FILED

United States Court of Appeals

Tenth Circuit

October 21, 2011

Elisabeth A. Shumaker

Clerk of Court

PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

STATE OF WYOMING, 

 Plaintiff-Appellee,

v.

UNITED STATES DEPARTMENT

OF AGRICULTURE; UNITED

STATES FOREST SERVICE; TOM

VILSACK, Secretary, United States

Department of Agriculture, in his

official capacity; TOM TIDWELL,

Chief Forester, United States Forest

Service, in his official capacity, 

 Defendants-Appellants,

and

BIODIVERSITY CONSERVATION

ALLIANCE; DEFENDERS OF

WILDLIFE; NATIONAL AUDUBON

SOCIETY; NATURAL RESOURCES

DEFENSE COUNCIL; PACIFIC

RIVERS COUNCIL; SIERRA CLUB;

THE WILDERNESS SOCIETY;

WYOMING OUTDOOR COUNCIL,

 Defendants-Intervenors-

 Appellants.

_______________________________

COLORADO MINING

ASSOCIATION,

Nos. 08-8061 & 09-8075
2

 Intervenor-Appellee, 

STATE OF WASHINGTON;

MOUNTAIN STATES LEGAL

FOUNDATION; STATE OF

CALIFORNIA; STATE OF

MONTANA; STATE OF OREGON;

CALIFORNIA ASSOCIATION OF 4

WHEEL DRIVE CLUBS; UNITED

FOUR WHEEL DRIVE

ASSOCIATIONS; AMERICAN

COUNSEL OF SNOWMOBILES

ASSOCIATIONS; BLUE RIBBON

COALITION; ALASKA MINERS

ASSOCIATION; UTAH MINING

ASSOCIATION; NEW MEXICO

MINING ASSOCIATION;

NORTHWEST MINING

ASSOCIATION; THE WESTERN

BUSINESS ROUNDTABLE,

 Amici Curiae.

Appeal from the United States District Court

for the District of Wyoming

(D.C. No. 2:07-CV-00017-CAB)

James Kaste, Senior Assistant Attorney General, State of Wyoming (Jay Jerde,

Deputy Attorney General; Patrick J. Crank, Speight, McCue & Crank, P.C., with

him on the brief), Cheyenne, Wyoming, for Plaintiff-Appellee.

John Luther Smeltzer, Attorney, Department of Justice, Environment & Natural

Resources Division (David C. Shilton, Attorney, Department of Justice, Thomas

Millet, Brian Sonfield, Leslie Lagomarcino, and Vincent DeWitte, Of Counsel,

Office of the General Counsel, United States Department of Agriculture, with him

on the brief), Washington, D.C., for Defendants-Appellants. 
3

James S. Angell, Earthjustice, Denver, Colorado (Andrew Evans Hartsig,

Attorney, Earthjustice, Denver, Colorado; Douglas L. Honnold and Timothy

Joseph Preso, Attorneys, Earthjustice Legal Defense Fund, Bozeman, Montana,

with him on the brief), for Defendants-Intervenors-Appellants.

Paul Martin Seby, Moye White, LLP (Marian C. Larsen, Attorney, Colorado

Mining Association, with him on the brief), Denver, Colorado, for IntervenorAppellee.

Sally J. Magnani, Supervising Deputy Attorney General, State of California,

Sacramento, California; Mary Sue Wilson, Senior Assistant Attorney General,

State of Washington, Olympia, Washington; Jeremiah D. Weiner, Assistant

Attorney General, State of Montana, Helena, Montana; Roger J. DeHoog, Senior

Assistant Attorney General, State of Oregon, Salem, Oregon, filed an amicus

curiae brief for the State of California, State of Washington, State of Montana,

and State of Oregon.

James Martin Manley, Lakewood, Colorado, filed an amicus curiae brief for the

Mountain States Legal Foundation.

Paul A. Turcke, Moore Smith Buxton & Turcke, Boise, Idaho, filed an amicus

curiae brief for the Blue Ribbon Coalition, California Association of 4 Wheel

Drive Clubs, United Four Wheel Drive Associations, and American Counsel of

Snowmobiles Associations.

Matthew A. Morr, Featherstone Petrie DeSisto LLP, Denver, Colorado, filed an

amicus curiae brief for the Alaska Miners Association, Utah Mining Association,

New Mexico Mining Association, Northwest Mining Association, Wyoming

Mining Association, and The Western Business Roundtable.

Before MURPHY, ANDERSON, and HOLMES, Circuit Judges.

HOLMES, Circuit Judge.
1 Defendants “Forest Service” collectively refers to the United States

Department of Agriculture; the United States Forest Service; Tom Vilsack,

Secretary of the United States Department of Agriculture, in his official capacity;

and Tom Tidwell, Chief Forester of the United States Forest Service, in his

official capacity.

When this action was commenced, Mike Johanns was the Secretary of

Agriculture and Dale N. Bosworth was the Chief Forester for the Forest Service. 

Mr. Johanns and Mr. Bosworth have since been replaced by Tom Vilsack and

Tom Tidwell. Thus, pursuant to Rule 25(d) of the Federal Rules of Civil

Procedure, Mr. Vilsack and Mr. Tidwell were automatically substituted as the

proper party Defendants.

2 Defendants-Intervenors-Appellants “Environmental Groups”

collectively refers to the Biodiversity Conservation Alliance; Defenders of

Wildlife; National Audubon Society; Natural Resources Defense Council; Pacific

Rivers Council; Sierra Club; Wilderness Society; and Wyoming Outdoor Council.

3 As discussed below, this is the second time Wyoming has brought a

challenge to the Roadless Rule, the second time the Wyoming district court has

set it aside for violating NEPA and the Wilderness Act, and the second time

Wyoming’s challenge has come before this court on appeal. See infra Part I.C

(discussing the procedural history of this case).

4

Defendants Forest Service1

 and Defendants-Intervenors-Appellants

Environmental Groups2

 appeal the district court’s order setting aside and

permanently enjoining the Roadless Area Conservation Rule (“Roadless Rule”),

which the Forest Service promulgated in 2001. In setting aside the Roadless

Rule, the district court held that the rule violated the Wilderness Act of 1964

(“Wilderness Act”), 16 U.S.C. §§ 1131–36, and the National Environmental

Policy Act of 1969 (“NEPA”), 42 U.S.C. §§ 4321–70. See Wyoming v. U.S. Dep’t

of Agric., 570 F. Supp. 2d 1309 (D. Wyo. 2008).3

 

On appeal, the Forest Service and the Environmental Groups ask us to hold
4 CMA is an association, comprised of 650 members, that “engage[s]

in the production of coal, metals, and agricultural and industrial minerals

throughout Colorado and the West.” Wyoming, 570 F. Supp. 2d at 1319.

5

that the Roadless Rule was not promulgated in violation of the Wilderness Act or

NEPA. Furthermore, even if we were to conclude that the rule was promulgated

in violation of federal law, they ask us to nevertheless reverse the district court’s

order establishing a permanent nationwide injunction. Plaintiff-Appellee State of

Wyoming and Intervenor-Appellee Colorado Mining Association (“CMA”)4

 ask

us to affirm the district court order on the grounds that the rule does in fact

violate the Wilderness Act and NEPA. In the event that we conclude that the

Roadless Rule complies with the Wilderness Act and NEPA, they ask us to affirm

on the alternate grounds that the rule was promulgated in violation of the

Multiple-Use Sustained-Yield Act (“MUSYA”), 16 U.S.C. §§ 528–31, and also

the National Forest Management Act (“NFMA”), 16 U.S.C. §§ 1600–14. 

Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we REVERSE the district

court’s order granting Plaintiff’s declaratory relief and issuing a permanent

injunction, and REMAND the case for the district court to vacate the permanent

injunction.

I. BACKGROUND

Due to the complexity of this case, we initially offer an overview of the

applicable statutory framework, the factual background of the Roadless Rule, and
6

the procedural history.

A. Statutory Framework

The Forest Service currently manages over 191 million acres of National

Forest System (“NFS”) land, including 155 national forests, 20 national

grasslands, 8 land utilization projects, 20 research and experimental areas, and 33

“other areas.” 36 C.F.R. § 200.1. The Forest Service is responsible for managing

the NFS under, inter alia, the Organic Administration Act of 1897 (“Organic

Act”), 16 U.S.C. §§ 473–482, 551, MUSYA, and NFMA. On a general level,

these statutes authorize the Forest Service to manage NFS lands for multiple uses. 

In managing the NFS, however, the Forest Service also must comply with the

Wilderness Act and NEPA. These relevant statutes are briefly discussed in turn.

In 1897, Congress passed the Organic Act. 16 U.S.C. §§ 473–482, 551. 

The Act “established a limited multiple-use mandate for management of the

National Forests,” Wyoming, 570 F. Supp. 2d at 1320, including such purposes as

“improv[ing] and protect[ing] the forest[s],” “securing favorable conditions of

water flows,” and “furnish[ing] a continuous supply of timber for the use and

necessities of citizens of the United States.” 16 U.S.C. § 475. The Act authorizes

the Secretary of Agriculture to “make provisions for the protection against

destruction by fire and depredations upon the public forests and national forests,”

in order “to regulate their occupancy and use and to preserve the forests thereon
5 The Forest Service began actively managing the NFS—under the

authority of the Organic Act—in 1905, after the department was transferred to the

Department of Agriculture. Wyoming, 570 F. Supp. 2d at 1320 & n.3.

7

from destruction.” Id. § 551.5

More than sixty years later, in 1960, Congress enacted MUSYA. 16 U.S.C.

§§ 528–31. MUSYA codified the multiple-use mandate first articulated in the

Organic Act, directing the Forest Service to “administer the renewable surface

resources of the national forests for multiple use and sustained yield,” including

for the purposes of “outdoor recreation, range, timber, watershed, and wildlife

and fish purposes.” Id. §§ 528, 529. 

In 1964, Congress enacted the Wilderness Act, 16 U.S.C. §§ 1131–36,

which “established a National Wilderness Preservation System to be composed of

federally owned areas designated by Congress as ‘wilderness areas,’” id. § 1131. 

More specifically, the Act put in place a process under which Congress designates

“wilderness areas,” id. § 1132, and established requirements for the management

and protection of such areas, see id. § 1133 (listing the uses permitted in

congressionally designated wilderness areas). In order to aid Congress in

designating “wilderness,” the Act required the Forest Service to review

“primitive” areas of the NFS to determine their “suitability or nonsuitability for

preservation as wilderness.” Id. § 1132(b).

In 1972, the Forest Service completed the Roadless Area Review and
8

Evaluation project (RARE I), which resulted in a nationwide inventory of NFS

areas—totaling approximately 56 million acres—that the agency deemed to be

suitable for “wilderness” designation pursuant to the Wilderness Act. However,

the RARE I inventory was abandoned following a successful judicial challenge

under NEPA. See Wyo. Outdoor Coordinating Council v. Butz, 484 F.2d 1244

(10th Cir. 1973).

In 1976, Congress passed NFMA. 16 U.S.C. §§ 1600–14. The Act, “which

is primarily concerned with planning,” Utah Envtl. Cong. v. Richmond, 483 F.3d

1127, 1131 (10th Cir. 2007), “requires the Forest Service to ‘develop, maintain,

and, as appropriate, revise land and resource management plans for units of the

National Forest System.’” Citizens’ Comm. to Save Our Canyons v. Krueger, 513

F.3d 1169, 1176 (10th Cir. 2008) (quoting 16 U.S.C. § 1604(a)). NFMA

establishes both substantive and procedural requirements for the development and

implementation of forest management plans under the Act, see 16 U.S.C. § 1604,

including the requirement that each forest plan comply with MUSYA’s multipleuse mandate, id. § 1604(e)(1). 

From 1977 until 1979, the Forest Service embarked on a second Roadless

Area Review and Evaluation project (RARE II), which again created a national

inventory of roadless areas that were potentially suitable for “wilderness”

designation under the Wilderness Act. See, e.g., California v. Block, 690 F.2d

753, 758 (9th Cir. 1982) (describing the development of the RARE II inventory). 
9

Based on the RARE II inventory (and subsequent presidential recommendations),

see 16 U.S.C. § 1132, Congress designated several NFS areas as “wilderness,”

which—combined with the designations included in the Wilderness Act itself, see

16 U.S.C. § 1132(a)—total approximately 35 million acres. See 66 Fed. Reg.

35,918, 35,919 (July 10, 2001). 

B. History of the Roadless Rule

The RARE II undertaking, completed in 1979, produced a nationwide

inventory of roadless areas that the Forest Service found worthy of some level of

protection. Over the next two decades, however, the Forest Service began

permitting road construction to occur in some of those inventoried roadless areas

(“IRAs”) on a site-specific basis. 66 Fed. Reg. 3244, 3246 (Jan. 12, 2001); see

also Kootenai Tribe of Idaho v. Veneman, 313 F.3d 1094, 1105 (9th Cir. 2002)

(stating that, in 1982, the Forest Service started “permitt[ing] road construction,

industrial logging[,] and other development in inventoried roadless areas on a

local, site-specific basis” (citing Block, 690 F.2d 753)), abrogated in part on

other grounds by Wilderness Soc’y v. U.S. Forest Serv., 630 F.3d 1173, 1180 (9th

Cir. 2011) (abandoning the “federal defendant” rule and holding that “[w]hen

considering motions to intervene of right . . . , courts need no longer apply a

categorical prohibition on intervention on the merits, or liability phase, of NEPA

actions”). During that time, roads were constructed, and other development

occurred, on 2.8 million acres of those IRAs. 66 Fed. Reg. at 3246; Kootenai
10

Tribe, 313 F.3d at 1105. 

In the late 1990s, the Forest Service began to reevaluate its roadmanagement policy in response to changes in public opinion, shifts in resource

demands, budget constraints regarding the management of the NFS road system,

and an increase in scientific knowledge regarding the effects that roads have on

NFS lands. See 63 Fed. Reg. 4350, 4350 (Jan. 28, 1998). The agency published

an advance notice of proposed rulemaking in January of 1998, which solicited

public comment on future regulation and protection of IRAs. Id. The Forest

Service thereafter adopted an eighteen-month moratorium on road construction in

most IRAs—the “Interim Roadless Rule”—which ran from March 1999 through

August 2000. 64 Fed. Reg. 7290, 7290 (Feb. 12, 1999). The Interim Roadless

Rule “temporarily suspend[ed] decisionmaking regarding road construction and

reconstruction in many unroaded areas within the National Forest System,” in

order to “retain resource management options in those unroaded areas subject to

suspension from the potentially adverse effects associated with road construction,

while the Forest Service develop[ed] a revised road management policy.” Id. 

While the Interim Roadless Rule was in effect, in October of 1999,

President William J. Clinton “direct[ed] the Forest Service to develop . . .

regulations to provide appropriate long-term protection for most or all of these

currently inventoried ‘roadless’ areas” in the NFS. Aplt. App. at 1524

(Memorandum from President William Clinton to the Secretary of Agriculture
11

(Oct. 13, 1999)). On October 13, 1999, in response to President Clinton’s

directive, as well as public comments received on the 1998 advanced notice of

proposed rulemaking and the Interim Roadless Rule, the Forest Service published

a notice of intent (“NOI”) to prepare an environmental impact statement (“EIS”)

in accordance with NEPA, and to “initiat[e] a public rulemaking process to

propose the protection of remaining roadless areas within the National Forest

System.” 64 Fed. Reg. 56,306, 56,306 (Oct. 19, 1999). The NOI announced the

agency’s intent to promulgate a two-part rule for protection of roadless areas:

(1) “[P]art one would immediately restrict certain activities, such as road

construction, in unroaded portions of inventoried roadless areas, as previously

identified in RARE II and existing forest plan inventories”; and (2) “[p]art two

would establish national direction for managing [IRAs], and for determining

whether and to what extent similar protections should be extended to

uninventoried roadless areas,” a process that “would be implemented at the forest

plan level through the plan amendment and NEPA process.” Id. at 56,307. 

The NOI also initiated a sixty-day “scoping period,” during which the

agency sought public comment on the nature and scope of the issues and

alternatives to be analyzed during the NEPA process. Id. During the sixty-day

scoping period, the Forest Service received more than 517,000 comments in

response to the NOI, held 187 meetings around the nation (including several in

Wyoming) attended by approximately 16,000 citizens, and launched a Roadless
12

Area Conservation website (roadless.fs.fed.us) to provide information about the

rulemaking. 66 Fed. Reg. at 3248; 64 Fed. Reg. 67,822, 67,825–29 (Dec. 3,

1999). Despite several requests, the Forest Service declined to extend the scoping

period beyond the initial sixty days.

On May 10, 2000, the Forest Service issued a draft EIS (“DEIS”) and

proposed Roadless Rule. See generally 65 Fed. Reg. 30,276 (May 10, 2000);

Aplt. App. at 425 (Draft Environmental Impact Statement, dated May 2000)

[hereinafter DEIS]. The DEIS identified 54.3 million acres of IRAs that were

subject to the proposed rule. 65 Fed. Reg. at 30,276. The stated purposes of the

proposed rule were “to immediately stop activities that have the greatest

likelihood of degrading desirable characteristics of inventoried roadless areas,”

and “to ensure that ecological and social characteristics of inventoried roadless

and other unroaded areas are identified and considered through local forest

planning efforts.” DEIS at S-4; see also id. at 1-12 (stating that the first objective

of the rule was to “[p]revent activities that can most directly threaten [IRAs] by

implementing national prohibitions against road construction and

reconstruction”). 

The proposed rule was two-fold, composed of (1) a “Prohibition Rule,”

which banned road construction and reconstructions in IRAs, and (2) a

“Procedural Rule,” which required forest managers to identify additional roadless

areas during the forest planning process and determine whether such areas
6 The Forest Service also considered several “procedural alternatives.” 

DEIS at 2-6 to 2-10. 

13

warranted protection under individual forest plans. See 65 Fed. Reg. at 30,288 (to

be codified at 36 C.F.R. §§ 294.12, 294.13). The Forest Service considered four

alternatives to the Prohibition Rule in detail in the DEIS—a “no-action”

alternative and three alternatives prohibiting road building and timber harvest to

varying degrees. See id. at 2-3 to 2-6. Specifically, the four prohibition

alternatives analyzed were: (1) Alternative 1—the “no action” alternative, id. at

2-4; (2) Alternative 2—a prohibition on “road construction and reconstruction

within unroaded portions of [IRAs],” id. at 2-4 to 2-5; (3) Alternative 3—a

prohibition on “road construction, reconstruction, and timber harvest except for

stewardship purposes within unroaded portions of [IRAs],” id. at 2-5; and (4)

Alternative 4—a prohibition on “road construction, reconstruction[,] and all

timber harvest within unroaded portions of [IRAs],” id. at 2-6. In the DEIS, the

Forest Service designated Alternative 2 as the preferred alternative for the

prohibition rule. Id. at 2-13.6

 

Other alternatives to the Prohibition Rule were addressed by the Forest

Service, such as allowing more (rather than less) road building and development,

but those alternatives were eliminated from detailed environmental analysis

because they were inconsistent with the purpose of protecting IRAs or for other

reasons. Id. at 2-15 to 2-20. The Forest Service provided sixty-nine days for
7 This change was made because the Forest Service “believe[d] it

would be difficult to identify the ‘roaded portions’ [of IRAs] in a manner that

would be ecologically meaningful and administratively consistent.” FEIS at 2-23. 

The FEIS did not include any additional maps identifying the 2.8 million acres of

“roaded” IRAs that were now subject to the prohibitions under the rule.

14

public comment on the DEIS and proposed rule, 65 Fed. Reg. at 30,276, during

which it received more than a million responses and held more that 430 public

meetings drawing at least 23,000 people nationwide. 66 Fed. Reg. at 3248.

In November 2000, the Forest Service issued a final EIS (“FEIS”). 65 Fed.

Reg. 69,512 (Nov. 17, 2000); Aplt. App. at 520 (Final Environmental Impact

Statement, dated Nov. 9, 2009) [hereinafter FEIS]. The FEIS included several

changes to the proposed action that were not included in the DEIS. First, it

increased the total acreage of IRAs subject to the Prohibition Rule from 54.3

million acres to 58.5 million acres. FEIS at 2-23. The revised figure included 4.2

million acres of IRAs not identified in the DEIS or proposed rule. Id. Second, it

made the rule applicable to both the “unroaded” and “roaded” portions of IRAs;

that is, the Roadless Rule would “now apply to the entire area within the

boundaries of an [IRA],” whereas the 2.8 million acres of “roaded” IRAs were not

subject to the prohibitions in the proposed rule as it was described in the DEIS. 

Id.7

 Third, the FEIS changed the preferred alternative—previously identified as

Alternative 2, which prohibited road construction and reconstruction in IRAs—to

Alternative 3, which, as described in the FEIS, prohibited “[r]oad construction,

reconstruction (including temporary construction) and timber harvest except for
8 The final Roadless Rule restricted timber harvests under the

stewardship exception to “small diameter timber,” whereas the FEIS did not

(continued...)

15

stewardship purposes” in IRAs, subject to a few limited exceptions. FEIS at 2-13

to 2-14 (emphasis added). Fourth, the FEIS eliminated the procedural aspect of

the rule, leaving only the Prohibition Rule, due to the Forest Service’s decision to

incorporate such procedures into a separate and distinct set of forest planning

regulations. See FEIS at 1-16 (stating that “the Forest Service determined that the

procedures contemplated in the [proposed] Roadless Rule should be an explicit

part of the plan revision process, and addressed them at 36 CFR 219.9(b)(8) of the

final Planning Regulations”). 

Following the issuance of the FEIS, the Forest Service received additional

public comments on the FEIS and the modified preferred alternative. 66 Fed.

Reg. at 3248. The comments submitted in response to the FEIS “were considered

by the agency in the development of the final rule” and were admitted into the

administrative record. Id.

On January 12, 2001, the Forest Service issued the final Roadless Rule and

the Record of Decision on the rule. 66 Fed. Reg. at 3244–72. The final Roadless

Rule—which mirrors the preferred alternative from the FEIS (Alternative

3)—prohibits road construction and reconstruction in IRAs, and prohibits the

cutting, sale, or removal of timber from IRAs, subject to limited exceptions. Id.

at 3272–73 (to be codified at 36 C.F.R. §§ 294.10–.14).8
8

(...continued)

explicitly limit the size or diameter that could be harvested for stewardship

purposes. Compare 66 Fed Reg. at 3273 (to be codified at 36 C.F.R.

§ 294.13(b)(1)), with FEIS at 2-15.

9 Since 2001, the Roadless Rule has been the subject of at least nine

lawsuits, including suits filed in federal district court in Idaho, Utah, North

Dakota, Wyoming, Alaska, and the District of Columbia.

Of particular importance, on May 10, 2001, the United States District Court

for the District of Idaho found that the plaintiffs had demonstrated likely success

on the merits of their claims that the Forest Service violated NEPA in

(continued...)

