Shawnee Trail Conservancy v. Nicholas

• Decision Date: 30 June 2004
• Docket Number: No. 02-CV-4065-JPG.,02-CV-4065-JPG.
• Parties: SHAWNEE TRAIL CONSERVANCY, Blueribbon Coalition, Illinois Trail Riders, Illinois Federation of Outdoor Resources, Plaintiffs, v. Hurston A. NICHOLAS, in his official capacity as Forest Supervisor, Shawnee National Forest, United States Forest Service, an administrative agency within the U.S. Department of Agriculture, Defendants, and Sierra Club and Regional Association of Concerned Environmentalists, Defendant-Intervenors.
• Court: U.S. District Court — Southern District of Illinois

343 F.Supp.2d 687

SHAWNEE TRAIL CONSERVANCY, Blueribbon Coalition, Illinois Trail Riders, Illinois Federation of Outdoor Resources, Plaintiffs, v. Hurston A. NICHOLAS, in his official capacity as Forest Supervisor, Shawnee National Forest, United States Forest Service, an administrative agency within the U.S. Department of Agriculture, Defendants, and Sierra Club and Regional Association of Concerned Environmentalists, Defendant-Intervenors.

No. 02-CV-4065-JPG.

United States District Court, S.D. Illinois.

June 30, 2004.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Paul A. Turcke, Moore Smith Buxton, et al., Boise, ID, for Plaintiffs.

William E. Coonan, Assistant U.S. Attorney, Fairview Heights, IL, Thomas C. Buchele, Pittsburgh, PA, for Defendants.

MEMORANDUM AND ORDER

GILBERT, District Judge.

Pending before the Court are cross-motions for summary judgment filed by the plaintiffs (Doc. 18), the defendants¹ (Doc. 23), and the defendant-intervenors (Doc. 21). Each party has also filed a response to the opposing side's motion (Docs. 29, 32 & 33) and a supplemental brief as requested by the Court (Docs. 41, 42 & 43). The plaintiffs have sought judicial review of agency action (or inaction, as the case may be) pursuant to provisions of the Administrative Procedure Act ("APA"), 5 U.S.C. § 701-706, raising issues under the National Forest Management Act ("NFMA"), 16 U.S.C. § 1600, et seq., the National Environmental Policy Act ("NEPA"), 42 U.S.C. §§ 4331, et seq., and the National Forest Roads and Trails Act ("NFRTA"), 16 U.S.C. § 532, et seq.

I. Background

The plaintiffs filed this action to challenge the response of Forest Supervisor Hurston A. Nicholas, the United States Forest Service, an agency of the Department of Agriculture, and the Shawnee National Forest ("Shawnee") (collectively, "the Forest Service") to one of this Court's orders, to NFMA's travel planning requirements, to the agency's plan for the Shawnee, and to the NFRTA's trail maintenance requirements. Before delving into the plaintiffs' specific complaints, a bit of background is in order.

A. Forest Planning Authority

Congress provided for the creation of national forests through the Creative Act of 1891, which gave the President authority to "set apart and reserve ... public lands wholly or in part covered with timber or undergrowth ... as public reservations." Charles F. Wilkinson & H. Michael Anderson, Land and Resource Planning in the National Forests, 64 Or. L.Rev. 1, 17-18 (1985) (quoting Act of Mar. 3, 891, ch. 561, 26 Stat. 1095, 1103, repealed by 90 Stat. 2792 (1976)). Through the Organic Administration Act of 1897, Act of June 4, 1897, ch. 2, 30 Stat. 34 (codified as 16 U.S.C. §§ 473-482, 551), and the Multiple-Use Sustained-Yield Act of 1960 ("MUSYA"), Pub.L. No. 86-517, 74 Stat. 215 (1960) (codified as 16 U.S.C. §§ 528-531), Congress established the purposes for which national forests are to be administered: the multiple use and sustained yield of the products and services in the forest, including outdoor recreation, range, timber, watershed, and wildlife and fish purposes. See 16 U.S.C. § 475; 16 U.S.C. § 528. To facilitate forest management for these purposes, Congress passed the Forest and Rangeland Renewable Resources Planning Act of 1974, Pub.L. No. 93-378, 88 Stat. 476 (1974) (codified as 16 U.S.C. §§ 1600-1614), which included a provision requiring the Secretary of Agriculture to "develop, maintain, and, as appropriate, revise land and resource management plans for units of the National Forest System...." 16 U.S.C. § 1604(a). This general directive was expanded in 1976 by the NFMA, Pub.L. No. 94-588, 90 Stat. 2949 (1976) (codified as 16 U.S.C. §§ 1600-1614), which required the Secretary to promulgate regulations for the development of forest plans that conformed not only to the MUSYA but also to the more detailed procedural and substantive guidelines set forth in the NFMA itself. 16 U.S.C. § 1604.

