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Wilderness Watch v. Kimbell: ENVIRONMENTAL LAW | APA - 'continuing violation' theory not applicable to save claims from statute of limitations; remands to agencies not final for appellate jurisdiction purposes

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
Nos. 07-3689/07-3696/08-1167
___________
Izaak Walton League of America, Inc., *
*
Plaintiff, *
*
Wilderness Watch; Sierra Club *
Northstar Chapter; Northeastern *
Minnesotans for Wilderness, *
*
Plaintiffs - Appellants/ *
Cross-Appellees, *
* Appeals from the United States
v. * District Court for the
* District of Minnesota.
Abigail Kimbell, Chief of the United *
States Forest Service; Mike Johanns, *
Secretary of Agriculture, *
*
Defendants - Appellees, *
*
Conservationists With Common Sense; *
Cook County, a Political Subdivision *
of the State of Minnesota; Arrowhead *
Coalition for Multiple Use, *
*
Intervenors - Appellees/ *
Cross-Appellants, *
____________________ **
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Minnesota Department of Natural *
Resources; Grand Portage Band of *
the Minnesota Tribe, *
*
Amici on Behalf of *
Appellees. *
___________
Submitted: October 16, 2008
Filed: March 6, 2009
___________
Before LOKEN, Chief Judge, BYE and SMITH, Circuit Judges.
___________
SMITH, Circuit Judge.
Wilderness Watch, Sierra Club North Star Chapter, and Northeastern
Minnesotans for Wilderness (collectively "Wilderness Watch") brought suit against
Abigail Kimbell, Chief of the United States Forest Service, and Ed Schafer, Secretary
of the United States Department of Agriculture (collectively "Forest Service"),
alleging that the Forest Service's decision to construct a certain snowmobile trail
between McFarland Lake and South Fowl Lake in northeastern Minnesota violated
the Boundary Waters Canoe Area Wilderness (BWCAW) Act. Wilderness Watch
based its challenge on Congress's inclusion of South Fowl Lake (and of North Fowl
Lake, to which it is connected) in the "wilderness" under the BWCAW Act.
According to Wilderness Watch, the BWCAW Act prohibits snowmobiling on the
Fowl Lakes ("Count I") and requires the Forest Service to implement motorboat
quotas on them ("Count II").
1The Honorable John R. Tunheim, United States District Judge for the District
of Minnesota.
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The district court1 granted summary judgment to the Forest Service on Counts
I and II, finding that the North and South Fowl Lakes are not "wilderness" under the
BWCAW Act and therefore are not subject to snowmobiling and motorboat
restrictions. But the district court also found that the environmental assessment (EA)
prepared by the Forest Service for the plan to construct the snowmobile trail
connecting the Fowl Lakes adjacent to the BWCAW failed to properly analyze the
noise impact resulting from snowmobile use on the trail, as required by the National
Environmental Policy Act (NEPA). As a result, the district court remanded to the
Forest Service, instructing it to prepare an environmental impact statement (EIS)
assessing the sound impact of the proposed trail routes on the adjoining wilderness
area, and also enjoined the Forest Service from conducting any further activity on the
proposed trail pending its completion of the EIS. Wilderness Watch appeals from the
district court's grant of summary judgment to the Forest Service on Counts I and II,
and Cook County, a political subdivision of the State of Minnesota, Conservationists
with Common Sense, and Arrowhead Coalition for Multiple Use (collectively
"Intervenors") appeal from the district court's NEPA ruling. For the reasons discussed
below, we affirm.
I. Background
The Wilderness Act of 1964, 16 U.S.C. 113136, governs the process by
which the President recommends, and Congress designates, wilderness areas and
establishes requirements for the management of such areas. Section 1132 of the Act
requires Congress to approve the creation of a wilderness area or the modification of
a wilderness boundary. 16 U.S.C. 1132(c), (e). The BWCAW Superior National
Forest, Minnesota, was among the initial wilderness areas designated in the Act.
-4-
In 1978, Congress enacted the BWCAW Act
to provide for the protection, enhancement, and preservation of the
natural values of the lakes, waterways, and associated forested areas
knownas the Boundary Waters Canoe Area, and for the orderly
management of public use and enjoyment of that area as wilderness, and
of certain contiguous lands and waters, while at the same time protecting
the special qualities of the area as a natural forest-lakeland wilderness
ecosystem of major esthetic, cultural, scientific, recreational and
educational value to the Nation.
