Montana Wilderness Ass'n v. McAllister, CV 07-39-M-DWM.

Citation658 F.Supp.2d 1249
Decision Date29 September 2009
Docket NumberNo. CV 07-59-BLG-DWM.,No. CV 07-39-M-DWM.,CV 07-39-M-DWM.,CV 07-59-BLG-DWM.
PartiesMONTANA WILDERNESS ASSOCIATION; Greater Yellowstone Coalition; and the Wilderness Society; Plaintiffs, v. Kathleen McALLISTER, Regional Forester for Region 1; Rebecca Heath, Supervisor of the Gallatin National Forest; and United States Forest Service; Defendants-Cross-defendants, and Treasure State Alliance; Montana Trail Vehicle Riders' Association, Montana Snowmobile Association; United Four-Wheel Drive Associations, Inc; and Blueribbon Coalition, Inc.; Intervenor Defendants, Cross-claimants. Citizens for Balanced Use, Gallatin Valley Snowmobile Association, Kenneth Zahn, and Big Sky Snowriders, Plaintiffs, v. Rebecca Heath, Gallatin National Forest Supervisor, Regional Forester Tom Tidwell, Region 1, Abigail Kimball, Chief of the United States Forest Service, Defendants.
CourtUnited States District Courts. 9th Circuit. United States District Court (Montana)

Douglas L. Honnold, Jenny K. Harbine, Timothy J. Preso, Earthjustice Legal Defense Fund, Bozeman, MT, Cory J. Swanson, Anderson and Baker, Helena, MT, for Plaintiffs.

Andrew A. Smith, U.S. Department of justice c/o U.S. Attorneys Office, Albuquerque, NM, Leif M. Johnson, William W. Mercer, Office of the U.S. Attorney, Billings, MT, Julie Sharon Thrower, U.S. Department of Justice, Washington, DC, for Defendants-Cross-defendants.

Carl J. Withroe, Paul A. Turcke, Moore Smith Buxton & Turcke, Boise, ID, Robert Thomas Cameron, Gough Shanahan Johnson & Waterman, Helena, MT, for Intervenor Defendants, Cross-claimants.

ORDER

DONALD W. MOLLOY, District Judge.

I. Introduction and Background

This Order resolves dispositive motions in consolidated cases presenting challenges to Gallatin National Forest Travel Management Plan and the associated Final Environmental Impact Statement managing recreation and travel activities in the Hyalite-Porcupine-Buffalo Horn Wilderness Study Area. Environmental Plaintiffs1 have sued the Forest Service alleging that the Travel Plan violates the law by permitting increased motorized and mechanized activity within the statutorily designated Study Area. Multiple-Use Plaintiffs2 have challenged the agency action from the other side, alleging that the Forest Service has issued a Travel Plan that is too restrictive of motorized and mechanized recreational activity within the Study Area. Both sets of Plaintiffs are proceeding under the Administrative Procedures Act ("APA") and state claims for violation of the APA, the Montana Wilderness Study Act of 1977 ("Wilderness Study Act"), and the National Environmental Policy Act ("NEPA").3

United States Magistrate Judge Jeremiah C. Lynch considered the parties' dispositive motions for summary judgment and issued Findings and Recommendations dated September 30, 2008, in which he recommends that the Environmental Plaintiffs' motion for summary judgment be granted and the Multiple-Use Plaintiffs' and Intervenors' motions for summary judgment be denied. Doc. No. 133. The parties filed timely objections, thereby preserving their right to de novo review of the Findings and Recommendations. 28 U.S.C. § 636(b)(1).

This case raises an all too familiar question: Whether a final agency action of the Forest Service complies with the Wilderness Study Act and other competing statutes that define national environmental policy. In managing the national forests, the Forest Service must balance the competing interests of those wishing to enjoy the solitude and wildlife experiences the Study Area offers and others who wish to seek opportunities to enjoy motorized and mechanized recreational activity outdoors. Simply put, because vehicle use can degrade the environment and interfere with opportunities for solitude and because of the inherent nature of off road motorized activity, the interests of vehicle users can conflict with the interests of those who visit the Study Area for other reasons.

The administrative record is replete with examples of the Forest Service's efforts to understand the impacts of various uses, how and where they conflict, and how to reasonably accommodate them and resolve the conflicts. On the other hand, the case exemplifies a peculiar difficulty confronting the Forest Service that arises from two aspects of the record and the legislative history of the Wilderness Study Act.

First, the record shows that motorized and mechanized vehicle use in the Study Area has increased since the Wilderness Study Act was enacted in 1977. Second, it shows that the Forest Service responded to this increase by reconfiguring the areas motorized and mechanized vehicles may use and the points of access to these areas. The Travel Plan expands and reconfigures the area snowmobiles may use in the winter, and decreases and reconfigures the area motorcycles and mountain bikes may use in the summer. It imposes seasonal restrictions and disallows all-terrain vehicles within the Study Area.

