8:09-cv-02665-JMC Date Filed 04/04/11 Entry Number 119 Page 1 of 57 IN THE DISTRICT COURT OF THE UNITED STATES FOR THE DISTRICT OF SOUTH CAROLINA ANDERSON DIVISION AMERICAN WHITEWATER, AMERICAN CANOE ASSOCIATION, GEORGIA CANOEING ASSOCIATION, ATLANTA WHITEWATER CLUB, WESTERN CAROLINA PADDLERS, FOOTHILLS PADDLING CLUB, Joseph C. STUBBS, Kenneth L. STRICKLAND, and Bruce A. HARE, ) Civil Action No. 8:09-cv-02665-JMC ) ) ) ) ) ) ) ) Plaintiffs, ) ) v. ) ) THOMAS TIDWELL, in his official capacity ) as Chief of the United States Forest Service; ) the UNITED STATES FOREST SERVICE, an ) ANSWER agency of the United States Department of ) OF Agriculture; ELIZABETH AGPAOA, ) THE FEDERAL DEFENDANTS Regional Forester, Southern Region, United ) TO THE States Forest Service; MONICA J. ) FIRST AMENDED COMPLAINT SCHWALBACH, Acting Forest Supervisor, ) Francis Marion and Sumter National Forests; ) MARISUE HILLIARD, Forest Supervisor, ) National Forests in North Carolina; GEORGE ) M. BAIN, Forest Supervisor, Chattahoochee ) -Oconee National Forests; THOMAS ) VILSACK, in his official capacity as Secretary ) of the United States Department of ) Agriculture; the UNITED STATES ) DEPARTMENT OF AGRICULTURE, and ) RUST FAMILY, ) ) Defendants, ) ) Thomas Tidwell, the United States Forest Service, Thomas Vilsack, and the United States Department of Agriculture ("Federal Defendants") answer the plaintiffs' First 8:09-cv-02665-JMC Date Filed 04/04/11 Entry Number 119 Page 2 of 57 Amended Complaint below. However, before commencing the detailed response, it should be noted that the plaintiffs engage in their selective dissection of the Wild and Scenic Rivers Act ("WSRA") in an effort to demonstrate that the Forest Service ("FS") has somehow violated congressional directives, but the plaintiffs fail to acknowledge the overriding fact that Congress in fact approved the FS's initial development plan, which provided for floating on the lower two-thirds of the Chattooga WSR and prohibited floating on the upper one-third of the river. The WSRA was enacted with a "report and wait" provision for the development plans and boundary descriptions for the initial components of the system. WSRA, Pub. L. 90-542, ? 3(b), 83 Stat. 906, 908 (1968). Under Section 3(b) of the Act, the responsible agency was required to submit to Congress its initial development plans and boundary descriptions for each component and then wait ninety days before the plans and descriptions would be allowed to become effective. When the Chattooga River was later added to the coverage of the WSRA, Congress required the Secretary of Agriculture to comply with Section 3(b) within one year. Pub. L. 93-279, 88 Stat 122 (1974). The Chief of the FS, on delegation from the Secretary, did so by providing copies of the development plan to the President of the Senate and the Speaker of the House of Representatives on November 13, 1975, and, Congress having expressed no objection to the proposed plan, it became effective on March 15, 1976. 41 Fed. Reg. 11847 (March 23, 1976). Such "report and wait" provisions are found in a number of statutory schemes: [There are] legitimate "report-and-wait" provisions to be found in other statutes. These typically require that a federal agency's proposed actions be referred to 2 8:09-cv-02665-JMC Date Filed 04/04/11 Entry Number 119 Page 3 of 57 Congress for a period that is long enough to permit them to be studied and, if found wanting, to allow for the passage of a joint resolution of disapproval. See, e.g., Sibbach v. Wilson & Co., Inc., 312 U.S. 1, 15, 61 S.Ct. 422, 427, 85 L.Ed. 479 (1941) (report-and-wait provision allowing Congress to review the Federal Rules of Civil Procedure and "veto their going into effect if contrary to the policy of the legislature"); Alaska Airlines, Inc. v. Brock, 480 U.S. 678, 689-90, 107 S.Ct. 1476, 1482-83, 94 L.Ed.2d 661 (1987) (provision requiring Secretary of Labor to refer certain proposed regulations to transportation committees of both Houses of Congress). Hechinger v. Metropolitan Washington Airports Authority, 36 F.3d 97, 102 (D.C. Cir. 1994). Consequently, the plaintiffs' attempts to selectively tease out of the WSRA their claim that the actions by the FS in regard to floating on the upper Chattooga are illegal must be examined in the context of Congress's approval of that very plan. Consistent with the Development Plan it submitted to Congress, the agency promulgated 36 C.F.R. ? 261.77 in 1978, which only provided for permit registration stations on the lower two-thirds of the Chattooga WSR and prohibited floating on the WSR without a permit. Due to the potential for confusion resulting from the prolixity of the First Amended Complaint, the Federal Defendants will respond by setting out verbatim each paragraph of the plaintiffs' complaint, followed by the Federal Defendants' response to each paragraph. FOR A FIRST DEFENSE 1. The United States Department of Agriculture ("USDA"), through the United States Forest Service ("USFS"), has unlawfully infringed on Plaintiffs' federally-protected right to recreate on the Chattooga Wild and Scenic River (the "Chattooga River") upstream of South Carolina Highway 28 (the "Headwaters") in hand-powered canoes and kayaks. 3 8:09-cv-02665-JMC Date Filed 04/04/11 Entry Number 119 Page 4 of 57 RESPONSE: Denied. In addition to the overall denial of these allegations, it should be noted that "Headwaters" is not an appropriate descriptive term for the entire portion of the Chattooga above Highway 28. Since the plaintiffs insist on using that term throughout their First Amended Complaint, this objection to the use of the term for the complete upper third of the Chattooga WSR should be taken to continue throughout this answer without repeatedly restating it. 2. Plaintiffs will interchangeably use the terms "floating," "boating," or "paddling" throughout this Amended Complaint to refer to all types of non-commercial, non-motorized methods of whitewater river floating or boating, including kayaking, canoeing and rafting. RESPONSE: No response necessary. 3. Congress specifically identified canoe and kayak recreation on the Headwaters as a value which caused the Chattooga River to be included in the National Wild and Scenic Rivers ("WSR") System, and this Court also specifically found that "floating is one of the ORVs of the Chattooga ... ." Opinion and Order [Doc. 95] at 21. RESPONSE: Denied, except for the partial quotation from this Court's order. As noted above, Congress approved the initial management plan which allowed floating on the lower two-thirds of the Chattooga and prohibited it on the upper one-third. As to the partial quotation from the Court's order, the plaintiffs distort the finding which, in its entirety, reads: "In making this determination, the court notes that floating is one of the ORVs of the Chattooga, but it cannot overlook the many other values which caused the river to be 4 8:09-cv-02665-JMC Date Filed 04/04/11 Entry Number 119 Page 5 of 57 included in the Act." 4. Nonetheless, despite federal statutes requiring Defendants to "protect and enhance" the "values" which caused a river to be included in the WSR System, and despite other federal statutes and Defendants' own regulations and decisions that require Defendants to conduct scientific studies to support limitations on Headwaters recreational activities, Defendants currently ban all floating on the Headwaters, thereby eliminating the only possibility in the Southeastern United States to experience a multi-day whitewater floating trip. RESPONSE: Admit that floating is not permitted upstream of Highway 28 (the upper third of the river) and deny the remaining allegations. 5. Defendants' actions and inactions violate the Administrative Procedure Act ("APA," 5 U.S.C. ? ? 551-706), the Wild and Scenic Rivers Act ("WSRA," 16 U.S.C. ? 1271 et seq.), the Wilderness Act (16 U.S.C. ? 1131 et seq.), the Multiple-Use Sustained-Yield Act (16 U.S.C. ? 528 et seq.), the National Forest Management Act (16 U.S.C. ? 1600 et seq.) and its implementing regulations (36 C.F.R. 219.1-219.29), the Forest and Rangeland Renewable Resources Planning Act (16 U.S.C. ? ? 1600-14), the National Environmental Policy Act (42 U.S.C. ? ? 4321-4370) and its implementing regulations (40 C.F.R. 1500-08), USFS regulations and decisions, the United States Constitution, and other applicable statutes and regulations. RESPONSE: Denied. 6. This action seeks declaratory and permanent injunctive relief that would require 5 8:09-cv-02665-JMC Date Filed 04/04/11 Entry Number 119 Page 6 of 57 Defendants to comply with federal law and to grant paddlers access to the Headwaters. RESPONSE: Admit that is what is sought, but deny that any relief is warranted. 7. This Court has jurisdiction over this action under 28 U.S.C. ? 1331 (federal question), 28 U.S.C. ? 1346 (United States as a defendant), and 28 U.S.C. ? 1361 (action to compel an officer of the United States to perform his or her duty). RESPONSE: Denied, for the reasons previously presented to the Court. 8. Additionally, the APA gives this Court jurisdiction to hear the claims in Plaintiffs' Amended Complaint. 5 U.S.C. ? ? 551-96, 601-12 & 701-03. Judicial review is appropriate under 5 U.S.C. ? 701 et seq. RESPONSE: Denied, for the reasons previously presented to the Court. 9. All actions challenged in this Amended Complaint are final actions for purposes of review, and Defendants took actions that were arbitrary and capricious, abuses of discretion, and not in accordance with applicable law; were contrary to Plaintiffs' constitutional rights, powers, privileges, or immunities; and were without observance of procedure required by law. RESPONSE: Denied. 10. In addition, Defendants' failures and refusals to take certain actions as described herein constitute agency action unlawfully withheld or unreasonably delayed. 5 U.S.C. ? 706(1)(2). RESPONSE: Denied. 6 8:09-cv-02665-JMC Date Filed 04/04/11 Entry Number 119 Page 7 of 57 11. The complained-of conduct creates an actual, justiciable controversy. This Court previously held that "the 2009 Amendments are final agency decisions susceptible of judicial review." Opinion and Order [Doc. 95] at 13. RESPONSE: Admitted that the Court has so stated, but otherwise denied. 12. Venue is properly vested in this Court by 28 U.S.C. ? 