Minn. Ctr. for Envtl. Advocacy v. U.S. Forest Serv., Civil No. 10–2178 (SRN/LIB).

• Court: United States District Courts. 8th Circuit. United States District Court of Minnesota
• Writing for the Court: SUSAN RICHARD NELSON
• Citation: 914 F.Supp.2d 957
• Parties: MINNESOTA CENTER FOR ENVIRONMENTAL ADVOCACY; Sierra Club; and Northeastern Minnesotans for Wilderness, Plaintiffs, v. UNITED STATES FOREST SERVICE, an agency of the U.S. Department of Agriculture; Kent Connaughton, Regional Forester for the Eastern Region, in his official capacity; James Sanders, Forest Supervisor for the Superior National Forest, in his official capacity; and United States Fish and Wildlife Service, an agency of the U.S. Department of the Interior, Defendants.
• Docket Number: Civil No. 10–2178 (SRN/LIB).
• Decision Date: 12 April 2012

914 F.Supp.2d 957

MINNESOTA CENTER FOR ENVIRONMENTAL ADVOCACY; Sierra Club; and Northeastern Minnesotans for Wilderness, Plaintiffs,
v.
UNITED STATES FOREST SERVICE, an agency of the U.S. Department of Agriculture; Kent Connaughton, Regional Forester for the Eastern Region, in his official capacity; James Sanders, Forest Supervisor for the Superior National Forest, in his official capacity; and United States Fish and Wildlife Service, an agency of the U.S. Department of the Interior, Defendants.

Civil No. 10–2178 (SRN/LIB).

United States District Court,
D. Minnesota.

April 12, 2012.

Recognized as Invalid

50 C.F.R. § 402.02

[914 F.Supp.2d 960]

Stephen J. Snyder, Snyder & Snyder, P.A., Minneapolis, MN, Marianne Dugan and Sean Malone, Eugene, OR, for Plaintiffs.

[914 F.Supp.2d 961]

David W. Fuller, and Ann M. Bildtsen, Asst. U.S. Attorneys, U.S. Attorney's Office, Minneapolis, MN, for Defendants.

MEMORANDUM OPINION AND ORDER
SUSAN RICHARD NELSON, District Judge.

This matter is before the Court on the parties' cross motions for summary judgment (Doc. Nos. 44 & 60). For the reasons stated below, this Court denies the motion of Plaintiffs Minnesota Center For Environmental Advocacy, Sierra Club and Northeastern Minnesotans For Wilderness and grants Defendants' motion.

I. FACTUAL AND PROCEDURAL BACKGROUND

The National Forest Management Act of 1976 (the “NFMA”) “directs the Secretary [of Agriculture] to ‘develop, maintain, and, as appropriate, revise land and resource management plans [LRMPs] for units of the National Forest System.’ ” Sierra Club v. Robertson, 28 F.3d 753, 755 (8th Cir.1994). “An LRMP must establish the overall management direction for the forest unit for ten to fifteen years. Thus, an LRMP is, in essence, a programmatic statement of intent that establishes basic guidelines and sets forth the planning elements that will be employed by the Forest Service in future site-specific decisions.” Id. The NFMA, “by direct or indirect reference,” incorporates the “myriad concurrent statutes or regulations” with which the Forest Service must comply. Id. For example, a LRMP “must be developed in compliance with the National Environmental Policy Act (NEPA).” Id.

Once a LRMP is approved, “individual site-specific projects are proposed and assessed using the LRMP.” Id. Under the NFMA,

[r]esource plans and permits, contracts, and other instruments for the use and occupancy of the National Forest System lands shall be consistent with the land management plans. Those resource plans and permits, contracts, and other such instruments currently in existence shall be revised as soon as practicable to be made consistent with such plans.

16 U.S.C. § 1604(i). “The Forest Service must ensure that all projects are consistent with the plan.” Robertson, 28 F.3d at 755.

Pursuant to the requirement of the NFMA, in July 2004, the United States Forest Service (the “USFS,” “Forest Service” or “Service”) published the Land and Resource Management Plan for the Superior National Forest (“SNF”) in northeastern Minnesota.¹ This Management Plan (the “Forest Plan,” or “Plan”) “established desired conditions, objectives, standards, and guidelines for recreation and roads management, including for unclassified roads” and Off–Highway Vehicles (“OHVs”).² (Doc. No. 61, at 4.) The Plan “provides a framework and context that guides” day-to-day management of the SNF. (Forest Plan, at 1–8.) “It is a strategic, programmatic document and does not make project-level decisions.” ( Id.) Another federal statute “requires that the national forests ‘be administered for outdoor recreation, range, timber, watershed, and wildlife and fish purposes.’ ” Robertson, 28 F.3d at 755. Thus, as Defendants recognize, federal law “mandates that the USFS manage the SNF to provide multiple

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uses and balance divergent interests.” (Doc. No. 61, at 4.) ³

“Prior to 2004, the Forest Plan allowed ATVs to travel not only on low standard forest roads, but ... also to travel cross-country or throughout the national forest, even where there were no roads.” (FF0003979.) The 2004 Forest Plan “made several decisions on the use of off-road vehicles and laid the groundwork for more decisions to be made in the future.” ( Id.) First, it prohibited cross-country travel. ( Id.) Second, “[o]n September 10, 2004, the Forest Supervisor issued an order listing which roads were open and which roads were closed to ATVs. A map showing these roads was distributed and has been revised on an annual basis. This resulted in approximately 1522 miles of roads being open to ATV use and approximately 1311 miles of roads being closed to ATV use. Of these approximately 244 miles of unclassified roads were open for ATV use.” ( Id.)