Pub. L. No. 95-495, 1. Section 3 of the BWCAW Act, entitled "Boundary Waters
Canoe Area Wilderness Designation and Map" states as follows:
SEC. 3. The areas generally depicted as wilderness on the map entitled
"Boundary Waters Canoe Area Wilderness and Boundary Waters Canoe
Area Mining Protection Area" dated September 1978 . . . comprising
approximately one million and seventy-five thousand five hundred acres,
are hereby designated as the Boundary Waters Canoe Area Wilderness
(hereinafter referred to as the "wilderness"). Such designation shall
supersede the designation of the Boundary Waters Canoe Area under
section 3(a) of the Wilderness Act (78 Stat. 890) and such map shall
supersede the map on file pursuant to such section. The map of the
wilderness shall be on file and available for public inspection in the
offices of the Supervisor of the Superior National Forest and of the
Chief, United States Forest Service. The Secretary of Agriculture,
hereinafter referred to as "The Secretary," shall, as soon as practicable
but in no event later than one year after the date of enactment of this Act,
publish a detailed legal description and map showing the boundaries of
the wilderness in the Federal Register. Such map and description shall
be filed with the Committee on Interior and Insular Affairs of the House
of Representatives and the Committee on Energy and Natural Resources
of the United States Senate. Such map and description shall have the
same force and effect as if included in this Act. Correction of clerical and
typographical errors in such legal description and map may be made.
-5-
Pub. L. No. 95-495, 3 (emphasis added). Accordingly, 3 "establishes the
boundaries of the Wilderness by reference to the map Congress had before it" and
"directs the Secretary to publish a legal description and more practical map in the
Federal Register." Nat'l Ass'n of Prop. Owners v. United States, 499 F. Supp. 1223,
1240 (D. Minn. 1980). It "also authorizes the Secretary to make clerical and
typographical corrections with regard to any errors in the description and the map."
Id. Section 3 "does not delegate any authority to the Secretary; it merely directs the
Secretary to publish a map of the boundaries already established by reference in the
Act. Congress has determined the boundaries; the Secretary's only duty outlined in
3 is to publish the map of boundaries." Id. at 124041. "Section 3 states that Congress
had reference to a mapthe map of September, 1978when the Act was enacted; the
Act denominates the areas on that map as the Boundary Waters Canoe Area
Wilderness." Id. at 1231.
Section 4 of the BWCAW Act sets forth guidelines for the Act's
implementation, providing, in relevant part:
SEC. 4. (a) The Secretary shall administer the wilderness under the
provisions of this Act, the Act of January 3, 1975 (88 Stat. 2096; 16
U.S.C. 1132 note), the Wilderness Act of 1964 (78 Stat. 890, 16 U.S.C.
1131-1136, and in accordance with other laws, rules and regulations
generally applicable to areas designated as wilderness.
***
(c) Effective on January 1, 1979 the use of motorboats is prohibited
within the wilderness designated by this Act, and that portion within the
wilderness of all lakes which are partly within the wilderness, except for
the following:
***
(2) On the following lakes and river, motorboats with motors no greater
than ten horsepower shall be permitted: Clearwater, Cook County; North
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Fowl, Cook County; South Fowl, Cook County; Island River east of Lake
Isabella, Lake County; Sea Gull, that portion generally east of Threemile
Island, Cook County; Alder, Cook County; Canoe, Cook County.
***
(e) For the purposes of this Act, a snowmobile is defined as any
motorized vehicle which is designed to operate on snow or ice. The use
of snowmobiles in the wilderness designated by this Act is not permitted
except that the Secretary may permit snowmobiles, not exceeding forty
inches in width, on (1) the overland portages from Crane Lake to Little
Vermilion Lake in Canada, from Sea Gull River along the eastern
portion of Saganaga Lake to Canada, and (2) on the following routes
until January 1, 1984:
Vermilion Lake portage to and including Trout Lake; Moose Lake to and
including Saganaga Lake via Ensign, Vera and Knife Lakes, East
Bearskin Lake to and including Pine Lake via Alder Lake and Canoe
Lake.
***
(f) The Secretary is directed to develop and implement, as soon as
practical, entry point quotas for use of motorboats within the wilderness
portions of the lakes listed in subsection c, the quota levels to be based
on such criteria as the size and configuration of each lake, and the
amount of use on that lake: Provided, That the quota established for any
one year shall not exceed the average actual annual motorboat use of the
calendar years 1976, 1977, and 1978 for each lake, and shall take into
account the fluctuation in use during different times of the year:
Provided further, That on each lake homeowners and their guests and
resort owners and their guests on that particular lake shall have access to
that particular lake and their entry shall not be counted in determining
such use.