16

The final Roadless Rule was applicable to the 58.5 million acres of IRAs

identified in the FEIS, which amounts to approximately one-third of all NFS lands

and approximately 2% of the land base of the continental United States. 66 Fed.

Reg. at 3245. As specific to Wyoming, “[t]he Roadless Rule affects 3.25 million

acres (or 35%) of the 9.2 million acres of National Forest System land in [the

state].” Wyoming, 570 F. Supp. 2d at 1326; see also FEIS at 3-4 tbl.3-1, 3-61

tbl.3-9, A-4. The Roadless Rule was to take effect on March 12, 2001. 66 Fed.

Reg. at 3244. Under the Roadless Rule, as promulgated, “this vast national forest

acreage, for better or worse, was more committed to pristine wilderness, and less

amenable to road development for purposes permitted by the Forest Service.” 

Kootenai Tribe, 313 F.3d at 1106.

C. Procedural History

This is not the first instance in which this court has considered a challenge

to the Roadless Rule brought by Wyoming.9

 On May 18, 2001, shortly after the
9

(...continued)

promulgating the Roadless Rule by failing to (a) consider a reasonable range of

alternatives, (b) satisfy the notice-and-comment requirements of the Act, and (c)

adequately analyze the cumulative impacts of the rule. Kootenai Tribe of Idaho v.

Veneman, 142 F. Supp. 2d 1231, 1242–47 (D. Idaho 2001). Based on this ruling,

the district court subsequently issued a preliminary injunction prohibiting the

implementation of the Roadless Rule. Kootenai Tribe of Idaho v. Veneman, No.

CV01-10-N-EJL, 2001 WL 1141275 (D. Idaho May 10, 2001). On appeal, the

Ninth Circuit reversed the district court’s judgment and remanded the case. 

Kootenai Tribe, 313 F.3d at 1094. In doing so, the Ninth Circuit held that the

district court erred in holding that (a) “[t]he Forest Service’s consideration of the

three alternatives was [in]adequate,” id. at 1123; (b) “holding that the plaintiffs

had shown likely success on the merits based on their allegation” that the

comment period of sixty-nine days “deprived the public of information necessary

for its meaningful participation in the NEPA process,” id. at 1119; and (c) “the

Forest Service failed adequately to evaluate the cumulative effects of the

Roadless Rule,” id. at 1123. In sum, the Ninth Circuit concluded that “it is plain

that the Forest Service gave a ‘hard look’ [under NEPA] at the complex problem

presented,” and that “[e]ven if plaintiffs have shown a serious question of

liability, it cannot be said that there is a strong likelihood of success on the merits

[of their NEPA claims].” Id.

10 The Defendant-Intervenors in the first suit are the same

Environmental Groups that intervened in this cause of action.

17

Roadless Rule was promulgated, Wyoming filed its first complaint in the United

States District Court for the District of Wyoming challenging the legality of the

Roadless Rule under several federal environmental statutes, including NEPA, the

Wilderness Act, the Wyoming Wilderness Act of 1984, NFMA, and MUSYA. A

number of environmental organizations intervened on behalf of the Forest

Service, in defense of the rule.10 On July 14, 2003, the Wyoming district court

ruled that the Roadless Rule was promulgated in violation of NEPA and the

Wilderness Act, and therefore permanently enjoined enforcement of the rule. 
11 On appeal, the Ninth Circuit affirmed the district court’s

reinstatement of the Roadless Rule. California ex rel. Lockyer v. U.S. Dep’t of

(continued...)

18

Wyoming v. U.S. Dep’t of Agric., 277 F. Supp. 2d 1197, 1239 (D. Wyo. 2003). 

The Forest Service chose not to appeal the district court’s decision to this court;

however, the Defendant-Intervenors did file an appeal with the Tenth Circuit.

During the pendency of that appeal—in May of 2005—the Forest Service

adopted the State Petitions Rule, which superseded the Roadless Rule. See State

Petitions for Inventoried Roadless Area Management, 70 Fed. Reg. 25,654 (May

13, 2005) (to be codified at 36 C.F.R. pt. 294). Because the Roadless Rule had

been superseded, this court dismissed the appeal as moot, vacated the district

court’s July 14, 2003, decision, and remanded the case to the district court to

dismiss without prejudice. Wyoming v. U.S. Dep’t of Agric., 414 F.3d 1207, 1213

(10th Cir. 2005).

Subsequently, several states and environmental groups challenged the

Forest Service’s State Petitions Rule in the United States District Court for the

Northern District of California. On October 11, 2006, a district court judge of

that court set aside the State Petitions Rule for violating NEPA and the

Endangered Species Act of 1973, 16 U.S.C. §§ 1531–44, and reinstated the

Roadless Rule, despite the fact that the Wyoming district court had already found

that the rule violated federal law. California ex rel. Lockyer v. U.S. Dep’t of

Agric., 459 F. Supp. 2d 874 (N.D. Cal. 2006).11
11(...continued)

Agric., 575 F.3d 999 (9th Cir. 2009).

19

After the Roadless Rule was reinstated by the California district court,

Wyoming brought a renewed challenge to the rule in the District of Wyoming,

asserting violations of the Wilderness Act, NEPA, MUSYA, and NFMA. On

August 12, 2008, the Wyoming district court ruled—for the second time—that the

Roadless Rule was promulgated in violation of the Wilderness Act and NEPA,

and issued a permanent, nationwide injunction. Wyoming v. U.S. Dep’t of Agric.,

570 F. Supp. 2d 1309, 1355 (D. Wyo. 2008). The Environmental Groups filed a

timely appeal with this court.

II. DISCUSSION

A. Standard of Review

Because NEPA, NFMA, MUSYA, and the Wilderness Act do not provide a

private right of action, we review the Forest Service’s promulgation of the

Roadless Rule as “final agency action” under the Administrative Procedure Act

(“APA”), 5 U.S.C. §§ 551–59. E.g., Forest Guardians v. U.S. Forest Serv., 641

F.3d 423, 428 (10th Cir. 2011) (per curiam); Utah Envtl. Cong. v. Russell, 518

F.3d 817, 823 (10th Cir. 2008); Utah Envtl. Cong. v. Bosworth, 443 F.3d 732, 739

(10th Cir. 2006). Under the APA, we review the district court’s decision de novo,

Forest Guardians, 641 F.3d at 428, but we will not overturn the agency’s action

unless it is “arbitrary, capricious, an abuse of discretion, or otherwise not in
20

accordance with law.” 5 U.S.C. § 706(2)(A); accord New Mexico ex rel.

Richardson v. Bureau of Land Mgmt., 565 F.3d 683, 704 (10th Cir. 2009). 

 In conducting our review, “we must determine whether the [agency]: (1)

acted within the scope of [its] authority, (2) complied with prescribed procedures,

and (3) took action that was neither arbitrary and capricious, nor an abuse of

discretion.” Forest Guardians v. U.S. Fish & Wildlife Serv., 611 F.3d 692, 704

(10th Cir. 2010) (alterations in original) (internal quotation marks omitted). 

Agency action is “arbitrary and capricious” if the agency “has relied on factors

which Congress has not intended it to consider, entirely failed to consider an

important aspect of the problem, offered an explanation for its decision that runs

counter to the evidence before the agency,” or if the agency action “is so

implausible that it could not be ascribed to a difference in view or the product of

agency expertise.” Copar Pumice Co. v. Tidwell, 603 F.3d 780, 793–94 (10th Cir.

2010) (quoting Motor Vehicle Mfrs. Ass’n of the U.S. v. State Farm Mut. Auto.

Ins. Co., 463 U.S. 29, 43 (1983)) (internal quotation marks omitted). In applying

this standard, we also “accord agency action a presumption of validity,” and “the

burden is on the petitioner to demonstrate that the action is arbitrary and

capricious.” Tidwell, 603 F.3d at 793.

 We review the district court’s order of injunctive relief for abuse of

discretion. FTC v. Accusearch Inc., 570 F.3d 1187, 1201 (10th Cir. 2009). “An

abuse of discretion occurs only when the trial court bases its decision on an
21

erroneous conclusion of law or where there is no rational basis in the evidence for

the ruling.” Wilderness Workshop v. U.S. Bureau of Land Mgmt., 531 F.3d 1220,

1223–24 (10th Cir. 2008). We have previously characterized an “abuse of

discretion” as “an arbitrary, capricious, whimsical, or manifestly unreasonable

judgment.” Attorney Gen. of Okla. v. Tyson Foods, Inc., 565 F.3d 769, 776 (10th

Cir. 2009).

B. Wilderness Act Claim

Wyoming’s Wilderness Act claim asserts that the Roadless Rule constitutes

a de facto designation of “wilderness” in contravention of the process established

by Congress in the Wilderness Act of 1964. The district court agreed, holding

that the “Forest Service, through the promulgation of the Roadless Rule,

designated 58.5 million acres of National Forest land as a de facto wilderness area

in violation of the Wilderness Act,” and therefore the rule was “promulgated in

excess of [the] Forest Service’s statutory jurisdiction and authority.” Wyoming,

570 F. Supp. 2d at 1349–50. We conclude that the district court erred in finding

that the Forest Service promulgated the rule in violation of the Wilderness Act. 

1. Overview of Wilderness Act

Congress passed the Wilderness Act in 1964, 16 U.S.C. §§ 1131–36, for the

purpose of “secur[ing] for the American people of present and future generations

the benefits of an enduring resource of wilderness.” Id. § 1131(a). The

Wilderness Act established the National Wilderness Preservation System, which
22

was “to be composed of federally owned areas designated by Congress as

‘wilderness areas.’” Id. Congress immediately designated certain areas as

“wilderness areas” in the Act. See id. § 1132(a) (“All areas within the national

forests classified . . . by the Secretary of Agriculture or the Chief of the Forest

Service as ‘wilderness’, ‘wild’, or ‘canoe’ are hereby designated as wilderness

areas.”). The Wilderness Act also established a process by which NFS lands

could be designated as “wilderness areas” in the future. Id. § 1132(b). Under this

process for designating “wilderness” in the future, the Secretary of Agriculture

determines which NFS lands are suitable for preservation as wilderness and

reports those findings to the President, who then submits recommendations to

Congress as to which NFS lands should be regulated as wilderness areas under the

Act. Id. Such lands actually become “wilderness areas” protected by the

provisions of the Wilderness Act only if Congress enacts legislation to that effect. 

Id. Indeed, Congress explicitly stated that “no Federal lands shall be designated

as ‘wilderness areas’ except as provided for in [the Wilderness Act] or by a

subsequent Act.” Id. § 1131(a).

The Act defines “wilderness” as “an area where the earth and its

community of life are untrammeled by man, where man himself is a visitor who

does not remain,” as well as “an area of undeveloped Federal land retaining its

primeval character and influence, without permanent improvements or human

habitation.” Id. § 1131(c). Congress further defined “wilderness” as an area that
23

(1) generally appears to have been affected primarily by the

forces of nature, with the imprint of man’s work substantially

unnoticeable; (2) has outstanding opportunities for solitude or a

primitive and unconfined type of recreation; (3) has at least five

thousand acres of land or is of sufficient size as to make

practicable its preservation and use in an unimpaired condition;

and (4) may also contain ecological, geological, or other features

of scientific, educational, scenic, or historical value.

Id. 

Areas designated as “wilderness areas” by Congress under the Act must be

maintained so as to “preserv[e] the wilderness character of the area” and “shall be

devoted to the public purposes of recreational, scenic, scientific, educational,

conservation, and historical use,” unless an exception applies. Id. § 1133(b). In

order to preserve the character of areas designated by Congress as “wilderness,”

the Act prohibits a wide array of uses within such areas:

[T]here shall be no commercial enterprise and no permanent road

within any wilderness area designated by this chapter and, except

as necessary to meet minimum requirements for the

administration of the area for the purpose of this chapter

(including measures required in emergencies involving the health

and safety of persons within the area), there shall be no

temporary road, no use of motor vehicles, motorized equipment

or motorboats, no landing of aircraft, no other form of

mechanical transport, and no structure or installation within any

such area.

Id. § 1133(c).

The Act includes seven “special provisions,” which serve as exceptions to

the general use prohibitions found in § 1133(c). See id. § 1133(d)(1)–(7). These

“special provisions” allow, among other things, for (1) “measures . . . [for]
12 The Act also included an exception for “mining” that was conducted

pursuant to U.S. mining laws and valid existing rights. 16 U.S.C. § 1133(d)(3). 

However, that “special provision” has expired and mining is no longer permitted

in “wilderness areas” designated by Congress under the Wilderness Act. 

24

control of fire, insects, and diseases, subject to such conditions as the Secretary

deems desirable”; (2) “prospecting” and activities carried out “for the purpose of

gathering information about mineral or other resources, if such activity is carried

on in a manner compatible with the preservation of the wilderness environment”;

(3) certain development of water resources, if approved by the President; (4)

“grazing of livestock,” but only if established before September 1964; and (5)

“[c]ommercial services . . . to the extent necessary for activities which are proper

for realizing the recreational or other wilderness purposes of the areas.” 

Id. § 1133(d)(1), (2), (4), & (5).12

Lastly, the Wilderness Act establishes that its provisions are “declared to

be within and supplemental to the purposes for which national forests . . . are

established and administered,” id. § 1133(a), and therefore Congress made clear

that “[n]othing in [the Wilderness Act] shall be deemed to be in interference with

the purpose for which national forests are established as set forth in the [Organic

Act] (30 Stat. 11), and [MUSYA] (74 Stat. 215).” Id. § 1133(a)(1).

2. Discussion

As stated by the district court, the narrow issue presented by this claim is

“whether the Forest Service has usurped Congress’[s] power regarding access to,
25

and management of, public lands by a de facto designation of ‘wilderness’ in

violation of the Wilderness Act of 1964.” Wyoming, 570 F. Supp. 2d at 1346. 

The district court held that the Roadless Rule established de facto wilderness

areas and was therefore promulgated in violation of the Wilderness Act, which

gives Congress the sole authority to establish “wilderness areas.” Id. at 1349–50. 

On appeal, the Forest Service first argues that the Wilderness Act did not

repeal or in any way limit its broad authority to regulate NFS lands for

conservation purposes, including “wilderness,” and therefore it was authorized to

promulgate the Roadless Rule. In the alternative, even assuming, arguendo, that

the Wilderness Act did repeal or limit the Forest Service’s authority to regulate

“wilderness areas” by administrative rule, the Forest Service and the

Environmental Groups argue that the IRAs governed by the Roadless Rule are not

de facto wilderness areas. Therefore, they assert that the Roadless Rule was a

valid exercise of the authority granted under the Organic Act and MUSYA “to

manage NFS lands for an array of uses or combinations of use, including

conservation uses that fall short of statutory ‘wilderness’ designations.” Forest

Serv. Opening Br. at 32 (emphasis added). We agree with the latter

argument—viz., that the Forest Service did not usurp congressional authority

because the Roadless Rule did not establish de facto wilderness areas—and,

therefore, conclude that the district court erred in holding otherwise. 

Accordingly, we need not address the first argument advanced by the Forest
13 The district court also based its conclusion that the Roadless Rule

“designated 58.5 million acres of National Forest land as a de facto wilderness

area in violation of the Wilderness Act,” Wyoming, 570 F. Supp. 2d at 1349, on

its findings that (a) “a roadless forest is synonymous with the Wilderness Act’s

definition of ‘wilderness,’” and (b) “that most, if not all, of the [IRAs] were based

on the RARE II inventories, which were designed to recommend wilderness areas

to Congress.” Id. at 1349–50. However, we are not persuaded that these two

factors alone—which relate to identifying areas that would be governed by the

Roadless Rule, rather than to whether the two types of areas are functionally

(continued...)

26

Service regarding whether it retains the authority under the Organic Act and

MUSYA to regulate de facto wilderness areas by administrative rule.

a. Roadless Rule Did Not Establish De Facto

Wilderness Areas

The district court’s conclusion that the Roadless Rule created de facto

wilderness in violation of the Wilderness Act was based largely on its finding that

“wilderness areas” governed by the Wilderness Act and IRAs governed by the

Roadless Rule “are essentially the same,” and that “[i]n fact, uses in [IRAs] are

even more restricted than those permitted in congressionally designated

wilderness areas.” Wyoming, 570 F. Supp. 2d at 1349. However, a comparison of

the provisions of the Wilderness Act and the Roadless Rule demonstrates that

IRAs and wilderness areas are not functionally equivalent or “essentially the

same.” To the contrary, the two types of areas are distinct. In fact, such a

comparison demonstrates that the scope of the Wilderness Act is broader than the

scope of the Roadless Rule; that is, the Wilderness Act is more restrictive and

prohibitive than the Roadless Rule.13
13(...continued)

equivalent under each respective law—demonstrate that IRAs under the Roadless

Rule are de facto administrative wilderness areas. As discussed infra, a review of

the prohibitions applicable to each type of area clearly demonstrates that IRAs

governed by the Roadless Rule are not tantamount to wilderness areas governed

by the Wilderness Act. This conclusion is dispositive on this issue. 

27

As a general matter, the Roadless Rule restricts only two activities—road

construction and commercial timber harvesting, unless an exception applies. See

66 Fed. Reg. at 3272–73 (to be codified at 36 C.F.R. §§ 294.12–.13). On the

other hand, although the Wilderness Act likewise prohibits permanent and

temporary roads and commercial logging, it additionally prohibits all

“commercial enterprise,” “motor vehicles, motorized equipment or motorboats,”

all “form[s] of mechanical transport,” and any “structure or installation,” unless

an exception applies. 16 U.S.C. § 1133(c). This rudimentary comparison of the

general use prohibitions in IRAs and wilderness areas demonstrates that they are

not the same; the uses prohibited in wilderness areas under the Wilderness Act are

greater in number and scope than those prohibited in IRAs under the Roadless

Rule. 

We acknowledge that the Wilderness Act and Roadless Rule do in fact

overlap in coverage in many ways. However, the issue we are to consider is

whether the IRAs governed by the Roadless Rule are de facto wilderness areas;

that is, whether the Roadless Rule essentially mirrors the Wilderness Act by a

different label. A closer examination of the precise differences between IRAs and
28

wilderness areas further demonstrates that the Roadless Rule does not establish de

facto wilderness. First, although the Wilderness Act prohibits permanent

structures and installations, the Roadless Rule does not prohibit the construction

of permanent or temporary structures or installations. Compare 16 U.S.C.

§ 1133(c), with 66 Fed. Reg. at 3272–73 (to be codified at 36 C.F.R.

§§ 294.10–.14). Therefore, structures and installations that can be erected

without the construction of a new road—for example, through the use of an

existing road—are permitted in IRAs, but not in wilderness areas. 

Second, the Wilderness Act imposes significantly more stringent

prohibitions on recreational activities. Under the Wilderness Act, any “use of

motor vehicles, motorized equipment or motorboats, . . . landing of aircraft, . . .

[or] other form of mechanical transport” is prohibited. 16 U.S.C. § 1133(c). On

the other hand, the Roadless Rule contains no prohibitions on the use of

motorized vehicles or equipment, boats or aircraft, or other forms of mechanical

transport. Therefore, many recreational uses allowed to continue under the

Roadless Rule—such as off-road vehicle use, biking, snowmobiling, and other

motorized and mechanical activities—would be prohibited under the Wilderness

Act. See, e.g., 66 Fed. Reg. at 3245 (stating that “unlike Wilderness,” the

Roadless Rule permits the “use of mountain bikes, and other mechanized means

of travel”); id. at 3249 (“The Roadless [Rule], unlike the establishment of

wilderness areas, will allow a multitude of activities including motorized uses
14 The Wilderness Act does provide that the “use of aircraft or

motorboats, where these uses have already become established, may be permitted

to continue subject to such restrictions as the Secretary of Agriculture deems

desirable.” 16 U.S.C. § 1133(d)(1). However, the Wilderness Act still prohibits

all other types of motorized or mechanical recreation or transportation, subject to

a very limited exception, see 36 C.F.R. § 293.6, as well as the use of aircraft or

motorboats that had not already become established. The Roadless Rule, on the

other hand, does not prohibit the use of aircraft or motorboats, which could be

brought in and out of IRAs through existing roads, and does not prohibit the use

of off-road vehicles, bicycles, and other forms of motorized or mechanized

transportation.

15 Under the Wilderness Act, temporary roads are permitted “as

necessary to meet minimum requirements for the administration of the area for the

purpose of [the Wilderness Act] (including measures required in emergencies

involving the health and safety of persons within the area),” 16 U.S.C. § 1133(c),

and for “prospecting for water resources, the establishment and maintenance of

reservoirs, water-conservation works, power projects, transmission lines, and

other facilities needed in the public interest,” and for “road construction and

maintenance essential to development and use thereof,” but only when authorized

by the President, id. § 1133(d)(4).

29

. . . .”); id. at 3267 (“[IRAs] provide a remote recreation experience without the

activity restrictions of Wilderness (for example, off-highway vehicle use and

mountain biking).”).14

Third, the Wilderness Act is more restrictive in terms of road maintenance,

road construction, and use of existing roads. The Wilderness Act prohibits any

“permanent road” or any “temporary road,” and road maintenance activities, 

subject to limited exceptions,15 and prohibits any use of motor vehicles. 16

U.S.C. § 1133(c); 36 C.F.R. § 293.6. On the other hand, the Roadless Rule

allows all existing classified roads—defined as roads “wholly or partially within

or adjacent to [NFS] lands that [are] determined to be needed for long-term motor
16 “Road maintenance” is defined as “[t]he ongoing upkeep of a road

necessary to retain or restore the road to the approved road management

objective.” 66 Fed. Reg. at 3272 (to be codified at 36 C.F.R. § 294.11). 

17 See, e.g., 66 Fed. Reg. at 3264 (“Reasonable access includes[] road

construction or reconstruction for mining activities covered under the General

Mining Law . . . .”).

30

vehicle access, including State roads, county roads, privately owned roads,

National Forest System roads, and other roads authorized by the Forest Service,

66 Fed. Reg. at 3272 (to be codified at 36 C.F.R. § 294.11)—to be maintained. 

Id. at 3273 (to be codified at 36 C.F.R. § 294.12(c)).16 Therefore, unlike the

Wilderness Act, the Roadless Rule permits unlimited maintenance of all existing

roads and does not prohibit the use of motorized vehicles or other motorized

transportation on such existing roads. 

Furthermore, the Roadless Rule provides broader exceptions for when new

road construction or reconstruction can occur. For example, unlike in wilderness

areas, “a road may be constructed or reconstructed in an [IRA] . . . as provided

for by statute or treaty,” id. at 3272 (to be codified at 36 C.F.R. § 294.12(b)(3));17

when “needed to conduct a response action under the Comprehensive

Environmental Response, Compensation, and Liability Act (CERCLA) or to

conduct a natural resource restoration action under CERCLA, [§] 311 of the Clean

Water Act, or the Oil Pollution Act,” id. (to be codified at 36 C.F.R.