In November 2005, the Service published its final rule governing “Travel Management; Designated Routes and Areas for Motor Vehicle Use” (the “Travel Management Rule”). 70 Fed.Reg. 68264–01, 2005 WL 2986693. The rule amended the regulations which, as relevant here, govern the designation of roads, trails and areas for motor vehicle use in national forests. 36 C.F.R. Part 212, Subpart B. “The rule intends to restrict motor vehicles to designated roads and trails and requires national forests to designate those roads, trails, and areas that are open to motor vehicle use.” (FF0003979.) “The rule required that any road or trail where motorized use was to be allowed would now have to be part of a national forest system road or trail, and unclassified roads would have to either be designated as system roads or trails or to be decommissioned.” ( Id.) In addition, the “Forest Service requires that temporary roads and trails be decommissioned once the emergency that justified them or their written authorization is no longer in effect.” 70 Fed.Reg. at 68277, 2005 WL 2986693. Under the Rule, each national forest must prepare and publish a map showing which roads are designated for motorized use. See36 C.F.R. § 261.13.

In December 2008, the Forest Service, pursuant to the requirements of NEPA, issued an Environmental Assessment (“EA”) of its proposed Forest-wide Travel Management Project for the SNF (“TMP” or “Project”). The EA summarized four alternatives: (1) a “no action alternative” designed to continue “the current situation and management with regard to unclassified roads and OHV uses on the forest”; (2) the “Modified Proposed Action,” which “would make decisions on unclassified roads, either decommissioning them, or converting them to national forest system roads, trails or special use roads”; (3) “Alternative 3,” which would provide “additional loop and connected riding opportunities” as well as “additional short spurs for OHV riding”; and (4) “Alternative 4,” which “still emphasizes loop opportunities,” but “reduces the mileage available for OHV use, especially short spurs routes and conversion of snowmobile trials to ATV trails.” (FF0003993–94.)

In November 2009, the Forest Service published its “Decision Notice and Finding of No Significant Impact” (“DN/FONSI”), on the “Forest-wide Travel Management Project” on the SNF, a decision to reclassify the system of roads and trails within the SNF and the types of vehicles that may use particular roads and trails. The Project elected to implement, out of the four options described in the EA, “Alternative

[914 F.Supp.2d 963]

2 Modified” (the “proposed alternative”). (FF0004818.) ⁴ “The decision applies only to national forest lands within the Forest Purchase Unit boundaries, but outside the [BWCAW].” ( Id.) In addition, the Forest Service's “Decision Notice” included a “Finding of No Significant Impact,” a finding that meant the Service need not prepare an Environmental Impact Statement (EIS).

The purpose of the Project was “to determine which roads and trails on the [SNF] are to be available for public motorized use, including highway vehicles ..., all terrain vehicles (ATVs), off-highway motorcycles (OHMs), and unlicensed off-road vehicles.” (FF0003978.) The EA identified two purposes of the Project:

1. Designating or decommissioning unclassified roads ... [and]

2. Providing loop routes and connections for longer distance riding opportunities on existing roads and trails that provide for enjoyable and consistently managed Off-highway Vehicle (OHV) riding experiences.

(FF0004817.) The Project did not create a new OHV road and trail system, but rather “adjust[ed]” the existing system. ( Id.) “Of the almost 1600 miles of roads currently open to OHVs,” the Project made a decision “on OHV use on about 37 percent of those roads (about 596 miles).” (FF0004826.)

In particular, by choosing Alternative 2 Modified, the Project intended to “decommission 154 miles and designate 142 miles of unclassified roads.” ( Id.) The Forest Supervisor reasoned that under his decision, “overall negative impacts to natural resources will be less than is occurring now or would occur under the No Action Alternative” because the selection of Alternative 2 Modified “results in fewer total roads” and would place “most additional OHV use” on “higher standard roads.” (FF0004835.) He concluded that “all action alternatives result in fewer total roads” and “more roads that will be decommissioned than in the no action alternative.” (FF0004835–36.) He thus stated that “there is a net reduction of 108 miles of motorized use on the” SNF. (FF0004836.) Accordingly, “not only is it appropriate to select Alternative 2, it represents an improvement over the No Action Alternative.” ( Id.)

After the administrative appeals were largely denied, Plaintiffs then filed their Complaint against the Forest Service and two of its individual officials, and the Fish and Wildlife Service (“FWS”), seeking declaratory and injunctive relief. (Doc. No. 1.) Plaintiffs later filed their First Amended Complaint. (Doc. No. 10.) Plaintiffs allege that USFS violated the National Environmental Policy Act (NEPA), the National Forest Management Act (NFMA), the Wilderness Act (WA), and two...