B. Planning in the Shawnee

In 1992, the Forest Service adopted one of these land management plans for the Shawnee, the Amended Land and Resource Management Plan ("1992 Plan"). The 1992 Plan had as one of its many goals the designation at the program level of 286 miles of trails for all-terrain vehicles and off-highway motorcycles ("ATV/OHM") and 338 miles of equestrian/hiker trails. The 1992 Plan was programmatic in nature in that it discussed effects of the overall management of the Shawnee rather than site-specific effects of implementing any specific project at a particular location. The 1992 Plan was created as a result of objections to the original Land and Resource Management Plan that was approved for the Shawnee in 1986 ("1986 Plan"). In an attempt to resolve administrative appeals that had been filed against the 1986 Plan, the Forest Service entered into a settlement agreement with the organizations that had filed the appeals.²

C. Sierra Club Litigation

The settlement agreement, however, did not end the controversy. In April 1994, the Sierra Club and the Regional Association of Concerned Environmentalists ("RACE"), the defendant-intervenors in this case, filed a suit before this Court challenging various aspects of the 1992 Plan, including the 1992 Plan's provision designating corridors in which ATV/OHM trails on the Shawnee might ultimately be located.³

In an order entered September 25, 1995, the Court found several parts of the 1992 Plan and its supporting environmental impact statement ("EIS") lacking, including the ATV/OHM analysis. See Sierra Club v. United States Dep't of Ag., Case No. 94-cv-4061-JPG, Mem. & Order (S.D.Ill. Sept. 25, 1995), aff'd, 116 F.3d 1482, 1997 WL 295308 (7th Cir. May 28, 1997) (Table). The Court found that the Forest Service had failed to support its statement in the EIS that other federal agencies that had authorized ATV/OHM use had had few problems with use outside authorized areas or criminal activity associated with ATV/OHM use. Id. at 50-51. Specifically, the Court pointed to contrary evidence in the record that the Land Between the Lakes National Recreation Area had experienced serious problems with ATV/OHM users. Id. at 51. The Court was particularly troubled in light of the Forest Service's historic difficulties with enforcing ATV/OHM prohibitions on the Shawnee and the lack of any attempt in the Forest Service's EIS to identify specific enforcement efforts to restrict ATV/OHM use to designated trails or to analyze the impact of noncompliance with such restrictions. Id. at 51-53. In addition, the Court found that the Forest Service had failed to properly evaluate the cumulative effects of ATV/OHM use in combination with other uses proposed in the 1992 Plan. Id. at 21-22. The Court concluded that the EIS in support of the 1992 Plan's ATV/OHM provision was insufficient under NEPA and, accordingly, remanded the EIS to the Forest Service for further consideration. Id. at 53. It placed no time restrictions on when the further consideration could or should take place.

Pending such further consideration, the Court entered a permanent injunction stating, in pertinent part:

The Forest Service shall not issue any decision notices or implement any decision involving the construction, maintenance, or designation of any trails for the use of all terrain vehicles and/or off-highway motorcycles ("ATV/OHM") in the Shawnee National Forest, nor shall the Forest Service issue any order or decision notice authorizing or permitting the use of ATV/OHMs in the Shawnee National Forest, except by federal or state personnel for administrative or emergency purposes. Consistent with this prohibition, the Forest Service shall not issue any decision notices or implement any decision on the Cadiz ATV/OHM Travelway, or any other ATV/OHM travelways. However, this injunction does not prevent the authorized use of ATV/OHMs by people with disabilities.

Sierra Club v. United States Dep't of Ag., Case No. 94-cv-4061-JPG, Perm. Inj. (S.D.Ill. Mar. 20, 1996). The injunction was effective "until such time as the Forest Service issues new or revised planning documents in a manner consistent with this Court's ruling." Id. at 4.

The Department of Agriculture appealed the Court's rulings, and in May 1997 the Seventh Circuit Court of Appeals affirmed the Court's decisions, including the injunction prohibiting the construction, maintenance or designation of any ATV/OHM trails on the Shawnee. Sierra Club v. United States Dep't of Ag., 116 F.3d 1482, 1997 WL 295308 (7th Cir. May 28, 1997) (Table).

D. Post-Remand Plan Revision

After the Court of Appeals affirmed the Court's decision to remand the 1992 Plan for further analysis, the Forest Service considered three options for how to proceed: (1) operate under the Court's order effectively barring ATV/OHM use in the Shawnee, (2) immediately revise the existing EIS to cure the deficiencies noted in the Court's order,⁴ or (3) begin revision of the 1992 Plan, including ATV/OHM and cumulative effects analysis, earlier than anticipated. By the spring of 1998, the Forest Service chose the third option — to include the further analysis required by the Court before allowing ATV/OHM use in the Shawnee as a part of the EIS to support a revision of the 1992 Plan. The Forest Service chose this option, in part, because of the need to comprehensively analyze the cumulative effects of ATV/OHM use with other forest uses, which it believed could not be practically done in a stand-alone EIS limited to the ATV/OHM issue.

The plan revision process began in the fall of 1999 with steps to identify the areas of the 1992 Plan that needed to be changed in light of the Court's order and new Congressional mandates. This process is commonly called "scoping." In late 2000, scoping resulted in a draft document identifying the areas of the 1992 Plan that needed to be changed in a revised plan ("Need for Change" document). The final Need for Change document was published in the spring...