Russell Cntry. Sportsmen v. United States Forest Serv.

• Decision Date: 12 October 2011
• Docket Number: Nos. 10–35623,10–35784.,s. 10–35623
• Citation: 2011 Daily Journal D.A.R. 15158,73 ERC 1979,668 F.3d 1037,11 Cal. Daily Op. Serv. 12741
• Parties: RUSSELL COUNTRY SPORTSMEN; Montana Trail Vehicle Riders Association; Great Falls Trail Bike Riders Association; Meagher County Little Belters; Great Falls Snowmobile Club; Treasure State Alliance; Motorcycle Industry Council; Specialty Vehicle Institute of America; the Blueribbon Coalition, Plaintiffs–Appellees, v. UNITED STATES FOREST SERVICE; Lewis and Clark National Forest; Lesley Thompson, Forest Supervisor, Defendants,andMontana Wilderness Association, Intervenor–Defendant–Appellant.Great Falls Snowmobile Club; Montana Trail Vehicle Riders Association; Great Falls Trail Bike Riders Association; Meagher County Little Belters; Motorcycle Industry Council; Russell Country Sportsmen; Specialty Vehicle Institute of America; the Blueribbon Coalition; Treasure State Alliance, Plaintiffs–Appellees, v. United States Forest Service; Lewis and Clark National Forest; Lesley Thompson, Forest Supervisor, Defendants–Appellants,andMontana Wilderness Association, Intervenor–Defendant.
• Court: U.S. Court of Appeals — Ninth Circuit

11 Cal. Daily Op. Serv. 12,741

2011 Daily Journal D.A.R. 15,158

668 F.3d 1037

73 ERC 1979

RUSSELL COUNTRY SPORTSMEN; Montana Trail Vehicle Riders Association; Great Falls Trail Bike Riders Association; Meagher County Little Belters; Great Falls Snowmobile Club; Treasure State Alliance; Motorcycle Industry Council; Specialty Vehicle Institute of America; the Blueribbon Coalition, Plaintiffs–Appellees,

v.UNITED STATES FOREST SERVICE; Lewis and Clark National Forest; Lesley Thompson, Forest Supervisor, Defendants,andMontana Wilderness Association, Intervenor–Defendant–Appellant.Great Falls Snowmobile Club; Montana Trail Vehicle Riders Association; Great Falls Trail Bike Riders Association; Meagher County Little Belters; Motorcycle Industry Council; Russell Country Sportsmen; Specialty Vehicle Institute of America; the Blueribbon Coalition; Treasure State Alliance, Plaintiffs–Appellees,

v.United States Forest Service; Lewis and Clark National Forest; Lesley Thompson, Forest Supervisor, Defendants–Appellants,andMontana Wilderness Association, Intervenor–Defendant.

Nos. 10–35623

10–35784.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted June 7, 2011.Submission Withdrawn June 17, 2011.Resubmitted Aug. 25, 2011.Filed Oct. 12, 2011.

Ignacia S. Moreno, Assistant Attorney General, Jared S. Pettinato and Allen M. Brabender (argued), U.S. Department of Justice, Washington, D.C.; Alan J. Campbell, U.S. Department of Agriculture, Office of General Counsel, for the defendants-appellants.

Matthew K. Bishop (argued) and Sarah McMillan, Western Environmental Law Center, Helena, MT, for the intervenor-defendant-appellant.

Paul A. Turcke (argued), Moore Smith Buxton & Turcke, Chtd., Boise, ID; William P. Horn, Birch Horton Bittner Cherlot, Washington, D.C., for the plaintiffs-appellees.Appeal from the United States District Court for the District of Montana, Sam E. Haddon, District Judge, Presiding. D.C. No. 4:08–cv–00064–SEH.Before: RAYMOND C. FISHER, RONALD M. GOULD and RICHARD A. PAEZ, Circuit Judges.

OPINION

FISHER, Circuit Judge:

We decide whether the United States Forest Service's (Service) 2007 Travel Management Plan for parts of the Lewis and Clark National Forest, including the Middle Fork Judith Wilderness Study Area, violates the Montana Wilderness Study Act of 1977 (Study Act) and the National Environmental Policy Act (NEPA). We hold that nothing in the Study Act, which requires the Service to manage a wilderness study area so as to “maintain” its wilderness character as it existed in 1977, prohibits the Service from exercising its discretion to enhance the wilderness character of a study area. We also hold that NEPA does not require the Service to prepare a supplemental draft environmental impact statement (EIS) where, as here, the final decision makes only minor changes and is qualitatively within the spectrum of the alternatives discussed in the draft EIS. We accordingly reverse the judgment of the district court.

Background

In 2007, the Service issued a revised Travel Management Plan governing recreational motorized and nonmotorized use on 1.1 million acres of the Lewis and Clark National Forest. The area covered by the travel plan encompasses the Little Belt Mountains, the Castle Mountains, the north half of the Crazy Mountains and the 81,000–acre Middle Fork Judith Wilderness Study Area.