1391(e) because Defendants are federal agencies or officers thereof, and a substantial part of the events or omissions giving rise to the claims herein occurred in this district. In particular, a substantial part of the Headwaters is situated in the Anderson Division of the District of South Carolina, thus the undersigned endorses that the Anderson Division is the proper forum for this case to be assigned. RESPONSE: which it does not. 13. Declaratory relief is appropriate under 5 U.S.C. ? 703 and 28 U.S.C. ? 2201. Injunctive relief is appropriate under 5 U.S.C. ? 703, 28 U.S.C. ? 2202 and Fed. R. Civ. P. 65. RESPONSE: Denied. Admit that the venue would be proper, if this Court had jurisdiction, 14. Plaintiffs allege again each and every allegation in the preceding paragraphs as though set forth in full here. RESPONSE: No response necessary. 15. Plaintiff American Whitewater ("AW") is a nonprofit 501(c)(3) corporation organized under the laws of Missouri. Its principal place of business is 629 W Main St, Sylva, North 7 8:09-cv-02665-JMC Date Filed 04/04/11 Entry Number 119 Page 8 of 57 Carolina, 28779. Since 1954, AW has been dedicated to restoring rivers to their natural condition, eliminating water degradation, improving public land management and, as in this case, protecting public access for responsible recreational use. RESPONSE: The Federal Defendants lack sufficient information to either admit or deny, and consequently deny the same. 16. A nationwide organization, AW represents individuals, families and organizations, and has a combined membership of approximately 6,700 members and more than 100 local affiliate paddling clubs and organizations, including members who have used, and but for the unlawful closure would be using, the Headwaters for primitive outdoor floating recreation involving scientific and nature study of various kinds, bird watching, photography, fishing, and a variety of other primitive floating recreation activities. These recreational, aesthetic, scientific and/or environmental interests have been, are being, and will be, adversely affected by Defendants' failure to comply with the statutes and regulations cited in this Amended Complaint. RESPONSE: The Federal Defendants deny that they have failed to comply with any statutes or regulations. As to the remaining allegations, the Federal Defendants lack sufficient information to either admit or deny, and consequently deny the same. 17. AW has standing in this case. RESPONSE: The Federal Defendants lack sufficient information to either admit or deny, and consequently deny the same. 8 8:09-cv-02665-JMC Date Filed 04/04/11 Entry Number 119 Page 9 of 57 18. Plaintiff American Canoe Association ("ACA") is a nonprofit 501(c)(3) corporation organized under the laws of New York. Its principal place of business is 108 Hanover St, Fredericksburg, Virginia 22401. Since 1880, ACA has been dedicated to promoting canoeing, kayaking, and rafting as wholesome lifetime recreational activities. ACA provides a variety of worthwhile programs and public services in such areas as event sponsorship, safety education, instructor certification, waterway stewardship, water trails, paddler's rights and protection, and public information campaigns. RESPONSE: The Federal Defendants lack sufficient information to either admit or deny, and consequently deny the same. 19. A nationwide organization, ACA represents individuals, families and organizations, and has a combined membership of approximately 50,000 individual members and more than 300 local affiliate paddling clubs and organizations, including members who, but for the unlawful closure, would use the Headwaters for primitive outdoor floating recreation involving scientific and nature study of various kinds, bird watching, photography, fishing, and a variety of other primitive floating recreation activities. These recreational, aesthetic, scientific and/or environmental interests have been, are being, and will be, adversely affected by Defendants' failure to comply with the statutes and regulations cited in this Amended Complaint. RESPONSE: The Federal Defendants deny that they have failed to comply with any statutes or regulations. As to the remaining allegations, the Federal Defendants lack 9 8:09-cv-02665-JMC Date Filed 04/04/11 Entry Number 119 Page 10 of 57 sufficient information to either admit or deny, and consequently deny the same. 20. ACA has standing in this case. RESPONSE: The Federal Defendants lack sufficient information to either admit or deny, and consequently deny the same. 21. Plaintiff Georgia Canoeing Association ("GCA") is a nonprofit 501(c)(3) corporation organized under the laws of Georgia. Its principal place of business is P.O. Box 7023, Atlanta, Georgia 30357. GCA promotes conservation, environmental and river access issues as well as boating safety and skills development. Since 1966, GCA has been a memberoperated paddling club representing individuals, families and organizations, and has a combined membership of approximately 2,000 individual members, many of whom regularly float the open portions of the Chattooga, including members who, but for the unlawful closure, would use the Headwaters for primitive outdoor floating recreation involving scientific and nature study of various kinds, bird watching, photography, fishing, and a variety of other primitive floating recreation activities. These recreational, aesthetic, scientific and/or environmental interests have been, are being, and will be, adversely affected by Defendants' failure to comply with the statutes and regulations cited in this Amended Complaint. RESPONSE: The Federal Defendants deny that they have failed to comply with any statutes or regulations. As to the remaining allegations, the Federal Defendants lack sufficient information to either admit or deny, and consequently deny the same. 10 8:09-cv-02665-JMC Date Filed 04/04/11 Entry Number 119 Page 11 of 57 22. GCA has standing in this case. RESPONSE: The Federal Defendants lack sufficient information to either admit or deny, and consequently deny the same. 23. Plaintiff Atlanta Whitewater Club ("AWC") is a member-operated nonprofit 501(c)(3) corporation organized under the laws of Georgia. Its principal place of business is P.O. Box 11714, Atlanta, Georgia 30355. AWC was founded in 1978 by a dedicated group of Atlanta's kayakers, canoeists, and rafters to provide educational services and events that increase the enjoyment, safety, and skills of paddlers at every level of the sport and to protect the environment. AWC has a combined membership of approximately 110 members, including members who, but for the unlawful closure, would use the Headwaters for primitive outdoor floating recreation involving scientific and nature study of various kinds, bird watching, photography, fishing, and a variety of other primitive floating recreation activities. These recreational, aesthetic, scientific and/or environmental interests have been, are being, and will be, adversely affected by Defendants' failure to comply with the statutes and regulations cited in this Complaint. RESPONSE: The Federal Defendants lack sufficient information to either admit or deny, and consequently deny the same. 24. AWC has standing in this case. RESPONSE: The Federal Defendants lack sufficient information to either admit or deny, and consequently deny the same. 11 8:09-cv-02665-JMC Date Filed 04/04/11 Entry Number 119 Page 12 of 57 25. Plaintiff Western Carolina Paddlers ("WCP") is a member-operated paddling club based in Asheville, North Carolina. Its principal place of business is P.O. Box 8541, Asheville, North Carolina 28814. WCP's membership is comprised of paddlers of all types, including kayakers, canoeists, and rafters, all of whom are active in river conservation, access issues, and local paddling events. WCP has a combined membership of approximately 120 individuals, including members who, but for the unlawful closure, would use the Headwaters for primitive outdoor floating recreation involving scientific and nature study of various kinds, bird watching, photography, fishing, and a variety of other primitive floating recreation activities. These recreational, aesthetic, scientific and/or environmental interests have been, are being, and will be, adversely affected by Defendants' failure to comply with the statutes and regulations cited in this Amended Complaint. RESPONSE: The Federal Defendants deny that they have failed to comply with any statutes or regulations. As to the remaining allegations, the Federal Defendants lack sufficient information to either admit or deny, and consequently deny the same. 26. WCP has standing in this case. RESPONSE: The Federal Defendants lack sufficient information to either admit or deny, and consequently deny the same. 27. Plaintiff Foothills Paddling Club ("FPC") is a member-operated nonprofit corporation organized under the laws of South Carolina. Its principal place of business is PO Box 6331, Greenville, South Carolina 29606. FPC was founded in 1993 by a dedicated group of South 12 8:09-cv-02665-JMC Date Filed 04/04/11 Entry Number 119 Page 13 of 57 Carolina's kayakers and canoeists to promote safe enjoyment of both whitewater and flatwater rivers. FPC has a combined membership of approximately 115 members, including members who, but for the unlawful closure, would use the Headwaters for primitive outdoor floating recreation involving scientific and nature study of various kinds, bird watching, photography, fishing, and a variety of other primitive floating recreation activities. These recreational, aesthetic, scientific and/or environmental interests have been, are being, and will be, adversely affected by Defendants' failure to comply with the statutes and regulations cited in this Amended Complaint. RESPONSE: The Federal Defendants deny that they have failed to comply with any statutes or regulations. As to the remaining allegations, the Federal Defendants lack sufficient information to either admit or deny, and consequently deny the same. 28. FPC has standing in this case. RESPONSE: The Federal Defendants lack sufficient information to either admit or deny, and consequently deny the same. 29. Plaintiff Joseph C. Stubbs is an individual residing at 535 Earlvine Way, Kennesaw, Georgia 30152. Mr. Stubbs is an AW member who, prior to the unlawful closure, legally paddled the Headwaters but is now prevented from doing so. RESPONSE: