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WildEarth Guardians v. Montana Snowmobile Ass'n

United States Court of Appeals, Ninth Circuit

June 22, 2015

WILDEARTH GUARDIANS; FRIENDS OF THE BITTERROOT; MONTANANS FOR QUIET RECREATION, INC., Plaintiffs-Appellants,
v.
MONTANA SNOWMOBILE ASSOCIATION; IDAHO SNOWMOBILE ASSOCIATION, Intervenors-Appellees, UNITED STATES FOREST SERVICE; LESLIE WELDON, in her official capacity as Regional Forester for Region 1; GLORIA MANNING, in her official capacity as the appeal deciding officer for the Chief of the Forest Service; DAVE MEYER, in his official capacity as Forest Supervisor for the Beaverhead Deerlodge National Forest, Defendants-Appellees

Argued and Submitted, Seattle, Washington November 7, 2013.

Page 921

Appeal from the United States District Court for the District of Montana. D.C. No. 9:10-cv-00104-DWM. Donald W. Molloy, Senior District Judge, Presiding.

SUMMARY[*]

Environmental Law

The panel affirmed in part and reversed in part the district court's judgment in an action challenging the United States Forest Service's decision to designate over two million acres of public land in the Beaverhead-Deerlodge National Forest for use by winter motorized vehicles.

Executive Order 11644, issued in 1972, directed agencies to promulgate regulations concerning areas and trails allowing off-road vehicles on public lands to minimize environmental damages and minimize conflicts with other recreational uses. The Secretary of Agriculture promulgated the 2005 Travel Management Rule to improve implementation of the Executive Order, and established the " minimization criteria." In 2010, the Forest Service issued a Record of Decision implementing the travel management decisions in a Revised Forest Plan, designating over two million acres of the Forest for snowmobile use, which decreased the area open to snowmobiles.

Addressing plaintiffs' challenges under the National Environmental Policy Act, the panel held that the Environmental Impact Statement prepared by the Forest Service did not provide the public adequate access to information about the impact of snowmobiles on big game wildlife and habitat, and did not allow the public to play a role in the decision making process. The panel reversed the district court's grant of summary judgment to the Forest Service on this issue. The panel also held that the Forest Service provided sufficient information to establish that it took a " hard look" at the impacts of snowmobile use on non-motorized recreational uses throughout the Revised Forest Plan area, and the panel affirmed the district court's ruling that the Environmental Impact Statement sufficiently analyzed these conflicts.

Addressing plaintiffs' challenge to the Forest Service's compliance with Executive Order 11644, the panel reversed the district court's ruling that the Forest Service adequately applied the minimization criteria in the Travel Management Rule. The panel held that the Forest Service must provide a more granular minimization analysis to fulfill the objectives of Executive Order 11644, which the Travel Management Rule was designed to implement. The panel agreed with the district court that plaintiffs' challenge to the Subpart C exemption in the Travel Management Rule, which exempted over-snow vehicles from compliance with the minimization criteria, was not ripe for review because the Forest Service did not apply Subpart C to justify its actions in this case.

The panel remanded for further proceedings.

Jack R. Tuholske (argued), Tuholske Law Office, P.C., Missoula, Montana; Sarah Peters, Eugene, Oregon, for Plaintiffs-Appellants.

Beverly F. Li (argued) and David Gunter, Attorneys, United States Department of Justice, Environment & Natural Resources Division; Christine R. Everett, Office of the General Counsel, United States Department of Agriculture; Ignacia S. Moreno, Assistant Attorney General, Washington D.C., for Federal Defendants-Appellees U.S. Forest Service, et al.

Paul A. Turcke (argued), Moore, Smith, Buxton & Turcke, CHTD., Boise, Idaho, for Intervenors-Appellees Montana Snowmobile Association, et al.

Before: Alex Kozinski, Richard A. Paez, and Marsha S. Berzon, Circuit Judges. Opinion by Judge Paez.

OPINION

Page 922

PAEZ, Circuit Judge:

WildEarth Guardians, Montanans for Quiet Recreation, Inc., and Friends of the Bitterroot, Inc. (collectively, " WildEarth" ), challenge the United States Forest Service's decision to designate over two million acres of public land in the Beaverhead-Deerlodge National Forest (" Forest" ) for use by winter motorized vehicles, principally snowmobiles. WildEarth alleges that the Forest Service's review of the environmental impacts of snowmobiles under the National Environmental Policy Act (" NEPA" )[1] was inadequate in several material respects. WildEarth also alleges that the Forest Service failed to comply with the minimization requirements of Executive Order 11644. We affirm in part, reverse in part, and remand for further proceedings.

I.