§ 294.12(b)(2)); or when the “Secretary of Agriculture determines that a Federal

Aid Highway project . . . is in the public interest or is consistent with the
31

purposes for which the land was reserved or acquired,” id. (to be codified at 36

C.F.R. § 294.12(b)(6)), among other instances. The Wilderness Act includes no

exceptions of this kind to its prohibition of temporary and permanent roads.

Fourth, the Roadless Rule is less restrictive in terms of “grazing.” Under

the Wilderness Act’s mandate that “there shall be no commercial enterprise . . .

within any wilderness area,” 16 U.S.C. § 1133(c), commercial livestock grazing is

prohibited. The Act includes a grandfather clause that permits “the grazing of

livestock . . . [that was] established prior to September 3, 1964,” id.

§ 1133(d)(4)(2), more than four decades ago, but otherwise completely bars such

activity. By contrast, the Roadless Rule does not explicitly prohibit any type of

“commercial enterprise,” with the exception of commercial logging, and therefore

permits commercial grazing within IRAs. The district court found this distinction

meaningless because “one could not meaningfully set cattle out to pasture in a

roadless area with no way of rounding those cattle back up or trucking them in

and out of the forest allotment,” unless a new road was constructed. Wyoming,

570 F. Supp. 2d at 1350. However, this conclusion does not take into account

that all existing roads—as well as any roads constructed or reconstructed under

exceptions to the Roadless Rule—could be used to facilitate commercial grazing. 

This would not be permitted in a wilderness areas due to the general prohibition

on commercial enterprises (unless such grazing was established more than four

decades ago), as well as the Act’s prohibition on the use of motorized vehicles or
18 See 16 U.S.C. § 1133(d)(3) (“Subject to valid rights then existing,

effective January 1, 1984, the minerals in lands designated by this chapter as

wilderness areas are withdrawn from all forms of appropriation under the mining

laws and from disposition under all laws pertaining to mineral leasing and all

amendments thereto.”); see also Wilderness Soc’y v. Dombeck, 168 F.3d 367, 375

(9th Cir. 1999) (The Wilderness Act “allowed mineral exploration in designated

wilderness areas to continue for twenty years after passage of the Act. . . . 

Subject to valid rights then existing, the minerals in the lands designated as

wilderness areas were withdrawn after the expiration of the twenty years.”).

32

equipment. Accordingly, the court’s dismissal of this distinction was unfounded.

Fifth, the Roadless Rule allows for mineral development to a greater extent

than does the Wilderness Act. Although the Wilderness Act initially permitted

mineral development under United States mining laws, wilderness areas governed

by the Act are now closed to mineral-development activities. 16 U.S.C.

§ 133(d)(3).18 On the other hand, the Roadless Rule imposes no general

prohibition on mining or mineral-development activities, other than the

limitations imposed through the road-building prohibition. Therefore, “leasing

activities not dependent on road construction, such as directional (slant) drilling

and underground development,” and mineral-leasing activities that could be

carried out through utilization of existing roads, “would not be affected by the

prohibition.” 66 Fed. Reg. at 3265; see also Wilderness Workshop, 531 F.3d at

1224–28 (affirming the district court’s holding that the Forest Service and Bureau

of Land Management had not acted arbitrarily, capriciously, or not in accordance

with law in approving the installation of a natural-gas pipeline across an IRA

protected by the Roadless Rule; the agencies’ approval was based on the
33

conclusion that “there would be no violation of the Roadless Rule because the

proposed [natural-gas] pipeline could be built within IRA’s [sic] without road

construction” (internal quotation marks omitted)). 

The exceptions to the Roadless Rule’s road-building prohibition would also

permit new road construction or reconstruction for mineral development in certain

situations. Under the exception for existing mineral leases, road construction is

permitted “in conjunction with the continuation, extension, or renewal of a

mineral lease on lands that are under lease by the Secretary of the Interior as of

January 12, 2001[,] or for a new lease issued immediately upon expiration of an

existing lease.” 66 Fed. Reg. at 3272–73 (to be codified at 36 C.F.R.

§ 294.12(b)(7)). This exception “extends indefinitely the timeframe for which

roads can be constructed on areas currently under lease.” Id. at 3265–66. In

addition, under the exception permitting road construction “as provided for by

statute or treaty,” id. at 3272 (to be codified at 36 C.F.R. § 294.12(b)(3)),

“[r]easonable access to conduct exploration and development of valid claims for

locatable minerals (metallic and nonmetallic minerals subject to appropriation

under the General Mining Law of 1872)” would not be prohibited under the

Roadless Rule. Id. at 3268. “Reasonable access” could “involve some level of

road construction that, depending on the stage of exploration or development,

could range from helicopters, temporary or unimproved roads, more permanent,

improved roads, or nonmotorized transport.” Id. In sum, the Roadless Rule is
19 Furthermore, as the Forest Service points out, “the Wilderness Act

exception [under § 1133(d)(1)] applies to a broader [and overall more restrictive]

set of prohibitions.” Forest Serv. Reply Br. at 9. As it explained: 

(continued...)

34

less restrictive than the Wilderness Act in regard to mineral development.

These distinctions clearly demonstrate that wilderness areas governed by

the Wilderness Act and IRAs governed by the Roadless Rule are not only distinct,

but that the Wilderness Act is more restrictive and prohibitive than the Roadless

Rule. Accordingly, we conclude that the IRAs governed by the Roadless Rule are

not de facto administrative wilderness areas; therefore, the district court erred by

holding otherwise.

In reaching the contrary conclusion that “uses in [IRAs] are even more

restricted than those permitted in congressionally designated wilderness areas,” 

Wyoming, 570 F. Supp. 2d at 1349, the district court relied heavily on one

exception found in the Roadless Rule. The district court stated that 

a road could be constructed in a wilderness area to “control fire,

insects, and diseases,” whereas a road could only be constructed

in a roadless area in the “case of an imminent flood, fire, or other

catastrophic event that, without intervention, would cause the

loss of life or property.” Compare 16 U.S.C. § 1133(d)(1) with

36 C.F.R. § 294.12(b)(1).

Id. at 1349–50 (emphasis added). However, this distinction alone, when viewed

in light of the numerous distinctions discussed above, does not demonstrate that

the uses in IRAs are overall more restricted than those permitted in wilderness

areas.19 The district court’s reliance on this single distinction in concluding that
19(...continued)

For example, given the Wilderness Act’s prohibition on

“motorized equipment,” USDA could not use a chain saw to cut

a fire break in advance of a wildfire that threatened property

interests, but for the statutory exception permitting measures

necessary to “control . . . fire.” See 16 U.S.C. §§ 1133(c), (d)(1).

In contrast, the Roadless Rule does not ban motorized equipment

in the first place.

Id.

35

the Roadless Rule is more restrictive than the Wilderness Act was erroneous. 

In sum, we conclude that the Roadless Rule did not designate de facto

administrative wilderness areas in contravention of the procedures set out in the

Wilderness Act.

b. Roadless Rule Was Promulgated Pursuant to Broad

Authority Granted in Organic Act and MUSYA

Because we conclude that the Roadless Rule did not establish de facto

wilderness areas in contravention of the procedures established in the Wilderness

Act, and therefore did not usurp congressional authority under the Act, the only

remaining issue is whether the Forest Service otherwise acted within its statutory

authority in promulgating the Roadless Rule. We conclude that the Forest Service

acted within the authority that Congress granted to it under the Organic Act and

MUSYA. 

As stated above, the Organic Act of 1897 empowers the Secretary of

Agriculture, through the Forest Service, to “make provisions for the protection

against destruction by fire and depredations upon the public forests and national
36

forests” and “make such rules and regulations . . . to regulate [the national

forests’] occupancy and use and to preserve the forests thereon from destruction.” 

16 U.S.C. § 551. The Organic Act gives the Forest Service broad discretion to

regulate the national forests, including for conservation purposes. See United

States v. Grimaud, 220 U.S. 506 (1911) (discussing the general authority granted

under the Organic Act and upholding the Secretary of Agriculture’s establishment

of criminal penalties for violations of forest-wide grazing regulations); City &

Cnty. of Denver v. Bergland, 695 F.2d 465, 476 (10th Cir. 1982) (stating that the

Organic Act “confers upon the forest service the duty to protect the forests from

injury and trespass, and the power to condition their use and prohibit

unauthorized uses”); United States v. Hymans, 463 F.2d 615, 617 (10th Cir. 1972)

(discussing the broad authority delegated to the Forest Service under the Organic

Act to regulate the “occupancy and use” of national forests (citing McMichael v.

United States, 355 F.2d 283 (9th Cir. 1965))); see also Burlison v. United States,

533 F.3d 419, 435 (6th Cir. 2008) (“Congress has given the Forest Service broad

power [under the Organic Act] to regulate Forest System land.” (citation omitted)

(internal quotation marks omitted)); Skranak v. Castenada, 425 F.3d 1213, 1217

(9th Cir. 2005) (stating that “16 U.S.C. § 551 confers broad powers on the Forest

Service to regulate roads for the good of the forests” (citing Clouser v. Espy, 42

F.3d 1522, 1538 (9th Cir. 1994))); Wilson v. Block, 708 F.2d 735, 758 (D.C. Cir.

1983) (“The Department of Agriculture now has adequate authority to issue
37

revocable permits for all purposes under the [Organic Act of] 1897.” (citation

omitted) (internal quotation marks omitted)); United States v. Weiss, 642 F.2d

296, 298 (9th Cir. 1981) (“The authority of the Secretary [of Agriculture] to

regulate activity on national forest land pursuant to [16 U.S.C. § 551] has been

upheld in a variety of . . . instances.”); Koniag, Inc., Vill. of Uyak v. Andrus, 580

F.2d 601, 605 (D.C. Cir. 1978) (The “Forest Service and the Fish and Wildlife

Service have broad mandates to protect our forests and wildlife.” (citing 16

U.S.C. § 551)); Mountain States Tel. & Tel. Co. v. United States, 499 F.2d 611,

614 (Ct. Cl. 1974) (stating that the Organic Act “reveals a clear intent of

Congress to commit regulation of the national forests to the discretion of the

Secretary [of Agriculture]”); McMichael, 355 F.2d at 286 (upholding Department

of Agriculture’s regulations establishing primitive, wilderness, and wild areas and

providing limitations upon the use to be made of such areas under the Organic

Act). 

The broad rulemaking authority granted the Forest Service under the

Organic Act—to regulate “occupancy and use” of NFS lands and “to preserve the

forests thereon from destruction” (for example, from road construction and

logging)—is alone sufficient to support the Forest Service’s promulgation of the

Roadless Rule. See Kootenai Tribe, 313 F.3d at 1117 n.20 (“[T]he general

rulemaking authority of the 1897 Organic Act is sufficient to support the Roadless

Rule’s promulgation to achieve the objects of our National Forest System.”
38

(citing 16 U.S.C. § 551; McMichael, 355 F.2d 283)). Indeed, the Forest Service

cited this authority in the final Roadless Rule. 66 Fed. Reg. at 3272 (citing 16

U.S.C. §§ 472, 551).

The Forest Service was further authorized to manage NFS lands through

MUSYA, which reaffirmed the Forest Service’s authority to manage national

forests for a wide range of uses. Specifically, MUSYA directs the Forest Service

to manage the national forests for “multiple uses,” including “outdoor recreation,

range, timber, watershed, and wildlife and fish purposes.” 16 U.S.C. § 528. 

Congress directed the Forest Service to “mak[e] the most judicious use of the land

for some or all of these resources,” and acknowledged “that some land will be

used for less than all of the resources.” Id. § 531(a). Furthermore, MUSYA

states that “establishment and maintenance of areas of wilderness are consistent

with the purposes and provisions of [the Act].” Id. § 529. Congress expressly

indicated that MUSYA was “to be supplemental to, but not in derogation of,” the

Organic Act. Id. § 528. 

As with the Organic Act, the provisions of MUSYA give the Forest Service

broad discretion to regulate NFS lands for a wide variety of purposes. See

Perkins v. Bergland, 608 F.2d 803, 806–07 (9th Cir. 1979) (The language found

in 16 U.S.C. §§ 528, 529, and 531 “can hardly be considered concrete limits upon

agency discretion. Rather, it is language which ‘breathe(s) discretion at every

pore.’” (quoting Strickland v. Morton, 519 F.2d 467, 469 (9th Cir. 1975))); see
20 Any argument that the Wilderness Act impliedly repealed the Forest

Service’s general authority to regulate NFS lands for conservation purposes—that

is, short of designating de facto wilderness by administrative rule—must fail. It

is undisputed that Congress did not expressly repeal the general rulemaking

authority granted to the Forest Service under the Organic Act and MUSYA. To

the contrary, Congress explicitly stated that “[n]othing in [the Wilderness Act]

shall be deemed to be in interference with the purpose for which national forests

are established as set forth in [the Organic Act] and [MUSYA].” 16 U.S.C.

§ 1133(a)(1); see, e.g., Minn. Pub. Interest Research Grp. v. Butz, 541 F.2d 1292,

1309 (8th Cir. 1976) (“In the Wilderness Act, Congress declared that nothing

therein was to be construed to interfere with the purposes of the Multiple

Use-Sustained Yield Act of 1960.”); see also Stupak-Thrall v. United States, 89

F.3d 1269, 1282–83 (6th Cir. 1996) (Boggs, J., dissenting) (“[T]he Wilderness

Act specifically states that it is not intended to displace the Organic Act.” (citing

16 U.S.C. § 1133(a)(1))). Furthermore, Congress did not otherwise demonstrate a

“clear and manifest” intent to impliedly repeal the Forest Service’s statutory

authority to regulate NFS land for conservation purposes that stop short of

“wilderness area” designations. See Nat’l Ass’n of Home Builders v. Defenders of

Wildlife, 551 U.S. 644, 662 (2007) (“While a later enacted statute . . . can

sometimes operate to amend or even repeal an earlier statutory provision . . . ,

(continued...)

39

also United States v. New Mexico, 438 U.S. 696, 713 (1978) (“[W]e conclude that

the Multiple-Use Sustained-Yield Act of 1960 was intended to broaden the

purposes for which national forests had previously been administered . . . .”). 

Under MUSYA’s statutory scheme, which supplemented the broad authority

granted in the Organic Act, Congress clearly authorized the Forest Service to

regulate NFS lands for multiple uses, including those protected by the Roadless

Rule, such as “outdoor recreation,” “watershed,” and “wildlife and fish purposes.” 

16 U.S.C. § 528. We therefore conclude that the Forest Service had the

authority—under the Organic Act and MUSYA—to promulgate a rule protecting

NFS lands through restrictions on commercial logging and road construction.20
20(...continued)

‘repeals by implication are not favored’ and will not be presumed unless the

‘intention of the legislature to repeal [is] clear and manifest.’” (alteration in

original) (quoting Watt v. Alaska, 451 U.S. 259, 267 (1981))). We have

previously “accept[ed] the legislative history of the [Wilderness] Act as

indicating its terms should not be interpreted as a general curtailment of agency

discretion in the normal day-by-day administration of the national forests . . . .” 

Parker v. United States, 448 F.2d 793, 797 (10th Cir. 1971).

40

C. NEPA Claims

Wyoming asserts that the Forest Service, in promulgating the Roadless

Rule, violated NEPA in seven ways. Specifically, it argues that the Forest

Service failed to comply with the NEPA requirements regarding: (1) scoping, (2)

cooperating-agency status, (3) consideration of a reasonable range of alternatives

in the EIS, (4) consideration of the cumulative impacts of the proposed action in

the EIS, (5) preparation of a supplemental impact statement, (6) inclusion of sitespecific analysis in the EIS, and (7) an objective “hard look” at the environmental

consequences of agency action, by instead predetermining the outcome of the

NEPA process. The district court ruled in favor of Wyoming on all its NEPA

claims except for two—the site-specific analysis claim, on which it found in favor

of the Forest Service, Wyoming, 570 F. Supp. 2d at 1340–41, and the

predetermination claim, which it did not specifically rule on. On appeal, we

consider all seven of Wyoming’s NEPA claims.

1. Overview of NEPA

Congress enacted NEPA in 1969. 42 U.S.C. §§ 4321–70. The statute,
41

which has been described as “[t]he centerpiece of environmental regulation in the

United States,” Forest Guardians, 611 F.3d at 711 (quoting New Mexico ex rel.

Richardson, 565 F.3d at 703) (internal quotation marks omitted), requires federal

agencies to integrate environmental values into the decisionmaking process by

considering the environmental impacts of proposed actions and reasonable

alternatives to such actions, see, e.g., Barnes v. U.S. Dep’t of Transp., --- F.3d

----, No. 10-70718, 2011 WL 3715694, at *5 (9th Cir. Aug. 25, 2011) (“Congress

passed NEPA ‘to protect the environment by requiring that federal agencies

carefully weigh environmental considerations and consider potential alternatives

to the proposed action before the government launches any major federal action.’”

(quoting Lands Council v. Powell, 395 F.3d 1019, 1026 (9th Cir. 2005))). “NEPA

established a ‘national policy [to] encourage productive and enjoyable harmony

between man and his environment,’ and was intended to reduce or eliminate

environmental damage and promote ‘the understanding of the ecological systems

and natural resources important to’ the United States.” Ecology Ctr., Inc. v. U.S.

Forest Serv., 451 F.3d 1183, 1185 (10th Cir. 2006) (alteration in original)

(quoting 42 U.S.C. § 4321). 

NEPA has two aims: “First, it places upon an agency the obligation to

consider every significant aspect of the environmental impact of a proposed

action. Second, it ensures that the agency will inform the public that it has indeed

considered environmental concerns in its decisionmaking process.” Forest
42

Guardians, 611 F.3d at 711 (quoting Balt. Gas & Elec. Co. v. Natural Res. Def.

Council, Inc., 462 U.S. 87, 97 (1983)) (internal quotation marks omitted); see

also New Mexico ex rel. Richardson, 565 F.3d at 703 (“By focusing both agency

and public attention on the environmental effects of proposed actions, NEPA

facilitates informed decisionmaking by agencies and allows the political process

to check those decisions.”). However, NEPA is strictly a procedural statute; it

does not mandate substantive results. E.g., Winter v. Natural Res. Def. Council,

Inc., 129 S. Ct. 365, 376 (2008); Utah Envtl. Cong. v. Russell, 518 F.3d at 821. 

Under NEPA, before a federal agency “undertakes a ‘major Federal action[]

significantly affecting the quality of the human environment,’ it must prepare an

environmental impact statement (‘EIS’) that details, among other things, the

environmental impacts of the proposed action, any adverse environmental effects

that would occur as a result, and alternatives to the proposed action.” Greater

Yellowstone Coal. v. Flowers, 359 F.3d 1257, 1274 (10th Cir. 2004) (quoting 42

U.S.C. § 4332(2)(C)). Through the NEPA process, “the agency must take a ‘hard

look’ at information relevant to its decision.” Forest Guardians, 611 F.3d at 711. 

We have described the multi-stage process for preparation of an EIS as follows:

Initially, an agency announces its intent to study a proposed

action through a process called scoping, during which the agency

solicits comments and input from the public and other state and

federal agencies with the goal of identifying specific issues to be

addressed and studied. 40 C.F.R. § 1501.7. After assessing the

input from the scoping process, the government then prepares a

draft Environmental Impact Statement (DEIS), id. § 1502.9(a),
43

which is then presented to the public and other government

agencies for notice and comment. Id. § 1503.1(a). After

evaluating the feedback received during the notice and comment

process, the agency prepares a FEIS. Id. § 1502.9(b). If after

preparing either a DEIS or FEIS, the proposed action

substantially changes in a way “relevant to environmental

concerns,” or if new information comes to light about

environmental impacts, an agency must prepare a supplemental

EIS (SEIS). Id. § 1502.9(c)(1).

Citizens’ Comm. to Save Our Canyons v. U.S. Forest Serv., 297 F.3d 1012, 1022

(10th Cir. 2002). In every EIS prepared under NEPA, agencies must include a

“detailed statement” on:

(i) the environmental impact of the proposed action, (ii) any

adverse environmental effects which cannot be avoided should

the proposal be implemented, (iii) alternatives to the proposed

action, (iv) the relationship between local short-term uses of

man’s environment and the maintenance and enhancement of

long-term productivity, and (v) any irreversible and irretrievable

commitments of resources which would be involved in the

proposed action should it be implemented.

42 U.S.C. § 4332(2)(C). After completing the NEPA process and making a final

decision on the proposed action, the agency “then must publish a record of its

decision, showing how its final decision-making process incorporated the [EIS’s]

findings.” BioDiversity Conservation Alliance v. Bureau of Land Mgmt., 608

F.3d 709, 712 (10th Cir. 2010) (citing 23 C.F.R. § 771.127). The requirements of

NEPA “have been augmented by longstanding regulations issued by the Council

on Environmental Quality (‘CEQ’).” New Mexico ex rel. Richardson, 565 F.3d at

703; see 40 C.F.R. pts. 1500–08.
44

2. Scoping

Wyoming’s first claim under NEPA alleges that the scoping period of the

Forest Service was inadequate. Specifically, Wyoming argues that the Forest

Service acted arbitrarily and capriciously when it failed to (a) extend the scoping

period beyond the initial sixty days allotted, and (b) provide during the scoping

period detailed maps of the IRAs affected by the Roadless Rule. The district

court held that the Forest Service’s failure to extend the scoping period and

provide maps accurately depicting the areas covered by the rule was arbitrary and

capricious in that it deprived Wyoming of the opportunity to “meaningfully

‘participate’ in determining the scope and significant issues to be analyzed in the

EIS.” Wyoming, 570 F. Supp. 2d at 1333–34. On appeal, the Forest Service

argues that it fully complied with its scoping obligations under NEPA, that it was

not required to extend the scoping period, and that the district court erred in

finding that its failure to provide maps prevented Wyoming from meaningfully

participating in the scoping process. We hold that the Forest Service fulfilled its

scoping obligations under NEPA, and therefore did not act arbitrarily and

capriciously.

“Scoping” is the initial phase of the overall EIS process under NEPA. 

Citizens’ Comm. to Save Our Canyons, 297 F.3d at 1022. The scoping process is

“an early and open process for determining the scope of issues to be addressed

and for identifying the significant issues related to a proposed action.” 40 C.F.R.
45

§ 1501.7; see Citizens’ Comm. to Save Our Canyons, 297 F.3d at 1022 (stating

that the goal of the scoping process is to “identify[] specific issues to be

addressed and studied” during the EIS process (citing 40 C.F.R. § 1501.7)). To

initiate the scoping process, the agency is required to publish a NOI in the Federal

Register “[a]s soon as practicable after its decision to prepare an [EIS].” 40

C.F.R. § 1501.7. As part of this process, the lead agency is required to, inter alia,

“[i]nvite the participation of affected Federal, State, and local agencies” and

“[d]etermine the scope . . . and the significant issues to be analyzed in depth in

the [EIS].” Id. § 1501.7(a)(1), (2). 