The Federal Defendants lack sufficient information to either admit or deny, and consequently deny the same. 30. Mr. Stubbs is personally harmed by the closure because he is unable to access one of 13 8:09-cv-02665-JMC Date Filed 04/04/11 Entry Number 119 Page 14 of 57 his favorite waterways for river adventure and the various primitive floating activities that he would enjoy if the Headwaters were open for floating in accordance with applicable law. RESPONSE: The Federal Defendants deny that they have failed to comply with any statutes or regulations. As to the remaining allegations, the Federal Defendants lack sufficient information to either admit or deny, and consequently deny the same. 31. Mr. Stubbs has standing in this case. RESPONSE: The Federal Defendants lack sufficient information to either admit or deny, and consequently deny the same. 32. Plaintiff Kenneth L. Strickland is an individual residing at 210 Padena Drive, Box #63 Morganton, Georgia 30560. Mr. Strickland is an AW member whose primitive recreational floating use of the Headwaters was interrupted by Defendants' unlawful closure of the river. Mr. Strickland has been floating the Chattooga for more than thirty years, including floating the Headwaters prior to its illegal closure. Because of Defendants' unlawful river closure, it is currently a federal crime for Mr. Strickland to float his kayak on more than one-third of the wild and scenic and wilderness waters of the Chattooga. RESPONSE: The Federal Defendants lack sufficient information to either admit or deny, and consequently deny the same. 33. Mr. Strickland is personally harmed by the closure because he is unable to access one of his favorite waterways for river adventure and the various primitive floating activities that he would enjoy if the Headwaters were open for floating in accordance with applicable law. 14 8:09-cv-02665-JMC Date Filed 04/04/11 Entry Number 119 Page 15 of 57 RESPONSE: The Federal Defendants deny that they have failed to comply with any statutes or regulations. As to the remaining allegations, the Federal Defendants lack sufficient information to either admit or deny, and consequently deny the same. 34. Mr. Strickland has standing in this case. RESPONSE: The Federal Defendants lack sufficient information to either admit or deny, and consequently deny the same. 35. Plaintiff Bruce A. Hare is an individual residing at 30 Three Cabin Trail, Franklin, North Carolina, 28734. Mr. Hare is an AW member whose primitive recreational floating use of the Headwaters was interrupted by Defendants' unlawful closure of the river. Mr. Hare legally paddled the closed portions of the river prior to the unlawful closure and is now prevented from lawfully doing so. RESPONSE: The Federal Defendants deny that they have failed to comply with any statutes or regulations. As to the remaining allegations, the Federal Defendants lack sufficient information to either admit or deny, and consequently deny the same. 36. Mr. Hare is personally harmed by the closure because he is unable to access one of his favorite waterways for river adventure and the various primitive floating activities that he would enjoy if the Headwaters were open for floating in accordance with applicable law. RESPONSE: The Federal Defendants deny that they have failed to comply with any statutes or regulations. As to the remaining allegations, the Federal Defendants lack sufficient information to either admit or deny, and consequently deny the same. 15 8:09-cv-02665-JMC Date Filed 04/04/11 Entry Number 119 Page 16 of 57 37. Mr. Hare has standing in this case. RESPONSE: The Federal Defendants lack sufficient information to either admit or deny, and consequently deny the same. 38. Defendant Thomas Tidwell is the USFS Chief, and in that capacity he has the responsibility to ensure that the USFS acts in accordance with applicable laws and regulations, but has failed to do so. RESPONSE: Admit status, but deny that he has failed in his responsibilities. 39. Defendant USFS is a federal agency within the USDA. The USFS is, by law, responsible for the management policies and actions undertaken with respect to the Chattooga and certain other rivers on public lands. By statutory authority, and the agency's own regulations, it is also responsible for implementing the APA, WSRA, the Wilderness Act, MUSYA, the RPA/NFMA, NEPA and other land management laws and regulations pertaining to actions and decisions on rivers flowing through USFS-administered lands. RESPONSE: Admitted. 40. Defendant Elizabeth Agpaoa is the Regional Forester for the USFS's Southern Region. The Southern Region encompasses thirteen states, including those states through which the Chattooga flows--North Carolina, South Carolina, and Georgia. Through her actions and inactions, such as failing to carry out the USFS Chief's directives, and supervising the Forest Supervisors, Ms. Agpaoa has been instrumental in perpetuating the Headwaters floating ban. RESPONSE: Admit status, but deny that she has failed in her responsibilities. 16 8:09-cv-02665-JMC Date Filed 04/04/11 Entry Number 119 Page 17 of 57 41. Defendant Monica J. Schwalbach is the acting Forest Supervisor for the Francis Marion and Sumter National Forests in South Carolina. Through her actions and inactions, such as withdrawing the most recent Decision Notice pertaining to the Headwaters floating ban, Ms. Schwalbach has been instrumental in perpetuating the illegal Headwaters floating ban. RESPONSE: Admit that Ms. Schwalbach was in that status, but deny that she failed in her responsibilities. Ms. Schwalbach is currently Deputy Forest Supervisor for the National Forests of North Carolina. The current permanent Forest Supervisor for the National Forest in South Carolina is Paul Bradley. 42. Defendant Marisue Hilliard is the Forest Supervisor for the national forests in North Carolina, one of which is the Nantahala National Forest. Through her actions and inactions, such as withdrawing the most recent Decision Notice pertaining to the Headwaters floating ban, Ms. Hilliard has been instrumental in perpetuating the illegal Headwaters floating ban. RESPONSE: Admit status, but deny that she has failed in her responsibilities. 43. Defendant George M. Bain is the Forest Supervisor for the Chattahoochee- Oconee National Forest, located in northern Georgia. Through his actions and inactions, such as withdrawing the most recent Decision Notice pertaining to the Headwaters floating ban, Mr. Bain has been instrumental in perpetuating the illegal Headwaters floating ban. RESPONSE: Admit status, but deny that he has failed in his responsibilities. 44. Defendant Tom Vilsack is the Secretary of the USDA, and in that capacity he has the responsibility to ensure that the USDA acts in accordance with applicable laws and 17 8:09-cv-02665-JMC Date Filed 04/04/11 Entry Number 119 Page 18 of 57 regulations, but has failed to do so. RESPONSE: Admit status, but deny that he has failed in his responsibilities. 45. Defendant USDA administers the National Forest system. RESPONSE: Admit. 46. Intervenors Richard Rust, Phillip Rust, and Henry Rust purportedly jointly own a 1.7-mile stretch of private land adjacent to the Headwaters between at the North Carolina State Route 1107 bridge ("Grimshawes Bridge") and the confluence of Green Creek (the "Intervenor Property"). RESPONSE: The Federal Defendants lack sufficient information to either admit or deny, and consequently deny the same. 47. Intervenor Whiteside Cove Association is purportedly an organization of families that leases the Intervenor Property from Richard Rust, Phillip Rust, and Henry Rust. RESPONSE: The Federal Defendants lack sufficient information to either admit or Additionally, Whiteside Cove Association has deny, and consequently deny the same. recently been dismissed from the action. 48. Plaintiffs allege again each and every allegation in the preceding paragraphs as though set forth in full here. RESPONSE: No response necessary. 49. The Chattooga River is a spectacular natural waterway originating in western North Carolina and flowing south to form the border of northwestern South Carolina and 18 8:09-cv-02665-JMC Date Filed 04/04/11 Entry Number 119 Page 19 of 57 northeastern Georgia. RESPONSE: Admit. 50. The approximately twenty-one river miles of the Chattooga River upstream of South Carolina Highway 28 is commonly referred to as the "Headwaters" section of the Chattooga River and is the section of river at issue in this Amended Complaint. RESPONSE: Deny that it should be referred to as "Headwaters," but otherwise admit. 51. In 1974, the Chattooga River was protected under the WSRA. RESPONSE: Admit that it was authorized for inclusion within the WSRA in 1974, but the actual adoption of approved boundaries and the initial Development Plan did not occur until 1976, when the adequately described and managed component was admitted to the system. 52. The Chattooga River was considered for inclusion in the WSR System in six distinct sections, each of which was separately analyzed for inclusion, and each of which exhibited different Outstandingly Remarkable Values ("ORVs") and received different WSR classifications based on those values. RESPONSE: Denied. It is true, though, that the distribution of the separate components with the ORVs varies in character across the length of the Chattooga WSR, leading to different rules for different sections. 53. The Headwaters, in distinct sections, were independently analyzed and included in the WSR System, based on the Headwaters' distinct ORVs. 19 8:09-cv-02665-JMC Date Filed 04/04/11 Entry Number 119 Page 20 of 57 RESPONSE: Denied. 54. Hand-powered floating has been practiced on the Chattooga River for more than 250 years. RESPONSE: The Federal Defendants lack sufficient information to either admit or deny, and consequently deny the same. 55. Many parts of the Headwaters corridor, particularly in the Ellicott Rock Wilderness, are accessible only by boat. RESPONSE: Denied. 