Montana Wilderness Ass'n v. McAllister, Nos. 09–36051

CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)
Writing for the CourtFISHER
Citation2011 Daily Journal D.A.R. 17242,666 F.3d 549,11 Cal. Daily Op. Serv. 14436
PartiesMONTANA WILDERNESS ASSOCIATION; Greater Yellowstone Coalition; The Wilderness Society, Inc., Plaintiffs,andCitizens for Balanced Use; Kenneth Zahn; Big Sky Snowriders; Gallatin Valley Snowmobile Association, Plaintiffs–Appellants, v. Kathleen McALLISTER, Regional Forester for Region 1; Rebecca Heath; United States Forest Service, Defendants–counter–defendants–Appellees,Treasure State Alliance; Montana Trail Vehicle Riders Association; Montana Snowmobile Association; United Four–Wheel–Drive Associations; Blue Ribbon Coalition, Inc., Defendant–intervenors–Appellees.Montana Wilderness Association; Greater Yellowstone Coalition; The Wilderness Society, Inc.; Citizens for Balanced Use; Kenneth Zahn; Big Sky Snowriders; Gallatin Valley Snowmobile Association, Plaintiffs–Appellees, v. Kathleen McAllister, Regional Forester for Region 1; Rebecca Heath; United States Forest Service, Defendants–counter–defendants–Appellants,andTreasure State Alliance; Montana Trail Vehicle Riders Association; Montana Snowmobile Association; United Four–Wheel–Drive Associations; Blue Ribbon Coalition, Inc., Defendant-intervenors.Montana Wilderness Association; Greater Yellowstone Coalition; The Wilderness Society, Inc.; Citizens for Balanced Use; Kenneth Zahn; Big Sky Snowriders; Gallatin Valley Snowmobile Association, Plaintiffs–Appellees, v. Kathleen McAllister, Regional Forester for Region 1; Rebecca Heath; United States Forest Service, Defendants-counter-defendants,andTreasure State Alliance; Montana Trail Vehicle Riders Association; Montana Snowmobile Association; United Four–Wheel–Drive Associations; Blue Ribbon Coalition, Inc., Defendant–intervenors–Appellants.
Docket Number09–36058,Nos. 09–36051,09–36080.
Decision Date01 December 2011

11 Cal. Daily Op. Serv. 14,436
2011 Daily Journal D.A.R. 17,242
666 F.3d 549

MONTANA WILDERNESS ASSOCIATION; Greater Yellowstone Coalition; The Wilderness Society, Inc., Plaintiffs,andCitizens for Balanced Use; Kenneth Zahn; Big Sky Snowriders; Gallatin Valley Snowmobile Association, Plaintiffs–Appellants,
v.
Kathleen McALLISTER, Regional Forester for Region 1; Rebecca Heath; United States Forest Service, Defendants–counter–defendants–Appellees,Treasure State Alliance; Montana Trail Vehicle Riders Association; Montana Snowmobile Association; United Four–Wheel–Drive Associations; Blue Ribbon Coalition, Inc., Defendant–intervenors–Appellees.Montana Wilderness Association; Greater Yellowstone Coalition; The Wilderness Society, Inc.; Citizens for Balanced Use; Kenneth Zahn; Big Sky Snowriders; Gallatin Valley Snowmobile Association, Plaintiffs–Appellees,
v.
Kathleen McAllister, Regional Forester for Region 1; Rebecca Heath; United States Forest Service, Defendants–counter–defendants–Appellants,andTreasure State Alliance; Montana Trail Vehicle Riders Association; Montana Snowmobile Association; United Four–Wheel–Drive Associations; Blue Ribbon Coalition, Inc., Defendant-intervenors.
Montana Wilderness Association; Greater Yellowstone Coalition; The Wilderness Society, Inc.; Citizens for Balanced Use; Kenneth Zahn; Big Sky Snowriders; Gallatin Valley Snowmobile Association, Plaintiffs–Appellees,
v.
Kathleen McAllister, Regional Forester for Region 1; Rebecca Heath; United States Forest Service, Defendants-counter-defendants,andTreasure State Alliance; Montana Trail Vehicle Riders Association; Montana Snowmobile Association; United Four–Wheel–Drive Associations; Blue Ribbon Coalition, Inc., Defendant–intervenors–Appellants.

Nos. 09–36051

09–36058

09–36080.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted June 7, 2011.Submission Withdrawn June 17, 2011.Resubmitted Nov. 22, 2011.Filed Dec. 1, 2011.


[666 F.3d 551]

Alan J. Campbell, Office of the General Counsel, U.S. Department of Agriculture, Missoula, MT; Ignacia S. Moreno, Assistant Attorney General, Allen M. Brabender (argued), David C. Shilton, Mark R. Haag, Julie Thrower, Anna T. Katselas, Attorneys, U.S. Department of Justice, Washington, D.C.; William W. Mercer, United States Attorney, and Leif Johnson, Assistant U.S. Attorney, Billings, MT, for the Federal appellants.

