Cent. Sierra Envtl. Res. Ctr. v. U.S. Forest Serv.

• Decision Date: 04 January 2013
• Docket Number: Civ. No. S–10–2172 KJM–AC.
• Citation: 916 F.Supp.2d 1078
• Parties: CENTRAL SIERRA ENVIRONMENTAL RESOURCE CENTER, et al., Plaintiffs, v. UNITED STATES FOREST SERVICE, et al., Defendants, and California Association of 4 Wheel Drive Clubs, et al., Defendant–Intervenors.
• Court: U.S. District Court — Eastern District of California

916 F.Supp.2d 1078

CENTRAL SIERRA ENVIRONMENTAL RESOURCE CENTER, et al., Plaintiffs,

v. UNITED STATES FOREST SERVICE, et al., Defendants,andCalifornia Association of 4 Wheel Drive Clubs, et al., Defendant–Intervenors.

Civ. No. S–10–2172 KJM–AC.

United States District Court,

E.D. California.

Jan. 4, 2013.

Erin Marie Tobin, Gregory Cahill Loarie, Earthjustice, San Francisco, CA, for Plaintiffs.

Cynthia Sue Huber, U.S. Dept. of Justice, Washington, DC, for Defendants.

Paul Andrew Turcke, Moore Smith Buxton & Turcke, Boise, ID, Dennis L. Porter, Law Offices of Dennis L. Porter, Sacramento, CA, for Defendant–Intervenors.

ORDER

K.J. MUELLER, District Judge.

Plaintiffs are three nonprofit environmental groups who allege that defendants U.S. Forest Service (“Forest Service”), Susan Skalski and Randy Moore violated the National Environmental Protection Act (“NEPA”), 42 U.S.C. § 4321 et seq., the Administrative Procedures Act (“APA”), 5 U.S.C. § 500 et seq., the Forest Service's Travel Management Rule (“TMR”), 36 C.F.R. § 212.55, and Executive Orders 11644 and 11989, through the Forest Service's adoption of a Record of Decision (“ROD”) that approved the Stanislaus National Forest Motorized Travel Management Environmental Impact Statement (“EIS”). Plaintiffs seek declaratory and injunctive relief. (Compl., ECF 1.) On January 7, 2011, the court granted the motion to intervene on behalf of the Forest Service by several motorized vehicle recreation groups. (ECF 23.) On June 8, 2011, the court heard oral argument on the parties' cross-motions for summary judgment. The court heard additional oral argument on November 27, 2012. For the reasons set forth below, the court grants plaintiffs' motion in part, and denies defendants' and defendant-intervenors' motion, also in part.

I. Background

A. The Stanislaus National Forest

The Stanislaus National Forest (“the Stanislaus”) is part of the U.S. National Forest System (NFS) and is located in the Sierra Nevada mountain range of California between Lake Tahoe and Yosemite National Park. (Statement of Undisputed Facts, ECF 32–2 ¶ 2; AR000740.¹) It includes opportunities for recreational activities, including hiking, camping and backpacking. (AR000739.) The Stanislaus also provides habitat for numerous species of plants and animals, including several threatened or endangered species. (ECF 32–2 ¶ 11.) Motorized visitors frequently visit the Stanislaus, including drivers of Off Highway Vehicles (“OHVs”). OHVs are vehicles “designed for or capable of cross-country travel on or immediately over land, water, sand, snow, ice, marsh, swampland, or other natural terrain.” 36 C.F.R. § 212.1. Plaintiffs allege that the use of OHVs and other motor vehicles in the Stanislaus may endanger non-motorized visitors such as bird watchers, hikers and campers. (ECF 1 ¶ 26.) Unauthorized motor vehicle use may also harm the natural characteristics and wildlife of the Stanislaus. (ECF 32–2 ¶ 6.)

Visitors access the Stanislaus through a system of roads and trails, which are managed by the U.S. Forest Service as part of the National Forest Transportation System (“NFTS”). (Id. ¶ 4.) The NFTS includes roads and trails that the Forest Service has designated for motorized use, as well as those designated for non-motorized use only. ( Id.) In addition to the official NFTS roads and trails, there are many “unauthorized” roads and trails in the Stanislaus created by visitors driving motorized vehicles off trail, or by visitors driving on roads that were intended to provide only temporary access for logging or maintenance projects. (Resp. to Statement of Undisputed Facts, ECF 39 ¶ 80.) The Forest Service did not approve the creation of these roads and trails and they were not subject to environmental analysis or public participation before their use began. ( Id.)

In 1972, then-President Nixon adopted an Executive Order that recognized the need to address the use of OHVs in National Forests and other public lands, as OHVs were “in frequent conflict with wise land and resource management practices, environmental values, and other types of recreational activity.” The Order was amended by further order in 1977. Exec. Order No. 11644, 37 Fed. Reg. 2,877 (Feb. 9, 1972), as amended by Exec. Order 11989, 42 Fed. Reg. 26959 (May 25, 1977). The Executive Orders direct heads of agencies that manage federal lands to develop regulations to manage OHV use in a way that “protect[s] resource values, preserv[es] public health, safety, and welfare, and minimize[s] use conflicts,” as well as minimizing damage to the environment. Id. The Forest Service's Travel Management Rule (“TMR”) implementing the Executive Orders is found at 36 C.F.R. § 212.1 et seq.