56. The Chattooga River, including the Headwaters, offers the only opportunity in the Southeastern United States (Florida, Georgia, Alabama, Texas, Arkansas, South Carolina, Louisiana, Mississippi, North Carolina, Tennessee, Kentucky and Virginia) for multi-day continuous whitewater river recreation. RESPONSE: Denied. Multi-day whitewater river recreation is currently available on the Chattooga WSR, and there are limited opportunities for multi-day whitewater trips within the states listed. However, there are such opportunities on the Gauley River and the New River in West Virginia, which sits between two of the listed states. And, of course, if one were in Texas (one of the listed states), there are opportunities for multi-day whitewater trips that are closer than the Chattooga River (such as the Grand Canyon). In short, while certainly very important, the Chattooga WSR is not unique within the region with regard to multi-day whitewater recreation trips. 20 8:09-cv-02665-JMC Date Filed 04/04/11 Entry Number 119 Page 21 of 57 57. Including the Headwaters, the Chattooga River offers approximately 52 miles of continuous Class I-V rapids. The Headwaters makes up approximately 40% of this 52-mile multi-day river floating opportunity. RESPONSE: The basic dimensions are admitted, but it is denied that the upper portion of the Chattooga represents a portion of the multi-day floating opportunity, or that floating can be done continuously over the entire Chattooga WSR, or that the length of the Chattooga WSR above Highway 28 amounts to 40% of the length of the Chattooga WSR. 58. The outstanding opportunity for the public to enjoy non-commercial, non- motorized methods of whitewater river floating, including kayaking, canoeing and rafting, is an ORV of the Headwaters. RESPONSE: Denied. 59. The outstanding opportunity for the public to enjoy non-commercial, non- motorized methods of whitewater river floating, including kayaking, canoeing and rafting, is a "value" that caused the Headwaters to be included in the WSR System. RESPONSE: 60. Denied. Defendants currently prohibit all non-commercial, non-motorized methods of whitewater river floating, including kayaking, canoeing and rafting on the Headwaters. RESPONSE: Admitted. 61. Plaintiffs allege again each and every allegation in the preceding paragraphs as though set forth in full here. 21 8:09-cv-02665-JMC Date Filed 04/04/11 Entry Number 119 Page 22 of 57 RESPONSE: No response needed. 62. Defendants recently applied the floating ban to Plaintiffs. In June 2008, Plaintiffs applied for Special Use Permits to float the Headwaters. In July 2008, Defendants summarily rejected Plaintiffs' applications, refusing to even accept them for consideration. RESPONSE: Admitted. Permitting floating on the upper Chattooga would have been a violation of the provisions of the then-governing 1984 plan, as well as the original plan established with the approval of Congress in 1976. 63. Under the APA, an agency's decision may be set aside by a reviewing court if the court finds the decision to be arbitrary and capricious, an abuse of discretion, or not in accordance with applicable law; contrary to Plaintiffs' constitutional rights, powers, privileges, or immunities; or without observance of procedure required by law. RESPONSE: Admitted that would be correct in a case properly before the Court. 64. This Court has found that Plaintiffs' claims are timely under the APA and that Plaintiffs have sufficiently exhausted their administrative remedies. RESPONSE: The Court's order speaks for itself. The Defendant denies that the claims are timely and denies that the plaintiffs have exhausted their administrative remedies. 65. Plaintiffs have no other adequate remedy in a court. RESPONSE: Admitted, though it is denied that the plaintiffs have any proper remedy in this Court. In addition, the plaintiffs have the opportunity to participate in the ongoing administrative process that is examining the whether to permit floating on the upper 22 8:09-cv-02665-JMC Date Filed 04/04/11 Entry Number 119 Page 23 of 57 Chattooga and, if so, to what extent and under what controls. 66. While certain federal statutes and regulations may not themselves give rise to a private right of action, an agency's violation of federal statutes and regulations is otherwise actionable under the APA. RESPONSE: apply here. 67. Defendants' current prohibition on whitewater floating, whether it be contained in a 1976, 1985, 2004, or the now-withdrawn 2009 USFS plan, is actionable under the APA. RESPONSE: Denied. Admitted that this may be correct in certain contexts, none of which 68. Defendants' prohibition on whitewater floating on the Headwaters is arbitrary and capricious, an abuse of discretion and not in accordance with federal law including the WSRA, the Wilderness Act, MUSYA, RPA/NFMA, and NEPA as well as the implementing regulations governing those federal laws. RESPONSE: Denied. 69. Defendants' prohibition on whitewater floating on the Headwaters is also contrary to Plaintiffs' constitutional rights, powers, privileges, or immunities, including Plaintiffs' rights under the Due Process Clause and the Equal Protection Clause. RESPONSE: Denied. 70. Defendants' prohibition on whitewater floating on the Headwaters is also without observance of procedure required by law, including conducting a visitor-capacity study, 23 8:09-cv-02665-JMC Date Filed 04/04/11 Entry Number 119 Page 24 of 57 optimizing wilderness, balancing multiple uses, and protecting and enhancing the whitewater floating ORV. RESPONSE: Denied. 71. Plaintiffs allege again each and every allegation in the preceding paragraphs as though set forth in full here. RESPONSE: No response necessary. 72. Section 1281 of the WSRA requires that: Each component of the national wild and scenic rivers system shall be administered in such manner as to protect and enhance the values which caused it to be included in said system without, insofar as is consistent therewith, limiting other uses that do not substantially interfere with public use and enjoyment of these values. 16 U.S.C. ? 1281(a) (emphasis added). RESPONSE: Admit, with the caveat that "component" refers to the entire WSR in question. In regard to this case, the code section refers to the entire Chattooga WSR. In addition, this is a selective quotation from the WSRA and notably omits the language from the same section requiring that "primary emphasis shall be given to protecting its esthetic, scenic, historic, archeologic, and scientific features." 73. Defendants must protect and enhance non-motorized whitewater river floating, (including kayaking, canoeing and rafting) on the Headwaters because floating is an ORV and a "value" that caused the Headwaters to be included in the WSR System. RESPONSE: Denied. 24 8:09-cv-02665-JMC Date Filed 04/04/11 Entry Number 119 Page 25 of 57 74. Defendants are violating the express language of the WSRA because Defendants are prohibiting, rather than protecting and enhancing, whitewater floating on the Headwaters. RESPONSE: Denied. 75. Floating does not substantially interfere with itself or other ORVs on the Headwaters. RESPONSE: Denied. 76. Defendants' acts and omissions relating to prohibiting and/or limiting floating on the Headwaters is arbitrary and capricious, an abuse of discretion and otherwise not in accordance with the WSRA and other laws and regulations; contrary to Plaintiffs' constitutional rights, powers, privileges, or immunities; and without observance of procedure required by law. RESPONSE: Denied. 77. The WSRA and its implementing regulations require Defendants to manage the Headwaters in accordance with the results of a legally-sufficient visitor capacity study. RESPONSE: Denied. 78. The WSRA specifies that each federally-designated WSR shall have a comprehensive management plan in place within three years of enactment, and that the plan should, among other aspects, address visitor capacities. RESPONSE: Denied. The cited requirement only applies, as stated, to rivers admitted to the WSR System after January 1, 1986. 16 U.S.C. ? 1274(d)(1). The Chattooga was added prior to that date and its management plan was required to be reviewed within ten 25 8:09-cv-02665-JMC Date Filed 04/04/11 Entry Number 119 Page 26 of 57 years of October 30, 1986, to ensure that the plan addressed "resource protection, development of lands and facilities, user capacities, and other management practices necessary or desirable to achieve the purposes of this chapter." Pub. L. 99-590, ? 501, 100 Stat 3330 (1986). 79. The WSRA-required visitor capacity study must determine the quantity and mixture of recreation and other public use which can be permitted without adverse impact on the resource values of the river area. RESPONSE: Denied. 16 U.S.C. ? 1274(d)(2); 80. The WSRA-required visitor capacity study must determine the actual number of visitors that can enjoy the river corridor without adverse impact on the resource and its values. RESPONSE: Denied. The WSRA requires that the Comprehensive Management Plan ("CMP") "shall address resource protection, development of lands and facilities, user capacities, and other management practices necessary or desirable to achieve the [WSRA's] purposes." 16 U.S.C. ? 1274(d). The overall CMP must work together to achieve the WSRA's purposes, but there is no requirement in the WSRA that the agency explicitly conduct a "visitor capacity study" or set forth an "actual number" of visitors, which are matters left to the agency's discretion, so long as the overall CMP accomplishes the WSRA's purposes. Id. 81. Defendants are required to manage the Headwaters in accordance with the results of a legally-sufficient visitor capacity study. 26 8:09-cv-02665-JMC Date Filed 04/04/11 Entry Number 119 Page 27 of 57 RESPONSE: Denied. 82. Defendants are required to conduct a visitor capacity analysis during the preparation of a management plan and periodically thereafter. RESPONSE: Denied. 83. Defendants have never performed a legally-sufficient visitor capacity study on the Headwaters. RESPONSE: in the WSRA. 84. Defendants have never stated a total recreational capacity for the Headwaters, or capacities for individual types of use such as whitewater floating. RESPONSE: Denied. Denied. There is no specific requirement for a "visitor capacity study" 85. Defendants cannot lawfully prohibit whitewater floating on the Headwaters without a legally-sufficient visitor capacity study that demonstrates a floating-specific adverse impact on the resource and its values (which values include whitewater floating). RESPONSE: Denied. 86. Whitewater floating is the lowest impact form of recreation on the Headwaters corridor. RESPONSE: Denied. 