Friends of Flathead River v. U.S. Forest Serv.

• Decision Date: 14 July 2022
• Docket Number: CV 22-90-M-DWM
• Parties: FRIENDS OF THE FLATHEAD RIVER, a Montana Nonprofit Corporation, Plaintiff, v. U.S. FOREST SERVICE, et al., Defendants.
• Court: U.S. District Court — District of Montana

FRIENDS OF THE FLATHEAD RIVER, a Montana Nonprofit Corporation, Plaintiff, v. U.S. FOREST SERVICE, et al., Defendants.

No. CV 22-90-M-DWM

United States District Court, D. Montana, Missoula Division

July 14, 2022

OPINION & ORDER

DONALD W. MOLLOY, DISTRICT JUDGE UNITED STATES DISTRICT COURT

Plaintiff Friends of the Flathead River (“Friends”) seeks declaratory and injunctive relief against the United States Forest Service related to the Blankenship Bridge and a nearby gravel bar on the Middle Fork of the Flathead River near Coram, Montana (the “Gravel Bar”). Specifically Friends seeks a declaration that the Forest Service violated the Wild and Scenic Rivers Act, 16 U.S.C. §§ 1271, 1274, 1283, and the Forest Service Organic Act, through the Travel Management Rule, 36 C.F.R. §§ 212.52, 212.57. Friends moved for a temporary restraining order and preliminary injunction enjoining dispersed overnight camping southwest of the Blankenship Bridge on the Gravel Bar pending release and implementation of a new Comprehensive River Management Plan for the Flathead River. The request for a temporary restraining order was effectively denied by the Order setting a hearing on Friends' motion for injunctive relief. (See Doc. 8 at 1 (noting area restriction in place until July 15, 2022, and that “[g]iven this prohibition on use, a temporary restraining order is unnecessary at this time”).) Because Friends has not carried its burden of showing a likelihood of success on the merits of its claims at this point, Friends' motion for preliminary injunctive relief is also denied.

Background

I. Factual Background

More than 200 miles of the Flathead River, including the portion at issue here, are part of the National Wild and Scenic River System. 16 U.S.C. § 1274. The Flathead River was designated a Wild and Scenic River in 1976, and in 1980 the Forest Service issued the Flathead Wild and Scenic River Management Plan (“the Flathead Plan”). (Doc. 5-2.) The Flathead Plan was “intended to be a comprehensive document for management of the Flathead National Wild and Scenic River for a five-year period beginning with the date of approval,” to be “reviewed yearly after the conclusion of the summer recreation season.” (Id. at 29.) Chapter IV of the Flathead Plan addresses the Blankenship Bridge and Gravel Bar area. (See id. at 49-65.) The Flathead Plan states that “[m]otorized overland vehicle travel in the corridor is generally limited to established roads due to terrain and vegetation.” (Id. at 60.)

In 2010, pursuant to the 2005 Travel Management Rule, the Forest Service issued the CHR Project Decision Notice (“the Decision Notice”). (See Doc. 5-3.) The 2005 Travel Management Rule “requires designation of those roads, trails, and areas that are open to motor vehicle use on National Forests.” (Id. at 8.) The Decision Notice establishes motorized use designations in the Wild and Scenic River Corridor of the Flathead River where the Gravel Bar and Blankenship Bridge are located. (Id. at 7.) Under the Decision Notice, overland motorized vehicle use from Blankenship Bridge is prohibited to a dispersed campsite if such use will require more than 300 feet of travel from designated roads, but otherwise motorized vehicle use is allowed. (Id. at 16.)

Dispersed overnight camping has historically occurred on the Gravel Bar. (See, e.g., Doc. 5-2 at 14; Doc. 5-6 at ¶¶ 4-5; Doc. 5-8 at ¶¶ 3-5.) According to Friends, use of the Gravel Bar for recreation and camping has “grown exponentially” since 2020. (Doc. 5 at 10.) Affidavits submitted by property owners around Blankenship Bridge and the Gravel Bar allege that, because of this increased use, the scenic, geologic, and habitual qualities of the area are seriously threatened. (See, e.g., Doc. 5-6 at ¶¶ 2, 4-5; Doc. 5-8 at ¶¶ 3-5; Doc. 5-9 at ¶¶ 35.) According to the affidavits, users of the area pollute the Flathead River with human and food waste, as well as with emissions and sedimentation from vehicles that, at times, drive directly into the Flathead River. (See, e.g., Doc. 5-8 at ¶ 7.) In several instances, vehicles have become stuck in the River after failing to cross through it, even as recently as May 2022. (See Doc. 5-6 at 5; Doc. 5-9 at ¶ 3; Doc. 5-19.) Additionally, the affiants report witnessing illegal campfires and firework use, which they assert raises concerns about wildfires and damage to habitat. (See, e.g., Doc. 5-12 at ¶¶ 4-5 (Fire Chief for Blankenship Rural Fire District stating that the “unsupervised and unmanaged nature of these campfires and uses on the Gravel Bar are likely to lead to a wildfire”).)

