Alliance v. U.S. Forest Serv.
| Decision Date | 29 March 2013 |
| Docket Number | Case No. 1:11-CV-586-REB |
| Parties | WINTER WILDLANDS ALLIANCE, Plaintiff, v. U.S. FOREST SERVICE, Defendant, v. BLUERIBBON COALITION, INC., IDAHO STATE SNOWMOBILE ASSOCIATION, INC., and AMERICAN COUNCIL OF SNOWMOBILE ASSOCIATIONS, INC., Defendant-Intervenors. |
| Court | U.S. District Court — District of Idaho |
Currently pending before the Court are Plaintiff's Motion for Summary Judgment (Dkt. 40); Defendant's Cross-Motion for Summary Judgment (Dkt. 43), and Defendant-Intervenors' Cross-Motion for Summary Judgement (Dkt. 48). The parties have consented to the jurisdiction of a United States Magistrate Judge. See Dkt. 51. The Court has carefully reviewed the record, has heard and considered the oral arguments of counsel, and now enters the following Memorandum Decision and Order.
Plaintiff Winter Wildlands Alliance ("WWA") challenges Subpart C of the Forest Service's 2005 Travel Management Rule (sometimes referred to as the "2005 Rule"), found at 36C.F.R. Part 212, Subpart C, and also challenges the Forest Service's denial of WWA's petition to amend and to remove Subpart C from the 2005 Travel Management Rule. Complaint, Dkt. 1. Intervening in the case are the BlueRibbon Coalition, Inc., the Idaho State Snowmobile Association, Inc., and the American Council of Snowmobile Associations, Inc. (collectively, "Intervenors"). Dkts. 25, 31.
WWA contends that the 2005 Rule is contrary to law and that in enacting the 2005 Rule the Forest Service arbitrarily and capriciously exempted snowmobiles and other over-snow vehicles ("OSVs") from mandatory travel management planning, in violation of Executive Order 11644, as amended by Executive Order 11989, and the Administrative Procedure Act ("APA"). Additionally, WWA contends that the Forest Service's denial of its petition to amend the 2005 Rule was contrary to law, arbitrary and capricious.
The federal law applicable to travel management in the National Forests derives from two sources. First, there are two long-standing and related executive orders that apply to off-road vehicle travel on trails and other areas. See Exec. Order No. 11644, 37 Fed. Reg. 2877 (Feb. 8, 1972) Exec. Order No. 11989, 42 Fed. Reg. 26,959 (May 24, 1977). Second, the Forest Service has implemented its own travel management regulations, most recently revised in 2005. See Travel Management; Designated Routes and Areas for Motor Vehicle Use (70 Fed. Reg. 68264 (2005)); 36 C.F.R. Parts 212, 251, 261, and 295 ("2005 Travel Management Rule").
In 1972, President Richard M. Nixon issued Executive Order No. 11644 directing the Forest Service and other federal land management agencies to "establish policies and provide for procedures that will ensure that the use of off-road vehicles on public lands will be controlled and directed so as to protect the resources of those lands, to promote the safety of all users of those lands, and to minimize conflicts among the various uses of those lands." Exec. Order No. 11644, § 1, 37 Fed. Reg. 2877 (Feb. 8, 1972). The Order's preamble prescribes that a unified national policy was needed for the widespread use of off-road vehicles1 on public lands. "Off-road vehicle" is defined in the Executive Order as "any motorized vehicle designed for or capable of cross-country travel on or immediately over land, water, sand, snow, ice, marsh, swampland, or other natural terrain . . ." Id. at § 2(3) (emphasis added).2
Under Executive Order No. 11644, the Forest Service was required to "develop and issue regulations and administrative instructions . . . to provide for the administrative designation of the specific areas and trails on public lands" on which off-road vehicle use may be permitted and areas where off-road vehicle use may not permitted. Id. at § 3. Further, the Forest Service was required to "set a date by which such designation of all public lands all be completed." Id.(emphasis added).