At 3.35 million-acres, the Forest is the largest national forest in the state of Montana. The island mountain ranges within the Forest provide a variety of habitats spanning from cold desert to alpine peaks. Over 300 terrestrial land species live in the Forest, including grizzly bears, wolves, wolverines, lynx, and a broad variety of " big game" species, such as mule deer, white-tailed deer, black bear, moose, elk, bighorn sheep, mountain goat, and antelope. The Forest is also nationally renowned as a recreation destination. Recreational opportunities include non-motorized activities such as fishing, hunting, hiking, skiing, and mountain biking, as well as motorized activities, including motorcycle riding and snowmobiling.

In 2002, the Forest Service issued a notice of intent to revise the Land and Resource Management Plan (" forest plan" ) for the Forest pursuant to the National Forest Management Act, 16 U.S.C. § 1604. 67 Fed.Reg. 22,396 (May 3, 2002). The purpose of a forest plan is to guide decisions regarding natural resource management and other activity over a period of ten to fifteen years. Because a forest plan may have a significant impact on the environment, NEPA requires the Forest Service to prepare an environmental impact statement.

In January 2009, after considering various alternative plans, the Regional Forester signed and released a Record of Decision (" ROD" ) approving the Environmental Impact Statement[2] (" EIS" ) and adopting the Beaverhead-Deerlodge Revised

Page 923

Forest Plan (" Revised Forest Plan" or " Revised Plan" ). The Revised Plan, which adopts " modified Alternative Six," covers eight " revision topics," including " Recreation and Travel Management," which governs snowmobile access within the Forest. The Revised Forest Plan divides the Forest into twelve different " landscape areas," which are, in turn, divided into multiple " management areas." In 2010, the Forest Service issued a second ROD (" 2010 ROD" ) implementing the travel management decisions in the Revised Plan.

At issue in this case is the designation in the Revised Forest Plan of over two million acres, or 60%, of the Forest for snowmobile use. As compared to prior forest plans,[3] the Revised Plan decreased the area open to snowmobiles. The revision, however, will not necessarily result in a reduction of snowmobile impacts. There has been a sharp increase in snowmobile use since the 1980s, and advances in technology allow snowmobiles to reach altitudes and terrain not previously accessible.

The Regional Forester acknowledged in the ROD that " the unmanaged expansion of motorized uses[, including snowmobiles,] has resulted in resource damage, wildlife impacts, and competition and conflict between user groups." Snowmobiles affect wildlife in part because they stress animals and provoke a flight response during the winter season, when the animals are particularly vulnerable to depletion of their energy reserves. Because some species avoid all motorized vehicles, snowmobiles can effectively reduce the amount of available habitat. There is also evidence that snowmobiles can disturb reproduction cycles of wildlife species such as the wolverine. In addition to disturbing wildlife, snowmobiles can interfere with non-motorized winter recreation activities because of the noise and pollution they generate.

WildEarth and other groups filed a number of administrative appeals challenging the EIS and ROD. In October 2009, the Reviewing Officer for the Forest Service consolidated and rejected the appeals. WildEarth subsequently filed suit in the United States District Court for the District of Montana. Relevant to this appeal, WildEarth alleged that: (1) the Forest Service violated NEPA because it failed to analyze adequately the site-specific impacts of snowmobile use on big game winter habitat and conflicting recreational uses; (2) the Forest Service violated Executive Order 11644, 37 Fed.Reg. 2877 (Feb. 8, 1972), and Executive Order 11989, 42 Fed.Reg. 26,959 (May 24, 1977), because it failed to apply specified criteria when designating areas open to snowmobile use; and, (3) Subpart C of the 2005 Travel Management Rule (" TMR" ), 36 C.F.R. § § 212.80-81, which exempts over-snow vehicles (" OSVs" ) from compliance with the minimization criteria in Executive Order 11644 and 11989, is invalid. The Montana Snowmobile Association and the Idaho State Snowmobile Association intervened as Defendants.

The parties filed cross-motions for summary judgment, which the district court granted in part, and denied in part. Wildlands CPR, Inc. v. U.S. Forest Serv., 872 F.Supp.2d 1064 (D. Mont. 2012). The court concluded that, although the Forest Service's environmental analysis of snowmobile impacts on wildlife " lack[ed] clarity," the analysis was nevertheless adequate given the deference afforded to agencies by the Administrative Procedure Act (" APA" ), 5 U.S.C. § 704, and NEPA. Id. at 1078. Turning to Executive Order 11644, the court concluded that the Forest Service

Page 924

met the Order's requirements in designating the general areas to close to snowmobile use, but not in making designations at the route-specific level. Id. at 1082. Finally, the court ruled that WildEarth's challenge to the exemption for over-snow vehicles in Subpart C of the TMR was not ripe because the Forest Service did not ...


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