Pub. L. No. 95-495, 4 (emphasis added).
-7-
On October 12, 1979, the Forest Service prepared the legal description and map
as required by 3 of the BWCAW Act. On February 29, 1980, the Forest Service
published in the Federal Register a notice of the availability of the legal description
and map. 45 Fed. Reg. 13490. On April 4, 1980, the Forest Service published the legal
description of the wilderness boundaries and a map of the wilderness in 21 sheets in
the Federal Register. 45 Fed. Reg. 23006. The legend on the map of the wilderness
indicates that the BWCAW boundary is designated by black dots on top of a dark
black line. On Sheet 10 of the map, the North and South Fowl Lakes are located to the
right of the boundary linethereby falling outside of the BWCAW boundaryand
are shaded in orange to indicate that they are subject to a "10 Horsepower Limit."
The proposed South Fowl Snowmobile Trail ("South Fowl Trail") is at the
center of this litigation. In 2003, the Forest Service identified an unlawful snowmobile
routeTilbury Traillocated in the Superior National Forest, which connected
McFarland Lake in the west to South Fowl Lake. South Fowl Lake, along with North
Fowl Lake, is the easternmost lake in a chain of lakes along the border between
northeast Minnesota and Canada. The Forest Service closed Tilbury Trail because it
encroached on Royal Lake and Royal River, located within the BWCAW along the
northern edge of the trail. Following the trail's closure, the only available snowmobile
access route to South Fowl Lake was Cook County Road 16, which required
snowmobiles to share a steep and potentially dangerous road with cars and trucks.
Seeking to develop a safe alternative route that would provide public snowmobile
access to South Fowl Lake, the Forest Service proposed construction of South Fowl
Trail, connecting McFarland Lake to South Fowl Lake along the same general route
as Tilbury Trail.
Thereafter, the Forest Service began public discussions and field research on
the proposed trail, culminating in a draft proposal for South Fowl Trail that identified
several alternative snowmobile routes. In November 2005, the Forest Service released
an EA for the proposed South Fowl Trail. The EA identified four potential trail routes
2The EA considered the impact on sensitive flora, the cumulative effects
resulting from the construction of a new snowmobile trail, and the visual and sound
impacts caused by snowmobile traffic. The EA determined that the potential impact
of the second alternative trail on sensitive flora was not significant, based on an
analysis of potential impacts on 85 sensitive species contained in the accompanying
biological evaluation. The EA also analyzed potential cumulative effects of
off-highway and off-season recreational use, as well as the potential for increased
snowmobile traffic as a result of the new trail. The EA recognized the possibility of
increased illegal recreational use resulting from the construction of a new snowmobile
trail. But the EA noted that the project area is not a popular destination for
off-highway vehicles and that the second alternative trail route was unlikely to result
in additional incursions into adjoining wilderness because of the steep terrain
separating the trail from the wilderness. The EA also evaluated the effectiveness of
mitigation measures that would be employed to reduce off-highway and off-season
recreational use.
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between McFarland Lake and South Fowl Lake. The second alternative trail route was
the northernmost route of the proposed trails; it would involve the construction of 2.2
miles of new snowmobile trail, a segment of which would ascend to a bench along a
steep ridge that is immediately adjacent to the BWCAW and that overlooks both
Royal River and Royal Lake.
The EA considered the potential impact of each of the proposed alternatives on
the surrounding area.2 Relevant to this appeal, the EA considered the potential visual
and sound impact resulting from each proposed trail. The EA found that the sound of
snowmobile traffic from the second alternative route would carry directly into the
adjoining wilderness and that intervening deciduous trees would do little to reduce the
sound. While noting that sound measurements could be calculated at various locations
within the wilderness, the EA stated that "such detailed data appears to be moot."
Thus, because wilderness visitors would consider any sight or sound from
snowmobiles to be negative, the EA dispensed with any quantitative measurements
of the sound impact in the wilderness.
3Counts III and IV are not at issue in this appeal. Count III alleged that, by
authorizing a trail that will broadcast the sights and sounds of motorized use directly
into wilderness, the trail violated the Forest Service's obligation under 4(b) of the
Wilderness Act to preserve the wilderness character of the BWCAW. Count IV
alleged that the proposed trail did not conform to the mandatory protections for the
threatened Canada lynx.