On May 27, 2022, the Forest Service implemented an emergency closure order of the Blankenship Bridge area, prohibiting motorized vehicle use and camping due to the River's high water levels. (Doc. 5-10.) The emergency closure is intended to be “short-term,” (id.), and on June 14, the Forest Service issued an area restriction order extending the closure until July 15, 2022, (Doc. 7-1 at 1). The current temporary closure order was issued pursuant to a regulation wholly unrelated to the regulations under which Friends brings a claim. The current closure resulted from “the high-water level of the Flathead River,” not from a finding of significant adverse effects. (Doc. 7-1 at 1.)

II. Procedural Background

Friends filed the current action on May 16, 2022, requesting a declaration that the Forest Service is in violation of the Wild and Scenic Rivers Act because of its failure to timely issue a new Comprehensive River Management Plan and that the Forest Service is in violation of the Organic Act because it has allegedly failed to properly monitor and evaluate motorized use at the Gravel Bar. (Doc. 1 at 15.) Friends also requests “[t]hat the Court issue a temporary restraining order and preliminary injunction enjoining dispersed overnight camping southwest of Blankenship Bridge on the Gravel Bar ... pending release and implementation of the final Comprehensive River Management Plan for the Flathead River.” (Id. at 15-16.) Friends moved for a temporary restraining order and preliminary injunction on July 1, 2022, arguing that an injunction is warranted due to the imminent harm dispersed overnight camping causes to the Blankenship Bridge and Gravel Bar, and it seeks to enjoin overnight camping use at the Gravel Bar. (Doc. 4.) The Forest Service argues that such an injunction is unwarranted and would be detrimental to the public. A hearing on Friends' motion was held on July 12, and the emergency closure order is set to expire on July 15.

III. Statutory Framework

Because neither the Wild and Scenic Rivers Act nor the Organic Act, through which the Travel Management Rule was promulgated, provide separate standards for review, Friends' claims are reviewed under the standards of the Administrative Procedures Act (“APA”). See San Luis & Delta-Mendota Water Auth. v. Jewell, 747 F.3d 581, 601 (9th Cir. 2014). Under the relevant portion of the APA, the “reviewing court shall. . . compel agency action unlawfully withheld or unreasonably delayed.” 5 U.S.C. § 706(1). “A court may compel agency action under the APA when the agency (1) has a clear, certain, and mandatory duty, and (2) has unreasonably delayed in performing such duty.” Vaz v. Neal, 33 F.4th 1131, 1136 (9th Cir. 2022) (quotation marks and citation omitted).

A. Wild and Scenic Rivers Act

Congress enacted the Wild and Scenic Rivers Act based on the policy of preserving, protecting, and enhancing select rivers and their immediate environments “for the benefit and enjoyment of present and future generations.” 16 U.S.C. § 1271. Areas protected under the Act are given one of three designations: wild, scenic, or recreational. Id. § 1273(b). The area at issue here is “recreational,” id. § 1274(a)(13), which is defined as “[t]hose rivers or sections of rivers that are readily accessible by road or railroad, that may have some development along their shorelines, and that may have undergone some impoundment or diversion in the past,” id. § 1273(b)(3).

For rivers designated before 1986, such as the Flathead, “all boundaries, classification, and plans shall be reviewed for conformity within the requirements of this subsection within 10 years through regular agency planning processes.” Id. § 1274(d)(2). The “requirements of this subsection” are articulated in § 1274(d)(1), which states that the relevant agency “shall prepare a comprehensive management plan for such river segment to provide for the protection of the river values.” Id. “The plan shall address resource protection, development of lands and facilities, user capacities, and other management practices necessary or desirable to achieve the purposes of this chapter.” Id.

B. Travel Management Rule

The Travel Management Rule requires the designation of roads trails, and areas for motor vehicle use within National Forests. See 36 C.F.R. Ch. II, Pt. 212, Subpt. B. The Travel Management Rule specifically authorizes the designation of motor vehicle use for dispersed camping, and the “responsible official may include in the designation the limited use of motor vehicles within a specified distance of certain forest roads or trails where motor vehicle use is allowed.” Id. § 212.51(b). In general, the public must have an opportunity to participate in the designation of roads, trails, and areas where motor vehicle use may occur. Id. § 212.52(a). Public involvement is not required, however, in the event of temporary emergency closures. Id. § 212.52(b). Specifically,

If the responsible official determines that motor vehicle use on a . . . road or... trail or in an area on National Forest System lands is directly causing or will directly cause considerable adverse effects on public safety or soil,

...