87. Whitewater floating is the form of recreation associated with the smallest number of visitors to the Headwaters river corridor. RESPONSE: At present, that appears to be correct, since floating is prohibited there. 27 8:09-cv-02665-JMC Date Filed 04/04/11 Entry Number 119 Page 28 of 57 88. Defendants' prohibiting, without a legally-sufficient visitor capacity study, floating on the Headwaters is arbitrary and capricious, an abuse of discretion and otherwise not in accordance with the WSRA and other laws and regulations; contrary to Plaintiffs' constitutional rights, powers, privileges, or immunities; and without observance of procedure required by law. RESPONSE: Denied. 89. Plaintiffs allege again each and every allegation in the preceding paragraphs as though set forth in full here. RESPONSE: No response is necessary 90. Congress passed the Wilderness Act in 1964, and prohibited the use of commercial enterprises and--except to the extent necessary for the administration of the Act-- motorized equipment, motorboats, landing of aircraft and all other forms of motorized transport in wilderness areas. RESPONSE: The actual text of 16 U.S.C. ? 1133(c) is: Prohibition provisions: commercial enterprise, permanent or temporary roads, mechanical transports, and structures or installations; exceptions: area administration and personal health and safety emergencies Except as specifically provided for in this chapter, and subject to existing private rights, there 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. 28 8:09-cv-02665-JMC Date Filed 04/04/11 Entry Number 119 Page 29 of 57 91. Congress enacted the Wilderness Act to assure that an increasing population, accompanied by expanding settlement and growing mechanization, did not occupy and modify all areas within the United States and its possessions. RESPONSE: Admitted. 92. The Wilderness Act established a national wilderness preservation system composed of "wilderness areas" which are administered for the use and enjoyment of the American people in such manner as will leave them unimpaired for future use and enjoyment as wilderness. RESPONSE: Admitted. 93. The purposes of the Wilderness Act supplement the purposes for which national forests are established and administered. RESPONSE: Admitted. 94. "Wilderness" is an area of undeveloped federal land which is protected and managed so as to preserve its natural conditions. RESPONSE: Admitted that this statement is in the Wilderness Act, though it oversimplifies the purposes of the Act. 95. Wilderness is also an area where the earth and its community of life are untrammeled by man, where man himself is a visitor who does not remain. RESPONSE: Admitted that statement is in the Wilderness Act. 96. Preserving outdoor recreation opportunities in wild areas was a major impetus behind passage of the Wilderness Act. 29 8:09-cv-02665-JMC Date Filed 04/04/11 Entry Number 119 Page 30 of 57 RESPONSE: Congress mandated that the "wilderness areas shall be devoted to the public purposes of recreation, scenic, scientific, educational, conservation, and historical use." 16 U.S.C. ? 1133(b). Recreation was consequently one of the factors that encouraged Congress to pass the Wilderness Act. The extent to which it qualified as a "major factor" is not clear, so the allegation is denied. 97. The Wilderness Act requires that Defendants devote wilderness areas to the public purposes of recreational use and administer wilderness areas in a manner that will leave them unimpaired for future use and enjoyment as wilderness. RESPONSE: As between the Wilderness Act and the WSRA, the Secretary is directed to impose the provisions that are most restrictive in order to protect the resource in question. 28 U.S.C. ? 1281(b). Both Acts place preservation of the resource above recreation. 98. The Wilderness Act requires that Defendants preserve the wilderness character of protected wilderness. RESPONSE: Admitted. 99. As a primitive recreation opportunity, floating is wholly consistent with, and actually incorporated into, the Wilderness Act's embodiment of "wilderness." RESPONSE: In a proper setting, with proper considerations of competing considerations, floating may be consistent with the restrictions of the Wilderness Act. To the extent that the paragraph can be read as suggesting that the Wilderness Act requires the Secretary to allow floating within a designated Wilderness area, it is denied. 30 8:09-cv-02665-JMC Date Filed 04/04/11 Entry Number 119 Page 31 of 57 100. Defendants' wilderness implementation regulations identify whitewater floating as a wilderness-complaint use. RESPONSE: Denied. The Forest Service Manual explicitly excludes rafts and canoes from the definition of prohibited mechanical transport (FSM 2320.5) but the regulation does not affirmatively identify whitewater floating as a wilderness-compliant use. 101. In 1975, 8,271 acres of land in Georgia, North Carolina and South Carolina, known as the Ellicott Rock Wilderness, were designated as "wilderness" under the Wilderness Act. RESPONSE: Admitted. 102. The Headwaters flow through the Ellicott Rock Wilderness for 5.2 miles. RESPONSE: Admit that the Chattooga River flows through Ellicott Rock Wilderness. 103. The Headwaters floating ban, whether it be contained in a 1976, 1985, 2004, or 2009 USFS plan, violates the Wilderness Act by imposing a moratorium on a form of primitive wilderness recreation that the USFS is commanded to protect and enhance. RESPONSE: Denied. 104. Banning floating in the wilderness area through which the Headwaters flow violates the stated purposes and administrative mandates of the Wilderness Act. RESPONSE: Denied. 105. Defendants stock over 70,000 exotic and non-native game fish annually into the Headwaters to artificially increase recreational use, including use of the wilderness area. RESPONSE: 31 8:09-cv-02665-JMC Date Filed 04/04/11 Entry Number 119 Page 32 of 57 106. Yet Defendants currently prohibit all hand-powered canoeing, kayaking and rafting in the wilderness area. RESPONSE: Admit that all forms of floating are not currently permitted on the Chattooga WSR in the Ellicott Rock Wilderness portion. 107. The Headwaters floating ban results in an allocation of uses in the Ellicott Rock Wilderness that violates the Wilderness Act and related USFS regulations by promoting artificial and higher-impact uses such as helicopter-stocked non-native game fishing over lower-impact and historical wilderness uses such as whitewater floating. RESPONSE: Denied. 108. Defendants' prohibition on floating further violates the WSRA requirement that wilderness be made available to the "optimum extent" consistent with wilderness preservation. RESPONSE: Denied. 109. Human use is not permitted to its optimum extent where, as here, a historical, low-impact form of primitive recreation is banned without any scientifically demonstrated impact on the wild resource or a legally-sufficient visitor capacity study. RESPONSE: Denied. 110. Defendants' prohibition on whitewater floating within the Ellicott Rock Wilderness is arbitrary and capricious, an abuse of discretion and in violation of the Wilderness Act; contrary to Plaintiffs' constitutional rights, powers, privileges, or immunities; and without 32 8:09-cv-02665-JMC Date Filed 04/04/11 Entry Number 119 Page 33 of 57 observance of procedure required by law. RESPONSE: Denied. 111. In addition, Defendants are required under their own Wilderness Act implementing regulations to manage wilderness in accordance with a visitor capacity study. RESPONSE: Denied. 112. Defendants have never conducted a visitor capacity study of the Ellicott Rock Wilderness. RESPONSE: Denied. User capacity analyses have been done. The National Forests in North Carolina has established encounter limits for the portions of the Wilderness that are in North Carolina, and "saturation levels" for the entire Chattooga River were established in the 1971 Chattooga River Study Report, Appendix F, page 148 (Docket # 16-3 at page 12). 113. Defendants failure to conduct (and manage according to) a legally-sufficient visitor capacity study is a violation of the Wilderness Act and is arbitrary and capricious, an abuse of discretion and otherwise not in accordance with the WSRA and other laws and regulations; contrary to Plaintiffs' constitutional rights, powers, privileges, or immunities; and without observance of procedure required by law. RESPONSE: Denied. 114. Defendants' acts and omissions relating to prohibiting and/or limiting floating use in the Ellicott Rock Wilderness is arbitrary and capricious, an abuse of discretion and otherwise not in accordance with the Wilderness Act and other laws and regulations; contrary to 33 8:09-cv-02665-JMC Date Filed 04/04/11 Entry Number 119 Page 34 of 57 Plaintiffs' constitutional rights, powers, privileges, or immunities; and without observance of procedure required by law. RESPONSE: Denied. 115. Plaintiffs allege again each and every allegation in the preceding paragraphs as though set forth in full here. RESPONSE: No response necessary. 116. In 1960, Congress passed the Multiple-Use Sustained-Yield Act ("MUSYA"), a policy statement of land use management values. RESPONSE: Admitted. 117. MUSYA provides that the national forests are established and shall be administered for, inter alia, outdoor recreation. RESPONSE: Denied, as the statement misrepresents by omission the purpose of the MUSYA. The Secretary is directed to: develop and administer the renewable surface resources of the national forests for multiple use and sustained yield of the several products and services obtained therefrom. In the administration of the national forests due consideration shall be given to the relative values of the various resources in particular areas. 16 U.S.C. ? 529. "Multiple use" is defined in the MUSYA as: The management of all the various renewable surface resources of the national forests so that they are utilized in the combination that will best meet the needs of the American people; making the most judicious use of the land for some or all of these resources or related services over areas large enough to provide sufficient latitude for periodic adjustments in use to conform to changing needs and conditions; that some land will be used for less than all of the 34 8:09-cv-02665-JMC Date Filed 04/04/11 Entry Number 119 Page 35 of 57 resources; and harmonious and coordinated management of the various resources, each with the other, without impairment of the productivity of the land, with consideration being given to the relative values of the various resources, and not necessarily the combination of uses that will give the greatest dollar return or the greatest unit output. 