Izaak Walton League of Am., Inc. v. Tidwell, Civil No. 06-3357 (JRT/LIB)

• Decision Date: 13 February 2015
• Docket Number: Civil No. 06-3357 (JRT/LIB)
• Parties: IZAAK WALTON LEAGUE OF AMERICA, INC., WILDERNESS WATCH, SIERRA CLUB NORTHSTAR CHAPTER, and NORTHEASTERN MINNESOTANS FOR WILDERNESS, Plaintiffs, v. THOMAS TIDWELL, Chief of the United States Forest Service; and TOM VILSACK, Secretary of Agriculture, Defendants, and COOK COUNTY, CONSERVATIONISTS WITH COMMON SENSE, and ARROWHEAD COALITION FOR MULTIPLE USE, Intervenors.
• Court: U.S. District Court — District of Minnesota

IZAAK WALTON LEAGUE OF AMERICA, INC., WILDERNESS
WATCH, SIERRA CLUB NORTHSTAR CHAPTER, and NORTHEASTERN
MINNESOTANS FOR WILDERNESS, Plaintiffs,
v.
THOMAS TIDWELL, Chief of the United States Forest Service;
and TOM VILSACK, Secretary of Agriculture, Defendants,
and COOK COUNTY, CONSERVATIONISTS WITH
COMMON SENSE, and ARROWHEAD
COALITION FOR MULTIPLE USE, Intervenors.

Civil No. 06-3357 (JRT/LIB)

UNITED STATES DISTRICT COURT DISTRICT OF MINNESOTA

February 13, 2015

MEMORANDUM OPINION AND ORDER

Charles N. Nauen, David J. Zoll, and Kristen G. Marttila, LOCKRIDGE GRINDAL NAUEN P.L.L.P., 100 Washington Avenue South, Suite 2200, Minneapolis, MN 55401, for plaintiffs.

David W. Fuller, Assistant United States Attorney, UNITED STATES ATTORNEY'S OFFICE, 600 United States Courthouse, 300 South Fourth Street, Minneapolis, MN 55415, for defendants.

David R. Oberstar, FRYBERGER, BUCHANAN, SMITH & FREDERICK, 302 West Superior Street, Suite 700, Duluth, MN 55802, for intervenors.

This opinion in this case is the next stage in long-standing litigation between four environmental advocacy organizations and the United States Forest Service over the proposed South Fowl Snowmobile Trail. The proposed trail runs through the Superior

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National Forest in northeastern Minnesota, adjacent to the Boundary Waters Canoe Area Wilderness ("BWCAW" or "wilderness"). This Court previously ordered the Forest Service to produce a full Environmental Impact Statement ("EIS") analyzing the proposed trail's effects on sound quality in the BWCAW. Since then, the Forest Service has completed its environmental analysis and selected a preferred route. The plaintiffs challenge the Forest Service's decision as violating both Section 4(b) of the Wilderness Act and the National Environmental Policy Act ("NEPA").

The matter is before the Court on cross-motions for summary judgment. Because the Forest Service's proposed action does not impermissibly degrade the wilderness character of the affected portion of the BWCAW and because any error on the part of the Forest Service in failing to disclose its adaptive management strategy in the EIS was harmless, the Court will grant the Forest Service's and intervenors' summary judgment motions on both the Wilderness Act and NEPA claims. The Court will deny plaintiffs' motion for summary judgment and enter final judgment.

BACKGROUND

I. DEVELOPMENT OF THE SOUTH FOWL SNOWMOBILE TRAIL¹

In 2003, the Forest Service learned that snowmobilers were illegally crossing the BWCAW to travel between South Fowl Lake and McFarland Lake. (Aff. of Kristen G.

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Marttila ("Marttila Aff."), Ex. C (Record of Decision ("ROD") at 12-13), July 1, 2014, Docket No. 157; AR_001415-AR_001416.)² The Forest Service shut down the unlawful route, known locally as the Tilbury Trail, diverting snowmobilers south along existing roadways. (ROD at 13-14; AR_001416-AR_001417.) Since it is dangerous to have snowmobilers regularly traveling along steep and narrow roads, the Forest Service decided to create a new snowmobile trail that would connect the two lakes and allow snowmobilers to continue to travel safely and efficiently. (See ROD at 13-14; AR_001416-AR_001417.)

In 2005, the Forest Service released an environmental assessment ("EA") for the proposed South Fowl Trail. (Marttila Aff., Ex. B (Final EIS ("FEIS")) at 11; AR_00925.) The EA identified four action alternatives and one no-action alternative. (AR_2006_0118-AR_2006_0123.) Alternative 2 was the northernmost of the proposed alternatives, running the closest to the BWCAW. (AR_2006_0118-AR_2006_0120.)

The EA recognized the possibility of increased illegal recreational use resulting from the construction of a new snowmobile trail. (AR_2006_0149-AR_2006_0151.) However, the EA noted that the project area is not a popular destination for off-highway vehicles, and that Alternative 2 was unlikely to result in additional incursions into

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adjoining wilderness because of the steep terrain separating the trail from the BWCAW. (Id.)

Among other impacts, the EA considered the potential projection of sound into the BWCAW from each alternative. The EA found that the sound of snowmobile traffic from Alternative 2 would carry directly into the adjoining wilderness. Because wilderness visitors would consider any sight or sound from snowmobiles to be negative, the EA dispensed with any quantitative measurements of the sound impact, stating that "such detailed data appears to be moot." (AR_2006_0157.)