The legislative history of the Wilderness Study Act manifests a congressional intent that "until Congress determines otherwise," the areas it designated as wilderness study areas "be administered by the Secretary of Agriculture so as to maintain their presently existing wilderness character and potential for inclusion in the National Wilderness Preservation System." Pub.L. No. 95-150, § 3(a), 91 Stat. 1243 (1977). The parties are familiar with the history of the Wilderness Study Act, and it will not be examined at length here. The following passage from this Court's decision in Montana Wilderness Association v. United States Forest Service, 146 F.Supp.2d 1118, 1120 (D.Mont.2001) ("Montana Wilderness"), identifies the problem for the Agency and for all users posed by the Wilderness Study Act:

The nature of the Forest Service's duty is complicated by the fact that Congress intended to reach a final decision on wilderness designation of these areas by 1984. The problem is that Congress did act, and did so unequivocally, but Congress' intent to finalize its intention by either designating the lands as Wilderness or releasing them for other use has never happened.

Thus, for the Forest Service, a relatively short-term management task has burgeoned into a seemingly perpetual dilemma. Non-motorized users complain of "creeping motorization"; motorized users fear "creeping designation."

The Forest Service faces the identical dilemma in this case.

Given the increase in motorized and mechanized vehicle use in the Study Area, the Forest Service adopted a Travel Plan aimed at accommodating the increase while preserving a sense of balance among competing uses. There is no reason to doubt that the Travel Plan accomplishes this goal. But the Wilderness Study Act imposes on the Forest Service the conflicting obligation to maintain the wilderness character of the Study Area as it existed in 1977. Whether the Travel Plan meets this obligation is a different question from whether the record shows the Forest Service has a non-arbitrary basis for the balance it has struck amongst competing interests. While the Service has squarely met its administrative mandate to balance competing uses of public lands in a manner that is not arbitrary, it has not reached an accord with its statutory duty to preserve the wilderness character of the Study Area.

Practically speaking, the current legislative posture leaves the Forest Service in an untenable position. The agency has a mandate to promote and balance competing uses of public lands as reflected by the wishes of the people to whom those lands ultimately belong. As the public's preferences for recreating on federal land have evolved, the balance has shifted toward facilitating some degree of access for motorized and mechanized recreational users. Such an increase in motorized and mechanized recreational opportunities is not inconsistent with the agency's administrative mandate and can be achieved in a way that is not arbitrary or capricious, provided the interests of other users are accounted for and the overall health of the environment is not jeopardized. But while the agency's administrative directive compels reasonable accommodation of the public's desire for increased motorized and mechanized recreation, there is an irreconcilable statutory pronouncement forbidding such action.

Until Congress acts to resolve the issue, the Forest Service will be trapped between its administrative obligation to reasonably balance competing land uses and the statutory requirement that it maintain the 1977 wilderness character of the place. The tension between the law's inconsistent mandate can only be eased and resolved by Congress.

II. Analysis
A. Standard of Review

Agency decisions are subject to a deferential standard of review:

[A] reviewing court may set aside only agency actions that are "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2)(A). Review under the arbitrary and capricious standard "is narrow, and [we do] not substitute [our] judgment for that of the agency." Earth Island Inst. II [v. U.S. Forest Serv.], 442 F.3d [1147] at 1156 [(9th Cir.2006)] (citing U.S. Postal Serv. v. Gregory, 534 U.S. 1, 6-7, 122 S.Ct. 431, 151 L.Ed.2d 323 (2001)). Rather, we will reverse a decision as arbitrary and capricious only if the agency relied on factors Congress did not intend it to consider, "entirely failed to consider an important aspect of the problem," or offered an explanation "that runs counter to the evidence before the agency or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise." Id. (citing Sierra Club v. U.S. Envtl. Prot. Agency, 346 F.3d 955, 961 (9th Cir.2003), amended by 352 F.3d 1186 (9th Cir.2003)).

Lands Council v. McNair, 537 F.3d 981, 987 (9th Cir.2008).

B. The Parties' Objections

The parties initially attempted to use their objections to fully rebrief the Court on their arguments. In an order...

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    ...argue that nothing in NEPA prohibits analysis of multiple no action scenarios. Defendants cite Mont. Wilderness Ass'n v. McAllister , 658 F.Supp.2d 1249, 1264 (D. Mont. 2009) ; aff'd, 666 F.3d 549 (9th Cir. 2011) ; 460 Fed. App'x 667 (9th Cir. 2011), where parties challenged the Forest Serv......
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    ...Forest Service Land and a national, rather than a forest-specific, planning document). The case relied upon by Plaintiffs, Montana Wilderness Ass'n v. McAllister, concluded that under the particular circumstances in that case, the Forest Service's lack of details, data, and discussion in th......
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1 books & journal articles
  • 2011 Ninth Circuit environmental review.
    • United States
    • Environmental Law Vol. 42 No. 3, June 2012
    • June 22, 2012
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