-9-
Based on the analysis set forth in the EA, the Forest Service issued a Decision
Notice (DN) and Finding of No Significant Impact (FONSI) on February 21, 2006,
approving the selection of the second alternative trail for the South Fowl Trail. The
Forest Service determined that a more complete analysis of the environmental effects
in an EIS was unnecessary. The Forest Service concluded that construction of the
South Fowl Trail along the second alternative route was not a "major Federal action[ ]
significantly affecting the quality of the human environment" under NEPA. 42 U.S.C.
4332(C). Regarding sound impact, the FONSI stated that the decibel level of a
snowmobile in the adjoining wilderness, at a distance of 600 to 800 feet from the
proposed route, would be approximately 49 decibels. The FONSI concluded that this
decibel level was not significant.
Various environmental groups appealed the DN/FONSI. On May 18, 2006, a
Forest Service Appeal Reviewing Officer recommended affirmance of the selection
of the second alternative trail as set forth in the DN/FONSI. The Forest Supervisor
subsequently adopted the recommendation.
Wilderness Watch filed suit against the Forest Service, alleging, inter alia: (1)
that the Forest Service had allowed snowmobiles on South Fowl Lake in violation of
the BWCAW Act ("Count I"); (2) that the Forest Service has failed to implement
motorboat quotas on North and South Fowl Lakes in violation of 4(f) of the
BWCAW Act ("Count II"); and (3) that the Forest Service violated NEPA by failing
to prepare an EIS for the proposed trail ("Count V").3 The Forest Service did not
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dispute that, since the enactment of the BWCAW Act in 1978, it had never refused to
allow snowmobiles to use the Fowl Lakes or developed motorboat quotas for the Fowl
Lakes. The Intervenors joined the litigation and opposed Wilderness Watch's claims.
Wilderness Watch, the Forest Service, and the Intervenors filed cross-motions for
summary judgment on each of Wilderness Watch's claims.
Because resolution of Wilderness Watch's claims turned, in part, on whether the
Fowl Lakes were designated as wilderness area under the BWCAW Act, the district
court issued a memorandum opinion resolving this threshold issue. The district court
found that the Fowl Lakes were not located within the wilderness area prescribed
under the BWCAW. In a subsequent opinion, the district court, inter alia, granted the
Forest Services's motion for summary judgment on Counts I and II of the complaint
but denied the motion as to Count V. The district court held that the Forest Service's
decisions to construct a snowmobile trail connecting lakes adjacent to the BWCAW
and not to set motorboat quotas on the Fowl Lakes were not arbitrary and capricious
under the Wilderness Act and the BWCAW Act. But the district court found that the
EA prepared by the Forest Service for the plan to construct the snowmobile trail
connecting the Fowl Lakes adjacent to the BWCAW failed to properly analyze the
noise impact resulting from snowmobile use on the trail, as required under NEPA.
According to the court, the EA provided no quantitative evidence or analysis of
decibel levels to be projected by the trail into the adjoining wilderness. Finding the
decision to issue a FONSI arbitrary and capricious, the district court remanded the
matter to the Forest Service, ordering it to "promptly prepare an EIS to evaluate more
thoroughly the sound impact in the BWCAW, and to suspend further activity on the
South Fowl Trail pending completion of the EIS."
II. Discussion
Both Wilderness Watch and the Intervenors appeal from the district court's
judgment. First, Wilderness Watch argues that the district court erroneously granted
the Forest Service summary judgment on Wilderness Watch's claims that the Forest
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Service must administer the North and South Fowl Lakes as wilderness by
implementing motorboat quotas for them and enforcing the snowmobile ban on them.
According to Wilderness Watch, the only plausible reading of 4 of the BWCAW Act
is that Congress specifically included these lakes in the BWCAW and intended the
motor-use restrictions specified in 4 to apply to those lakes.
In response, the Forest Service and the Intervenors argue that Wilderness
Watch's claims in Counts I and II of the complaint are barred by the six-year statute
of limitations in 28 U.S.C. 2401(a) because all of the harms of which Wilderness
Watch complains are the result of Congress's exclusion of the Fowl Lakes from the
BWCAW. This exclusion was evident no later than April 4, 1980, when the Forest
Service published the maps and legal description showing the boundaries of the
BWCAW in the Federal Register. Furthermore, the Forest Service and Intervenors
point out that the Forest Service has never enforced a ban on snowmobiles on the
Fowl Lakes, nor has it ever set motorboat quotas for these lakes. As a result, because
the Forest Service's determination of the boundaries of the BWCAW and its treatment
of the Fowl Lakes have been public knowledge for 30 years, Wilderness Watch's
failure to bring suit in a timely manner means that this court must dismiss such claims.