In addition, the agency “may . . . [s]et time limits” for the scoping process

and “[h]old an early scoping meeting or meetings.” Id. § 1501.7(b)(2), (4)

(emphasis added). In regard to setting time limits for the scoping process, the

only requirement is that such limits comply with 40 C.F.R. § 1501.8. Id.

§ 1501.7(b)(1). Section 1501.8 does not “prescribe[] universal time limits for the

entire NEPA process,” but instead merely authorizes agencies to set time

limits—including times limits on the scoping process—that are “appropriate to

individual actions” and “are consistent with the purposes of NEPA and other

essential considerations of national policy.” Id. § 1501.8. More specifically, the

principal regulations governing scoping—i.e., the CEQ Regulations—do not set

minimum time limits for the scoping period and do not require an agency to

extend or reopen the scoping period; those determinations are generally left to the
46

agency’s discretion.

In accordance with 40 C.F.R. § 1501.7, the Forest Service published a NOI

commencing the scoping period for the Roadless Rule on October 19, 1999. 64

Fed. Reg. at 56,306. The NOI stated that the “Forest Service is initiating a public

rulemaking process to propose the protection of remaining roadless areas within

the [NFS].” Id. The scoping period for the proposed rulemaking was to close on

December 20, 1999, sixty days after it opened. Id. The NOI gave an overview of

the proposed rulemaking, see id. at 56,307 (stating that the “Forest Service

proposes to promulgate a [two-part] rule” that would “restrict certain activities,

such as road construction, in unroaded portions of [IRAs]” and “establish national

direction for managing inventoried roadless areas, and for determining whether

and to what extent similar protections should be extended to uninventoried

roadless areas”); listed the possible alternatives that would be considered in the

DEIS, see id. (listing the four alternatives, including the “no action” alternative);

and gave a tentative timeline for completion of the overall NEPA process, see id.

(stating that the “[DEIS] and proposed rule are expected . . . in Spring 2000, and a

[FEIS] and final rule will follow”). The NOI did not indicate the existence of any

maps depicting the geographic scope of the Roadless Rule, but it did indicate that

the proposed rule would apply to “unroaded portions of inventoried roadless

areas, as previously identified in RARE II and existing forest plan inventories.” 

Id.
47

Turning to the Forest Service’s refusal to extend the scoping period, we

conclude that it was not unreasonable—that is, not arbitrary, capricious, or an

abuse of discretion—to limit the period to sixty days and to decline to extend it

any further. As stated above, there is no requirement mandating a minimum

number of days the scoping period must remain open or requiring the Forest

Service to extend or reopen the scoping period. We have found that “[a]bsent

constitutional constraints or extremely compelling circumstances the

administrative agencies should be free to fashion their own rules of procedure and

methods of inquiry permitting them to discharge their multitudinous duties.” 

Phillips Petroleum Co. v. U.S. EPA, 803 F.2d 545, 559 (10th Cir. 1986) (quoting

Vt. Yankee Nuclear Power Corp. v. Natural Res. Def. Council, 435 U.S. 519, 543

(1978)) (internal quotation marks omitted). “Congress intended that the

discretion of the agencies and not that of the courts be exercised in determining

when extra procedural devices should be employed.” Id. (emphasis omitted)

(quoting Vt. Yankee, 435 U.S. at 546) (internal quotation marks omitted). 

Therefore, as long as the agency complies with the statutory and regulatory

minima, absent “extremely compelling circumstances,” a reviewing court

generally may not overturn an agency decision for failure to provide additional

procedure, Vt. Yankee, 435 U.S. at 543; “such [extreme] circumstances, if they

exist, are extremely rare.” Id. at 524. 

Nothing in NEPA or the CEQ Regulations (or the APA for that matter)
48

required the Forest Service to extend the scoping period beyond the initial sixtyday allotment; Wyoming itself acknowledges this. See Wyo. Br. at 16

(“Wyoming agrees that the NEPA scoping regulations do not specifically require .

. . extensions of the scoping period upon request.”). To impose upon the agency

more stringent requirements than the legal framework requires, absent “extremely

compelling circumstances,” would violate the well-settled principle articulated by

the Supreme Court in Vermont Yankee “that the formulation of procedure is to be

basically left within the discretion of the agencies to which Congress has confined

the responsibility for substantive judgments.” Phillips Petroleum, 803 F.2d at

559. Because Wyoming has cited to no “extremely compelling circumstance” that

would justify our intrusion, we conclude that the agency’s refusal to extend the

comment period was not arbitrary, capricious, or an abuse of discretion. See, e.g.,

id. (applying Vermont Yankee and holding that the EPA did not act arbitrarily and

capriciously under the APA in “refusing to extend the [45-day] comment period

30 days” because “[t]here [wa]s no requirement concerning how many days the

EPA must allow for comment or that the EPA must re-open the comment period at

the request of one of the participants”); cf. Conn. Light & Power Co. v. Nuclear

Regulatory Comm’n, 673 F.2d 525, 534 (D.C. Cir. 1982) (holding that the Nuclear

Regulatory Commission’s refusal to extend the minimum comment period under

the APA was not “unreasonable” because “[n]either statute nor regulation

mandates that the agency do more,” even though a “longer comment period might
21 In any event, we are convinced that Wyoming was given a

meaningful opportunity to participate in the scoping process. A review of the

record demonstrates that the Forest Service’s sixty-day scoping period was

adequate because of the substantial input the Forest Service was able to obtain

during that period. The Forest Service conducted 187 public meetings, several of

which were held in Wyoming, and received approximately 517,000 comments

during the sixty days. It is virtually certain that this process produced more than

enough information to “[d]etermine the scope . . . and the significant issues to be

analyzed in depth in the [EIS].” 40 C.F.R. § 1501.7(a)(2). 

49

have been helpful” due to the “technical complexity of the regulations”).21

The district court likewise erred in holding that the Forest Service’s failure

to present detailed maps of the areas impacted by the Roadless Rule during the

scoping period was arbitrary and capricious. The district court found that the

Forest Service violated NEPA by failing to provide “maps accurately depicting

the areas covered by the Roadless Rule” because without such maps “Wyoming

could not meaningfully participate in defining the scope of a rule when it did not

know what lands within its borders would be impacted by the rule.” Wyoming,

570 F. Supp. 2d at 1333. Again, we disagree with the district court’s conclusion

that the Forest Service’s refusal to provide such information was arbitrary,

capricious, or an abuse of discretion.

As Wyoming acknowledges, neither NEPA’s provisions nor the CEQ

Regulations require an agency to include detailed maps or a precise geographic

description of the areas potentially affected by a proposed rule during the scoping
22 Wyoming argues that the “[scoping regulations] do require that

environmental information of ‘high quality’ be made available to public officials

and citizens ‘before decisions are made and before actions are taken.’” Wyo. Br.

at 16–17 (emphasis added) (quoting 40 C.F.R. § 1500.1(b)). However, because

§ 1500.1(b) is not a scoping regulation, and must only be satisfied “before

decisions are made and before actions are taken,” it is not relevant to the scoping

issue. 

50

process. 40 C.F.R. § 1501.7.22 Furthermore, Wyoming’s assertion—and the

district court’s conclusion—that the failure to provide maps deprived Wyoming of

an opportunity to meaningfully participate in the scoping process because it could

not determine which areas would be affected is wholly without merit. A review

of the record demonstrates that Wyoming had adequate notice of the unroaded

areas within their borders that would be affected by the proposed rule, which in

turn enabled Wyoming to meaningfully participate in the scoping process. See

Kootenai Tribe, 313 F.3d at 1116–17 (“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.”

(citing Nw. Coal. for Alts. to Pesticides (NCAP) v. Lyng, 844 F.2d 588, 594–95

(9th Cir. 1988))). 

First, the Forest Service displayed preliminary versions of the Roadless

Rule maps at the scoping meetings, including the meetings in Wyoming. See

Aplt. App. at 312–13 (Baron Decl., dated Feb. 28, 2003) (stating that preliminary
51

maps were presented at scoping meetings in Wyoming, which displayed rough

depictions of the RARE II IRAs located within Bighorn, Bridger-Teton, Medicine

Bow, Shoshone, and Ashley National Forests, as well as the Thunder Basin

National Grassland); id. at 2023–26 (large-scale copies of Geographic

Information System (“GIS”) maps depicting RARE II IRAs in Bighorn, BridgerTeton, and Medicine Bow National Parks, which were displayed at scoping

meetings in Wyoming). These maps, although not depicting the precise

boundaries of the rule’s geographic scope, gave Wyoming sufficient notice as to

which IRAs within its borders would generally be impacted by the rule. Second,

even without the maps, Wyoming was aware of the IRAs that would be impacted

because the NOI indicated that the rule would “restrict certain activities . . . in

unroaded portions of inventoried roadless areas, as previously identified in RARE

II and existing forest plan inventories.” 64 Fed. Reg. at 56,307. This description

alone reasonably informed the public, including Wyoming, of which IRAs would

be affected by the rule. The notice provided by the preliminary maps and also the

NOI’s reference to IRAs identified in the RARE II and existing forest plan

inventories were more than sufficient to allow Wyoming to meaningfully

participate in the initial scoping phase of the EIS process; that is, sufficient to

allow them to meaningfully participate in the “early and open process for

determining the scope of issues to be addressed and for identifying the significant
23 In reviewing a similar challenge to the Forest Service’s failure to

provide maps during the scoping process for the Roadless Rule EIS, the Ninth

Circuit held that “the Forest Service met its obligations under NEPA for the

scoping period.” Kootenai Tribe, 313 F.3d at 1117. The Kootenai Tribe court

“disagree[d] with the district court and plaintiffs that the Forest Service’s failure

to provide maps of the affected areas during [the scoping] period violated NEPA.” 

Id. This holding was based in part on the court’s conclusion that “the location of

the affected areas was reasonably known to the plaintiffs prior to the receipt of

the maps because the plaintiffs ha[d] been engaged in ongoing studies and

discussions with the Forest Service about roadless areas for several years.” Id;

see id. (stating that even if the maps presented by the Forest Service 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”). Although certainly not binding on this court, the Kootenai

Tribe decision does lend support to our holding that the Forest Service was not

required to provide more detailed maps of the affected IRAs during the scoping

process.

52

issues related to a proposed action.” 40 C.F.R. § 1501.7.23 Accordingly, we hold

that the district court erred in holding that the Forest Service’s failure to provide

more detailed maps during the scoping period was arbitrary and capricious. 

3. Cooperating-Agency Status

In February of 2000, early in the NEPA process, Wyoming requested the

Forest Service to grant it “cooperating agency” status under the CEQ Regulations.

The Forest Service never responded, thereby impliedly rejecting or denying

Wyoming’s request. The district court concluded that, although administrative

agencies generally have “the discretion to grant or deny the states cooperating

agency status,” the Forest Service acted arbitrarily and capriciously in denying

Wyoming’s request because “[t]here is not one good reason in the administrative

record before the Court explaining why cooperating-agency status was denied to
53

the ten most affected states, including Wyoming.” Wyoming, 570 F. Supp. 2d at

1334–35. On appeal, the Forest Service and the Environmental Groups argue that

the district court erred because the Forest Service’s decision to grant or deny a

request for cooperating-agency status is committed solely to the agency’s

discretion and not subject to judicial review under the APA. We agree.

All agency actions are presumed reviewable under the APA. Payton v. U.S.

Dep’t of Agric., 337 F.3d 1163, 1167 (10th Cir. 2003). However, there is a

narrow exception to this otherwise strong presumption, found in 5 U.S.C.

§ 701(a)(2), which precludes review “if the statute is drawn so that a court would

have no meaningful standard against which to judge the agency’s exercise of

discretion.” Id. at 1168 (quoting Heckler v. Chaney, 470 U.S. 821, 830 (1985))

(internal quotation marks omitted). “In such a case, the statute (‘law’) can be

taken to have ‘committed’ the decisionmaking to the agency’s judgment

absolutely.” City of Colo. Springs v. Solis, 589 F.3d 1121, 1129 (10th Cir. 2009)

(quoting Heckler, 470 U.S. at 830) (internal quotation marks omitted). In other

words, where the statutory and regulatory frameworks yield no law to apply, there

can be no judicial review under the APA. Id. (citing Thomas Brooks Chartered v.

Burnett, 920 F.2d 634, 642 (10th Cir. 1990)). In ascertaining whether there is

“law” or a “meaningful standard” to apply to a challenged action, the court may

look to the applicable statutes, regulations, or other binding agency rules. E.g.,

Solis, 589 F.3d at 1129–30; McAlpine v. United States, 112 F.3d 1429, 1433 (10th
54

Cir. 1997).

The CEQ Regulations state that “[u]pon request of the lead agency, any

other Federal agency which has jurisdiction by law shall be a cooperating

agency.” 40 C.F.R. § 1501.6. A “cooperating agency” is defined as “any Federal

agency other than a lead agency which has jurisdiction by law or special expertise

with respect to any environmental impact involved in a proposal (or a reasonable

alternative) for legislation or other major Federal action significantly affecting the

quality of the human environment.” Id. § 1508.5. A non-federal agency, such as

a State or local agency, “may request the lead agency to designate it a cooperating

agency,” id. § 1501.6 (emphasis added), and “may by agreement with the lead

agency become a cooperating agency,” id. § 1508.5 (emphasis added). 

Although it is true that the CEQ Regulations permit Wyoming to request

cooperating-agency status from the Forest Service, and further authorize the

agency to grant such status, nothing in the regulations mandates or requires that

the Forest Service grant such a request. More importantly, the applicable

regulations provide no standard for a court to apply in reviewing the Forest

Service’s denial of such a request, and are likewise devoid of any standards or

directives that would guide the Forest Service in granting or denying such a

request. In other words, there is simply no law to apply. Cf. Solis, 589 F.3d at

1130 (concluding that there is “law to apply” when the applicable legal

framework provides “clear and specific directives” to guide the agency in making
24 Wyoming argues that a “meaningful standard” emanates from the

“policy” provision of NEPA, 42 U.S.C. § 4331, as well as from a memorandum

issued by the CEQ in 1999. See 42 U.S.C. § 4331(a) (stating that it is the

“policy” of the Federal Government under NEPA to work “in cooperation with

State and local governments”); id. § 4331(b) (stating that “it is the continuing

responsibility of the Federal Government to use all practicable means, consistent

with other essential considerations of national policy, to improve and coordinate

Federal plans, functions, programs, and resources”); Aplee. Supp. App. at 153–55

(Memorandum from George T. Frampton, Council on Envtl. Quality, to the Heads

of Federal Agencies, dated July 28, 1999) (“urg[ing] agencies to more actively

solicit in the future the participation of state, tribal and local governments as

‘cooperating agencies’ in implementing the [EIS] process under [NEPA]” (citing

40 C.F.R. § 1508.5)). However, this argument fails for two reasons. First,

neither § 4331 nor the memorandum set out “clear and specific directives” for the

agency or the court to apply. See Solis, 589 F.3d at 1130. Second, neither of

these sources establish binding legal duties that limit the Forest Service’s

discretion in granting or denying a request. E.g., Sierra Club v. Yeutter, 911 F.2d

1405, 1414 (10th Cir. 1990).

55

the determination (internal quotation marks omitted)). Under the applicable legal

framework, therefore, the decision to grant or deny Wyoming’s request was

committed to the Forest Service’s discretion and is not judicially reviewable

under the APA. Accordingly, the district court erred in finding that the Forest

Service’s implied denial of Wyoming’s request was arbitrary and capricious.24

4. Alternatives Analysis

Wyoming and CMA also claim that the Forest Service violated NEPA by

failing to adequately consider a reasonable range of alternatives to the proposed

action. More specifically, they argue that the Forest Service impermissibly

defined the purpose of the proposed action too narrowly, which therefore

precluded consideration of a reasonable range of alternatives. The district court,
56

finding in favor Wyoming and CMA, held that the Forest Service violated NEPA

because it “failed to rigorously explore and objectively evaluate all reasonable

alternatives” to the proposed action, which “was the result of the agency narrowly

defining the scope of its project” thereby “eliminat[ing] competing alternatives

out of consideration and existence.” Wyoming, 570 F. Supp. 2d at 1339–40. On

appeal, the Forest Service and the Environmental Groups argue that the Forest

Service reasonably limited the range of alternatives to those that furthered the

defined purpose of the Roadless Rule—viz., to prohibit activities, such as road

construction and timber harvest, that have the greatest likelihood of degrading the

characteristics of IRAs—and thereafter satisfied NEPA’s requirements by

analyzing a full range of reasonable alternatives that would satisfy that purpose. 

We agree.

a. NEPA’s Alternatives-Analysis Mandate

Under NEPA, an EIS prepared by a federal agency must include a

discussion of “alternatives to the proposed action.” 42 U.S.C. § 4332(2)(C). The

analysis of alternatives “is characterized as ‘the heart’ of the environmental

impact statement.” Colo. Envtl. Coal. v. Dombeck, 185 F.3d 1162, 1174 (10th

Cir. 1999) (quoting 40 C.F.R. § 1502.14). In the EIS, the agency must

“[r]igorously explore and objectively evaluate all reasonable alternatives” in

response to a “specif[ied] . . . purpose and need.” 40 C.F.R. §§ 1502.13,

1502.14(a); see also New Mexico ex rel. Richardson, 565 F.3d at 703 (stating that
57

“an EIS must ‘rigorously explore and objectively evaluate’ all reasonable

alternatives to a proposed action, in order to compare the environmental impacts

of all available courses of action” (quoting 40 C.F.R. § 1502.14)). 

“We review an EIS under a ‘rule of reason’ standard to determine . . .

whether the discussion of alternatives in the EIS is sufficient to permit a reasoned

choice among the options.” Ass’ns Working for Aurora’s Residential Env’t

(AWARE) v. Colo. Dep’t of Transp., 153 F.3d 1122, 1130 (10th Cir. 1998); see

also Colo. Envtl. Coal., 185 F.3d at 1174 (stating that, when evaluating the

adequacy of an agency’s alternatives analysis, we employ a “rule of reason”);

BioDiversity Conservation Alliance, 608 F.3d at 714 (“Our review of a decision

not to consider a particular alternative is informed by a rule of reason and

practicality.”). The “reasonableness standard applies both to which alternatives

the agency discusses and the extent to which it discusses them.” Utahns for

Better Transp. v. U.S. Dep’t of Transp., 305 F.3d 1152, 1166–67 (10th Cir. 2002)

(citing City of Grapevine v. Dep’t of Transp., 17 F.3d 1502, 1506 (D.C. Cir.

1994)). 

We have held that “[o]nce an agency appropriately defines the objectives of

an action, NEPA does not require agencies to analyze the environmental

consequences of alternatives it has in good faith rejected as too remote,

speculative, or . . . impractical or ineffective.” Citizens’ Comm. to Save Our

Canyons, 297 F.3d at 1030 (quoting All Indian Pueblo Council v. United States,
58

975 F.2d 1437, 1444 (10th Cir. 1992)) (internal quotations marks omitted). That

is, once an agency establishes the objective of the proposed action—which it has

considerable discretion to define, Utah Envtl. Cong. v. Bosworth, 439 F.3d at

1195; see also Friends of Se.’s Future v. Morrison, 153 F.3d 1059, 1066 (9th Cir.

1998) (stating that agencies have “considerable discretion to define the purpose

and need of a project,” as long as it is reasonable)—the agency need not provide a

detailed study of alternatives that do not accomplish that purpose or objective, as

those alternatives are not “reasonable,” Citizens’ Comm. to Save Our Canyons,

297 F.3d at 1031; see also BioDiversity Conservation Alliance, 608 F.3d at

714–15 (“An environmental impact statement must study reasonable alternatives

in detail. . . . The Bureau may eliminate alternatives that are ‘too remote,

speculative, impractical, or ineffective,’ or that do not meet the purposes and

needs of the project.” (citation omitted) (quoting New Mexico ex rel. Richardson,

565 F.3d at 708–09 & n.30)); AWARE, 153 F.3d at 1130 (“[A]n agency need not

independently evaluate alternatives it determines in good faith to be ineffective as

a means to achieving the desired ends.”). However, agencies are not permitted

“to define the objectives [of a proposed action] so narrowly as to preclude a

reasonable consideration of alternatives.” Citizens’ Comm. to Save Our Canyons,

297 F.3d at 1030; see also Utah Envtl. Cong. v. Bosworth, 439 F.3d at 1184

(stating that an agency cannot “define the project so narrowly that it foreclose[s]

a reasonable consideration of alternatives” (quoting Davis v. Mineta, 302 F.3d
59

1104, 1119 (10th Cir. 2002)) (internal quotation marks omitted)).

For the alternatives selected for detailed analysis in the EIS, the agency

must “[d]evote substantial treatment to each alternative . . . including the

proposed action so that reviewers may evaluate their comparative merits.” 40

C.F.R. § 1502.14(b). Within the detailed alternatives analysis, agencies are also

required to “[i]nclude the alternative of no action.” Id. § 1502.14(d); accord

Forest Guardians, 611 F.3d at 711. For those “alternatives which were

eliminated from detailed study” in the EIS—for example, because such

alternatives do not further the defined purpose of the proposed action—the agency

must “briefly discuss the reasons for their having been eliminated.” Utahns for

Better Transp., 305 F.3d at 1166 (quoting 40 C.F.R. § 1502.14(a)) (internal

quotation marks omitted).

b. Discussion

As stated above, agencies have considerable discretion to define the

purposes and objectives of a proposed action, as long as they are reasonable. 

Utah Envtl. Cong. v. Bosworth, 439 F.3d at 1195; Friends of Se.’s Future, 975

F.3d at 1066. In this action, the Forest Service stated that the defined purpose of

the Roadless Rule was, inter alia, to provide long-term “protect[ion] [of] the

values prevalent in roadless areas” by “immediately stop[ping] activities that have

the greatest likelihood of degrading desirable characteristics of [IRAs].” DEIS at

1-10; see also FEIS at ES-1 (“The purpose of this action is to immediately stop
60

activities that pose the greatest risks to the social and ecological values of

[IRAs].”). Although the district court concluded otherwise, we do not find this

stated purpose to be unreasonably narrow, in that it would preclude reasonable

consideration of alternatives. See Kootenai Tribe, 313 F.3d at 1122 (stating that

“[p]rotecting the roadless areas of our national forests from further degradation,”

the defined objective of the Roadless Rule, “can hardly be termed unreasonably

narrow”).

To achieve the defined purpose of the proposed rule, “the agency

determined that only those uses and activities that are likely to significantly alter

landscapes and cause landscape fragmentation on a national scale [would] be

considered for prohibition in this proposal.” DEIS at 1-10. Specifically, the

Forest Service decided—based on the stated purpose of the action and a review of

public commentary—to limit the alternatives analyzed in detail to those that

prohibited road construction and reconstruction, in addition to the “no action”

alternative. Id. 

