areas. According to the district court, USFS also failed to adequately consider cumulative effects to the environment as a result of the proposed rule. Finally, the district court was satisfied that plaintiffs would incur irreparable harm if the court did not grant the preliminary injunction, relying primarily on a General Accounting Office Report, which showed that several areas would suffer from a lack of wildfire management as a result of the Roadless Rule.

The Ninth Circuit reversed on several counts. It ruled that both ICL and FSEEE had standing to appeal despite USFS's failure to appeal the district court's ruling. Second, the court determined that the district court erred in allowing the defendant intervenors to intervene as a matter of right, but concluded that permissive intervention was appropriate because Federal Rule of Civil Procedure 24(b) left the decision to the district court's discretion. Third, the court found that Idaho and Kootenai Tribe established constitutional standing. Fourth, the court determined that Idaho and Kootenai Tribe properly pled their claim under the APA because NEPA required that USFS develop an EIS for the Roadless Rule. Finally, the court concluded that Idaho and Kootenai Tribe were not entitled to a preliminary injunction because they failed to establish irreparable harm or a likelihood of success on the merits for their NEPA claim, and the balance of hardships did not weigh in favor of Kootenai Tribe.

Because USFS did not appeal the district court's preliminary injunction, the initial issue before the Ninth Circuit was whether intervenors could defend the government's alleged violations of NEPA and the APA on appeal. Under Federal Rule of Civil Procedure 24, a party may intervene as a matter of right[9] or permissively.[10] Ninth Circuit cases construing Federal Rule of Civil Procedure 24(a) reveal that a party may intervene as a matter of right if "(1) the motion [is] timely; (2) the applicant [asserts] a 'significantly protectable' interest relating to property or a transaction that is the subject matter of litigation; (3) the applicant [is] situated so that disposition of action may as a practical matter impair or impede the interest; and (4) the applicant's interest [is] inadequately represented by the parties."[11] The court reasoned that ICL and FSEEE failed to meet the test for intervention as of right because the federal government is generally the only proper defendant in an action claiming procedural violations of NEPA and private parties do not have a protectable interest in defending NEPA compliance actions because private parties may not be held liable under the statute.

Nonetheless, the court determined that the district court did not abuse its discretion by allowing ICL and FSEEE to permissively intervene. Unlike Federal Rule of Civil Procedure 24(a), under Federal Rule of Civil Procedure 24(b), parties seeking to intervene must show only that they have a "claim or defense" that shares a question of law or fact with the main action.[12] The court reasoned that because ICL and FSEEE asserted defenses of the Roadless Rule responsive to the plaintiffs' challenge and asserted an interest in the "use and enjoyment" of roadless areas at issue in the case, the organizations successfully established a defense that shared a question of law or fact with the plaintiffs' claim.[13]

Moreover, the court determined that ICL and FSEEE had constitutional standing to appeal the case, necessary under precedents that require "independent jurisdictional grounds" for permissive intervention to be proper.[14] Constitutional standing requires 1) an injury in fact, 2) causation, and 3) redressability. The court found that ICL showed injury in fact by establishing that its members used roadless areas for recreational purposes that would be less protected if the Ninth Circuit upheld the district court's decision.[15] Similarly, FSEEE established an injury in fact by proving that its members work in national forests impacted by the Roadless Rule. Second, the court reasoned that FSEEE and ICL established causation because each organization suffered from the increased risk of road building in roadless areas that affected the interests of their members and that such an increase was "fairly traceable"[16] to the grant of the preliminary injunction. Finally, rectifying the district court's decision would redress the organizations' injuries by giving force to the Roadless Rule.

The court then addressed ICL and FSEEE's counter-contention that the plaintiffs lacked constitutional standing to challenge the Roadless Rule. The court clearly outlined the Supreme Court's test for standing as described in Friends of the Earth v. Laidlaw Environmental Service (Laidlaw).[17] As detailed in Laidlaw, "plaintiff[s] must show: (1) an injury in fact that is (a) concrete and particularized and (b) actual or imminent; . . . (2) the injury is fairly traceable to the challenged action . . . and (3) it is likely . . . that the injury will be redressed" by the court's decision.[18] In addition, under the APA plaintiffs must show that their alleged injury falls within NEPA's "zone of interests."[19]

To establish an injury in fact, the court explained that plaintiffs could prove a "threatened concrete interest"[20] by establishing a "'geographic nexus' between their NEPA claims and the land allegedly suffering an environmental impact."[21] The court reasoned that Idaho satisfied the geographical nexus requirement by showing that the Roadless Rule may potentially lead to wildfire and damage from insects that might injure their ownership interests in land adjacent to national forests at issue. The court concluded that these harms need not be impending because plaintiffs do not need to show "actual environmental harm" to establish standing.[22] Just as the court determined that ICL satisfied the injury in fact requirement demonstrating that their members have a recreational or aesthetic interest in the areas at issue,[23] it found that the Kootenai Tribe satisfied the injury requirement by demonstrating that a potential for increased risk of wildfire and pest disease might injure their "aesthetic, recreational, and spiritual" use of the affected area.[24] For the same reasons, the court opined that Boise Cascade also satisfied the injury in fact requirement.