The Service's draft environmental impact statement (DEIS), released in July 2006, considered five summer alternatives and three winter alternatives. The most restrictive summer alternative would have allowed motorized use on 1287 miles of roads and trails. The least restrictive summer alternative would have allowed motorized use on 2262 miles of roads and trails.¹ Each of the alternatives also would have permitted motorized vehicles within 300 feet of a road or trail for parking (i.e., accessing dispersed campsites), passing or turning around.

The Service's final plan, issued in October 2007, adopted summer alternative 5, with several modifications, and winter alternative 2.² Overall, the plan designated 1366 miles for motorized recreational use, including 870 miles of routes open year-round and another 496 miles open seasonally. ³ The plan also designated about 304 miles for groomed over-snow motorized travel and permitted over-snow, cross-country (i.e., off-road, off-trail) motorized travel on 483,000 acres between December 1 and May 15.

The final plan dropped the 300–foot dispersed camping rule and instead allowed “parking, passing, or turning around ... within the length of the vehicle and attached trailer” (about 70 feet), subject to certain conditions designed to ensure safety and protect vegetation, soil and water. The modified dispersed camping rule also permitted off-road travel beyond the “vehicle length plus trailer” limit to access certain established campsites.

Within the Middle Fork Judith Wilderness Study Area, the plan “emphasize[d] non-motorized recreation,” reducing routes designated for motorized recreational use from 112 miles under the previous travel plan to 38 miles under the new plan. The Service's record of decision explained this choice as follows:

When Congress passed the Montana Wilderness Study Act, it instructed the agency to maintain the wilderness character of the Middle Fork of the Judith Wilderness Study Act Area (WSA). Managing this area primarily for non-motorized use best accomplishes this goal until Congress decides whether or not the area should be designated as wilderness. Presently there is an abundance of motorized use in this area, some of which is necessary to access private land in the middle of the WSA. To balance the need to provide access to private land, the special “highlight of the summer” trip some of the trails provide for motorized users, with the need to maintain wilderness character, I have eliminated motorized use except for one connected complex of trails (approximately 12 miles) and the road system that accesses the private land.

Nine recreational groups having an interest in motorized recreation subsequently filed suit against the Service, seeking to invalidate the travel plan as violating NEPA and the Study Act. The Montana Wilderness Association intervened as a defendant, and the parties filed cross-motions for summary judgment.

The district court granted the recreational groups' motion for summary judgment and denied the Service's cross-motion. The court concluded that the Service failed to comply with NEPA by adopting a final decision that “fell outside the range of alternatives [considered in the DEIS] and made numerous, significant changes to the DEIS” without preparing a supplemental environmental impact statement as required by 40 C.F.R. § 1502.9(c), which states that “[a]gencies ... [s]hall prepare supplements to either draft or final environmental impact statements if ... [t]he agency makes substantial changes in the proposed action that are relevant to environmental concerns.” The court concluded that the final decision departed from the range of alternatives discussed in the DEIS in four areas:

1. “The chosen decision reduced total mileage open for motorized travel by nearly thirty percent beyond the most restrictive DEIS alternative.” ⁴

2. The final decision “closed several trails not specified for closure in the DEIS.”

3. The final decision “reduced the snowmobile season short of any DEIS alternative.” ⁵

4. The final decision “scrapped a 300–foot–off–road–travel rule for a much more restrictive ‘vehicle plus trailer length’ area.”

The court also granted summary judgment to the recreational groups on their Study Act claim. The court concluded that the Study Act, which directs the Service to administer wilderness study areas “so as to maintain their presently existing wilderness character,” Pub.L. No. 95–150, § 3(a), 91 Stat. 1243 (1977), requires the Service to preserve the wilderness character of a wilderness study area against decline, but prohibits the Service from enhancing the wilderness character of the area. The court said that the Study Act:

directed the Forest [Service] to maintain the wilderness character of Wilderness Study Areas as it existed in 1977. To the extent the wilderness character was there in 1977, it was to be maintained. To the extent the wilderness character was lacking in 1977, it was not to be imposed.

Noting that the final travel plan reduced overall motorized use in the study area from 112 miles to 38 miles, the court concluded that the travel plan “eliminate[d] roughly two-thirds of the previously-available motorized routes”—which the court construed as an impermissible “attempt at enhancement or creation of wilderness character” in the study area.

The court entered judgment setting aside the travel plan in certain respects and remanding to the Service for further action. The Service and the Montana Wilderness Association separately appealed. We consolidated the two appeals, and, after hearing argument, referred the matter for possible mediation. The parties elected not to pursue mediation. The matter is therefore ripe for decision.

Standard of Review

We review de novo a district court's grant or denial of summary judgment. LaVine v. Blaine Sch. Dist., 257 F.3d 981, 987 (9th Cir.2001). The Study Act and NEPA do not contain their own provisions for judicial review. Accordingly, our review of the Service's decision under these statutes is governed by the judicial review provisions of the Administrative Procedure Act (APA), 5 U.S.C. §§ 701–06. See City of Sausalito v. O'Neill, 386 F.3d 1186, 1205–06 (9th Cir.2004). Under the APA, agency decisions may be set aside if “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A).

Discussion

I. Montana Wilderness Study Act

The Study Act requires the Service to administer wilderness study areas “so as to maintain their presently existing wilderness character and potential for inclusion in the National...