16 U.S.C. ? 531(a). Consequently, while "outdoor recreation" is certainly one factor that the Secretary would need to take into consideration when managing the resources of the national forests, the MUSYA explicitly recognizes that the Secretary should consider segregating uses to particular areas when exercising his discretion to accomplish the purposes of the Act. 118. MUSYA mandates that Defendants give "due consideration" to the "relative values" when balancing uses in national forests. RESPONSE: Admitted. 119. Though a market value for aesthetics, recreation, watershed, or wildlife may not readily be available, MUSYA nonetheless mandates that the value of these resources be considered when managing forests. RESPONSE: Admitted. 120. Whitewater floating is an ORV of the Headwaters and a value which caused the Headwaters to be included in the WSR System. RESPONSE: Denied that whitewater floating is, as such, an ORV or that whitewater floating in the upper or lower Chattooga River is a value which, by itself, caused the river, or any particular portion of it, to be included in the WSR System. Recration, in general, did 35 8:09-cv-02665-JMC Date Filed 04/04/11 Entry Number 119 Page 36 of 57 play a major role in getting the Chattooga River admitted to the WSR System, and whitewater floating was one, but only one, of the components of the Recreation ORV. 121. Under MUSYA, Defendants must assign an accordingly high value to floating instead of prohibiting it entirely. RESPONSE: Denied. 122. Because Defendants currently assign no value to Headwaters floating, Defendants do not properly administer the Headwaters for recreational uses as required by MUSYA. RESPONSE: Denied. 123. Defendants' acts and omissions relating to prohibiting and/or limiting floating use on the Headwaters is arbitrary and capricious, an abuse of discretion and otherwise not in accordance with MUSYA and other laws and regulations; contrary to Plaintiffs' constitutional rights, powers, privileges, or immunities; and without observance of procedure required by law. RESPONSE: Denied. 124. Plaintiffs allege again each and every allegation in the preceding paragraphs as though set forth in full here. RESPONSE: No response needed. 125. In 1974, Congress passed the Forest and Rangeland Renewable Resources Planning Act ("RPA"), which mandates federal planning for national forest lands. RESPONSE: Admitted. 36 8:09-cv-02665-JMC Date Filed 04/04/11 Entry Number 119 Page 37 of 57 126. Congress amended the RPA by enacting the National Forest Management Act of 1976 ("NFMA"). RESPONSE: Admitted. 127. In enacting the RPA/NFMA, Congress incorporated MUSYA's policies of multiple use and sustained yield into the forest planning process. RESPONSE: Admitted. 128. NFMA creates a statutory framework for the management of National Forests. RESPONSE: Admitted. 129. NFMA requires that Defendants develop, maintain, and, as appropriate, revise land and resource management plans for units of the national forest system. RESPONSE: Admitted. 130. NFMA provides a two-step process that Defendants must follow in forest planning. RESPONSE: NFMA. 131. First, Defendants must develop a Land and Resource Management Plan ("LRMP") and an Environmental Impact Statement ("EIS") for the entire forest. RESPONSE: circumstances. 132. Second, once the LRMP is in place, the USFS must assess site-specific projects in light of the LRMP. Admitted that an LRMP and an EIS are developed in appropriate The statute speaks for itself. This is a gross oversimplification of the 37 8:09-cv-02665-JMC Date Filed 04/04/11 Entry Number 119 Page 38 of 57 RESPONSE: planning process. Denied. This is so oversimplified that mischaracterizes the NFMA 133. An LRMP is a programmatic statement of intent that establishes basic guidelines and sets forth the planning elements that will be employed by Defendants in future site-specific decisions. RESPONSE: Denied. 134. An LRMP must provide for multiple uses including outdoor recreation. RESPONSE: appropriate. 135. Defendants have not adequately provided for multiple uses of resources - specifically with respect to outdoor recreation. RESPONSE: Denied. Admitted, with outdoor recreation provided for when and where it is 136. Defendants' programming statement of intent that establishes planning guidelines bans all floating on the Headwaters, which constitutes more than 40% of the Chattooga River. RESPONSE: Denied. 137. "Due consideration" was not given to "relative values" in the relevant LRMPs and EISs that currently prohibit all floating on the Headwaters as required by the RPA/NFMA. RESPONSE: Denied. 138. Defendants' failure to protect and enhance the floating ORV violates MUSYA; therefore it also violates RPA and NFMA, which require the USFS to comply with MUSYA 38 8:09-cv-02665-JMC Date Filed 04/04/11 Entry Number 119 Page 39 of 57 when managing the national forests. RESPONSE: Denied. 139. Defendants' acts and omissions relating to prohibiting and/or limiting floating use on the Headwaters is arbitrary and capricious, an abuse of discretion and otherwise not in accordance with the RPA/NFMA and other laws and regulations; contrary to Plaintiffs' constitutional rights, powers, privileges, or immunities; and without observance of procedure required by law. RESPONSE: Denied. 140. Plaintiffs allege again each and every allegation in the preceding paragraphs as though set forth in full here. RESPONSE: No response required. 141. Under NEPA, and the Council on Environmental Quality's regulations implementing NEPA, agency decision-makers must take a "hard look" at the environmental grounds for refusing to restore whitewater floating on the Headwaters. RESPONSE: Denied. Under NEPA, the agency has to take a "hard look" at the environmental consequences of its actions, but there would be no environmental consequences of prohibiting floating in the upper Chattooga. The agency did have to take the required "hard look" at the possibility of allowing floating on the upper Chattooga. 142. In April 2005, the Chief of the USFS published an appeal decision holding that Defendants' 2004 forest plan provided no grounds for refusing to restore whitewater floating 39 8:09-cv-02665-JMC Date Filed 04/04/11 Entry Number 119 Page 40 of 57 on the Headwaters. RESPONSE: Denied. The appeal decision in question was not made by the FS Chief, but by a designated reviewing officer, Gloria Manning. The decision further did not find that there were "no grounds," but rather concluded that the Regional Forester "does not provide an adequate basis for continuing the ban on boating above Highway 28" and remanded that portion of the plan for further investigation regarding the issue of floating on the upper Chattooga. 143. Defendants later published forest plan amendments in 2009, but subsequently withdrew those amendments. RESPONSE: Admitted. 144. Defendants' decision to prohibit the protected whitewater floating ORV in the Headwaters, whether it be contained in a 1976, 1985, 2004, or the now-withdrawn 2009 USFS plan, violates NEPA because, to date, there is no demonstrated scientific basis for refusing to restore the whitewater floating ORV on the Chattooga. RESPONSE: Denied. 145. Defendants have failed to take the requisite hard look at environmental justification for refusing to restore self-regulated floating use on the Headwaters. RESPONSE: Denied. Under NEPA, the agency has to take a "hard look" at the environmental consequences of its actions, but there would be no environmental consequences of prohibiting floating in the upper Chattooga. The agency did have to take 40 8:09-cv-02665-JMC Date Filed 04/04/11 Entry Number 119 Page 41 of 57 the required "hard look" at the possibility of allowing floating on the upper Chattooga. 146. To date, Defendants have not conducted a legally-sufficient visitor capacity study that clearly outlines the quantities of uses consistent with preservation of the resource. RESPONSE: capacity study." 147. Defendants have not "rigorously explored" or "objectively evaluated" scientific grounds for continuing to exclude the whitewater floating ORV. RESPONSE: Denied. Denied. There is no statutory or regulatory requirement for a "visitor 148. Defendants have not identified the methodologies used or made explicit the scientific sources justifying Defendants' continued refusal to restore floating on the Headwaters. RESPONSE: Denied. 149. Defendants have failed to present hard data supporting the bare opinions of the USFS's own staff. RESPONSE: Denied. 150. Defendants have failed to address, incorporate or respond in any way to the volumes of scientific data Plaintiffs presented, which universally support immediate protection and enhancement of the whitewater floating ORV on the Headwaters. RESPONSE: Denied. 151. Defendants' current prohibition on whitewater floating, whether it be contained in a 1976, 1985, 2004, or the now-withdrawn 2009 USFS plan, violates NEPA because there is 41 8:09-cv-02665-JMC Date Filed 04/04/11 Entry Number 119 Page 42 of 57 no demonstrated scientific basis for refusing to restore the whitewater floating ORV on the Chattooga. RESPONSE: Denied. 152. Defendants' acts and omissions relating to prohibiting and/or limiting floating use on the Headwaters is arbitrary and capricious, an abuse of discretion and otherwise not in accordance with NEPA and other laws and regulations; contrary to Plaintiffs' constitutional rights, powers, privileges, or immunities; and without observance of procedure required by law. RESPONSE: Denied. 153. Plaintiffs allege again each and every allegation in the preceding paragraphs as though set forth in full here. RESPONSE: No response necessary. 154. Banning a recreational use is the most extreme action that the USFS has at its disposal for limiting use of a resource. RESPONSE: Denied. If deemed appropriate in carrying out the statutes and regulations in question, a resource can be closed to all recreational uses. In addition, the implication in the above allegation that floating is banned in the Chattooga is misleading; floating is permitted on two-thirds of the river. 