Douglas L. Honnold, Timothy J. Preso (argued) and Jenny K. Harbine, Earthjustice, Bozeman, MT, for appellees Montana Wilderness Association, et al.

Paul A. Turcke and Carl J. Withroe, Moore Smith Buxton & Turcke, Chartered, Boise, ID; Catherine A. Laughner, M. Christy S. McCann (argued) and Kyle W. Nelson, Browning, Kaleczyc, Berry & Hoven, P.C., Bozeman, MT, for appellants Recreation Groups.Appeal from the United States District Court for the District of Montana, Donald W. Molloy, District Judge, Presiding. D.C. Nos. 9:07–cv–00039–DWM, 1:07–cv–00059–DWM.Before: RAYMOND C. FISHER, RONALD M. GOULD and RICHARD A. PAEZ, Circuit Judges.
OPINION
FISHER, Circuit Judge:

A coalition of environmental groups (Montana Wilderness Association, et al., hereinafter MWA) challenges the 2006 Gallatin National Forest Travel Management Plan prepared by the United States Forest Service, arguing that the travel plan violates the Montana Wilderness Study Act of 1977 (Study Act). We hold that the Study Act requires the Service to ensure that current users of a wilderness study area are able to enjoy the wilderness character of the area as it existed in 1977, pending a congressional decision on whether to designate the area as wilderness. In this case, the Service has not adequately explained how the 1977 wilderness character of the relevant study area, particularly the opportunities for solitude it offers, has been maintained despite an increase in the volume of motorized and mechanized recreation in the area. We therefore conclude that the Service's adoption of the travel plan was arbitrary and capricious, and accordingly affirm the district court's decision finding that the Service's actions violate the Administrative Procedure Act (APA).

Statutory Background

We begin with a brief overview of the statutes that govern the land management decision challenged in this case.

The 1964 Wilderness Act established a National Wilderness Preservation System composed of congressionally designated wilderness areas. See Pub.L. No. 88–577, 78 Stat. 890 (1964); 16 U.S.C. § 1131(a). Under the Wilderness Act, “wilderness” is defined as “an area where the earth and its community of life are untrammeled by man, where man himself is a visitor who does not remain.” 16 U.S.C. § 1131(c). The definition further specifies:

An area of wilderness ... (1) generally appears to have been affected primarily by the forces of nature, with the imprint of man's work substantially unnoticeable; (2) has outstanding opportunities for solitude or a primitive and unconfined

[666 F.3d 552]

type of recreation; (3) has at least five thousand acres of land or is of sufficient size as to make practicable its preservation and use in an unimpaired condition; and (4) may also contain ecological, geological, or other features of scientific, educational, scenic, or historical value.

Id. Unlike national forests, which are generally managed to sustain a variety of uses, see id. § 1604(e), wilderness areas must be managed to preserve their “wilderness character,” id. § 1133(b). Only certain recreational uses are appropriate in wilderness areas; motorized and mechanized activities are generally prohibited. See id. § 1133(b), (c).

In 1967, the Forest Service undertook a nationwide inventory of large roadless areas within the National Forest System, “select[ing] areas with the most merit for specific study as possible additions” to the National Wilderness Preservation System. S.Rep. No. 95–163, at 2 (1977). Congress became concerned, however, that in conducting this review the Service may have “unjustifiably rejected from wilderness consideration” several large tracts in Montana. H.R.Rep. No. 95–620, at 3 (1977). In response, Congress passed the Study Act, which identified nine wilderness study areas in Montana for renewed evaluation. See Pub.L. No. 95–150, § 2(a), 91 Stat. 1243 (1977). The Study Act directed the Secretary of Agriculture to review these study areas' “suitability for preservation as wilderness” and to advise Congress whether each study area should be designated as wilderness or removed from study area status. Id. § 2(a), (b). The Study Act also instructed that, pending congressional action on the Secretary's recommendations, the study areas “be administered ... so as to maintain their presently existing wilderness character and potential for inclusion in the National Wilderness Preservation System.” Id. § 3(a). The Secretary, acting through the Service, has long since made these recommendations. Congress, however, has not yet acted on them. Accordingly, until Congress either designates the study areas as wilderness areas or removes their Study Act protection, the Service must continue to manage them to maintain their 1977 wilderness character and potential for wilderness designation.

Factual and Procedural Background

The Hyalite–Porcupine–Buffalo Horn Wilderness Study Area, a 155,000–acre region within southwest Montana's Gallatin National Forest, is managed under the Study Act. Until recently, the Service administered the entire Gallatin National Forest, including the study area, under a forest plan prepared in 1987.1 Since the forest plan was prepared, however, recreation and travel uses of the Gallatin National Forest have evolved substantially. Motorized and mechanized recreational use has intensified: “[u]se of snowmobiles and ATVs has grown in popularity,” for instance, and mountain bike activity has “exploded.” Observations by Forest Service personnel further indicate that motorized and mechanized recreational use has increased in the study area in particular, not just in the Gallatin National Forest in general, although the Service does not possess “statistically sound” data fully illustrating these historical changes. For example, during the winter of 1999–2000, snowmobile traffic on the Big Sky snowmobile trail, which passes through the

[666 F.3d 553]

study area, was roughly double that observed in the winter of 1978–79.