Within this established scope, the Forest Service analyzed four prohibition

alternatives in detail in the EIS: three “action” alternatives and the “no action

alternative.” Alternative 1 was the “no action” alternative, DEIS at 2-4, under

which “no rule prohibiting activities in [IRAs] would be issued” and “[c]urrent

management plans would continue to guide forest and grassland management.” 

FEIS at ES-5. Alternative 2, which was the preferred alternative identified in the
61

DEIS, proposed a prohibition on “road construction and reconstruction within

unroaded portions of [IRAs],” with no explicit restriction on timber harvest. 

DEIS at 2-4 to 2-5; FEIS at 2-6 to 2-7. Alternative 3, which was the preferred

alternative in the FEIS, proposed a prohibition on “road construction,

reconstruction, and timber harvest except for stewardship purposes within

unroaded portions of [IRAs].” DEIS at 2-5; FEIS at 2-7. Lastly, Alternative 4

proposed a prohibition on “road construction, reconstruction[,] and all timber

harvest within unroaded portions of [IRAs],” with no stewardship exception. 

DEIS at 2-6; FEIS at 2-8. 

The Forest Service explained that it was limiting the action alternatives to

restrictions on 

road construction, reconstruction, and timber harvest, because

these activities occur on a national scale, have the greatest

likelihood of altering landscapes, often cause significant

landscape fragmentation, and often result in immediate,

irreversible, and long-term loss of roadless characteristics. In

addition, timber harvest historically generates the need for most

of the road construction in inventoried roadless areas.

DEIS at 1-10 to 1-11. We conclude that the Forest Service’s decision to limit the

alternatives considered in detail to those that focused on restrictions on road

construction and timber harvest (as well as the required “no action” alternative)

was reasonable in light of its conclusion, based on ample evidence presented in

the EIS, that these activities posed the greatest risk of destroying the

characteristics of IRAs, which the proposed rule was intended to protect and
62

preserve. 

The district court faulted the Forest Service for only considering

alternatives that prohibited road construction, based on the court’s finding that

Defendants had not “directed the Court to any evidence considered by the Forest

Service to support th[e] conclusory premise” that “any road construction

whatsoever would degrade the desirable characteristics of [IRAs] in contravention

of the purpose of the Roadless Rule.” Wyoming, 570 F. Supp. 2d at 1339. 

However, this finding was clearly erroneous; the record is replete with evidence

supporting the Forest Service’s decision to sharply limit road construction in each

of the action alternatives analyzed in the EIS. 

For example, the Forest Service explained that road construction and

reconstruction in IRAs, which occur within IRAs on a nationwide basis: (a) create

“the greatest likelihood of altering landscapes,” “[o]ften cause substantial

landscape fragmentation and adverse changes to native plant and animal

communities,” and can “result in immediate, irretrievable, and long-term loss of

roadless characteristics,” FEIS at 1-16; (b) are “the primary human-caused source

of soil and water disturbances in forested environments,” id. at 3-44; (c)

“contribute more sediment to streams than any other land management activity,”

id. at 3-165; (d) are “major contributors to forest fragmentation” and the

associated disturbance of important wildlife habitat, id. at 3-131 to 3-133; (e)

“convert[] large areas of habitat into nonhabitat” and “negative[ly] [a]ffect[] . . .
63

both terrestrial and aquatic ecosystems,” id. at 3-149 to 3-150; (f) create “avenues

for invasion by nonnative invasive plant species that frequently compete with or

displace native vegetation,” id. at 3-174; and (g) adversely impact threatened and

endangered wildlife species, through habitat loss, loss of connectivity with other

habitats, displacement, and access for poaching and illegal collection, see id. at 3-

181 to 3-182. A review of this evidence, among other evidence presented in the

DEIS and FEIS, supports the Forest Service’s judgment that a near-total ban on

road construction was a necessary component of a rule with the goal of protecting

and preserving the characteristics of IRAs. See Kootenai Tribe, 313 F.3d at 1122

(“[H]aving 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 [the] policy objectives [of the Roadless Rule].”). 

Unlike the district court, we will defer to the Forest Service’s judgment on

this issue. Cf., e.g., Morris v. U.S. Nuclear Regulatory Comm’n, 598 F.3d 677,

691 (10th Cir. 2010) (stating that under NEPA “our ‘deference to the agency is

especially strong where the challenged decisions involve technical or scientific

matters within the agency’s area of expertise’” (quoting Utah Envtl. Cong. v.

Russell, 518 F.3d 817, 824 (10th Cir. 2008))). Accordingly, we find that the

Forest Service reasonably limited the detailed alternatives analysis to the three

alternatives—in addition to the required “no action” alternative—that prohibited

road construction, because any alternative permitting road construction to a
25 The Tenth Circuit has repeatedly held that agencies may limit their

alternatives to the no-action alternative and alternatives that meet the defined

purpose or objective of the proposed action. See, e.g., Utah Envtl. Cong. v.

Bosworth, 439 F.3d at 1187, 1195; Greater Yellowstone Coal., 359 F.3d at 1278;

Lee v. U.S. Air Force, 354 F.3d 1229, 1238–40 (10th Cir. 2004); Citizen’s Comm.

to Save Our Canyons, 297 F.3d at 1031–32; Colo. Envtl. Coal., 185 F.3d at

1174–75; AWARE, 153 F.3d at 1130. 

64

greater extent would not further the defined objective of the Roadless Rule and

would therefore not be “reasonable.” Citizens’ Comm. to Save Our Canyons, 297

F.3d at 1031; see also AWARE, 153 F.3d at 1130.25

The district court’s holding that the Forest Service failed to satisfy its

NEPA mandate was also based on several other conclusions, which we find to be

erroneous. First, the district court erred in finding that the Forest Service had

considered only two action alternatives. As discussed above, the Forest Service

took the requisite “hard look” at four alternatives—the three “action” alternatives

and the required “no action” alternative. The district court found that Alternative

2 and Alternative 4 would have the same practical effect of eliminating all

logging, in addition to banning road construction and reconstruction, and were

therefore essentially identical. Wyoming, 570 F. Supp. 2d at 1337–38. However,

the record demonstrates otherwise. Contrary to the district court’s conclusion,

Alternative 2—which generally banned road construction and reconstruction, but

not timber harvest—would not preclude all logging because it would allow the

continued use of existing roads, helicopters, and cable systems to extract timber

from IRAs. See FEIS at 2-7, 3-197, 3-201 to 3-202. The Forest Service estimated
65

that Alternative 2 would permit approximately 300 million board feet of timber to

be harvested from approximately 40,000 acres of IRAs in the first five years

following the rulemaking. Id. at 3-201 to 3-203. By contrast, Alternative

4—which generally banned road construction and timber harvest, with no

stewardship exception—would prohibit all logging and yield no timber volume. 

Id. at 3-204. The record demonstrates that these two alternatives were not

“essentially identical,” and therefore the Forest Service was correct in analyzing

them in the EIS as separate and distinct alternatives. 

Second, the district court erred in finding that the Forest Service failed to

consider other alternatives, aside from the four alternatives considered in detail. 

Wyoming, 570 F. Supp. 2d at 1338. As discussed supra, “an agency need not

independently evaluate alternatives it determines in good faith to be ineffective as

a means to achieving the desired ends.” AWARE, 153 F.3d at 1130. For those

alternatives considered but eliminated from detailed analysis, the Forest Service

was required only to “briefly discuss the reasons for their having been

eliminated.” 40 C.F.R. § 1502.14(a). During the NEPA process, the Forest

Service considered six other categories of alternatives—which included

exempting road construction for fire, insect, and disease treatments and for forest

health management—but eliminated them from detailed study. FEIS at 2-15 to 2-
26 Specifically, these six other “categories” of alternatives included:

(1) “processes other than rulemaking for attaining the purpose of this

action”; (2) “land use designations”; (3) “prohibitions”; (4) “geographical

definitions”; (5) “durations for prohibitions and procedures”; and (6) “exemptions

and exceptions.” FEIS at 2-15.

27 The district court complained that “the Forest Service stated that it

did not consider various components of the alternatives . . . because it would

create an ‘unmanageably large number of alternatives.’” Wyoming, 570 F. Supp.

2d at 1338. We disagree with this characterization of the Forest Service’s

statement. The Forest Service actually stated that a “wide variety of factors . . .

[were] considered in detail” during the scoping period and that “[s]ince the DEIS

was released, many additional suggestions have been offered and explored in

arriving at the set of alternatives considered in detail.” FEIS at 2-15 (emphasis

added). Although the Forest Service had considered each of the alternatives, it

stated that addressing each of these alternatives individually in detail in the FEIS

would be “unmanageabl[e].” Id. As stated above, we conclude that nothing more

was required as to these eliminated alternatives.

66

22.26 In accordance with the requirements under NEPA, the Forest Service briefly

explained its reasons for eliminating these other alternatives from detailed study,

stating that they “were outside the scope of conserving and protecting inventoried

roadless areas, [were] already represented by one or more of the alternatives

considered in detail, or it was determined that they would cause unnecessary

environmental harm.” FEIS at 2-15; see also id. at 2-15 to 2-22 (individually

dismissing these other alternatives and stating the Forest Service’s reason for not

considering each alterative in detail). Under NEPA, we conclude that nothing

more was required with respect to these additional alternatives.27

The district court also erred in finding that the Forest Service failed to

consider the benefits of road building or the environmental impacts of prohibiting
28 The district court itself characterized these forest management

activities as the “environmental status quo” that had been in place “for decades.” 

Wyoming, 570 F. Supp. 2d at 1339. We have explained that the purpose of the

“no action” alternative—which agencies are required to consider, 40 C.F.R.

§ 1502.14(d)—is to “compare the potential impacts of the proposed major federal

action to the known impacts of maintaining the status quo.” Custer Cnty. Action

(continued...)

67

road building in the EIS. Specifically, the district court stated that there is

“nothing unreasonable about studying in detail an alternative that would permit

the construction of a road into a roadless area to protect the forest through active

forest management,” and the court disapproved of what it considered the Forest

Service’s “cavalier dismissal of such forest management activities, which have

been the environmental status quo for decades.” Wyoming, 570 F. Supp. 2d at

1339. 

Turning to the problems with the district court’s findings, first, as discussed

above, the Forest Service considered active forest management as an exception to

the general prohibitions on road building in the proposed rule, but dismissed such

an exception because the agency reasonably determined that these forest

management “activities could lead to widespread road construction in many

roadless areas that would be incompatible with the stated purpose and need” of

the proposed rule. FEIS at 2-22. In addition, the Forest Service also analyzed the

environmental effects and benefits of forest management activities in detail under

the “no-action” alternative. See generally id. at 3-72 to 3-123 (analyzing “Forest

Health and Fire Ecology”).28 For example, under Alternative 1, the Forest Service
28(...continued)

Ass’n v. Garvey, 256 F.3d 1024, 1040 (10th Cir. 2001) (emphasis added). 

Therefore, it follows that the Forest Service’s detailed analysis of the “no action”

alternative evaluated exactly what the district court faulted the agency for

“cavalier[ly] dismiss[ing]”—the status quo, which included active forest

management carried out at the local level.

29 For the first time on appeal, CMA argues that the Forest Service

violated NEPA by failing to “fully evaluate the adverse economic and social

effects of the proposed action.” CMA Br. at 18–23; see 40 C.F.R. § 1508.8

(defining “effects” of a proposed action to include “ecological . . . , aesthetic,

historic, cultural, economic, social, or health, whether direct, indirect, or

cumulative” (emphasis added)). However, this argument is without merit. The

Forest Service addressed CMA’s concerns about socio-economic impacts

regarding mineral extraction and leasing in the EIS. See, e.g., FEIS at 2-8 to 2-9

(addressing “social and economic mitigation measures”); id. at 3-308 to 3-324 

(evaluating the social and economic impacts that the proposed rule would have on

“energy and non-energy minerals” development); id. at 3-252 to 3-264

(continued...)

68

analyzed in detail the use of “fuel management” and “fire suppression” practices,

see id. at 3-76 to 3-93, as well as management practices used to reduce the risk of

insect and disease infestation in order to protect and improve forest health, see id.

at 3-116 to 3-120; see also id. at 3-19 to 3-20 (analyzing the use of “Active and

Passive Forest Management,” and stating that “[t]he Forest Service recognizes

that some management activity may be needed to achieve the most desirable

ecological conditions in roadless areas,” but that such “management activities can

be achieved in the absence of roads”). After reviewing the record, we therefore

conclude that the Forest Service took a “hard look” at the forest management

activities, which the district court mistakenly asserted that the Forest Service so

“cavalier[ly] dismiss[ed].” Wyoming, 570 F. Supp. 2d at 1339.29
29(...continued)

(addressing the impacts of the proposed rule on “minerals and geology”); see also

id. at 3-326 to 3-350 (evaluating the social and economic impacts of the rule on

“forest-dependent communities”). Furthermore, in response to concerns regarding

the impacts of the Roadless Rule on mineral extraction, the Forest Service

included an exception to allow road construction “in conjunction with the

continuation, extension, or renewal of a mineral lease.” 66 Fed. Reg. at 3256 (to

be codified at 36 C.F.R. § 294.12(b)(7)); see id. at 3265 (“Existing mineral leases

are not subject to the [Roadless Rule’s] prohibitions, nor is the continuation,

extension, or renewal of an existing mineral lease . . . . Additionally, road

construction or reconstruction may be authorized for new leases on these same

lands in the event that application for a new lease is made prior to termination or

expiration of the existing lease.”); see also FEIS at 2-9 (stating that the minerallease exception “was added in response to comments regarding the impacts the

prohibition on road construction may have on future mineral leasing”).

69

Lastly, the district court erred in finding that the Forest Service improperly

“eliminated . . . reasonable alternatives” when it moved the procedural aspect of

the Roadless Rule to the 2000 Planning Regulations. Wyoming, 570 F. Supp. 2d

at 1339. The district court stated that “alternatives that were eliminated from

consideration in the draft EIS on the grounds that the procedural aspect of the

Roadless Rule precluded further examination, should have been reevaluated” after

the Forest Service moved the procedural requirements to the Planning

Regulations. Id.; see also id. (stating that the “range of alternatives considered by

the Forest Service was inadequate . . . [b]ecause the nature and scope of the

proposed action materially changed between the [DEIS] and [FEIS], and the

agency failed to update the list of alternatives it considered to reflect those

changes”). 

The only alternatives discussed by the district court that were supposedly
70

“eliminated from [detailed] consideration in the [DEIS] on the grounds that the

procedural aspect of the Roadless Rule precluded further examination” were the

so-called “mineral withdrawal exemptions.” Id. at 1338 (stating that the “mineral

withdrawal exemptions were eliminated from study because such activities could

be proposed through the implementation of the procedural alternatives, i.e.,

through proposals to local forest managers”). However, despite the district

court’s conclusion that “the Forest Service did not reevaluate the need for mineral

withdrawal exemptions,” the record demonstrates otherwise. 

In the FEIS, which reflected the agency’s environmental analysis after the

procedural aspects had been moved to the Planning Regulations, the Forest

Service reconsidered the “mineral withdrawal” alternatives discussed by the

district court and reiterated its conclusion, similarly stated in its DEIS, that

“[w]ithdrawal of [IRAs] from mining was considered but was dismissed from

detailed study” because “[t]he potential impacts to roadless values from mining

activities . . . are not believed to be significant and widespread on a national

level” and it would “be difficult to accomplish [specific mining requirements] in a

proposal of national scope.” FEIS at 2-19. The Forest Service further reiterated

in the FEIS that “mineral withdrawals for specific [IRAs] could be proposed in

compliance with Department of the Interior rules and procedures,” id., as opposed

to “the procedural alternatives” referenced in the DEIS, DEIS at 2-19. We fail to

see how this demonstrates that the Forest Service eliminated reasonable
71

alternatives from its alternatives analysis. 

Furthermore, contrary to the district court’s apparent conclusion that the

Forest Service failed to “reevaluate the need for mineral withdrawal exemptions,”

as discussed above, see supra note 29, the Forest Service analyzed in detail the

impacts of the proposed action on mining, mineral leasing, and the related social

and economic impacts in the FEIS, and also added an exception to allow road

construction “in conjunction with the continuation, extension, or renewal of a

mineral lease.” 66 Fed. Reg. at 3256 (to be codified at 36 C.F.R. § 294.12(b)(7));

see FEIS at 2-9 (stating that the mineral-lease exception “was added in response

to comments regarding the impacts the prohibition on road construction may have

on future mineral leasing”).

In sum, we conclude that the Forest Service considered a reasonable range

of alternatives in detail in the EIS, and reasonably rejected those alternatives that

did not further the defined purpose of the Roadless Rule. In doing so, “the

agency gathered ‘information sufficient to permit a reasoned choice of

alternatives as far as environmental aspects are concerned,’” Greater Yellowstone

Coal., 359 F.3d at 1277 (quoting Colo. Envtl. Coal., 185 F.3d at 1174), which

“enable[d] the Forest Service to take a hard look at the environmental impacts of

the proposed [rule] and its alternatives.” Citizens’ Comm. to Save Our Canyons,

297 F.3d at 1031 (quoting Colo. Envtl. Coalition, 185 F.3d at 1174) (internal

quotation marks omitted). Nothing more was required under NEPA. We
30 Briefly stated, the 2000 Planning Regulations, 65 Fed. Reg. 67,514,

revised the regulations governing the development, adoption, and amendment of

forest plans for the NFS; the 2001 Road Management Rule, 66 Fed. Reg. 3206,

amended existing rules governing the management, use, and maintenance of the

National Forest Transportation System; and the 2001 Transportation Policy, 66

Fed. Reg. 3219; 66 Fed. Reg. 65,796, governed Forest Service officials’ decisions

regarding the construction, reconstruction, or decommissioning of roads, among

other things. 

72

therefore hold that the district court erred in concluding that the “promulgation of

the Roadless Rule was not in accordance with law because the agency failed to

rigorously explore and objectively evaluate all reasonable alternatives.” 

Wyoming, 570 F. Supp. 2d at 1340.

5. Cumulative Impacts

Wyoming next claims that the Forest Service violated NEPA by failing to

adequately address the cumulative impacts of the Roadless Rule and three other

coordinated rulemaking proceedings: the 2000 Planning Regulations, 65 Fed. Reg.

67,514 (Nov. 9, 2000); the 2001 Road Management Rule, 66 Fed. Reg. 3206 (Jan.

12, 2001); and the 2001 Transportation Policy, 66 Fed. Reg. 3219 (Jan. 12, 2001);

66 Fed. Reg. 65,796 (Dec. 20, 2001).30 Wyoming asserts that the Forest Service’s

cumulative impacts analysis “did not provide needed information to the public or

focus the agency’s attention on the environmental consequences of its proposal,

as required by NEPA.” Wyo. Br. at 30. The district court, agreeing with

Wyoming, concluded that the “Forest Service’s final EIS does not provide an

adequate discussion of the cumulative impacts of the [four coordinated
73

rulemakings],” and that “the Forest Service failed to make a reasonable, good

faith, and objective presentation of the cumulative impacts of these rules on the

environment.” Wyoming, 570 F. Supp. 2d at 1341; see also id. at 1343 (stating

that “the cumulative impacts analysis was woefully inadequate because [the]

impacts [of those four rulemakings] are potentially significant”). 

On appeal, the Forest Service does not dispute that it was required to

include a discussion of the cumulative impacts of the four coordinated

rulemakings in the Roadless Rule FEIS. Instead, it argues that the discussion of

the cumulative impacts contained in the FEIS was adequate in that it “fully

disclosed . . . that the Roadless Rule was one of several coordinated rulemaking

initiatives relating to NFS roads,” it discussed and disclosed the cumulative

impacts that “reasonably could be foreseen,” and it “reasonably declined to

speculate about what was ‘impossible’ to predict; viz., where increases in

unroaded areas might occur as a result of the agency’s future planning and project

decisions (which themselves will be subject to NEPA analysis).” Forest Serv.

Opening Br. at 54, 56–57. The Forest Service argues that “[n]othing more was

required.” Id. at 57. Similarly, the Environmental Groups argue that the

cumulative-impacts analysis included in the EIS was reasonable and adequate,

and any “further analysis of the cumulative impacts of these three policies would

have been wholly speculative because they were merely planning provisions to be

applied in later forest-specific decisions.” Envtl. Grps. Opening Br. at 30
31 The CEQ Regulations define “cumulative impact,” in full, as

the impact on the environment which results from the

incremental impact of the action when added to other past,

present, and reasonably foreseeable future actions regardless of

what agency (Federal or non-Federal) or person undertakes such

other actions. Cumulative impacts can result from individually

minor but collectively significant actions taking place over a

period of time.

40 C.F.R. § 1508.7.

74

(emphasis omitted).

Under NEPA, an EIS “must analyze not only the direct impacts of a

proposed action, but also the indirect and cumulative impacts of ‘past, present,

and reasonably foreseeable future actions regardless of what agency (Federal or

non-Federal) or person undertakes such other actions.’” Colo. Envtl. Coal., 185

F.3d at 1176 (quoting 40 C.F.R. § 1508.7); see also 40 C.F.R. § 1508.25(c)

(stating that the “scope” of an EIS includes consideration of “cumulative”

impacts).31 The types of impacts that must be considered include “ecological

(such as the effects on natural resources and on the components, structures, and

functioning of affected ecosystems), aesthetic, historic, cultural, economic, social,

or health [effects].” 40 C.F.R. § 1508.8. However, it is well-established that

“[a]gencies only have a duty to discuss . . . the FEIS impacts that are reasonably

foreseeable.” Utahns for Better Transp., 305 F.3d at 1176 (citing Sierra Club v.

Marsh, 976 F.2d 763, 767 (1st Cir. 1992)). Furthermore, “[e]ven as to impacts

that are sufficiently likely to occur such that they are reasonably foreseeable and
75

merit inclusion, the FEIS need only furnish such information as appears to be

reasonably necessary under the circumstances for evaluation of the project.” Id.

In reviewing the sufficiency of the Forest Service’s cumulative-impacts analysis,

“we must examine the administrative record, as a whole, to determine whether the

Forest Service made a reasonable, good faith, objective presentation of those

impacts sufficient to foster public participation and informed decision making.” 

Colo. Envtl. Coal., 185 F.3d at 1177. Having reviewed the FEIS and the record as

a whole, we conclude that the Forest Service’s cumulative-impacts analysis is

adequate.

In the FEIS, the Forest Service disclosed the existence of the other

coordinated rulemakings and stated that the cumulative purpose of these

rulemakings was to collectively “address[] management of existing roads,

inventoried roadless areas, and other unroaded areas” in the NFS. FEIS at 1-6, 3-

398 (disclosing the existence of and giving an overview of the final Planning

Regulations and the future Transportation Policy and Road Management Rule). 

