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Kootenai Tribe of Idaho v. Veneman

Citation: 33 ELR 20130
No. Nos. 01-35472 et al., 313 F.3d 1094/(9th Cir., 12/12/2002) rev'd and remanded

The court reverses and remands a district court injunction prohibiting the implementation of a U.S. Forest Service rule that restricts road building in national forests. Landowners, corporations, Native American tribes, and recreational groups challenged the Forest Service's implementation of the Roadless Rule, alleging that it violated the National Environmental Policy Act (NEPA). Environmental groups intervened as defendants. The district court issued an order finding that the challengers had shown a likelihood of success on the merits and, thus, granted a preliminary injunction prohibiting the implementation of the Roadless Rule. After the Forest Service failed to appeal the injunction, the environmental groups appealed. The challengers argued that the district court erred in allowing the groups to intervene and that the groups lacked standing to appeal. The court first holds that the district court erred in granting intervention as of right under Fed. R. Civ. P. 24(a) because a private party is not a proper NEPA defendant and, therefore, the groups did not have a significant protectable interest necessary for intervention as of right. The court next holds, however that the district court did not err in granting permissive intervention under Fed. R. Civ. P. 24(b). The groups asserted an interest in the use and enjoyment of roadless lands and the conservation of forest lands, and, with the federal government absent on appeal, the groups' asserted defenses significantly contributed to the case's equitable resolution. Moreover, the groups had standing to pursue the appeal without the government as an appellant because they demonstrated injury-in-fact stemming from the injunction of the Roadless Rule. Likewise, the challengers had standing to challenge the Roadless Rule's rulemaking. Nevertheless, the court further holds that the district court erred in issuing a preliminary injunction against the Roadless Rule. The district court held that the challengers showed probable success on the merits of the claim that the Forest Service violated NEPA by failing to provide adequate public participation and by failing to consider a reasonable range of alternatives. However, the Forest Service's failure to provide maps of the proposed roadless areas does not demonstrate probable success on the merits. Further, although the Forest Service did identify an additional 4.2 million acres of roadless area between the rule's draft environmental impact statement (EIS) and the final EIS, the Forest Service's failure to prepare an EIS for the additional acreage does not invalidate the entire rule. Moreover, the district court found the 69-day public comment period for the rule grossly inadequate, but 69 days is more than 50% beyond the NEPA-required 45-day minimum for public comment. Considering the number of public meetings held and the number of comments received it cannot be reasonably concluded that the public was deprived of a meaningful dialogue or input in the rulemaking process. Likewise, the Forest Service's draft EIS and final EIS for the Roadless Rule analyzed an adequate range of alternatives, and the Forest Service adequately evaluated the cumulative effects of the rule. In addition, the district court's balance of hardships analysis failed to properly weigh the public interest in preserving the national forests in their natural state. Because the challengers no longer have a strong likelihood of success on the merits, a preliminary injunction should not issue under the balance of hardships.