Moreover, the regulations "shall direct that the designation of such areas and trails will be based upon (1) the protection of the resources of public lands, (2) promotion of the safety of all users of those lands, and (3) minimization of conflicts among the various uses of those lands." Id. Further, and importantly, such designations are to conform with the following specifically described "minimization criteria:"
In 1977, President Jimmy Carter added additional protections to President Nixon's prior order. See Exec. Order No. 11989, 42 Fed. Reg. 26959 (May 24, 1977). Executive Order 11989 required the Forest Service and other land management agencies to close certain trails and other areas when off-road vehicle use causes "considerable adverse effects on the soil, vegetation, wildlife, wildlife habitat or cultural or historic resources of particular areas or trails of the public lands." Id. at § 2. Such areas are to remain closed until the agency "determines that suchadverse effects have been eliminated and that measures have been implemented to prevent future recurrence." Id.
Prior to 2005, the Forest Service implemented the two Executive Orders through regulations that allowed each Forest to use the land management planning process to decide upon the appropriate location and extent of off-road vehicle use. Specifically:
On National Forest system lands, the continuing land management planning process will be used to allow, restrict or prohibit use by specific vehicle types off roads. . . . If the analysis indicates that the use of one or more vehicle types off roads will cause considerable adverse effects on the resources or other forest visitors, use of the affected areas and trails by the vehicle type or types likely to cause such adverse effects will be restricted or prohibited until such time as the adverse effects can be eliminated as provided in 36 CFR part 261.
36 C.F.R. § 295.2 (repealed 2005). Under the pre-2005 regulations, many National Forests managers kept their Forests generally open to motor vehicle use unless there was a pressing reason for closure. This management approach was referred to as "open unless posted closed." AR 000042. Some types of vehicles were exempted from the regulations, including: fire, military, emergency or law enforcement vehicle for emergency purposes; combat or combat support vehicle for national defense purposes; registered motorboats; and vehicle use expressly authorized under a permit, lease, license, or contract. 36 C.F.R. § 295.2(4) (repealed 2005).3
In 2005, the Forest Service issued comprehensively revised rules, referred to collectively as the 2005 Travel Management Rule. The Forest Service said that the new rule was neededbecause of a number of new and changed considerations, including the fact that the condition of the public lands was being negatively affected by an enormous increase in use from motorized vehicles, and the technological advances made in off-road motor vehicles. The Forest Service highlighted the fact that from 1982 to 2000, the number of people participating in off-road vehicle use increased more than 109%. AR 000042, 002291. Snowmobile use alone increased by 125% during that same time frame. AR 002291. Then Forest Service Chief Dale Bosworth said that unmanaged recreation, especially impacts from off-highway vehicles, was a key threat to the nation's forests. AR 001327, 000050. Additionally, the increased capability and power of off-highway vehicles, as well as new classes of vehicles such as all-terrain vehicles and sport utility vehicles, contributed to increasing impacts on National Forest lands. AR000048.
In issuing the new travel management rule, the Forest Service sought to: (1) enhance management of National Forest System lands, as well as opportunities for public enjoyment of the National Forest System; (2) protect natural resource values subject to damage from indiscriminate motor vehicle use; and (3) preserve areas of opportunity on each National Forest for both nonmotorized and motorized travel and experiences. AR 000048. The new rule also would provide for a uniform, consistent, and national set of guidelines to follow in the individual forest's decision-making process for designating roads, trails and areas for off-highway vehicle use. AR 00171.
Until the issuance of the 2005 Travel Management Rule, snowmobiles had been included in the definition of off-road vehicle for purposes of the Executive Orders and Forest Serviceregulations. See Exec. Order 11644, 37 Fed. Reg. 2877 (Feb. 8, 1972);4 AR 000049.5 This continued in the initial work on the new 2005 Rule, as early on the Forest Service specifically called for the new rule to be applied to "both summer and winter motorized travel." AR 001189.6 Later on in the process, however, the focus of the rule switched to summer use only. Se...
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