In the cumulative-impacts section of the FEIS, the Forest Service acknowledged

“that the Roadless Rule together with the other proposed and finalized rules and

policies could have cumulative effects.” Id. at 3-396. As to the analysis of the

Planning Regulations—which were enacted to “guide land management planning

for the [NFS] and describe the required planning process and content of land and

resource management plans,” but “not [to] specify criteria or characteristics for
76

roadless area delineation or management,” id. at 3-397—the Forest Service stated

that “the two rules (Planning Regulations and Roadless Rule) are complementary,

not additive.” Id. The Forest Service stated that “if the two rule[s] are

implemented together, it is reasonable to predict that more inventoried roadless

areas would be allocated to management uses that maintain undeveloped roadless

characteristics th[a]n may have been allocated by the Planning Regulations

alone”; however, “[t]o what extent this would occur is not predictable since it

would occur through the local decision making process.” Id. 

The cumulative-impacts analysis also discussed the Transportation Policy

and Road Management Rule, which had not been promulgated at the time the

FEIS was issued. Together, the rule and policy dealt with, among other things,

the decommissioning of NFS roads, identification of minimum transportation

needs on NFS lands, and construction of new roads or reconstruction of existing

roads on NFS land (for compelling reasons only). Id. at 3-398. More

specifically, the Road Management Rule “would change definitions and road

management objectives, establish information to be contained in the road atlas

(maps and inventory), and direct officials to identify the minimum transportation

system needed that would best serve current and anticipated management

objectives and public uses of NFS lands.” Id. The proposed Transportation

Policy would give “unneeded roads . . . decommissioning priority if they were

causing environmental impacts,” would “require[] a determination of a
77

compelling need for road construction and reconstruction in certain unroaded

areas,” and would require the establishment of a forest-wide “science-based roads

analysis process” that would “help analyze effects [of road construction] to

unroaded areas.” Id. In its analysis, the Forest Service concluded that the

Roadless Rule would “augment the provisions of the proposed Roads Policy that

address [IRAs], since under the [Roadless Rule] construction and reconstruction

in [IRAs] would be prohibited,” and would cumulatively result “in better road

planning and a probable decrease in road construction overall.” Id.; see also id.

(“The proposed Roads Policy is complementary to the proposed Roadless Rule

and provides an additional level of review and analysis in certain unroaded areas

of NFS lands.”). 

In sum, the Forest Service identified and gave an overview of the three

other coordinated rulemakings and addressed the reasonably foreseeable

cumulative effect of the rules—viz., that they would likely result in an overall

decrease in road construction and an increase in unroaded areas in IRAs. On the

other hand, because the agency could not reasonably predict what specific actions

and decisions would be taken under the other three rulemakings in the future, the

agency declined to address the magnitude or degree of these cumulative impacts

on specific NFS lands in any further detail.

The district court found this analysis “woefully inadequate.” Wyoming, 570

F. Supp. 2d at 1343. We disagree. Collectively, the Planning Regulations,
78

Transportation Policy, and Road Management Rule merely established an

overarching framework for evaluating future forest-specific management plans

and road proposals, which generally would undergo their own NEPA evaluations. 

See, e.g., 65 Fed. Reg. at 67,570 (codified at 36 C.F.R. § 219.6 (2000)) (stating

that actions proposed under the Planning Regulations must undergo NEPA

analysis). In other words, these three procedural planning rules would not have

any concrete, measurable cumulative impact until the Forest Service implemented

them in response to specific proposals in the future. Therefore, the precise

cumulative impacts flowing from these other coordinated rulemakings were only

speculative in nature; that is, they were not “reasonably foreseeable” at that time. 

40 C.F.R. § 1508.7.

In general, we have not required agencies to consider “speculative” impacts

or actions in an EIS, whether it be in the context of the reasonable-alternatives

analysis or the reasonably foreseeable impacts of the proposed project or other

projects. See, e.g., Wilderness Workshop, 531 F.3d at 1228–31 (holding that

NEPA did not require the agency to analyze the impacts of future actions that

were “speculative” or not “imminent” connected actions); Sierra Club v. Lujan,

949 F.2d 362, 368 (10th Cir. 1991) (“NEPA does not require an agency to

consider the environmental effects that speculative or hypothetical projects might

have on a proposed project.”). This equally holds true in the context of a

cumulative-impacts analysis; that is, cumulative impacts that are too speculative
32 The Ninth Circuit rejected a virtually identical claim challenging the

Forest Service’s cumulative-impacts analysis in the Roadless Rule EIS. See

Kootenai Tribe, 313 F.3d at 1123 (rejecting “the district court’s conclusion that

the Forest Service failed adequately to evaluate the cumulative effects of the

Roadless Rule” and concluding that “the potential cumulative effects of the

Roadless Rule are too speculative to be amenable to in-depth analysis in the

EIS”).

79

or hypothetical to meaningfully contribute to NEPA’s goals of public disclosure

and informed decisionmaking need not be considered. See Safeguarding The

Historic Hanscom Area’s Irreplaceable Res., Inc. v. FAA, 651 F.3d 202, 218 (1st

Cir. 2011) (“For NEPA purposes, an agency need not speculate about the possible

effects of future actions that may or may not ensue.”); cf. Envtl. Def. Fund, Inc. v.

Andrus, 619 F.2d 1368, 1378 (10th Cir. 1980) (“An EIS is not supposed to resolve

all contentions but rather to identify them in a full disclosure sense in order to

enable the decision makers to undertake informed choices.”). 

Therefore, although the Forest Service was right to disclose the coordinated

rulemakings and acknowledge that they could have some cumulative

impacts—i.e., that they likely would result in an overall decrease in road

construction and an increase in unroaded areas in the NFS—it was required to

include only impacts that were reasonably foreseeable.32 Accordingly, we

conclude that the Forest Service made “a reasonable, good faith, objective

presentation of those [cumulative] impacts sufficient to foster public participation

and informed decision making.” Colo. Envtl. Coal., 185 F.3d at 1177. In this

instance, nothing more was required to satisfy this requirement of NEPA; the
33 We have jurisdiction over the site-specific analysis issue, even

without a cross-appeal, because an appellee is generally permitted to “defend the

judgment won below on any ground supported by the record without filing a cross

appeal.” S. Utah Wilderness Alliance v. Bureau of Land Mgmt., 425 F.3d 735,

745 n.2 (10th Cir. 2005) (quoting Tinkler v. United States ex rel. FAA, 982 F.2d

1456, 1461 n.4 (10th Cir. 1992)) (internal quotation marks omitted); see, e.g.,

United Fire & Cas. Co. v. Boulder Plaza Residential, LLC, 633 F.3d 951, 958

(10th Cir. 2011) (“We have held that an ‘appellee may, without filing a crossappeal, urge in support of a decree any matter appearing in the record, although

his argument may involve an attack upon the reasoning of the lower court.’”

(continued...)

80

district court erred in holding otherwise.

6. Site-Specific Analysis

Wyoming asserts that the Forest Service also violated NEPA in

promulgating the Roadless Rule because it failed to conduct a “site-specific

analysis” of the environmental impacts for each of the specific forest units

affected by the Rule. The district court rejected this argument and held that the

Forest Service was not required under NEPA to conduct a site-specific analysis

for every affected IRA. Wyoming, 570 F. Supp. 2d at 1340–41 (“In the absence

of a clear statutory or regulatory directive [requiring agencies to conduce a sitespecific analysis], and a binding decision on point, this Court will not impose

additional NEPA duties on federal agencies.”). Even though Wyoming did not

cross-appeal the district court’s holding on this issue, it argues on appeal that we

should rule in its favor on this issue, which would provide an alternate ground for

affirming the district court’s ultimate holding that the Forest Service violated

NEPA in promulgating the Roadless Rule.33 Specifically, Wyoming asserts that
33(...continued)

(quoting Ute Distrib. Corp. v. Sec’y of Interior, 584 F.3d 1275, 1282 (10th Cir.

2009))); Fischer-Ross v. Barnhart, 431 F.3d 729, 732 n.2 (10th Cir. 2005) (stating

that “an appellee may generally, without taking a cross appeal, urge in support of

a decree any matter appearing in the record”). Although Wyoming attacks the

district court’s rejection of its site-specific argument, it is merely claiming that

this argument provides an alternative ground for affirming the district court,

without seeking to enlarge its own rights or lessen the rights of others. See, e.g.,

Ute Distrib. Corp., 584 F.3d at 1282; cf. Breakthrough Mgmt. Grp., Inc. v.

Chukchansi Gold Casino & Resort, 629 F.3d 1173, 1198 (10th Cir. 2010) (“A

cross-appeal ordinarily would be appropriate where a litigant seeks to enlarge his

rights conferred by the original judgment or to lessen the rights of his adversary

under that judgment.”). 

81

because the EIS did not include a site-specific analysis for every individual IRA

affected, the Forest Service failed to satisfy the statutory requirement that the EIS

include a “detailed statement” of the environmental consequences of the proposed

rule. 

In preparing the EIS for the Roadless Rule, the Forest Service was required

to provide a “detailed statement” regarding, among other things, “the

environmental impact” of the rule and “any adverse environmental effects which

cannot be avoided should the [rule] be implemented.” 42 U.S.C. § 4332(2)(C);

see also 40 C.F.R. § 1502.16 (stating that the detailed statement should include:

“environmental impacts of the alternatives . . . , any adverse environmental

effects which cannot be avoided should the proposal be implemented, the

relationship between short-term uses of man’s environment and the maintenance

and enhancement of long-term productivity, and any irreversible or irretrievable

commitments of resources which would be involved in the proposal”). For “broad
82

Federal actions such as the adoption of new agency programs or regulations,” the

CEQ Regulations state that the agency “may find it useful to evaluate the

proposal[] . . . [g]enerically, including actions which have relevant similarities,

such as common timing, impacts, alternatives, methods of implementation, media,

or subject matter.” 40 C.F.R. § 1502.4(c)(2). There is nothing in the statute or

CEQ Regulations that requires an agency to include a site-specific analysis for

every particular area affected by the proposed action. Furthermore, as the district

court correctly acknowledged, “[n]either the Supreme Court nor the Tenth Circuit

has ascribed to the . . . view that an agency must conduct a ‘reasonably thorough’

site-specific analysis under NEPA.” Wyoming, 570 F. Supp. 2d at 1340 (quoting

California v. Block, 690 F.2d 753, 765 (9th Cir. 1982)). 

Wyoming asserts that NEPA uniformly requires an agency to prepare a sitespecific analysis for every specific area affected by a proposed action, regardless

of whether the agency is proposing a localized project or a broad nationwide rule.

In making this argument, Wyoming cites three decisions from other circuits where

an EIS was found to be insufficient for failing to assess the site-specific

environmental consequences unique to each proposed action on appeal. See

Conservation Law Found. of New England, Inc. v. Gen. Servs. Admin., 707 F.2d

626, 629–34 (1st Cir. 1983) (“We cannot say that the district court abused its

discretion or was clearly in error in requiring more detailed analysis on a

site-specific basis of the environmental consequences of [the proposed agency
34 The specific case Wyoming primarily relies upon in asserting that

NEPA requires the Forest Service to include a site-specific analysis for every

affected area, California v. Block, is unpersuasive. The Block case concerned a

challenge to the Forest Service’s RARE II program. Specifically, the plaintiffs in

Block challenged the Forest Service’s allocation of several forest areas as

“nonwilderness,” which meant that such areas would be “managed for purposes

(continued...)

83

action].”); Sierra Club v. Peterson, 717 F.2d 1409, 1413–15 (D.C. Cir. 1983)

(concluding that the agency was required to conduct a site-specific analysis

through an EIS before it could authorize the issuance of oil and gas leases within

two national forests); Block, 690 F.2d at 761–65 (holding that the Forest Service

violated NEPA when it failed to evaluate the site-specific environmental

consequences of designating several forest areas in the National Forest System as

“nonwilderness” areas under the RARE II program; the court found that the sitespecific analysis was required because the agency was proposing to make an

“irreversible and irretrievable commitment of the availability of resources to a

project at a particular site” (internal quotation marks omitted)). However,

contrary to Wyoming’s assertions, these cases do not in themselves indicate that

there is a uniform nationwide requirement under NEPA that agencies prepare a

site-specific analysis for every specific location affected by a broad

administrative action. Furthermore, even assuming, arguendo, the cases cited by

Wyoming did establish such a uniform mandate under NEPA, we are not bound

by the decisions of other circuit courts. Fed. Deposit Ins. Corp. v. Daily, 973

F.2d 1525, 1532 (10th Cir. 1992).34
34(...continued)

other than wilderness preservation.” Id. at 762. The EIS prepared by the Forest

Service did not analyze the “site-specific impact of this decisive [nonwilderness]

allocation decision.” Id. at 763. The Forest Service argued that the EIS for

RARE II—which was a “programmatic EIS describing the first step in a multistep national project”—“need not contain the type of detailed site-specific

information normally contained in an EIS prepared for a more narrowly focused

project such as a dam or a federal mineral lease.” Id. at 760–61. The court

disagreed with the Forest Service’s contention that a more general analysis was

all that was required given the “national scope of [RARE II’s] impact,” and

concluded that a site-specific analysis regarding each individual area was required

before the Forest Service could irreversibly and irretrievably “commit th[o]se

areas for nonwilderness uses.” Id. at 760, 763. However, in reaching its

decision, the Ninth Circuit relied primarily on the 1973 CEQ Guidelines

applicable to the RARE II EIS on appeal. See id. at 763 & n.5 (“The prescribed

content of the EIS is delineated in the [CEQ] Guidelines in effect at the time of

the EIS’s issuance,” which “were supplanted by the CEQ Regulations adopted

November 29, 1978.” (citing 43 Fed. Reg. 55,990 (1978) (codified at 40 C.F.R. §§

1500–08 (1981)))). Unlike the CEQ Regulations governing the EIS presently

before the court, the 1973 Guidelines did not expressly permit an agency to

“[g]enerically” evaluate “broad Federal actions such as the adoption of new

agency programs or regulations.” 40 C.F.R. § 1502.4(b)–(c)(2). There is also an

important factual distinction between the proposed action before the Ninth Circuit

in Block and the Roadless Rule: the challenged action in Block was the allocation

of forest areas as “nonwilderness”—thereby opening such areas up to possible

development and other uses that could lead to substantial environmental

degradation—as opposed to the Roadless Rule, which generally prohibits such

“nonwilderness” uses. Lastly, it is worth noting that the court’s holding in Block,

which could be read to require agencies to undertake site-specific analysis in an

EIS for all areas covered by a broad nationwide rule, has been called into doubt or

at least qualified by the Ninth Circuit’s subsequent decision in Kootenai Tribe,

313 F.3d 1094. In that decision, the Ninth Circuit stated that “laws and

regulations of general applicability,” such as the Roadless Rule, “may properly be

considered by government officials who weigh and balance the virtues and defects

of any prohibition or regulation” and “do not require an evaluation of the costs

and benefits of the law at each location where it may apply.” Id. at 1117 n.20

(emphasis added). 

84

We conclude that the district court did not err in holding that the Forest

Service was not required in this instance to conduct a site-specific analysis for
85

every IRA affected by the rule. Because the Roadless Rule is a “broad”

nationwide rule, the Forest Service was permitted under 40 C.F.R. § 1502.4(c)(2)

to evaluate the common environmental impacts and effects of the rule

“generically.” In accordance with that provision, the Forest Service “generically”

evaluated the common environmental impacts of the four alternatives on IRAs. 

See generally FEIS at 3-1 to 3-407 (analyzing the “affected environment and

environmental consequences” of the Roadless Rule, and the general

environmental impacts under each of the four prohibition alternatives). 

Furthermore, in addition to this general analysis, the Forest Service actually

considered some regional distinctions and site-specific aspects of the proposed

Roadless Rule, including the impact of the proposed alternatives on specific

forest areas and IRAs. See, e.g., id. at 3-49 to 3-53 (analyzing the effects on

“water quality and drinking water source areas,” and noting distinctions in the

impact on various regions, states, and specific forest areas); id. at 3-55 to 3-58

(analyzing the risk of “soil loss” under the proposed alternatives and indicating

which regions would be most affected under the prohibition alternatives); id. at 3-

58 to 3-62 (analyzing the correlation between landslides and land-management

activities—such as road construction and timber harvesting—and noting the risk

of landslides under the proposed alternatives in specific areas such as the “coastal

forests of Oregon, Washington, and northern California”); id. at app. B (“Stateby-State Summaries of Key Information for the Preferred Alternative”). 
86

Under NEPA, our role in reviewing the Forest Service’s EIS “is simply to

ensure that the agency has adequately considered and disclosed the environmental

impact of its actions.” Utahns for Better Transp., 305 F.3d at 1163 (quoting Utah

Shared Access Alliance v. U.S. Forest Serv., 288 F.3d 1205, 1208 (10th Cir.

2002)) (internal quotation marks omitted). The Forest Service has adequately

done so in this instance, despite the fact that it did not include a detailed sitespecific analysis of the environmental consequences at each and every specific

IRA affected by the rule. Accordingly, we affirm the district court’s holding as to

this claim.

7. Supplemental Environmental Impact Statement

Wyoming next claims that the Forest Service violated NEPA when it failed

to prepare a supplemental EIS after making changes to the rule in the FEIS and

the final rule. The district court, agreeing with Wyoming and CMA, held that the

Forest Service violated NEPA when it “made four substantial changes between

the draft EIS and the final EIS and did not prepare a supplemental EIS.” 

Wyoming, 570 F. Supp. 2d at 1344. These “four substantial changes” include:

(1) eliminating the “procedural aspects” of the rule by incorporating those

procedures in the Planning Regulations; (2) “broaden[ing] the scope of the

Roadless Rule to include areas with classified roads within [IRAs]”—that is,

making the rule applicable to “roaded” as well as “unroaded” portions of IRAs

covered by the rule; (3) “identif[ying] an additional 4.2 million acres of roadless
87

areas that would be subject to the Roadless Rule”; and (4) making a “change to

the type of timber harvesting that would be allowed; specifically, . . . limit[ing]

the ‘stewardship exception’ in the final Roadless Rule to harvesting only ‘small

diameter timber.’” Id. On appeal, the Forest Service and the Environmental

Groups argue that these changes were not “substantial changes” to the proposed

actions, and therefore, those changes did not trigger a duty under NEPA to

prepare a supplemental DEIS or FEIS. We agree that a supplemental EIS was not

required. 

An agency is required to prepare a supplemental DEIS or FEIS if: (1) “[t]he

agency makes substantial changes in the proposed action that are relevant to

environmental concerns,” or (2) “[t]here are significant new circumstances or

information relevant to environmental concerns and bearing on the proposed

action or its impacts.” 40 C.F.R. § 1502.9(c)(1)(i)–(ii). The duty to prepare a

supplemental EIS is based on the need to facilitate informed decisionmaking. S.

Utah Wilderness Alliance v. Norton, 301 F.3d 1217, 1238 (10th Cir. 2002), rev’d

on other grounds and remanded, 542 U.S. 55 (2004). “Of course, every change

[to a proposed action] however minor will not necessitate a new substantive

analysis and repetition of the EIS process. To make such a requirement would

lead agencies into Xeno’s paradox, always being halfway to the end of the

process but never quite there.” New Mexico ex rel. Richardson, 565 F.3d at 708.

Therefore, a supplemental EIS is required only if the new information or
88

changes made to the proposed action “will affect the quality of the human

environment in a significant manner or to a significant extent not already

considered.” Friends of Marolt Park v. U.S. Dept. of Transp., 382 F.3d 1088,

1096 (10th Cir. 2004) (quoting Marsh v. Or. Natural Res. Council, 490 U.S. 360,

374 (1989)) (internal quotation marks omitted). As to the latter point, even if a

change made “will have a significant environmental impact, the failure to issue a

supplemental EIS is not arbitrary or capricious [if] the relevant environmental

impacts have already been considered” during the NEPA process. Id. at 1097. 

Furthermore, an agency is generally entitled to deference when it determines that

new information or a change made to the proposed action does not warrant

preparation of a supplemental EIS. See Marsh, 490 U.S. at 375–77 (stating that

because an agency’s decision whether to prepare a supplemental EIS requires

“substantial agency expertise,” courts must defer to the agency’s “informed

discretion”); see also Holy Cross Wilderness Fund v. Madigan, 960 F.2d 1515,

1524 (10th Cir. 1992). In this instance, we agree that the Forest Service was not

required to prepare a supplemental EIS, and accordingly hold that the district

court erred in concluding otherwise. 

First, the Forest Service did not make a substantial change when it shifted

the procedural component of the proposed Roadless Rule to the 2000 Planning

Regulations. See FEIS at xi (stating that “[t]he procedural alternatives described

in the DEIS have been removed from the FEIS because of the decision to
89

incorporate the procedures in the final Planning Regulations”). The Forest

Service initially analyzed the proposed procedural aspect, as well as the “no

action; no procedures” alternative to the proposed procedures, in the DEIS. See

DEIS at S-23, 2-6 to 2-10, 3-223 to 3-225. Thereafter, the Forest Service did not

discard those procedures, but instead moved the procedures to the 2000 Planning

Regulations. In the FEIS, the Forest Service explained the reasoning behind this

change, stating:

Public comments on the proposed Planning Regulations and

Agency comments on the DEIS [for the Roadless Rule] also

suggested that the procedures for roadless area protection were

best suited for the Planning Regulations. Upon review, most of

the roadless area characteristics identified in the DEIS and

proposed Roadless Rule were similarly required by the Planning

Regulations. Therefore, the Forest Service determined that the

procedures contemplated in the Roadless Rule should be an

explicit part of the plan revision process, and addressed them at

[§] 36 CFR 219.9(b)(8) of the final Planning Regulations.

FEIS at 1-16; see also id. at 1-10 (“Since the close of the DEIS comment period

. . . , the Agency determined [the procedural] requirements were more

appropriately addressed in the [§] 36 CFR 219 Planning Regulations. Comments

received on the DEIS about the procedures were shared with the Planning

Regulations team, and were incorporated into that rulemaking.”). 

After making this shift, the Forest Service fully analyzed the effects of the

procedural aspects in the 2000 Planning Regulations. See, e.g., National Forest

System Land and Resource Management Planning Regulations; Final Rule, 65
35 It is worth noting that neither Wyoming nor CMA put forth any

argument on appeal in regard to the shifting of the procedural aspects to the 2000

Planning Regulations. Although “we may not neglect [an issue] simply because

an appellee fails to defend adequately the district court’s decision,” Hernandez v.

Starbuck, 69 F.3d 1089, 1094 (10th Cir. 1995), this court has indicated that an

“appellee’s brief plays a vital function in informing the court of the weaknesses in

the appellant’s arguments” and “[b]y failing to address a ground for relief raised

by the appellant, the appellee greatly increases the chances the court of appeals

will be persuaded by the appellant’s position,” id. at 1094 n.3. In this instance,

we think the appellees’ failure to address this issue on appeal lends support to the

argument that this change in the proposed action—viz., shifting the procedural

aspects to the planning regulations—was not a substantial one relevant to

environmental concerns, thereby requiring preparation of a supplemental EIS.