As to the merits, the Forest Service and the Intervenors assert that the map that
Congress provided to the Forest Service when it passed the BWCAW Act plainly
shows that the Fowl Lakes are outside of the BWCAW. The congressional map shows
the Fowl Lakes as being subject only to the horsepower restrictions mentioned in
4(c)(2) of the Act, and the Forest Service has consistently enforced those
restrictions.
Second, as to Wilderness Watch's claim that the Forest Service violated NEPA,
the Intervenors argue that the district court erroneously found that the issuance of a
FONSI and the failure to complete an EIS were arbitrary and capricious regarding the
consideration of the potential sound impact from the Fowl Lake project.
-12-
In response, the Forest Service and Wilderness Watch contend that this court
lacks jurisdiction over the Intervenors' cross-appeal challenging the district court's
NEPA ruling because only a federal agency can pursue an appeal of an order
remanding a matter to an agency.
A. Statute of Limitations
Before we can reach the merits of Wilderness Watch's claims, we must first
determine whether such claims are barred by the statute of limitations.
Because neither the Wilderness Act nor the BWCAW Act create a private right
of action, Wilderness Watch brought its claims under the Administrative Procedure
Act (APA), 5 U.S.C. 704. The statute of limitations set forth in 28 U.S.C. 2401(a)
therefore applies. See Sierra Club v. U.S. Army Corps of Eng'rs, 446 F.3d 808, 813
(8th Cir. 2006) ("Neither the Stafford Act, NEPA, nor the statutes governing the Corps
expressly provide for judicial review of the agency actions at issue. Therefore,
jurisdiction is limited to judicial review under the APA, which provides for review of
'final agency action for which there is no other adequate remedy in a court.'" (quoting
5 U.S.C. 704)); Jersey Heights Neighborhood Ass'n v. Glendening, 174 F.3d 180,
186 (4th Cir. 1999) (stating that because the APA does not include its own statute of
limitations, the general statute of limitations set forth in 2401(a) applies).
Section 2401(a) of 28 U.S.C. is a general statute of limitations for suits against
the government, which provides that "every civil action commenced against the
United States shall be barred unless the complaint is filed within six years after the
right of action first accrues." A "claim against [the] United States first accrues 'on the
date when all the events have occurred which fix the liability of the Government and
entitle the claimant to institute an action.'" Chandler v. U.S. Air Force, 255 F.3d 919,
921 (8th Cir. 2001) (quoting Kinsey v. United States, 852 F.2d 556, 557 (Fed. Cir.
1988)); see also Victor Foods, Inc. v. Crossroads Econ. Dev. of St. Charles County,
Inc., 977 F.2d 1224, 1226 (8th Cir. 1992) (per curiam) ("A cause of action accrues
-13-
when there are facts enabling one party to maintain an action against another."). Thus,
a plaintiff's claim "accrues" for purposes of 2401(a) when the plaintiff "either knew,
or in the exercise of reasonable diligence should have known, that [he or she] had a
claim." Loudner v. United States, 108 F.3d 896, 900 (8th Cir. 1997); see also Stupak-
Thrall v. Glickman, 346 F.3d 579, 584 (6th Cir. 2003) ("This court has held that a
right 'first accrues' when the plaintiff knows or has reason to know of the injury
complained of.").
In the present case, the district court rejected the Forest Service's statute-oflimitations
defense, stating that Wilderness Watch's claim was not time-barred by the
six-year statute of limitations in 2401(a) "to the extent [Wilderness Watch] argue[s]
that the USFS's failure to implement motorboat quotas is a continuing violation."
"Under the so-called continuing-violation theory, each overt act that is part of the
violation and that injures the plaintiff starts the statutory period running again,
regardless of the plaintiff's knowledge of the alleged illegality at much earlier times."
Midwestern Mach. Co. v. Northwest Airlines, 392 F.3d 265, 269 (8th Cir. 2004)
(internal quotations, alterations, and citations omitted). "[A]cts that are merely
unabated inertial consequences (of a single act) do not restart the statute of
limitations." Id. at 270 (internal quotations and citations omitted). Thus, to apply the
continuing violation theory, "new overt acts must be more than the unabated inertial
consequences of the initial violation." Id.