The court further reasoned that plaintiffs met the causation and redressability requirements for satisfactory constitutional standing. The court opined that plaintiffs in NEPA cases need only establish causation with "reasonable probability,"[25] and plaintiffs previously demonstrated that wildfires, insects, and disease could result if USFS implemented the Roadless Rule. Further, the court concluded that a favorable decision would redress the plaintiff's injuries because, in the case of procedural injuries, ensuring proper procedures is sufficient for redressability.[26] Finally, plaintiffs met the prudential zone of interest requirement because the Ninth Circuit previously ruled that "protection of the environment falls within NEPA's zone of interests" [27] and is an interest "'shared by all citizens.'"[28] As a result, plaintiffs' interest in protecting nearby forests from wildfires, insects, and disease fell within NEPA's zone of interest.

Constitutional standing aside, ICL and FSEEE asserted that plaintiffs' challenge to the Roadless Rule was misplaced because NEPA did not apply to the rule. ICL and FSEEE claimed that implementation of the rule did not trigger NEPA's requirements because the rule was not a federal action "significantly affecting the quality of the human environment"[29] because USFS was only withdrawing management of roadless areas. The court noted that, given that NEPA does not generally apply to actions that maintain the status quo, an EIS is typically required when humans change the status quo. The crux of the plaintiffs' argument was that banning road building and management activities in roadless areas would cause environmental harm by encouraging serious wildfires, pests, and disease. ICL and FSEEE, however, countered that withdrawing USFS management of roadless areas, while possibly amounting to a change in the status quo, was not human intervention. The court ultimately concluded that, based on the history of human intervention in forest management, withdrawing management as part of the Roadless Rule would constitute an alteration in the status quo requiring an EIS under NEPA.

The court finally addressed whether the district court abused its discretion by granting a preliminary injunction prohibiting implementation of the Roadless Rule.[30] A preliminary injunction is warranted when the plaintiff demonstrates "(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."[31]

The Ninth Circuit first set aside the district court's determination that USFS failed to comply with NEPA's notice and comment procedures. The court noted that NEPA is a procedural statute that does not mandate certain substantive results, but requires that agencies take a "hard look" at environmental effects.[32] NEPA requires USFS to involve the public in its decision making process.[33] The court overruled the district court's determination that USFS violated NEPA by failing to include detailed maps or descriptions of affected areas at the scoping stage and draft EIS comment period. The court explained that NEPA did not require maps at the scoping phase of the EIS process, because the purpose of scoping is to notify affected parties of a proposed rulemaking[34] and to narrow issues that will be analyzed at the EIS phase of the rulemaking. The court reasoned that USFS did ultimately provide detailed maps of the affected area before the agency issued the draft EIS. Further, the court noted that the plaintiffs had
actual notice of the affected area because they had been involved in discussions concerning the roadless areas with USFS for years.

The Ninth Circuit subsequently set aside the district court's determination that USFS likely violated NEPA's notice requirements by adding 4.2 million acres of roadless area between publication of the draft EIS and the final EIS. Plaintiffs argued that the public's involvement was hindered because USFS did not identify these areas as included in the proposed rule. The court noted that while a supplemental EIS must be published for substantial changes in an EIS, a new EIS is not required in every instance.[35] In this case, the court reasoned that the public had an opportunity to comment on the final EIS before the final rule was published. Further, the impropriety should not affect the entire roadless area, just the 4.2 million acres.

Moreover, the court overruled the district court's finding that USFS likely violated NEPA by failing to extend the comment period past sixty-nine days, reasoning that NEPA only established a minimum forty-five day comment period,[36] and sixty days was at least fifty percent longer than this minimum requirement. The court failed to find a workable standard for determining an adequate comment period based on the district court's decision that sixty-nine days was not long enough. On the contrary, the court found that USFS provided ample opportunity for public participation in the rulemaking process, holding over 400 public meetings and receiving over 1,150,000 written comments. The court concluded that "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."[37]

