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Public Lands For the People v. United States Department of

September 26, 2012

PUBLIC LANDS FOR THE PEOPLE, INC., A CALIFORNIA 501 C-3, NONPROFIT CORPORATION; GERALD E. HOBBS; BRYAN BUNTING; HILLARIE BUNTING; STEVE WANDT; GENE E. BAILEY; RICHARD NUSS; RANDY BURLESON, INDIVIDUALS, PLAINTIFFS-APPELLANTS,
v.
UNITED STATES DEPARTMENT OF AGRICULTURE; UNITED STATES FOREST SERVICE; TOM VILSACK, IN
HIS OFFICIAL CAPACITY AS SECRETARY OF AGRICULTURE; TOM TIDWELL, IN HIS OFFICIAL CAPACITY AS CHIEF FORESTER OF THE USDA FOREST SERVICE; RANDY MOORE, IN HIS OFFICIAL CAPACITY AS REGIONAL FORESTER USDA FOREST SERVICE REGIONAL OFFICE R5; RAMIRO VILLALVAZO, IN HIS OFFICIAL CAPACITY AS FOREST SUPERVISOR OF THE EL DORADO NATIONAL FOREST, DEFENDANTS-APPELLEES.



Appeal from the United States District Court for the Eastern District of California Lawrence K. Karlton, Senior District Judge, Presiding D.C. No. 2:09-cv-01750-LKK-JFM

The opinion of the court was delivered by: McKEOWN, Circuit Judge:

FOR PUBLICATION

OPINION

Argued and Submitted April 17, 2012-San Francisco, California

Before: Alex Kozinski, Chief Judge, M. Margaret McKeown and N. Randy Smith, Circuit Judges.

Opinion by Judge McKeown

OPINION

The Wild West has long conjured up images of prospectors with pack mules and pickaxes foraging for gold. The oftromanticized ways of the Wild West eventually modernized and gave way to prospecting with the aid of motor vehicles and heavy machinery. The United States Forest Service (the "Forest Service"), an arm of the Department of Agriculture, recently limited the use of motor vehicles to certain roads in the century-old Eldorado National Forest ("ENF"). Concerned about the impact of the limitation on their activities, a group of miners and prospectors challenged the Forest Service's decision. The district court dismissed the complaint, and we affirm.

BACKGROUND

Beginning in 2005, the Forest Service published a Notice of Intent to propose prohibitions on motor vehicle use in the ENF, held public meetings, and circulated for public comment a draft environmental impact statement on proposed travel management in the ENF. The Final Environmental Impact Statement ("FEIS"), issued in March 2008, recognized that if prohibitions on motor vehicle use were adopted, miners and prospectors would need to obtain permission, through a Notice of Intent or Plan of Operations, to use motor vehicles in areas where no such permission restriction existed before. The FEIS noted the effect of 36 C.F.R. § 228, which requires miners to obtain pre-authorization when conducting certain operations:

Individuals or companies that conduct prospecting and exploration activities are not usually required to obtain a permit or other form of authorization, pursuant to 36 CFR 228, but must comply with other Forest rules and regulations. Access associated with mineral development activities, such as for an active mine, is commonly dealt with through a Plan of Operations or Notice of Intent, pursuant to 36 CFR 228.

The FEIS explicitly acknowledged that, because mining and prospecting are "facilitated by the use of public wheeled motor vehicles for access and hauling of equipment," restrictions on motorized vehicle use in areas with likely mineral resources "may have the affect [sic] of reducing access for prospecting or exploration, with the subsequent effect of a reduction of discovery of new mineral resource commodities."

In April 2008, the Forest Service issued a decision limiting motor vehicle use in the ENF to certain roads and trails and prohibiting public wheeled motor vehicle cross-country travel (the "2008 Decision"). The 2008 Decision specifically limits motor vehicle use by the public to "1,002 miles of ML-2 roads and 210 miles of trails," while concurrently disallowing motor vehicle use on 502,000 acres of previously open forest land.*fn1 According to the Forest Service, the 2008 Decision provides "diverse public wheeled motor vehicle opportunities," while minimizing effects on both forest resources and wildlife and "limiting conflict between wheeled motor vehicle use and other recreation opportunities."

Appellants ("the Miners") are seven individuals who wish to use motor vehicles to pursue mining or prospecting activities in the ENF, and Public Lands for the People, Inc., an association of miners and prospectors. Some of the individuals claim existing mining rights within the ENF, while others simply anticipate prospecting for minerals. The Miners allege that, due to the 2008 Decision, they "could [now] be subject to criminal and civil penalties for failure to file a Notice of Intent or Plan of Operations should they proceed [with motor vehicle use] without such authorization." The Miners seek "to vindicate Federal rights ...


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