90

Fed. Reg. 67,514, 67,514–81 (Nov. 9, 2000). Furthermore, the Forest Service

addressed the impact of this shift as part of the cumulative-impacts analysis in the

FEIS, which revealed that the shift was not “substantial” in terms of the

“environmental concerns” of the proposed action. See supra Part II.C.5

(discussing the sufficiency of the Forest Service’s analysis of the cumulative

impacts of, inter alia, the 2000 Planning Regulations and the Roadless Rule). 

Under these circumstances, it cannot be said that the Forest Service acted

arbitrarily and capriciously in failing to prepare a supplemental EIS after making

this change, because shifting the procedural aspect of the proposed Roadless Rule

to the 2000 Planning Regulations was not a “substantial change[] in the proposed

action that [is] relevant to environmental concerns.” 40 C.F.R.

§ 1502.9(c)(1)(i).35

Second, the Forest Service was not required to prepare a supplemental EIS

when it made the Roadless Rule’s prohibitions applicable to “roaded” portions, in
91

addition to “unroaded” portions, of IRAs. As initially proposed, the prohibitions

in the Roadless Rule were not intended to apply to the 2.8 millions acres of IRAs

on which roads had been constructed. See DEIS at S-4 (stating that of the 54.3

million acres of IRAs, “roads have been constructed in approximately 2.8 million

acres . . . . The remaining 51.5 million acres make up the ‘unroaded portions of

[IRAs]’ discussed in the proposed rule”). In the FEIS, the Forest Service

abandoned the distinction between “roaded” and “unroaded” IRAs, making the

rule “appl[icable] to the entire area within the boundaries of the [IRAs], including

portions that contain existing roads.” FEIS at 2-5.

The Forest Service indicated that this change was made in response to

“[p]ublic comments indicat[ing] that this [roaded versus unroaded] concept was

confusing and would be difficult to apply and administer consistently.” Id. at 2-5

n.3. After making this change, however, the Forest Service explained that “[t]he

effects analysis in the DEIS was actually based on application of the prohibitions

to entire [IRAs], since data was not specific to roaded or unroaded portions. 

Therefore, both the concept and the definition of ‘unroaded portion’ were deleted

from the alternatives and analysis in this FEIS.” Id. In other words, even though

the proposed rule was initially only intended to apply to “unroaded” portions of

IRAs, the DEIS analyzed the environmental effects and consequences of the rule

as it applied to both “roaded” and “unroaded” areas. Therefore, the Forest

Service had already considered the environmental effects of this change in the
92

DEIS.

As stated above, we have held that even when an agency makes a

substantial change, “the failure to issue a supplemental EIS is not arbitrary or

capricious [if] the relevant environmental impacts [of that change] have already

been considered” during the NEPA process. Friends of Marolt Park, 382 F.3d at

1096; see also Marsh, 490 U.S. at 374 (noting that a supplemental EIS is only

required where the impacts of new information or change have not already been

considered by the agency); New Mexico ex rel. Richardson, 565 F.3d at 705

(“When the relevant environmental impacts [of a change to the proposed action]

have already been considered earlier in the NEPA process, no supplement is

required.” (quoting Friends of Marolt Park, 382 F.3d at 1096–97) (internal

quotation marks omitted)). Accordingly, because the Forest Service had already

considered the environmental effects of applying the Roadless Rule to both

roaded and unroaded IRAs in the DEIS, it did not act arbitrarily and capriciously

when it refrained from preparing a supplemental EIS after that change was made

in the FEIS. 

Third, the Forest Service was not required to prepare a supplemental EIS

when it revised the relevant maps to include an additional 4.2 million acres in the

IRAs subject to the Rule. Guided by prescriptions of the Council on

Environmental Quality, we have stated that a new or different alternative does not

require preparation of a supplemental EIS evaluating such a change when the
36 As we stated in New Mexico ex rel. Richardson, “[w]e consider [the

CEQ Forty Questions Guidance] ‘persuasive authority offering interpretive

guidance’ regarding the meaning of NEPA and the implementing regulations.” 

565 F.3d at 705 n.25 (quoting Davis, 302 F.3d at 1125 n.17).

93

“new alternative is ‘qualitatively within the spectrum of alternatives that were

discussed in the [DEIS].’” New Mexico ex rel. Richardson, 565 F.3d at 705

(quoting Forty Most Asked Questions Concerning CEQ’s National Environmental

Policy Act Regulations, 46 Fed. Reg. 18,026, 18,035 (Mar. 17, 1981) [hereinafter

Forty Questions]); see also In re Operation of Mo. River Sys. Litig., 516 F.3d 688,

693 (8th Cir. 2008) (“A substantial change that requires an SEIS under 40 C.F.R.

§ 1502.9(c)(1)(I) is one that is not ‘qualitatively within the spectrum of

alternatives that were discussed’ in a prior FEIS.” (emphasis omitted) (quoting

Dubois v. U.S. Dep’t of Agric., 102 F.3d 1273, 1292 (1st Cir. 1996))); Dubois,

102 F.3d at 1292 (stating that “an additional alternative that has not been

disseminated previously in a draft EIS may be adopted in a final EIS, without

further public comment, only if it is ‘qualitatively within the spectrum of

alternatives that were discussed’ in the prior draft; otherwise a supplemental draft

is needed” (quoting Forty Questions, 46 Fed. Reg. at 18,035)).

In the Forty Questions guidance document, which we have previously relied

upon,36 the CEQ explains when a modified alternative addressed in the FEIS, but

not addressed in the DEIS, would be considered “qualitatively within the

spectrum of alternatives that were discussed in the draft”:
94

If it is qualitatively within the spectrum of alternatives that were

discussed in the draft, a supplemental draft will not be needed.

For example, a commentor on a draft EIS to designate a

wilderness area within a National Forest might reasonably

identify a specific tract of the forest, and urge that it be

considered for designation. If the draft EIS considered

designation of a range of alternative tracts which encompassed

forest area of similar quality and quantity, no supplemental EIS

would have to be prepared. The agency could fulfill its

obligation by addressing that specific alternative in the final EIS.

Forty Questions, 46 Fed. Reg. at 18,035 (emphasis added). This is analogous to

the situation currently at issue.

In the DEIS, the prohibitions in the preferred alternative were applicable to

54.3 million acres of IRAs, totaling 28% of the NFS. See, e.g., DEIS at A-3, A-4

tbl.1, 2-3. The Forest Service indicated in the proposed rule that “[p]rior to

finalizing this proposed rule, map adjustments may be made for forests and

grasslands currently undergoing assessments or land and resource management

plan revisions,” thereby increasing or decreasing the total acreage of IRAs

affected. 65 Fed. Reg. at 30,279 (proposed § 294.11). The Forest Service—after

making these map adjustments—increased the “total inventoried roadless area

acreage . . . from 54.3 million acres in the DEIS to 58.5 million acres in the

FEIS.” FEIS at 2-23; see also id. at 1-1 n.2 (stating that the “[58.5 million-acre]

figure has been revised from the 54.3 million acres shown in the DEIS”). 

These additional areas identified in the FEIS embody the same

characteristics as those areas identified in the DEIS—namely, pristine roadless
95

areas of the NFS, generally 5,000 acres or larger in size, that, for example,

“support a diversity of aquatic and terrestrial habitats,” FEIS at 1-1, 1-4; “provide

large, relatively undisturbed blocks of habitat for a wide variety of native plants”

and “threatened, endangered, proposed, . . . [and] sensitive species,” id. at 1-1, 1-

4; and “provide people with unique recreation activities,” id. at 1-4. In other

words, the additional IRAs identified in the FEIS can be reasonably characterized

as “forest area[s] of similar quality and quantity” as those areas identified in the

DEIS. Forty Questions, 46 Fed. Reg. at 18,035. Therefore, because of the

similarities between the previously identified IRAs and the newly identified IRAs,

the Forest Service did not need to prepare a supplemental EIS addressing these

additional areas, but could instead address the change in the FEIS. Id. This is

precisely what the Forest Service did through the FEIS—viz., it addressed the

environmental impacts of the Roadless Rule as it applied to all 58.5 million acres

of IRAs. See, e.g., FEIS at 2-23 (stating that it had updated the information

contained in environmental analysis to reflect the increased acreage); id. at 3-2

(“The [IRAs] analyzed in this FEIS encompass 58.5 million acres in 120 national

forests located in 38 States and the Commonwealth of Puerto Rico.”). 

Accordingly, we conclude that the Forest Service was not required to prepare a

supplemental EIS after increasing the acreage subject to the proposed rule. 

Lastly, the Forest Service did not make a substantial change to the

proposed “stewardship” exception to the timber-harvesting prohibition by limiting
37 In the final Roadless Rule, the so-called stewardship exception

states:

[T]imber may be cut, sold, or removed in inventoried roadless

areas if the Responsible Official determines that one of the

following circumstances exists. . . .

(1) The cutting, sale, or removal of generally small

diameter timber is needed for one of the following

purposes and will maintain or improve one or more of the

roadless area characteristics as defined in § 294.11.

(i) To improve threatened, endangered, proposed, or

sensitive species habitat; or

(ii) To maintain or restore the characteristics of

ecosystem composition and structure, such as to

reduce the risk of uncharacteristic wildfire effects,

within the range of variability that would be

expected to occur under natural disturbance regimes

of the current climatic period[.]

66 Fed. Reg. at 3273 (to be codified at 36 C.F.R. § 294.13(b)(1)) (emphasis

added). In the FEIS, the Forest Service had analyzed this exception under

Alternative 3 to the proposed action, but had not explicitly included the language

“generally small diameter timber” in the exception. FEIS at 2-7. 

96

that exception in the final Roadless Rule to harvesting “generally small diameter

timber.” 66 Fed. Reg. at 3273 (to be codified at 36 C.F.R. § 294.13(b)(1)).37 The

timber-harvesting prohibition and “stewardship” exception were presented and

analyzed in the DEIS and FEIS under Alternative 3. See DEIS at 2-4; FEIS at 2-

7. In analyzing Alternative 3, the Forest Service did not propose specific

language for the stewardship exception—i.e., permitting only harvesting of “small

diameter trees”—but instead explained the objective of the exception as
38 See also DEIS at 3-57 tbl.3-11 (indicating that the management

activity of “[t]hinning of small diameter trees in the understory” in order “to

reduce fire risk or to enhance old growth” was a common practice); id. at 3-100

(stating that fire hazard is reduced in forests “by disposing of . . . the small

diameter trees”); id. (demonstrating that “small diameter trees” create a fire

hazard in forests); id. at 3-109 (“Forest health treatment activities, such as

(continued...)

97

permitting the achievement of “ecological objectives, other than timber harvest,

that may require vegetative manipulation such as improving forest ecosystem

health, removing non-native species and replacing with native species, and

improving wildlife habitat,” such as “thinning overly dense stands of trees to

allow fire to be safely reintroduced into the ecosystem.” DEIS at 2-5; see FEIS at

2-7. 

In the DEIS and FEIS analysis, the Forest Service indicated the “ecological

objectives” furthered by the stewardship exception, such as improving forest

health and reduction of fire hazard, were commonly achieved through the removal

of “small diameter trees.” Compare DEIS at 3-21 (stating that many forest areas

“now have dense stands of small diameter trees and shrubs,” and therefore

“hav[e] a relatively lower degree of ecosystem health” and may be “vulnerable to

catastrophic stand replacing wildland fires”), with FEIS at 3-121 (stating that

under the forest-health-treatment activities permitted under Alternative 3, “[l]ess

work would be done using timber sale contracts because the smaller-diameter,

lower-value trees would likely result in fewer economically viable timber

sales”).38 
38(...continued)

thinning and fuels reduction, carried out under [Alternative 3] would . . . [less

often] be done using timber sale contracts because the lower values of the smaller

diameter trees removed would likely . . . result in fewer economically viable

timber sales.” (emphasis added)). 

98

Therefore, the Forest Service was not required to prepare a supplemental

EIS in response to this change in the language of the stewardship exception

because it had already analyzed the effects of the exception, as that exception was

adopted in the final rule. See Friends of Marolt Park, 382 F.3d at 1097 (holding

that a supplemental EIS is not required if “the relevant environmental impacts

have already been considered” during the NEPA process). Furthermore, because

it is evident in the DEIS that the Forest Service analyzed the stewardship

exception in terms of removal of “generally small diameter trees,” this is

undoubtedly an instance where a supplement was not necessary because the

adopted alternative was “‘qualitatively within the spectrum of alternatives that

were discussed in the [DEIS],’” and, at most, was “only a ‘minor variation’ from

those alternatives.” New Mexico ex rel. Richardson, 565 F.3d at 705 (quoting

Forty Questions, 46 Fed. Reg. at 18,035); see also Operation of Miss. River Sys.

Litig., 516 F.3d at 693; Dubois, 102 F.3d at 1292. The district court erred in

finding that this change mandated a supplemental EIS.

In sum, we conclude that the changes made to the proposed action did not

trigger a duty to prepare a supplemental EIS, either individually or collectively. 
39 Furthermore, the district court based its conclusion on a finding that

the Forest Service made these “substantial” changes “without giving the public

notice or an opportunity to comment on the changes.” Wyoming, 570 F. Supp. 2d

at 1344. To the contrary, after the publication of the FEIS, which included three

of the four changes made—(1) the removal of the procedural aspects, (2) the

application of the rule to “roaded” IRAs, and (3) the addition of 4.2 million acres

to the IRAs—the Forest Service accepted and reviewed public comments on the

FEIS for sixty days before adopting the final rule. 66 Fed. Reg. at 3248 (“Since

the publication of the FEIS [in November 2000], the agency has received

comments on the FEIS and the preferred alternative,” which were “considered by

the agency in the development of the final rule and are in the project record.”);

see also Kootenai Tribe, 313 F.3d at 1118 (stating that “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 [Roadless] Rule on January 12,

2001”). Therefore, because the Forest Service presented these three changes to

the public in its FEIS, and the public was thereafter able to comment on these

changes before the adoption of the final rule, this fact further alleviated the need

to prepare a separate supplemental EIS. See Dubois, 102 F.3d at 1293 (holding

that “substantial changes from the previously proposed actions” required the

agency to prepare a supplemental EIS, which the court would not have required

under NEPA had the agency “present[ed] those changes to the public in its FEIS

for review and comment”).

99

The district court’s conclusion to the contrary was erroneous.39

8. Predetermination

Wyoming’s final argument under NEPA is that the Forest Service

impermissibly predetermined the outcome of the Roadless Rule proceeding. 

Specifically, Wyoming asserts that the Forest Service’s bias prevented it from

taking a “hard look” at the environmental impacts of the Roadless Rule as

required by NEPA. Although the district court noted in its opinion that the endproduct of the Roadless Rule NEPA process was “predetermined” and

“preordained,” Wyoming, 570 F. Supp. 2d at 1339–40, it never decisively
40 As with the site-specific analysis issue, we have jurisdiction over the

predetermination issue, even though Wyoming did not file a cross-appeal because

“an appellee may generally, without taking a cross appeal, urge in support of a

decree any matter appearing in the record.” Barnhart, 431 F.3d at 732 n.2; see

supra note 33.

100

concluded that “predetermination” or “bias” constituted a separate ground for

relief under NEPA. See, e.g., id. at 1339–40 (“[T]he Forest Service’s preordained

conception of what a roadless area would be, and its schedule for implementing

the final rule, caused the Forest Service to drive the Roadless Rule through the

administrative process without weighing the pros and cons of reasonable

alternatives to the Roadless Rule.”); id. at 1340 (“The alternatives section of the

Roadless Rule EIS was implemented to justify the Forest Service’s predetermined

decision to prohibit all road construction and timber harvest in roadless areas,

even if such activity was beneficial to the forest.”). On appeal, Wyoming asserts

that this is a separate, independent ground for affirming the district court’s

decision that the Roadless Rule was promulgated in violation of NEPA.40

In analyzing the environmental impacts of a proposed action under NEPA,

agency officials are not required to be “subjectively impartial.” Forest

Guardians, 611 F.3d at 712 (quoting Envtl. Def. Fund, Inc. v. Corps of Eng’rs of

U.S. Army, 470 F.2d 289, 295 (8th Cir. 1972)) (internal quotation marks omitted). 

In fact, the CEQ Regulations expressly indicate that an “agency can have a

preferred alternative in mind when it conducts a NEPA analysis.” Id. (citing 40

C.F.R. § 1502.14(e)). However, NEPA does mandate that an agency “take a ‘hard
101

look’ at the impacts of a proposed action.” Citizens’ Comm. to Save Our

Canyons, 513 F.3d at 1179 (10th Cir. 2008) (quoting Friends of the Bow v.

Thompson, 124 F.3d 1210, 1213 (10th Cir. 1997)); Morris, 598 F.3d at 681

(noting that NEPA “requires . . . that an agency give a ‘hard look’ to the

environmental impact of any project or action it authorizes”). This examination

“must be taken objectively and in good faith, not as an exercise in form over

substance, and not as a subterfuge designed to rationalize a decision already

made.” Forest Guardians, 611 F.3d at 712 (quoting Metcalf v. Daley, 214 F.3d

1135, 1142 (9th Cir. 2000)) (internal quotation marks omitted); see also 40 C.F.R.

§ 1502.2(g) (“Environmental impact statements shall serve as the means of

assessing the environmental impact of proposed agency actions, rather than

justifying decisions already made.”); id. § 1502.5 (“The statement shall be

prepared early enough so that it can serve practically as an important contribution

to the decisionmaking process and will not be used to rationalize or justify

decisions already made.”).

“[I]f an agency predetermines the NEPA analysis by committing itself to an

outcome, the agency likely has failed to take a hard look at the environmental

consequences of its actions due to its bias in favor of that outcome and, therefore,

has acted arbitrarily and capriciously.” Forest Guardians, 611 F.3d at 713 (citing

Davis, 302 F.3d at 1104); see also id. (stating that “[w]e [have] held that . . .

predetermination [under NEPA] resulted in an environmental analysis that was
102

tainted with bias” and was therefore not in compliance with the statute (citing

Davis, 302 F.3d at 1112–13, 1118–26)). We recently took the opportunity in

Forest Guardians v. U.S. Fish & Wildlife Service to clarify the “stringent standard

that must be met in order for us to conclude that an agency violated NEPA by

predetermining the outcome of its environmental analysis.” 611 F.3d at 714. 

Specifically, we stated that 

predetermination occurs only when an agency irreversibly and

irretrievably commits itself to a plan of action that is dependent

upon the NEPA environmental analysis producing a certain

outcome, before the agency has completed that environmental

analysis—which of course is supposed to involve an objective,

good faith inquiry into the environmental consequences of the

agency’s proposed action.

Id. This “high” standard articulated in Forest Guardians makes clear that

“predetermination is different in kind from mere ‘subjective impartiality.’” Id.

(quoting Envtl. Def. Fund, 470 F.2d at 296). Unlike predetermination, subjective

impartiality “does not undermine an agency’s ability to engage in the requisite

hard look at environmental consequences—even though subjective impartiality

may under certain circumstances involve something resembling predetermination

and lead an agency down the road to predetermination.” Id. (emphasis omitted).

In the end, concluding that an agency has predetermined the outcome of its NEPA

analysis is “a conclusion that we would not and should not reach lightly.” Id. In

evaluating whether an agency has predetermined the result of its NEPA analysis,

we are permitted to look to the NEPA analysis itself—for example, the DEIS or
103

FEIS—as well as to evidence outside of the analysis—for example, intra-agency

comments, e-mail correspondence, or meeting minutes regarding the proposed

action. Id. at 716–18.

After reviewing the record on appeal, we conclude that the Forest Service

did not “irreversibly and irretrievably” commit itself to a certain outcome before

it had completed its NEPA analysis. Wyoming asserts that the “Roadless Rule

was a foregone conclusion—a decision made long before the public was brought

into the process.” Wyo. Br. at 37. In support of its claim that the Forest Service

predetermined the outcome of the Roadless Rule, and therefore did “not tak[e] a

hard look at the Rule’s [environmental] impacts,” Wyo. Br. at 38, Wyoming

points to the “expedited schedule [the Forest Service] set for itself,” the

“insurmountable odds” that it overcame in such a short time, and the overall

complexity of the rulemaking process. Id. 

In addition, Wyoming points to the existence of several intra-agency

comments made by “career Forest Service employees,” id.—who apparently all

were below the rank of political appointees—regarding the appearance of bias or

predetermination. See Aplee. Supp. App. at 167–68 (Memorandum from Lyle

Laverty, Forest Serv. Reg’l Forester, to Bill Supulski, Forest Serv. EIS Team

Leader, on Internal Review and Comment on Roadless Rule DEIS (July 7, 2000))

(stating that the DEIS “appears biased” and “oversells the positive effects of the

preferred alternative”); id. at 167 (stating that “[s]ome of the public has the
41 The district court also expressed concern about the political

motivation behind the Roadless Rule. See Wyoming, 570 F. Supp. 2d at 1345 (“In

sum, there is no gainsaying the fact that the Roadless Rule was driven through the

administrative process and adopted by the Forest Service for the political capital

of the Clinton administration without taking the ‘hard look’ that NEPA

required.”); id. (“In its rush to give President Clinton lasting notoriety in the

annals of environmentalism, the Forest Service’s shortcuts and bypassing of the

procedural requirements of NEPA has done lasting damage to our very laws

designed to protect the environment.”). However, Wyoming does not specifically

argue in its brief that political pressure from the Clinton Administration “biased”

the Forest Service in conducting its NEPA analysis. Therefore, we have no need

to examine this matter further and do not do so. 

104

perception that [Vice President Al Gore’s] announcement [regarding his position

on timber harvests in the IRAs] reveals the final decision and, therefore, further

participation and comment is meaningless”); id. at 244 (E-mail Correspondence

between Forest Service Employees, dated July 25, 2000) (stating that Forest

Service employees “will be accused (and perhaps rightfully so) of not listening to

the public comments, and having [their] minds made up before any re-analysis is

done for the FEIS”).41

However, the evidence before us simply does not satisfy the stringent

standard applicable to claims of predetermination under NEPA. We have

generally concluded that predetermination was present only when there was

concrete evidence demonstrating that the agency had irreversibly and irretrievably

bound itself to a certain outcome—for example, through a contractual obligation

or other binding agreement. See Davis, 302 F.3d at 1112–13 (holding that the

agency had predetermined the outcome of the required NEPA analysis, and had
42 To the contrary, the evidence demonstrates that the Roadless Rule in

fact evolved throughout the NEPA process, which suggests that the agency had

not irretrievably and irreversibly committed itself to a predetermined outcome

prior to conducting its NEPA analysis. See U.S. Forest Serv., U.S. Dep’t of

(continued...)