We have not addressed application of 2401(a) in relation to a continuing
violation theory. The Sixth Circuit has done so and rejected the application of the
continuing violation theory in a similar case. Stupak-Thrall, 346 F.3d at 58485. In
Stupak-Thrall, property owners holding certain riparian rights to the use of a lake
located in a national forest sought a declaration that the lake was not part of the
federal wilderness area and therefore was not within the regulatory authority of the
Forest Service. Id. at 581. Congress had enacted the Michigan Wilderness Act (MWA)
in 1987, thereby creating the wilderness area. Id. This area fell under the rule-making
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authority of the Forest Service, which began the process of amending the management
plan to include regulation of the wilderness area. Id. On April 20, 1992, the Forest
Service announced an amendment to the management plan, which dramatically
restricted certain activities on the portion of the lake lying within the wilderness area.
Id. Thereafter, in 1995, the Forest Service adopted another amendment, imposing
more restrictions on the portion of the lake lying within the wilderness area. Id. In
May 1998, the property owners filed suit, seeking a declaration that the lake was not
part of the wilderness area. Id. at 584. The district court determined that the property
owners' claim "first accrued" when the MWA was passed, as Congress specifically
designated a certain area, as referenced on a map, as the wilderness area. Id. The map
included about 95% of the lake at issue. Id. "Ultimately, the district court decided that
the latest possible accrual date was April 20, 1992, when [the first amendment] was
issued." Id.
"On appeal, in an apparent attempt to avoid a problem with the statute of
limitations," the property owners argued that the lake was not part of the wilderness
and that the Forest Service failed to complete the official map and legal description
of the wilderness area as required by the MWA. Id. at 582. The property owners
maintained "that the cause of action contesting the inclusion of the lake within the
wilderness area did not accrue until the spring of 1998, when they learned that the
Forest Service had not yet issued the official map of [the wilderness], as required by
the MWA." Id. at 584. According to the property owners, "they could not have been
on notice that the lake was part of the wilderness because the official map, which
would provide them with that information, had yet to be published." Id. The court
rejected this argument, finding that the property owners "fail[ed] to make any
meaningful connection [ ] between the Forest Service's failure to file a map, and the
lake's inclusion in the Wilderness Area," as the MWA did not "predicate [the]
existence of the Wilderness Area on the promulgation of a map. Rather, it impose[d]
a duty to complete a map as soon as practicable." Id.
-15-
The court agreed with the district court that the latest possible accrual date was
April 20, 1992, when the amendment was issued, stating, "This amendment was
issued under the standard rule-making procedure, including public notice and a public
comment period. Accordingly, the plaintiffs were on notice that the federal
government claimed jurisdiction over the lake at the time the Forest Service issued
Amendment No. 1." Id. Because the property owners did not file their complaint for
declaratory relief until May 1998, the court held that the action was time-barred by the
six-year statute of limitations set forth in 2401(a). Furthermore, the court concluded
that "[e]ven if the accrual date might somehow be tied to the issuance of the map," the
property owners' claim was still time-barred because they
were clearly aware of the Forest Service's promulgation of Amendment
No. 1, and of the Forest Service's intention to exercise dominion over the
lake by promulgating that amendment. The plaintiffs were likewise on
notice, through the MWA and the public notice and comment period, that
a map was to be filed and that the Forest Service intended to include the
lake in any officially issued version of the Wilderness Area map.
Id. at 58485.
Other circuits have also declined to apply the continuing violation analysis in
similar contexts. See, e.g., Preminger v. Sec'y of Veterans Affairs, 517 F.3d 1299 (Fed.
Cir. 2008) (holding that statute of limitations on county political party chairman's suit
against Secretary of Veterans Affairs, which alleged that regulation prohibiting
demonstrations by visitors to Department of Veterans Affairs (VA) property was
unconstitutional, accrued at time of final agency action, which was at the time the
regulation was last amended; notwithstanding contention that VA failure to engage
in notice and comment rulemaking was continual, the regulation was in full force and
effect and was operative at time of amendment, thus commencing statute of
limitations); Ctr. for Biological Diversity v. Hamilton, 453 F.3d 1331, 1334 (11th Cir.