The court further ruled that USFS considered a reasonable range of alternatives, as required by NEPA.[38] USFS provided three alternatives to the proposed rule, all involving the prohibition of road construction in the affected area. The plaintiffs argued that at least one alternative should allow road construction in inventoried roadless areas; however, the court agreed with the intervenors' argument that allowing road construction in roadless areas would conflict with the agency's project objective in promulgating the rule, to "'prohibit[] activities that have the greatest likelihood of degrading desirable characteristics of inventoried roadless areas and [to] ensur[e] that ecological and social characteristics of inventoried roadless areas are identified and evaluated through local land management planning efforts.'"[39] The court reasoned that NEPA alternatives "must be interpreted less stringently" when the primary purpose of the proposed action is to protect the environment, and not to harm it.[40] The court emphasized that the government should not have to consider environmentally damaging alternatives to satisfy NEPA's requirements, concluding that given the importance of roadless areas, their sensitivity to land management, and the small amount remaining, a ban on road construction in these areas was "not the drastic measure that the plaintiffs ma[de] it out to be."[41] The court reasoned that given NEPA's policy objectives to protect the natural environment,[42] USFS was in the best position (after public participation) to determine whether a general ban on road construction in certain areas would best protect those areas. As such, USFS did not have to consider an alternative that could protect roadless values and permit road construction.

The court overruled the district court's determination that USFS failed to adequately consider cumulative effects of the proposed rule, such as catastrophic wildfire, because they were too speculative to warrant consideration beyond the agency's discussion of mitigation measures, forest health, and fire ecology. In short, the court concluded that USFS took the requisite hard look at the environmental consequences of the proposed rule.

In addition to the plaintiffs' failure to establish a likelihood of success on the merits, the court ruled that the plaintiffs failed to establish that the balance of hardships tipped in their favor or that irreparable harm might result from implementation of the proposed rule. The plaintiffs argued that implementation of the rule would limit management activities in the affected areas designed to prevent wildfires, disease outbreaks, and insect infestations, and that failure to implement these activities as needed would cause irreparable damage to the forest. Nonetheless, the court reasoned that protecting roadless areas would also result in "immeasurable benefits" to the forest.[43] The court explained that in cases challenging an action designed to protect the environment, the public's interest in protecting "precious, unreplenishable resources must be taken into account,"[44] concluding that the district court failed to adequately take into account the public's interest in preserving national forests.

Moreover, the court concluded that limitations on active management are not typically considered irreparable harm because the restrictions can be removed and "[e]nforced inaction" does not pose an immediate threat.[45] The court reasoned that a three-year moratorium on road building had already been in place prior to promulgation of the rule, and that USFS decided not to enforce the rule until it was amended and an additional period of notice and comment conducted. In short, the court concluded that the district court abused its discretion when it granted plaintiffs' motion for preliminary injunction.

Circuit Judge Kleinfield concurred in part and dissented in part. The dissent disagreed with the majority's analysis of permissive intervention under Federal Rule of Civil Procedure 24(b) and requirements for notice, public comment, and alternatives under NEPA. First, the dissent argued that under Federal Rule of Civil Procedure 24(b)(2) no common issue of law or fact existed between the intervenors' claim or defense and the main action. The dissent argued that the majority should have applied the rule from Portland Audubon Society v. Hodel,[46] in which the court concluded that defendant-intervenors do not have a protectable interest under Federal Rule of Civil Procedure 24(a) in NEPA cases because only the government can be liable under NEPA.[47] The dissent pointed out that although the case in Portland Audubon Society involved intervention as of right, the court in that case relied on Seventh Circuit precedent, Wade v. Goldschmidt,[48] which also rejected permissive intervention under Federal Rule of Civil Procedure 24(b) in NEPA cases. The dissent found that the intervenors' interest in the use of roadless areas was insufficient to establish "common" claims or defenses, not "merely parallel but distinct interests."[49]

On the merits of the preliminary injunction, the dissent did not agree that USFS adequately considered a reasonable range of alternatives under NEPA. The dissent argued that the "hard look" standard required that the agency consider an alternative that did not include a total ban on road building in the affected area, pointing out precedent that established that the "existence of a viable but unexamined alternative renders an environmental impact statement inadequate."[50] Further, the dissent challenged the majority's assertion--that NEPA's alternatives requirement was less stringent in cases where the primary purpose of the proposed rule was to protect the environment--for failing to cite to any legal authority, noting that national forests, unlike wilderness areas, were also established to provide a renewable source of timber.

The dissent further argued that USFS failed to provide an adequate notice and comment period. The dissent emphasized that notice must be meaningful and provide an opportunity for participation throughout the rulemaking process. The dissent pointed out that the district court's finding of facts extensively chronicled USFS's failure to communicate clearly and adequately with the public, or to grant reasonable extensions of the comment period in light of the confusing nature of the disseminated information. Moreover, the dissent reasoned that under Ninth Circuit precedent, NEPA's procedural requirements must be strictly construed.[51] The dissent concluded that there was no evidence to warrant reversing the district court's factual findings.