155. The USFS Manual requires that managers of WSRs apply "indirect techniques" for regulation of use before taking more direct action. 42 8:09-cv-02665-JMC Date Filed 04/04/11 Entry Number 119 Page 43 of 57 RESPONSE: Denied. This is apparently taken from FSM 2354.41a. This is general policy guidance, not a legal requirement, describing management techniques that should be considered to implement the management objectives for a particular portion of a WSR. Additionally, this portion of the manual also states: "However, do not ignore violations of law and regulations." The regulatory provision that implemented the commitment to prohibit floating above Highway 28 that was made by the FS in the Development Plan approved by Congress, 36 C.F.R. ? 261.77, was promulgated in 1978, before these policy provisions existed, and, consistent with the Development Plan approved by Congress, only provided for permit registration stations on the lower two-thirds of the Chattooga WSR. In any conflict between the policy manual and a duly enacted regulation, the regulation would control. In addition, the "management technique" to be applied would depend on the objective to be obtained. 156. "Indirect techniques" means techniques (such as signage) that minimize or eliminate management concerns while still allowing users to access the resource. RESPONSE: Denied. While signage would be one example of an indirect technique that might be used to control visitor access, the point of all three management techniques discussed in FSM 2354.41a is to accomplish the management objectives for the WSR segment in question. The point of the management techniques discussed is to accomplish the objectives of the management plan, not the other way around. 157. The USFS Manual mandates that Defendants maximize visitor freedom within 43 8:09-cv-02665-JMC Date Filed 04/04/11 Entry Number 119 Page 44 of 57 wilderness areas, minimize direct controls and restrictions, and apply controls only when they are essential for protection of the wilderness resource and after indirect measures have failed. RESPONSE: Denied. The Manual is general policy guidance for management of recreation in wilderness areas, not a legal requirement, and while it is the general goal expressed in the manual to use as little restriction on visitors as is necessary to carry out the FS's management objectives in area in question (see FSM 2323.12), the management techniques to be applied in any particular area have to be based upon the result sought by management. In regard to the Chattooga WSR, the decision was to permit virtually unrestricted floating on the lower two-thirds of the river while prohibiting it on the upper one-third, and to manage the upper third of the Chattooga WSR to facilitate fishing, but not to do that on the rest of the WSR. 158. The Headwaters floating ban violates USFS policy because the USFS has never applied indirect measures to floating on the Headwaters, and because floating poses no threat to the wilderness resource. RESPONSE: Denied. 159. The USFS Manual requires that when it becomes necessary for Defendants to limit use of a WSR, Defendants must ensure that all potential users have a fair and equitable chance to obtain access to the river. RESPONSE: Denied. The Manual expresses broad policy and is not a mandate. Moreover, the basic question of what access is "fair and equitable" in a particular setting 44 8:09-cv-02665-JMC Date Filed 04/04/11 Entry Number 119 Page 45 of 57 cannot be found in broad policy statements. The management objectives must be defined for each segment of the WSR and the appropriate management techniques eimployed to accomplish those management objectives, while complying with all appropriate laws and regulations. 160. If Defendants prohibit floating, Defendants must also equitably prohibit other similar wilderness-compliant uses unless science demonstrates impacts to the resource that justify disparate treatment. RESPONSE: Denied. Any prohibitions on floating must be based upon the evidence Again, the original available, whether the evidence be science-based or otherwise. prohibition on floating on the upper third of the Chattooga was approved by Congress in 1976. 161. Defendants' acts and omissions relating to prohibiting and/or limiting floating use on the Headwaters is arbitrary and capricious, an abuse of discretion and otherwise not in accordance with the USFS manual and other laws and regulations. RESPONSE: Denied. 162. Plaintiffs allege again each and every allegation in the preceding paragraphs as though set forth in full here. RESPONSE: No response necessary. 163. The USFS issued a Revised LRMP ("RLRMP") in 2004 that prohibited all Headwaters floating. 45 8:09-cv-02665-JMC Date Filed 04/04/11 Entry Number 119 Page 46 of 57 RESPONSE: Admitted. 164. AW timely appealed the 2004 RLRMP ban through the USFS's administrative process. RESPONSE: Admitted. 165. In April 2005, the Chief of the USFS issued a decision on AW's appeal that reversed the floating ban. RESPONSE: Denied. The appeal decision (which was not made by the FS Chief) reversed the lower decision in regard to the management plan for floating on the upper Chattooga, and remanded to the Regional Forester for further study. It took no position on the ultimate nature of a plan for managing floating on the upper portion of the Chattooga WSR. 166. The 2005 appeal decision held that the floating ban violated the WSRA and the Wilderness Act and the agency regulations implementing those acts. RESPONSE: Admit that the 2004 plan for floating on the upper Chattooga was vacated by the reviewing official as "not consistent with the direction" of the WSRA and the Wilderness Act and their implementing regulations due to inadequate factual development by the Regional Forester to support that decision. The decision itself (i.e., prohibiting floating on the upper one-third of the river) was not held to violate the WSRA and the Wilderness Act. 167. The 2005 appeal decision ordered the Regional Forester to conduct a visitor capacity study "including whitewater boating" and to engage in a number of other activities. 46 8:09-cv-02665-JMC Date Filed 04/04/11 Entry Number 119 Page 47 of 57 RESPONSE: The direction to the Regional Forester was as follows: "I am directing the Regional Forester to conduct the appropriate visitor user capacity analysis, including non-commercial boat use, and to adjust or amend, as appropriate, the RLRMP to reflect a new decision based on the findings." The plaintiffs' continued use of the term "visitor capacity study" implies something different from what the reviewing official directed, and different from what the WSRA requires. 168. The 2005 appeal decision ordered that if it became necessary to limit use on the Headwaters, Defendants were to ensure that paddlers had a fair and equitable chance to obtain access to the river. RESPONSE: Denied. The discussion in the appeal decision did, however, note that agency policy, as set forth in the Forest Service Manual, does identify the need to "ensure that all potential users have a fair and equitable chance to obtain access to the river." 169. The 2005 Appeal Decision mandated that the Ellicott Rock Wilderness be administered for the use and enjoyment of the American people in such manner as will leave it unimpaired for future use and enjoyment as wilderness. RESPONSE: Denied. The Appeal Decision did mention, in its discussion portion, the provisions in the Wilderness Act that echo the language in Paragraph 169. 170. The 2005 Appeal Decision required that the Ellicott Rock Wilderness be made available for human use to the optimum extent consistent with the maintenance of primitive conditions. 47 8:09-cv-02665-JMC Date Filed 04/04/11 Entry Number 119 Page 48 of 57 RESPONSE: Denied. The Appeal Decision did mention, in its discussion portion, language from agency regulations (specifically from 36 CFR 293.2(b)) that states that goal. 171. The 2005 Appeal Decision required that direct controls and restrictions on whitewater floating on the Headwaters be minimized, and that such controls be applied only as necessary to protect the wilderness resource after indirect measures have failed. RESPONSE: Denied. The Appeal Decision did mention, in its discussion portion, the general agency policy, as set forth in the Forest Service Manual, "that controls are to be applied only as necessary to protect the wilderness resource after indirect measures have failed." On the other hand, the Appeal Decision also noted that the Regional Forester, when supported by adequate evidence, could "Disallow or restrict the number of (private and commercial) on-river and incorridor recreation users, Determine the type of recreation use, Dictate the timing of such use." 172. Defendants, including through their withdrawn 2009 plan amendments, have failed to comply with the USFS Chief's 2005 Appeal Decision. RESPONSE: Deny that the 2005 decision was by the Chief, but admit that the The required plan review, rewriting and republishing has not yet been completed. administrative process that is underway, however, will comply with the 2005 Appeal Decision. 173. Defendants' acts and omissions relating to prohibiting and/or limiting floating use on the Headwaters are arbitrary and capricious, an abuse of discretion and otherwise not in 48 8:09-cv-02665-JMC Date Filed 04/04/11 Entry Number 119 Page 49 of 57 accordance with the USFS Chief's appeal decision and other laws, regulations and implementation directives. RESPONSE: Denied. 174. Plaintiffs allege again each and every allegation in the preceding paragraphs as though set forth in full here. RESPONSE: No response necessary. 175. The protected Headwaters section of the Chattooga WSR begins at Grimshawes Bridge. RESPONSE: Denied. The Chattooga WSR starts approximately 0.8 miles downstream from Cashiers Lake. 16 U.S.C. ? 1274(a)(10). 176. In connection with the Headwaters receiving protection as a WSR, Grimshawes Bridge is intended to be the northernmost (and farthest upstream) access point for paddlers to enter the Wild and Scenic Chattooga River. RESPONSE: Denied. 177. Immediately upstream and adjacent to Grimshawes Bridge is a USFS-owned canoe launch site that is on public land and is accessible from public roads. RESPONSE: Denied. 