In 2006, the Forest Service issued a Decision Notice and Finding of No Significant Impact ("DN/FONSI") selecting Alternative 2 for the South Fowl Trail. (Marttila Aff., Ex. E (DN/FONSI) at 4-7 (explaining the reasons for selecting Alternative 2); AR_2006_0017-AR_2006_0020.) The DN/FONSI estimated that the volume of snowmobile sound reaching the adjoining wilderness would reach approximately 49 decibels at most, and concluded that this decibel level was not significant. (DN/FONSI at 14; AR_2006_0038.) Several environmental organizations appealed the DN/FONSI. On May 18, 2006, a Forest Service Appeal Reviewing Officer ("ARO") recommended affirming the selection of Alternative 2, as set forth in the DN/FONSI, and, on May 22, 2006, the Forest Supervisor (also called, in this case, the Appeal Deciding Officer) adopted that recommendation. (AR_2006_3559-AR_2006-3561.)

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II. THE DISTRICT COURT'S PREVIOUS DECISION

After exhausting their administrative remedies, the environmental organizations - the Izaak Walton League of America, Inc.; Wilderness Watch; Sierra Club Northstar Chapter; and Northeastern Minnesotans for Wilderness ("plaintiffs") - filed a complaint with this Court in August 2006, with the Chief of the Forest Service and the U.S. Secretary of Agriculture ("defendants" or "Forest Service") listed as defendants. (Compl., Aug. 17, 2006, Docket No. 1.) Relevant to this stage of the litigation, they alleged in Count III that Alternative 2 would project the sounds of snowmobiles into the wilderness area in violation of Section 4(b) of the Wilderness Act, (id. ¶¶ 72-73), and in Count V that the Forest Service violated NEPA by failing to prepare an EIS for the proposed trail, (id. ¶¶ 76-79).³ The parties filed cross-motions for summary judgment. (Defs.' Mot. for Summ. J., Nov. 9, 2006, Docket No. 22; Pls.' Mot. for Summ. J., Nov. 9, 2006, Docket No. 26.)

As to Count III, the Court held that the Wilderness Act could proscribe activity outside of a wilderness area, but determined that more data was needed to determine whether Section 4(b) had been violated in the instant case. Izaak Walton League of Am., Inc. v. Kimbell, 516 F. Supp. 2d 982, 988-90 (D. Minn. 2007) (stating that "the agency's duty to preserve the wilderness area is wholly independent of the source or location of that activity" and concluding that, as a result, Section 4(b) of the Wilderness Act "may

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apply to agency activity that occurs outside of the boundaries of the wilderness area"). Regarding the NEPA claim, the Court concluded that the "Forest Service [had] not provided sufficient analysis to support its conclusion that the sound impact of the South Fowl Trail is not significant." Id. at 997. It directed the Forest Service to prepare an Environmental Impact Statement "to evaluate more thoroughly the sound impact in the BWCAW, and to suspend further activity on the South Fowl Trail pending completion of the EIS." Id. at 997.

III. THE SOUND ANALYSIS

A. Draft and Final Environmental Impact Statements

Pursuant to this Court's order, the Forest Service published a Draft Environmental Impact Statement ("DEIS") in 2010. (Am. Compl. ¶ 41, Aug. 30, 2013, Docket No. 137; Marttila Aff., Ex. F (DEIS); AR_000434-000783.) The DEIS analyzed three action alternatives and evaluated the future impacts of the existing snowmobile trail as a no-action alternative. (See DEIS at 13-29; AR_000492-AR_000508; see also 36 C.F.R. § 220.7(b)(2) (2014) (allowing an EA to consider the impacts of taking no action)). These alternatives are the same options at issue today. The no-action alternative is Alternative 1; Alternative 2 is the northernmost route, running closest to the BWCAW; and Alternatives 3 and 4, which are slightly different, are largely the same as the no-

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action alternative.⁴ (DEIS at 13-20; AR_000492-AR_000499.) The plaintiffs submitted comments disputing the sufficiency of the noise analysis in the DEIS and citing a report by sound expert Richard D. Horonjeff. (Am. Compl. ¶ 42; AR_000869-AR_000880.) In 2011, the Forest Service released both a Final Environmental Impact Statement ("FEIS") and a Record of Decision ("ROD"). (FEIS; AR_000916-AR_001398; ROD; AR_001399-AR_001488.)

The FEIS analyzed the same no-action alternative and three action alternatives as the DEIS. (FEIS at 11-12; AR_000925-AR_000926.) The FEIS noted that audible snowmobile sound already reaches the entire portion of the BWCAW that would be impacted by any of the alternatives due to existing motor use in the territory outside the wilderness area. (FEIS at 30-31; AR_000974-AR_000975.) The increase in the decibels ("dBA") of sound heard under Alternative 2 would be at most 5 dBA at Royal Lake, the portion of the wilderness that is closest to Alternative 2. (FEIS at 38; AR_000982.) The FEIS concluded that sounds from single snowmobile sleds would be audible for 11.8% of the week with Alternative 2, versus 11.0% of the week with the no-action alternative. (FEIS at 40; AR_000984.) Two snowmobile sleds or groups of snowmobile sleds would be audible for 5.9% of the week with Alternative 2, versus 5.5% of the week for the no-action alternative. (FEIS at 40; AR_000984.) The FEIS also analyzed how long the snowmobile noise would be above the natural ambient noise level. (FEIS at 40;

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AR_000984.) For a single sled under Alternative 2, the duration above natural ambient would be 2.2% of the week; it would be 1.1% of the week for two sleds or a group. (FEIS at 40; AR_000984.)

As for the...