Rocky Mountain Wild v. Dallas, 98 F.4th 1263

Background

LMJV owns a 300-acre inholding bordering Wolf Creek Ski Area in the Rio Grande National Forest; year‑round wheeled access requires crossing USFS land because the existing USFS road is unusable in winter.
LMJV sought access beginning in 2010, invoking ANILCA §3210; USFS first pursued a land exchange (2013 EIS, 2015 ROD) and FWS issued a 2013 BiOp/ITS covering lynx impacts.
A district court vacated the 2015 ROD in 2017; USFS then abandoned the land exchange, prepared an SIR, sought a new BiOp, and issued a 2019 ROD granting a right‑of‑way easement (with a 2018 BiOp/ITS).
Conservation groups challenged the 2019 ROD under NEPA, ESA, ANILCA, and related statutes; the district court vacated/remanded the 2019 ROD as governed by its 2017 reasoning (law of the case).
Tenth Circuit held (1) it had jurisdiction under the practical‑finality exception to the administrative‑remand rule and that challengers had standing; (2) the district court erred applying law of the case because the agencies adopted a different alternative and new BiOp; and (3) affirmed the 2019 ROD and 2018 BiOp on the merits.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Jurisdiction & standing	Remand makes district order non‑appealable; appeal lacks jurisdiction; challengers lack standing	Practical‑finality exception permits agency appeal; challengers have concrete injury	Court exercises jurisdiction under practical finality and finds Conservation Groups have standing
Law of the case	2017 decision controls and mandates vacatur/remand of subsequent ROD/BiOp	Agencies adopted a different action (right‑of‑way), issued an SIR and new BiOp; prior rulings were limited	Law of the case misapplied; new alternative and BiOp distinguish this action
ANILCA (§3210) scope	§3210 is Alaska‑specific and does not require access outside Alaska	Tenth Circuit precedent interprets §3210 as applying to national forest inholdings nationwide	Bound by United States v. Jenks: §3210 applies to National Forest System lands beyond Alaska; USFS must provide access
NEPA: characterization of effects, adequacy, cooperating agencies, major federal action	USFS mischaracterized LMJV development as indirect (should be direct), relied on flawed EIS, improperly denied cooperating agencies, and understated federal control (major federal action)	Development is a reasonably foreseeable but temporally removed indirect effect; SIR justified no supplemental EIS; cooperating‑agency denials unreviewable; no prejudice shown	No reversible NEPA error: categorization reasonable; cooperating‑agency denial nonreviewable; any alleged errors were not prejudicial
ESA: §7 vs §10 and BiOp/ITS sufficiency	LMJV’s development shouldn't be covered by a §7 ITS—LMJV must seek §10; 2018 BiOp uses improper surrogates and insufficient science	§7 covers indirect effects of federal action; ITS may include nonfederal development made accessible by the right‑of‑way; BiOp used best available science and reasonable surrogates	Court upholds FWS’s use of §7 and extension of ITS to LMJV development; 2018 BiOp/ITS not arbitrary or capricious

Key Cases Cited

Bender v. Clark, 744 F.2d 1424 (10th Cir. 1984) (administrative‑remand rule and nonappealability of remand orders)
Zen Magnets, LLC v. Consumer Prod. Safety Comm’n, 968 F.3d 1156 (10th Cir. 2020) (practical‑finality doctrine factors)
W. Energy All. v. Salazar, 709 F.3d 1040 (10th Cir. 2013) (two‑pronged practical‑finality test and balancing approach)
United States v. Jenks, 22 F.3d 1513 (10th Cir. 1994) (ANILCA §3210 applies to National Forest System inholdings beyond Alaska)
Biden v. Texas, 597 U.S. 785 (2022) (agency may recast rationale and take superseding action on remand)
Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29 (1983) (APA arbitrary and capricious standard)
Lujan v. Defs. of Wildlife, 504 U.S. 555 (1992) (Article III standing requirements)
Riverside Irrigation Dist. v. Andrews, 758 F.2d 508 (10th Cir. 1985) (agencies must consider indirect effects under ESA §7)