B. The Stanislaus Motorized Travel Management Decision

To comply with the TMR, the Forest Service has attempted to regulate the use of OHVs in National Forests, including the Stanislaus. In 1998, the Forest Service approved a Motor Vehicle Travel Management Plan that limited OHV travel in the Stanislaus to roads and trails designated for motorized use. (ECF 1 ¶ 39; Answer, ECF 10 ¶ 39.) Despite this limitation, unauthorized OHV use continued. ( Id.) In 2002, the Forest Service created a comprehensive map and database of the NFTS within the Stanislaus. (ECF 39 ¶ 79.) In 2006, the Forest Service also completed a database of unauthorized routes, in partnership with the State of California, identifying between 230 and 270 miles of user-created trails in the Stanislaus.² ( Id. ¶ 82.)

Beginning in 2005, the Forest Service started the process known as the Stanislaus Motorized Travel Management Decision (“SMTMD”) to manage continued unauthorized motorized use of the Stanislaus and designate routes for permitted motorized vehicle use. ( Id. ¶¶ 83, 86.) The Forest Service conducted public outreach between 2005 and 2007, seeking input from both motorized and non-motorized users. ( Id. ¶¶ 83–85.) The Forest Service was required to comply with the National Environmental Protection Act (“NEPA”) throughout the process. In November 2007, the Forest Service began the formal NEPA process by sending a scoping letter to interested parties. (Id. ¶ 86.) During the scoping process, an agency determines “the range of actions, alternatives, and impacts to be considered in an environmental impact statement.” 40 C.F.R. § 1508.25. Additionally, the Stanislaus Forest Supervisor published a Notice of Intent (“NOI”) to prepare an Environmental Impact Statement (“EIS”) as required by NEPA, requesting public comment on the Forest Service proposal. (ECF 39 ¶ 86.) During the scoping period, the Forest Service received hundreds of comments and letters from the public providing diverse perspectives on the extent to which motorized travel in the Stanislaus should continue. (Id. ¶ 88.) On February 27, 2009, the Forest Service released the Motorized Travel Management Draft EIS (“DEIS”). (Id. ¶ 92.) The DEIS analyzed the Forest Service's proposed action for modifying the NFTS in the Stanislaus, as well as four alternative scenarios. ( Id.) The public comment period for the DEIS was open until May 20, 2009. During this time the Forest Service received 841 letters from 927 parties, including plaintiffs. ( Id. ¶¶ 93, 95.) Based on these comments and additional analysis, the Forest Service made revisions to the DEIS in preparing a final EIS. (Id. ¶ 97.)

On November 12, 2009, the Forest Service released its final EIS and a Record of Decision (“ROD”) approving in substantial part the Forest Service's proposed action. (AR000670.) Before the SMTMD, there were approximately 2947 miles of NFTS roads and 85 miles of NFTS motorized trails in the Stanislaus, 2279 miles of which were open to public motorized use. (AR000739.) The SMTMD made the following changes to the NFTS: (1) it prohibited public motorized travel except on NFTS routes; (2) added 136.77 miles of unauthorized routes to the NFTS as motorized trails; (3) opened to the public 67.37 miles of previously closed NFTS roads; (4) closed 45.98 miles of previously open NFTS roads to the public; (5) changed 93.36 miles of NFTS roads from allowing highway legal vehicles only to allowing all vehicles; and (6) changed 400.56 miles of roads from allowing all vehicles to allowing highway legal vehicles only. (AR000649–AR00050.)

C. The Present Action

On August 8, 2010, plaintiffs Central Sierra Environmental Resource Center (“CSERC”), The Wilderness Society (“TWS”) and Public Employees for EnvironmentalResponsibility (“PEER”) filed this suit against the Forest Service, Susan Skalski, Forest Supervisor for the Stanislaus, and Randy Moore, Regional Forester for U.S. Forest Service, Pacific Southwest Region (collectively, defendants or “Forest Service”). (Compl., ECF 1.) Plaintiffs' complaint alleges that the Forest Service violated NEPA and the APA by not analyzing a reasonable range of alternatives to the proposed action, by improperly defining the baseline of existing NFTS roads and trails, and by not fully analyzing the impacts of adding additional motorized routes to the NFTS. ( Id.). Additionally, plaintiffs allege that the Forest Service violated 36 C.F.R. § 212.5(b), Executive Orders 11644 and 11989, and the APA by not minimizing adverse impacts to forest resources. (Id.) ³ Plaintiffs seek both declaratory and injunctive relief. ( Id.)

II. Standing

As a threshold matter, the Forest Service argues that plaintiffs have not demonstrated they have standing to make their claims. (Defs.' Br. at 19,⁴ ECF 32.) As the parties invoking the court's jurisdiction, plaintiffs have the burden to show they have standing. Summers v. Earth Island Inst., 555 U.S. 488, 493, 129 S.Ct. 1142, 173 L.Ed.2d 1 (2009). To establish standing, plaintiffs must show they are “under threat of suffering ‘injury in fact’ that is concrete and particularized; the threat must be actual and imminent, not conjectural or hypothetical; it must be fairly traceable to the challenged action of the defendant; and it...