2006) (holding that the failure of the Secretary of the Department of the Interior to
4Because we hold that Wilderness Watch's claims are time-barred, we decline
to address whether the North and South Fowl Lakes are actually "wilderness" under
the BWCAW Act. Instead, we only find that the Forest Service has consistently and
conclusively treated the Fowl Lakes as falling outside of the BWCAW boundary.
-16-
perform the nondiscretionary duty to designate a critical habitat for a threatened
species, as required by the Endangered Species Act, was not a continuing violation
that permitted extension of the applicable six-year limitations period for filing suit
against the government; the Act created a fixed point in time at which the violation
for the failure of the Secretary to designate a critical habitat arose, a reasonably
prudent plaintiff would have been aware of the failure of the Secretary to designate
on the day following the deadline for the designation, the six-year limitations period
for filing suit against the government was required to be strictly construed, and
plaintiff had alternative remedy to petition the Secretary to designate a critical habitat
or adopt a special rule to provide for conservation of a species).
We are persuaded by the rationale set forth in Stupak-Thrall, as well as in
Preminger and Hamilton. Accordingly, we hold that the continuing violation doctrine
does not apply. Wilderness Watch's claims that the Forest Service (1) violated the
BWCAW Act by permitting snowmobiles on South Fowl Lake and (2) failed to
implement motorboat quotas on North and South Fowl Lakes in violation of 4(f) of
the BWCAW Act are time-barred by the six-year statute of limitations.
Wilderness Watch's claims accrued no later than April 4, 1980, when the Forest
Service published in the Federal Register the legal description and maps for the
BWCAW. Our review of the relevant Forest Service map shows that the North and
South Fowl Lakes are located to the right of the dark black boundary linethereby
falling outside of the BWCAW boundary.4 "[T]he appearance of regulations in the
Federal Register g[ives] legal notice of their content to all affected thereby." United
States v. Wiley's Cove Ranch, 295 F.2d 436, 447 (8th Cir. 1961).
5In its motion for summary judgment on Count II of Wilderness Watch's
complaint, the Intervenors argued that the Forest Service is not required to establish
motorboat quotas on North and South Fowl Lakes under the BWCAW Act because
the Act only applies to those areas designated as wilderness under the Act.
Additionally, the Intervenors maintained that Congress improperly imposed motorboat
regulations on North and South Fowl Lakes under the BWCAW Act in violation of
the Property Clause because the Fowl Lakes are not "wilderness." We need not
address these arguments on appeal because we hold that Wilderness Watch's claim
that the Forest Service failed to implement motorboat quotas on North and South Fowl
Lakes in violation of 4(f) of the BWCAW Act is time-barred by the six-year statute
of limitations.
-17-
Furthermore, even if the Forest Service map were unclear as to the boundary
line of the BWCAW, Wilderness Watch has known since the passage of the BWCAW
in 1978 that the Forest Service was not treating North and South Fowl Lakes as
"wilderness" because, both before and after the passage of the BWCAW Act, it
allowed snowmobiling on the Fowl Lakes and never implemented motorboat quotas
on the lakes. In fact, Wilderness Watch concedes in its reply brief that the Forest
Service "has not enforced, and still is not enforcing, the snowmobiling ban or
motorboat quotas on the Fowl Lakes."
Finally, the Forest Service's map showing that the Fowl Lakes are subject to
horsepower restrictions and the Forest Service's enforcement of the horsepower
restrictions on the Fowl Lakes pursuant to 4 of the BWCAW Act does not
undermine its position that those lakes are not a part of the wilderness. This court has
previously acknowledged the enforcement of horsepower restrictions on adjacent nonwilderness
land. Congress can insulate the wilderness by imposing restrictions on
lakes very close to the wilderness area "to insure that these lands be protected against
interference with their intended purposes." Minnesota v. Block, 660 F.2d 1240, 1249
(8th Cir. 1981) (holding Congress has the power under the Property Clause of Article
IV of the Constitution to regulate "conduct on or off the public land that would
threaten the designated purpose of federal land").5
-18-
Therefore, as in Stupak-Thrall, Wilderness Watch was on notice that the Forest
Service did not consider the North and South Fowl Lakes as a part of the BWCAW
at the time that the Forest Service issued the legal description and maps for the
BWCAW. It was clearly aware, as evidenced in its reply brief, that the Forest Service
never treated the North and South Fowl Lakes as a part of the BWCAW. The Forest
Service has never exercised its dominion over the Fowl Lakes, as it continued to allow
snowmobiling and declined to institute motorboat quotas even after the BWCAW
Act's passage. Because the latest possible accrual date is April 4, 1980, and because
Wilderness Watch did not file the instant action until August 17, 2006, its claims are
time-barred.