105

therefore acted arbitrarily and capriciously, when the private consultant preparing

the EA was contractually obligated to reach a certain environmental analytic

outcome and this contractual obligation was endorsed by the agency); Metcalf,

214 F.3d at 1140 (detecting a NEPA violation where the evidence demonstrated

that the agency had entered into a binding contractual agreement permitting a

whale hunt “before the EA process began and without considering the

environmental consequences thereof”; consequently, “[b]y the time the Federal

Defendants completed the final EA . . . , the die already had been cast” and “[t]he

‘point of commitment’ to this proposal clearly had come and gone”); cf. Silverton

Snowmobile Club v. U.S. Forest Serv., 433 F.3d 772, 781 n.2 (10th Cir. 2006)

(concluding that there was no predetermination because the Forest Service “had

no preexisting agreement with any user group” binding the agency to a specific

outcome); Lee, 354 F.3d at 1240 (concluding that no predetermination

occurred—despite the fact that the U.S. Air Force had entered into several

contractual agreements regarding carrying out the proposed action—because those

agreements either would not take effect until after the completion of the required

NEPA analysis or were not executed until after the analysis was completed). 

Such circumstances are not present here.42 
42(...continued)

Agriculture, Changes from Proposed to Final Rule (Jan. 5, 2001),

http://fs.usda.gov/Internet/FSE_DOCUMENTS/stelprdb5137365.pdf (enumerating

the changes that had occurred from the proposed rule to the final Roadless Rule). 

Compare FEIS at xi–xiv (“Summary of Changes Between Draft and Final EIS”),

with Part II.C.7 (discussing changes in the proposed Roadless Rule that occurred

between the issuance of the DEIS and the Final Rule). In fact, and perhaps most

importantly, during the NEPA process the Forest Service decided to switch the

preferred alternative from Alternative 2 in the DEIS to Alternative 3 in the FEIS. 

Compare DEIS at 2-4, with FEIS at 2-13.

106

The cited intra-agency comments certainly are not enough to show that the

Forest Service, as a governmental body, “irreversibly and irretrievably”

committed itself to a particular outcome before it completed the NEPA analysis of

the Roadless Rule. As this court stated in Forest Guardians, “an individual’s

comments remain immaterial to the predetermination analysis unless they (1) may

fairly be attributed to the agency, and (2) tend to reflect the agency’s irreversible

and irretrievable commitment to a course of action—in contemplation of a

particular environmental outcome—even before the requisite environmental

analysis has been completed.” 611 F.3d at 718 n.20. It cannot be reasonably said

that the comments at issue—made by “career Forest Service employees,” Wyo.

Br. at 38—satisfy these two requirements. See Forest Guardians, 611 F.3d at 718

(“[T]he stray comments of a low-level scientist or two—no matter how vigorously

expressed—would be unlikely to render fatally infirm the otherwise unbiased

environmental analysis of an entire agency.”). 

Accordingly, because the record does not contain sufficient evidence to
43 Because the record is sufficient to allow us to rule on Wyoming’s

MUSYA claim, we conclude that the issue is properly before us on appeal. See

Nielander v. Bd. of Cnty. Comm’rs of Republic, Kan., 582 F.3d 1155, 1170 (10th

Cir. 2009) (“[W]e are free to affirm a district court decision on any grounds for

which the record is sufficient to permit conclusions of law.”); see supra note 33.

107

show that the Forest Service irreversibly and irretrievably committed itself to a

certain outcome before the NEPA analysis was completed, and because the Forest

Service otherwise complied with the mandates of NEPA, we conclude that the

Forest Service indeed took a “hard look” at the environmental consequences of

the Roadless Rule and therefore did not act arbitrarily and capriciously in

conducting its NEPA analysis. 

D. MUSYA Claim

Although Wyoming claimed below that the Roadless Rule violated

MUSYA, the district court declined to rule on that issue “[a]s the court ha[d]

already found that the Roadless Rule was promulgated in violation of NEPA and

the Wilderness Act.” Wyoming, 570 F. Supp. 2d at 1350 (stating that because it

was “unnecessary, . . . the Court will refrain from deciding at this time whether

the Roadless Rule also violates [MUSYA]”). On appeal, Wyoming reasserts its

MUSYA claim as an alternate ground for affirming the district court’s decision.43

Specifically, Wyoming makes three arguments in regard to its MUSYA claim: (1)

that “[a]lthough maintenance of wilderness characteristics is consistent with

MUSYA purposes, the Roadless Rule is not” because it applies a “one size fits all

approach” to “over 30% of national forest lands and directs identical treatment of
108

those lands”; (2) the rule “precludes administration of renewable resources for

multiple use” in violation of MUSYA; and (3) the rule “gives no consideration to

‘various resources’ in ‘particular areas.’” Wyo. Br. at 44. In response, the Forest

Service and the Environmental Groups argue that these three arguments are

without merit and that promulgation of the Roadless Rule did not violate

MUSYA. We agree.

First, contrary to Wyoming’s assertions, the Roadless Rule is not a “one

size fits all” regulation requiring “identical treatment” of all IRAs. Although the

rule does provide broad, uniform prescriptions for IRAs—through the general

prohibitions on road building and commercial logging, 66 Fed. Reg. at 3272–73

(to be codified at 36 C.F.R. §§ 294.12(a), 294.13(a))—it does not compel

“identical treatment” of all IRAs. The seven exceptions enumerated in §

294.12(b) and the four enumerated in § 294.13(b), allow the “Responsible

Official” for each IRA to permit road building and timber cutting in a variety of

situations. Application of the exceptions will permit varied managements actions

and strategies depending on the particularized and localized conditions unique to

each IRA.

For example, responsible officials may permit the cutting, removal, and

sale of small diameter timber to occur within a particular IRA in order to

“improve threatened, endangered, proposed, or sensitive species habitat” of the

area or “to maintain or restore the characteristics of ecosystem composition and
44 In any event, even if the Roadless Rule did in fact mandate “identical

treatment” of IRAs, Wyoming cites no authority for the proposition that MUSYA

prohibits common regulation of similarly situated tracts of land in the NFS. 

109

structure” of the area. 66 Fed. Reg. at 3272–73 (to be codified at 36 C.F.R.

§ 294.13(b)(1)(i)–(ii)). Road construction may also be authorized by the

Responsible Official—for example, if it is determined “that a Federal Aid

Highway project . . . is in the public interest,” or if “needed to implement a road

safety improvement project,” or if “needed to prevent irreparable resource

damage that arises from the design, location, use, or deterioration of a classified

road . . . [but] only if the road is deemed essential for public or private access,

natural resource management, or public health and safety.” Id. at 3272 (to be

codified at 36 C.F.R. § 294.13(a)(4)–(6)). Application of these exceptions will

likewise be specific to the particular IRA in question. 

Furthermore, the Roadless Rule does not prohibit the development of new

rules specific to individual IRAs through the NFMA forest-planning process,

which would be tailored to address local forest conditions. Moreover, it leaves in

place pre-existing forest plans governing individual IRAs, at least to the extent

that they do not conflict with the Roadless Rule. These examples demonstrate

that the Roadless Rule will not require “identical treatment” of all IRAs. To the

contrary, it permits—through the rule’s exceptions and through the NFMA forestplanning process—individualized treatment of IRAs.44

Second, the Roadless Rule does not “preclude[] administration of
110

renewable resources for multiple use” in violation of MUSYA. Wyoming

correctly states that MUSYA mandates that the Forest Service “develop and

administer the renewable surface resources of the national forests for multiple

use,” 16 U.S.C. § 529, including “for outdoor recreation, range, timber,

watershed, and wildlife and fish purposes,” id. § 528. However, contrary to

Wyoming’s argument, the Roadless Rule fulfills this mandate; that is, the rule

conforms to the multiple-use mandate of MUSYA, including management of NFS

lands for “outdoor recreation,” “watershed,” and “wildlife and fish purposes.” 

Id. § 528. Although the Roadless Rule does not permit all uses specifically

identified in MUSYA—namely, “timber” purposes—this is not required under

MUSYA. 

In defining “multiple use,” Congress acknowledged that “some [NFS] land

will be used for less than all of the resources” identified. 16 U.S.C. § 531(a); see

also id. (stating that “multiple use” management means “making the most

judicious use of the land for some or all of these resources or related services”

(emphasis added)). Therefore, although the Forest Service is directed to manage

“the renewable surface resources of the national forests for multiple use,” id.

§ 529, the agency has broad discretion to determine the proper mix of uses

permitted within those lands. See Bergland, 695 F.2d at 484 (describing MUSYA

as “more permissive and aspirational than mandatory”); Perkins, 608 F.2d at

806–07 (stating that the language found in MUSYA “can hardly be considered
111

concrete limits upon agency discretion” because it “breathe[s] discretion at every

pore.” (alteration in original) (quoting Strickland, 519 F.2d at 469) (internal

quotation marks omitted)); see also Wind River Multiple-Use Advocates v. Espy,

835 F. Supp. 1362, 1372–73 (D. Wyo. 1993), aff'd, 85 F.3d 641 (10th Cir. 1996)

(“Courts that have considered this issue have held that the MUSYA grants the

Forest Service ‘wide discretion to weigh and decide the proper uses within any

area.’” (quoting Bighole Ranchers Ass’n v. U.S. Forest Serv., 686 F. Supp. 256,

264 (D. Mont. 1988))); Intermountain Forest Ass’n v. Lyng, 683 F. Supp. 1330,

1337–38 (D. Wyo. 1988) (stating that the MUSYA places all uses and resources

on “equal footing” but does not direct how such various uses should be allocated). 

Wyoming argues that “multiple use cannot be seriously contemplated when

access to forests is effectively cut off by the roads prohibition.” Wyo. Br. at 44

(citing Wyoming, 570 F. Supp. 2d at 1350). However, as discussed supra, these

multiple uses will be permitted to continue through the use of existing

roads—measuring approximately 386,000 miles, 65 Fed. Reg. at 30,277—and

roads built or reconstructed under any of the exceptions enumerated in the rule, as

well as through measures not requiring the construction or reconstruction of

roads. See 66 Fed. Reg. at 3249–50. Accordingly, we conclude that the Roadless

Rule does not violate MUSYA’s multiple-use mandate.

Lastly, we disagree with Wyoming’s contention that the Forest Service

failed to give “due consideration . . . to the relative values of the various
112

resources in particular areas.” 16 U.S.C. § 529. In support of this argument,

Wyoming relies heavily on the Forest Service’s alleged “failure to take a site

specific and genuinely hard look at the impacts of the Roadless Rule during the

NEPA process.” Wyo. Br. at 44. However, as discussed supra, this allegation is

incorrect; we have already concluded that the Forest Service took the requisite

“hard look” at the environmental impacts and consequences of the Roadless Rule

during the NEPA process. This assertion therefore lends no support to the

MUSYA claim. 

Furthermore, a review of the record demonstrates that the Forest Service

adequately considered the “relative values of the various resources” within IRAs. 

In promulgating the Roadless Rule, the Forest Service assessed the value of the

various resources found within IRAs, including consideration of, among other

things: (a) timber, see FEIS at 3-193 to 3-207, 3-295 to 3-308 (evaluation of

timber harvests); (b) recreational uses, see id. at 3-207 to 3-227, 3-271 to 3-280

(evaluation of “dispersed recreation activities” and “developed and road-based

recreation activities”); (c) wilderness, see id. at 3-237 to 3-242, 3-271 to 3-280 

(evaluation of wilderness); (d) watersheds and water quality, see id. at 3-46 to 3-

55 (evaluation or “water quantity,” “water quality,” “drinking water source

areas,” and stream “channel morphology”); and (e) wildlife and fish, see id. at 3-

142 to 3-171 (evaluation of “biodiversity” in general, including terrestrial and

aquatic habitat and animal and plant species, as well as threatened, endangered,
45 As with the MUSYA claim, we find that this claim is properly before

the court on appeal. See supra note 33.

113

proposed, and sensitive species). We therefore cannot agree with Wyoming’s

argument that the Forest Service failed to give “due consideration . . . to the

relative values of the various resources” within IRAs when promulgating the

Roadless Rule. As stated above, the ultimate mix of uses chosen by the Forest

Service after consideration of the competing resource values is largely left to

agency discretion.

In sum, we find that Wyoming’s arguments pertaining to the alleged

violation of MUSYA are without merit. We conclude that the Forest Service did

not violate MUSYA—or otherwise act arbitrarily and capriciously under

MUSYA—in promulgating the Roadless Rule. 

E. NFMA Claim

The district court also declined to rule on Wyoming’s NFMA claim. 

Wyoming, 570 F. Supp. 2d at 1350. On appeal, Wyoming reasserts its NFMA

claim as an alternate ground for affirming the district court’s decision. Wyo. Br.

at 40–43.45 Specifically, Wyoming argues that the Roadless Rule violates NFMA

because it (1) does not comply with the “one integrated plan” requirement of

NFMA, in that it places restrictions on forests that are not contained in the

individual forest plans; (2) redesignates 9 million acres of forest land as

unsuitable for commercial timber production in violation of individual forest
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plans; (3) did not comply with NFMA’s three-month comment period; and (4)

generally violates NFMA’s mandate that national forests should be governed by

individual forests plans, rather than a national land management prescription. 

Wyo. Br. at 40–43. The Forest Service and the Environmental Groups argue that

the Roadless Rule, which was promulgated pursuant to the authority granted in

the Organic Act and MUSYA, does not need to comply with the provisions of

NFMA. Furthermore, even if NFMA is applicable, they argue that the Roadless

Rule was not promulgated in violation of any of its provisions. We agree that the

Roadless Rule was not required to comply with NFMA, and therefore was not

promulgated in violation of the Act.

Under NFMA, “which is primarily concerned with planning,” Utah Envtl.

Cong. v. Richmond, 483 F.3d at 1131, the Forest Service is required to “develop,

maintain, and, as appropriate, revise land and resource management plans for

units of the National Forest System,” Citizens’ Comm. to Save Our Canyons, 513

F.3d at 1176 (quoting 16 U.S.C. § 1604(a)) (internal quotation marks omitted). 

Once a forest plan has been adopted for a particular forest unit, any specific

project or activity authorized by the Forest Service within that unit must comply

with the applicable forest plan. See 16 U.S.C. § 1604(i) (“Resource plans and

permits, contracts, and other instruments for the use and occupancy of National

Forest System lands shall be consistent with the land management plans.”).

NFMA establishes both substantive and procedural requirements governing
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the development of individual forest plans. See id. § 1604. For example, each

forest plan must comply with MUSYA’s multiple-use mandate. 16 U.S.C.

§ 1604(e)(1); accord Utah Envtl. Cong. v. Richmond, 483 F.3d at 1131 (“Because

the Forest Service must account for a variety of interests, each forest plan

contemplates that the forest will be used for multiple purposes, including ‘outdoor

recreation, range, timber, watershed, wildlife and fish, and wilderness.’” (quoting

Utah Envtl. Cong. v. Bosworth, 443 F.3d at 737)). Forest plans and plan revisions

must also be prepared in accordance with NEPA, 16 U.S.C. § 1604(g)(1), and

must be made “available to the public . . . for a period of at least three months

before final adoption, during which period the Secretary shall publicize and hold

public meetings or comparable processes at locations that foster public

participation in the review of such plans or revisions,” id. § 1604(d). Under

NFMA, forest plans—that are to “be embodied in appropriate written material,

including maps and other descriptive documents,” id. § 1604(f)(2)—“shall . . .

form one integrated plan for each unit of the [NFS], incorporating in one

document or set of documents . . . all of the features required by this section.” Id.

§ 1604(f)(1).

Because the Roadless Rule is applicable to IRAs nationwide, rather than to

a specific unit of the NFS, the Forest Service promulgated the rule pursuant to the

general rulemaking authority granted to it under the Organic Act, which was

reaffirmed under MUSYA. The Organic Act grants the Forest Service the
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authority to regulate the “occupancy and use” of the national forests in order “to

preserve the forests thereon from destruction.” 16 U.S.C. § 551. As discussed

supra, the Organic Act gives the Forest Service broad discretion to regulate the

occupancy and use of the national forests for a wide variety of purposes. See

Grimaud, 220 U.S. 506; Bergland, 695 F.2d at 476; Hymans, 463 F.2d at 616; see

also Burlison, 533 F.3d at 435; Skranak, 425 F.3d at 1217; Block, 708 F.2d at

758; Weiss, 642 F.2d at 298; Andrus, 580 F.2d at 605; Mountain States Tel. & Tel.

Co., 499 F.2d at 614; McMichael, 355 F.2d at 286. 

The Forest Service is permitted to rely on its rulemaking authority under

the Organic Act and MUSYA to resolve issues of broad, even nationwide,

applicability—such as protection of IRAs—even though it is nevertheless

required to engage in localized forest planning under the NFMA. Cf. Am. Hosp.

Ass’n v. NLRB, 499 U.S. 606, 612 (1991) (“[E]ven if a statutory scheme requires

individualized determinations, the decisionmaker has the authority to rely on

rulemaking to resolve certain issues of general applicability unless Congress

clearly expresses an intent to withhold that authority.”). Nothing in NFMA

repealed or otherwise limited the Forest Service’s general authority under the

Organic Act and MUSYA. In other words, although NFMA established a

localized planning process for individual units of national forest, it did not take

away from the Forest Service’s authority, which we have already concluded

exists, to issue a broad nationwide conservation rule, such as the Roadless Rule.
46 Wyoming relies on a statement in the Senate Report on the NFMA

that “[w]hile planning guidelines will apply at all levels, there is not to be a

national land management prescription.” S. Rep. No. 94-893, at 30 (1976),

reprinted in 1976 U.S.C.C.A.N. 6662, 6694. However, this single statement does

not evidence a clear expression of “an intent to withhold th[e] authority” granted

under the Organic Act. Am. Hosp. Ass’n, 499 U.S. at 612. See also Nat’l Ass’n

of Home Builders, 551 U.S. at 662 (“While a later enacted statute . . . can

sometimes operate to amend or even repeal an earlier statutory provision . . . ,

(continued...)

117

More specifically, in enacting NFMA, Congress included no expression of

intent to repeal or limit the Forest Service’s broad rulemaking authority under the

Organic Act; in fact, NFMA does not even reference 16 U.S.C. § 551. If

Congress had intended to curtail the Forest Service’s broad rulemaking authority

under § 551, it is assumed that it would have at least referenced that provision in

some manner. Cf. Am. Hosp. Ass’n, 499 U.S. at 613 (“[I]f Congress had intended

to curtail in a particular area the broad rulemaking authority granted in [a section

of the Act], we would have expected it to do so in language expressly describing

an exception from that section or at least referring specifically to the section.”). 

Congress did not do so in NFMA or its legislative history. It is clear that

Congress considered the Organic Act in promulgating NFMA—which is

evidenced by the fact that NFMA § 13 expressly repealed a separate provision of

the Organic Act—but chose not to limit or even reference 16 U.S.C. § 551 in the

NFMA. See Pub. L. No. 94-588, § 13, 90 Stat. 2958 (1976) (“The twelfth

undersignated paragraph . . . in the Act of June 4, 1897[,] . . . is hereby

repealed.”).46
46(...continued)

‘repeals by implication are not favored’ and will not be presumed unless the

‘intention of the legislature to repeal [is] clear and manifest.’” (alteration in

original) (quoting Watt, 451 U.S. at 267)).

118

As stated above, the district court did not reach Wyoming’s NFMA issue in

the instant case. However, in reviewing a similar challenge under NFMA to the

Interim Roadless Rule—the precursor to the Roadless Rule that put in place an

eighteen-month moratorium on road construction in IRAs—the same district court

concluded that the Forest Service had not violated NFMA when it failed to abide

by the Act’s specific procedural requirements because “the Forest Service had the

right to proceed via rulemaking in lieu of forest plan modification.” Wyo. Timber

Indus. Ass’n v. U.S. Forest Serv., 80 F. Supp. 2d 1245, 1260 (D. Wyo. 2000). 

That is, the district court agreed with the Forest Service that it “could enact the

road moratorium by rule,” under the authority of the Organic Act, “thereby

obviating the need to proceed under NFMA’s forest planning procedures.” Id. at

1258–59. 

The Ninth Circuit, in reviewing a challenge to the Roadless Rule, came to

the same conclusion. In Kootenai Tribe, the court stated that although “[t]here is

some practical force in the contention that the Roadless Rule will override local

forest-by-forest planning with regard to its intended scope,” there is “nothing in

[NFMA], which establishes procedures and standards for National Forest System

land and resource management plans, [that] precludes national action on a
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conservation issue within the power of the Forest Service.” 313 F.3d at 1117

n.20. The Ninth Circuit concluded that “the general rulemaking authority of the

1897 Organic Act is sufficient to support the Roadless Rule’s promulgation to

achieve the objects of our National Forest System.” Id.; see also id. (“Local

considerations are taken into account in plans for each forest; but government, if

it chooses to do so, may act more broadly.”).

Accordingly, because the Roadless Rule was promulgated under the

authority of the Organic Act and MUSYA, and was not otherwise governed by

NFMA, the Forest Service was not required to comply with NFMA’s provisions. 

Wyoming’s NFMA claim must therefore fail.

F. Remedy: Permanent Injunction

The district court permanently enjoined the Roadless Rule on a nationwide

basis. Wyoming, 570 F. Supp. 2d at 1353–55. Although the district court

acknowledged that the issuance of a permanent injunction “is an extraordinary

remedy,” it nevertheless found that a permanent injunction was proper. Id. at

1353. In order to obtain a permanent injunction, a party must prove: “(1) actual

success on the merits; (2) irreparable harm unless the injunction is issued; (3) the

threatened injury outweighs the harm that the injunction may cause the opposing

party; and (4) the injunction, if issued, will not adversely affect the public

interest.” Sw. Stainless, LP v. Sappington, 582 F.3d 1176, 1191 (10th Cir. 2009)

(quoting Prairie Band Potawatomi Nation v. Wagnon, 476 F.3d 818, 822 (10th
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Cir. 2007)) (internal quotation marks omitted). We review a district court’s grant

of a permanent injunction for an abuse of discretion, Accusearch Inc., 570 F.3d at

1201, examining its factual findings for clear error and its legal determinations de

novo, Australian Gold, Inc. v. Hatfield, 436 F.3d 1228, 1242 (10th Cir. 2006). “A

district court abuses its discretion where it commits a legal error or relies on

clearly erroneous factual findings, or where there is no rational basis in the

evidence for its ruling.” Davis, 302 F.3d at 1111 (citations omitted).

The first requirement is dispositive in this action. As discussed above,

Wyoming failed to demonstrate that the Forest Service’s promulgation of the

Roadless Rule violated the Wilderness Act, NEPA, MUSYA, or NFMA. Thus,

the district court abused its discretion in permanently enjoining the Roadless Rule

on a nationwide basis because the court’s action was based on the erroneous legal

conclusion that Wyoming had succeeded on the merits of its claims.

III. CONCLUSION

For the foregoing reasons, we REVERSE the district court’s order granting

Plaintiff declaratory relief and issuing a permanent injunction, and REMAND the

case for the district court to VACATE the permanent injunction.