178. From the Grimshawes Bridge canoe access, paddlers can begin an uninterrupted Wild and Scenic, fifty-two mile, class I-V whitewater river journey over multiple days, ultimately flowing into Georgia's Lake Tugaloo. 49 8:09-cv-02665-JMC Date Filed 04/04/11 Entry Number 119 Page 50 of 57 RESPONSE: Denied. There is no canoe access at Grimshawes Bridge and the trip down the Chattooga River from that location would be interrupted by numerous obstacles. 179. Shortly downstream of the Grimshawes Bridge canoe access, the Headwaters flow between private lands for approximately 1.7 miles. RESPONSE: Denied that there is a canoe access at Grimshawes Bridge, but admit that the Chattooga flows through private lands for approximately 1.7 miles. 180. Defendants refuse to analyze, protect, manage and enhance the whitewater floating ORV (and all other protected ORVs) in the 1.7-mile section of the Headwaters bordered by private property. RESPONSE: Denied. There is no floating ORV and the Federal Defendants have acted appropriately in regard to the section of the river that flows through private property. 181. The floating ORV is easily protected and enhanced on the 1.7-mile section of river because floating requires no shoreline access onto adjacent private lands. RESPONSE: Denied. 182. Other than this 1.7-mile section, Defendants have never prohibited non-motorized canoeing, kayaking and rafting on a section of Wild and Scenic River because the WSR happens to flow between private lands. RESPONSE: Denied. 183. The USFS manual requires that Defendants manage for the use and enjoyment of the public, sections of wild and scenic rivers that flow between private lands. 50 8:09-cv-02665-JMC Date Filed 04/04/11 Entry Number 119 Page 51 of 57 RESPONSE: Admit that the Federal Defendants must manage all sections of wild and scenic rivers, as appropriate to their situation. 184. Whitewater floating is an ORV on the 1.7-mile section and under applicable law must be protected and enhanced on that section. RESPONSE: Denied. Floating, by itself, is not an ORV. The relevant ORV for the Chattooga WSR is recreation, which would include floating as just one component. 185. The USFS's decision to abandon study, management and protection of the whitewater floating ORV on the 1.7-mile section of river downstream of Grimshawes Bridge is arbitrary and capricious, an abuse of discretion and otherwise not in accordance with the Forest Service Manual and other laws and regulations; contrary to Plaintiffs' constitutional rights, powers, privileges, or immunities; and without observance of procedure required by law. RESPONSE: Denied. The FS has abandoned nothing, floating (by itself) is not an ORV and no action taken by the agency has been arbitrary or capricious. 186. Plaintiffs allege again each and every allegation in the preceding paragraphs as though set forth in full here. RESPONSE: No response necessary. 187. Defendants' outright prohibition on all whitewater floating use on the Headwaters violates the Due Process Clause of the Fifth Amendment to the United States Constitution. RESPONSE: Denied. 188. The floating ban represents an irrational deprivation of liberty. 51 8:09-cv-02665-JMC Date Filed 04/04/11 Entry Number 119 Page 52 of 57 RESPONSE: Denied. 189. Congress protected the Chattooga, including the Headwaters, as a WSR for the express purpose of protecting and enhancing outstandingly remarkable river values such as whitewater floating, yet the USFS irrationally banned floating on the Headwaters. RESPONSE: Denied. Floating is not an ORV. Congress accepted the initial management plan that allowed floating "only" on the lower two-thirds of the Chattooga. 190. This irrational action by the USFS deprives Plaintiffs of the liberty to do as Congress intended, and of their liberty of movement on a river that is to be managed and maintained expressly for their benefit under the WSRA. RESPONSE: Denied. 191. Plaintiffs allege again each and every allegation in the preceding paragraphs as though set forth in full here. RESPONSE: No response necessary. 192. The Headwaters floating ban also violates the Equal Protection Clause of the Fifth Amendment to the United States Constitution by unconstitutionally singling out primitive boaters for adverse treatment without a rational basis. RESPONSE: Denied. 193. The Headwaters comprise a section of public river that Congress required be protected and enhanced for the benefit of all Americans who wish to engage in activities that constitute specific values of that river corridor. 52 8:09-cv-02665-JMC Date Filed 04/04/11 Entry Number 119 Page 53 of 57 RESPONSE: Admit that the upper portion of the Chattooga River was incorporated into the Chattooga WSR for the purposes outlined in the WSRA. Congress approved the initial management plan for the river, which prohibited floating on the upper third of the river. 194. One of those values is whitewater floating. RESPONSE: 195. Denied. Because whitewater floating is specifically protected on the Chattooga River, whitewater paddlers on the Headwaters may even be entitled to equal protection akin to that of a protected class, but at the very least cannot be discriminated against without a rational basis. RESPONSE: Denied. 196. Members of the public who would engage in floating are irrationally singled out and prohibited from participating in a wilderness-compliant recreational use along this public section of river. RESPONSE: Denied. 197. Defendants do not have even a rational basis for discriminatorily denying paddlers access to the Headwaters. RESPONSE: Denied. 198. Plaintiffs allege again each and every allegation in the preceding paragraphs as though set forth in full here. 53 8:09-cv-02665-JMC Date Filed 04/04/11 Entry Number 119 Page 54 of 57 RESPONSE: No response necessary. 199. Declaratory relief is appropriate under 5 U.S.C. ? 703 and 28 U.S.C. ? 2201. RESPONSE: Denied. 200. Under federal law, Defendants are required to periodically review, revise and amend forest plans, including the forest plans that govern whitewater floating on the Headwaters. RESPONSE: Admitted. 201. Defendants are also required to periodically review special-use permits and other procedures and decisions that relate to and impact whitewater floating on the Headwaters. RESPONSE: Denied. 202. Declaratory relief regarding whitewater floating is necessary to inform Defendants' continuing forest plan revision activities and Defendants' requirement to periodically respond to special-use permits that require consideration of ORVs on the Headwaters. RESPONSE: Denied. 203. Plaintiffs request a declaration by the Court that the federal laws and regulations cited elsewhere in this Amended Complaint require Defendants to immediately protect and enhance the whitewater floating ORV on the Headwaters, including by restoring self-regulated floating use, with such naturally-limited floating use being further limited (indirectly first, and then directly) by Defendants only on Defendants' actual scientific demonstration of harmful impacts to the Headwaters river corridor (not hypothetical or imagined) and such scientific demonstration including, at a minimum, a legally-sufficient 54 8:09-cv-02665-JMC Date Filed 04/04/11 Entry Number 119 Page 55 of 57 visitor capacity analysis of the Headwaters, setting forth actual numerical quantities of acceptable uses consistent with preservation of the resource. RESPONSE: Denied that any relief is appropriate. 204. Plaintiffs allege again each and every allegation in the preceding paragraphs as though set forth in full here. RESPONSE: No response necessary. 205. Injunctive relief is appropriate under 5 U.S.C. ? 703, 28 U.S.C. ? 2202 and Fed. R. Civ. P. 65. RESPONSE: Denied. 206. Plaintiffs request a permanent injunction by the Court prohibiting Defendants from publishing or enforcing any past, present or future forest plan or other agency decision that fails to protect and enhance the whitewater floating ORV on the Headwaters, by, at a minimum, restoring self-regulated floating use, with such naturally-limited floating use being further limited (indirectly first, and then directly) by Defendants only on Defendants' actual scientific demonstration of harmful impacts to the Headwaters river corridor (not hypothetical or imagined impacts), such scientific demonstration including, at a minimum, a legally-sufficient visitor capacity analysis of the Headwaters, setting forth actual numerical quantities of acceptable uses consistent with preservation of the resource. RESPONSE: Denied. 207. Plaintiffs demand a jury. 55 8:09-cv-02665-JMC Date Filed 04/04/11 Entry Number 119 Page 56 of 57 RESPONSE: The plaintiffs are seeking only equitable relief and a jury trial is neither required nor appropriate. FOR A SECOND DEFENSE [Statute of Limitations] 208. As in their initial Complaint, the plaintiffs are making a facial challenge to the restrictions on floating on the upper Chattooga WSR. Those floating restrictions are contained, for present purposes, in the 1985 Sumter National Forest Plan and in 36 C.F.R. ? 261.77, promulgated in 1978. 209. Facial challenges under the Administrative Procedures Act are subject to the six year statute of limitations contained in 28 U.S.C. ? 2401(a). 210. Plaintiffs' action was filed in 2009, twenty-four years too late to challenge the 1985 Sumter National Forest Plan and thirty-one years too late to challenge 36 C.F.R. ? 261.77, and should be dismissed. FOR A THIRD DEFENSE [Equitable Defenses] 211. The plaintiffs' claims are barred in whole or in part by the doctrines of estoppel, waiver and laches. FOR A FOURTH DEFENSE [Failure to Exhaust Administrative Remedies] 212. The plaintiffs' claims are barred by their failure to exhaust administrative remedies. 56 8:09-cv-02665-JMC Date Filed 04/04/11 Entry Number 119 Page 57 of 57 Respectfully submitted, WILLIAM N. NETTLES UNITED STATES ATTORNEY BY: s/ John H. Douglas JOHN H. DOUGLAS (#587) Assistant U.S. Attorney 151 Meeting Street, 2d Floor Charleston, S.C. 29401 (843) 727-4381 (voice) (8430 727-4443 (fax) email: john.douglas@usdoj.gov Charleston, South Carolina April 4, 2011 CERTIFICATE OF SERVICE I hereby certify that I am an employee in the Office of the United States Attorney for the District of South Carolina, and on April 4, 2011, I served one true and correct copy of the forgoing document, in the above-captioned case, via the court's e-noticing system. s/John H. Douglas John H. Douglas 57