B. NEPA Ruling
We next address whether we have jurisdiction over the Intervenors' cross-appeal
challenging the district court's NEPA ruling.
"Under 28 U.S.C. 1291 this court has appellate jurisdiction only if an order
of the district court is a 'final decision.' A 'final decision' generally is one which ends
the litigation on the merits and leaves nothing for the court to do but execute the
judgment." Giordano v. Roudebush, 565 F.2d 1015, 1017 (8th Cir. 1977) (internal
quotations and citations omitted). "[N]umerous cases have held that an order
remanding to a federal agency for further proceedings is not a final order within the
meaning of 1291." Borntrager v. Cent. States, Southeast, & Southwest Areas
Pension Fund, 425 F.3d 1087, 1091 (8th Cir. 2005) (citing Giordano, 565 F.2d at
1017 and cases cited therein); see also Occidental Petroleum Corp. v. S.E.C., 873 F.2d
325, 329 (D.C. Cir. 1989) ("The Supreme Court has apparently never addressed the
issue of whether an order remanding a case for further proceedings before an
administrative agency is 'final' within the meaning of 1291, nor has it had occasion
to decide whether the collateral order exception has any application to such an order.
The courts of appeals that have considered the question, however, have uniformly held
-19-
that, as a general rule, a remand order is 'interlocutory' rather than 'final,' and thus may
not be appealed immediately (unless, of course, it is certified pursuant to 1292).").
Here, in its NEPA ruling, the district court remanded the case to the Forest
Service, instructing it to "prepare an [EIS] assessing the sound impact of each of the
proposed South Fowl Trail routes on the adjoining wilderness area," but also
"enjoined [the Forest Service] from conducting any further activity on the proposed
trail pending completion of the EIS." Therefore, the district court both remanded the
matter to the agency for further proceedings and granted injunctive relief. As to the
remand order, we find no circumstances warranting a less restrictive application of the
final judgment rule and therefore hold that we lack jurisdiction over the Intervenors'
appeal of the remand order.
The collateral order doctrine or a similar administrative law exception to the
final judgment rule may well apply when an agency seeks to appeal a remand order
to raise an issue that could not be appealed after the proceedings on remand. See
Davies v. Johanns, 477 F.3d 968, 971 (8th Cir. 2007); Alsea Valley Alliance v. Dept.
of Commerce, 358 F.3d 1181, 1184 (9th Cir. 2004); Occidental, 873 F.2d at 329;
United States v. Alcon Labs., 636 F.2d 876, 88485 (1st Cir. 1981); Cohen v. Perales,
412 F.2d 44, 48 (5th Cir. 1969); Bender v. Clark, 744 F.2d 1424, 1428 (10th Cir.
1984); Huie v. Bowen, 788 F.2d 698, 703 (11th Cir. 1986). This principle might apply,
for example, if the Forest Service had appealed to argue that it should be permitted to
consider whether a modified EA and FONSI would be sufficient, rather than a more
costly and time-consuming EIS. But no such issue is raised here.
We do have jurisdiction under 28 U.S.C. 1292(a) to consider the district
court's grant of an injunction suspending work on the South Fowl Trail pending
completion of an EIS. But the Forest Service has not appealed the injunction. Even if
the district court had not granted this relief, or if this court now vacated the injunction,
the Forest Service would have authority to halt further activity on the proposed trail
-20-
pending its completion of an EIS. At oral argument, the Forest Service advised that
its normal practice is to halt activity pending further review. In these circumstances,
Intervenors may not obtain relief from the preliminary injunction because they are not
being irreparably injured by it. The district court of course retains jurisdiction to
modify the injunction if circumstances change before completion of the proceedings
on remand.
III. Conclusion
Accordingly, we hold that Wilderness Watch's claims that the Forest Service
(1) violated the BWCAW Act by permitting snowmobiles on South Fowl Lake and
(2) failed to implement motorboat quotas on North and South Fowl Lakes in violation
of 4(f) of the BWCAW Act are time-barred by the six-year statute of limitations.
As to the district court's NEPA ruling, we lack jurisdiction to review the district
court's order remanding the matter to the Forest Service for an EIS and decline to
vacate the injunction.
______________________________
 

 
 
 

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