In 2002, realizing that “the demand for some recreation opportunities” in the Gallatin National Forest might “be reaching the point of exceeding the capability of the land to provide them,” the Service began preparing the travel plan to balance travel and recreational uses with other management goals. In October 2006, the Service released the record of decision (ROD) for the travel plan, along with a final environmental impact statement (FEIS) prepared to satisfy the National Environmental Policy Act (NEPA), 42 U.S.C. § 4321 et seq.

When preparing the portion of the travel plan that covers the study area, the Service recognized that the increasing use of motorized and mechanized transports like snowmobiles, motorcycles and mountain bikes, none of which can be used in designated wilderness areas, might potentially degrade the study area's wilderness character relative to the 1977 baseline, in contravention of the Study Act's mandate that 1977 wilderness character be maintained.2 Thus, to comply with the Study Act, the Service examined which portions of the study area were available for motorized and mechanized recreational use in 1977, and compared the 1977 areas to the areas available in 2006, when the travel plan was prepared. After conducting this analysis, the Service restricted summer use of motorcycles and mountain bikes to 168 total trail miles, and restricted winter use of snowmobiles to an 11,000–acre open area surrounded by a 7000–acre buffer zone.3 The parties dispute whether these restrictions amount to a net increase or decrease in the physical area of motorized and mechanized use relative to the 1977...

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16 practice notes
  • Nat'l Mining Ass'n v. Zinke, No. 14-17350
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • 12 Diciembre 2017
    ...practices like those engaged in by the Indian respondents.").31 Metamin's citation to Montana Wilderness Association v. McAllister, 666 F.3d 549 (9th Cir. 2011), is unavailing. We held in Montana Wilderness Association that the Forest Service erred in failing to account for the relevance of......
  • Trout Unlimited v. Pirzadeh, No. 20-35504
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • 17 Junio 2021
    ...of adverse effects.6 Finally, our interpretation is consistent with the agency's past practice. Cf. Mont. Wilderness Ass'n v. McAllister , 666 F.3d 549, 556–58 (9th Cir. 2011) (examining an interpretation of a statute for consistency with the past practice of relevant agencies). In the only......
  • Trout Unlimited v. Bristol Bay Economic Development Corp., 20-35504
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • 17 Junio 2021
    ...adverse effects.[6] Finally, our interpretation is consistent with the agency's past practice. Cf. Mont. Wilderness Ass'n v. McAllister, 666 F.3d 549, 556-58 (9th Cir. 2011) (examining an interpretation of a statute for consistency with the past practice of relevant agencies). In the only p......
  • League of Wilderness Defenders/Blue Mountains Biodiversity Project v. U.S. Forest Serv., Case No. 3:10–CV–01397–SI.
    • United States
    • U.S. District Court — District of Oregon
    • 10 Agosto 2012
    ...other NEPA claim entirely separately from the Montana Wilderness Study Act claim. Compare Mont. Wilderness Ass'n. v. McAllister, 666 F.3d 549, 555–59 (9th Cir.2011), with id. at 559–60. It even summarized the district court's opinion to suggest that the district court had done the same. See......
  • Request a trial to view additional results
16 cases
  • Nat'l Mining Ass'n v. Zinke, No. 14-17350
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • 12 Diciembre 2017
    ...practices like those engaged in by the Indian respondents.").31 Metamin's citation to Montana Wilderness Association v. McAllister, 666 F.3d 549 (9th Cir. 2011), is unavailing. We held in Montana Wilderness Association that the Forest Service erred in failing to account for the relevance of......
  • Trout Unlimited v. Pirzadeh, No. 20-35504
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • 17 Junio 2021
    ...of adverse effects.6 Finally, our interpretation is consistent with the agency's past practice. Cf. Mont. Wilderness Ass'n v. McAllister , 666 F.3d 549, 556–58 (9th Cir. 2011) (examining an interpretation of a statute for consistency with the past practice of relevant agencies). In the only......
  • Trout Unlimited v. Bristol Bay Economic Development Corp., 20-35504
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • 17 Junio 2021
    ...adverse effects.[6] Finally, our interpretation is consistent with the agency's past practice. Cf. Mont. Wilderness Ass'n v. McAllister, 666 F.3d 549, 556-58 (9th Cir. 2011) (examining an interpretation of a statute for consistency with the past practice of relevant agencies). In the only p......
  • League of Wilderness Defenders/Blue Mountains Biodiversity Project v. U.S. Forest Serv., Case No. 3:10–CV–01397–SI.
    • United States
    • U.S. District Court — District of Oregon
    • 10 Agosto 2012
    ...other NEPA claim entirely separately from the Montana Wilderness Study Act claim. Compare Mont. Wilderness Ass'n. v. McAllister, 666 F.3d 549, 555–59 (9th Cir.2011), with id. at 559–60. It even summarized the district court's opinion to suggest that the district court had done the same. See......
  • Request a trial to view additional results

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