WildEarth Guardians v. Mont. Snowmobile Ass'n

• Decision Date: 22 June 2015
• Docket Number: No. 12–35434.,12–35434.
• Citation: 790 F.3d 920
• Parties: WILDEARTH GUARDIANS; Friends of the Bitterroot ; Montanans for Quiet Recreation, Inc., Plaintiffs–Appellants, v. MONTANA SNOWMOBILE ASSOCIATION ; Idaho Snowmobile Association, Intervenors–Appellees, United States Forest Service; Leslie Weldon, in her official capacity as Regional Forester for Region 1; Gloria Manning, in her official capacity as the appeal deciding officer for the Chief of the Forest Service; Dave Meyer, in his official capacity as Forest Supervisor for the Beaverhead Deerlodge National Forest, Defendants–Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

790 F.3d 920

WILDEARTH GUARDIANS; Friends of the Bitterroot ; Montanans for Quiet Recreation, Inc., Plaintiffs–Appellants

v. MONTANA SNOWMOBILE ASSOCIATION ; Idaho Snowmobile Association, Intervenors–AppelleesUnited States Forest Service; Leslie Weldon, in her official capacity as Regional Forester for Region 1; Gloria Manning, in her official capacity as the appeal deciding officer for the Chief of the Forest Service; Dave Meyer, in his official capacity as Forest Supervisor for the Beaverhead Deerlodge National Forest, Defendants–Appellees.

No. 12–35434.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Nov. 7, 2013.

Filed June 22, 2015.

Jack R. Tuholske (argued), Tuholske Law Office, P.C., Missoula, MT; Sarah Peters, Eugene, OR, for Plaintiffs–Appellants.

Beverly F. Li (argued) and David Gunter, Attorneys, United States Department of Justice, Environment & Natural Resources Division; Christine R. Everett, Office of the General Counsel, United States Department of Agriculture; Ignacia S. Moreno, Assistant Attorney General, Washington D.C., for Federal Defendants–Appellees U.S. Forest Service, et al.

Paul A. Turcke (argued), Moore, Smith, Buxton & Turcke, CHTD., Boise, ID, for Intervenors–Appellees Montana Snowmobile Association, et al.

Appeal from the United States District Court for the District of Montana, Donald W. Molloy, Senior District Judge, Presiding. D.C. No. 9:10–cv–00104–DWM.

Before: ALEX KOZINSKI, RICHARD A. PAEZ, and MARSHA S. BERZON, Circuit Judges.

OPINION

PAEZ, Circuit Judge:

WildEarth Guardians, Montanans for Quiet Recreation, Inc., and Friends of the Bitterroot, Inc. (collectively, “WildEarth”), challenge the United States Forest Service's decision to designate over two million acres of public land in the Beaverhead–Deerlodge National Forest (“Forest”) for use by winter motorized vehicles, principally snowmobiles. WildEarth alleges that the Forest Service's review of the environmental impacts of snowmobiles under the National Environmental Policy Act (“NEPA”)¹ was inadequate in several material respects. WildEarth also alleges that the Forest Service failed to comply with the minimization requirements of Executive Order 11644. We affirm in part, reverse in part, and remand for further proceedings.

I.

At 3.35 million-acres, the Forest is the largest national forest in the state of Montana. The island mountain ranges within the Forest provide a variety of habitats spanning from cold desert to alpine peaks. Over 300 terrestrial land species live in the Forest, including grizzly bears, wolves, wolverines, lynx, and a broad variety of “big game” species, such as mule deer, white-tailed deer, black bear, moose, elk, bighorn sheep, mountain goat, and antelope. The Forest is also nationally renowned as a recreation destination. Recreational opportunities include non-motorized activities such as fishing, hunting, hiking, skiing, and mountain biking, as well as motorized activities, including motorcycle riding and snowmobiling.

In 2002, the Forest Service issued a notice of intent to revise the Land and Resource Management Plan (“forest plan”) for the Forest pursuant to the National Forest Management Act, 16 U.S.C. § 1604. 67 Fed.Reg. 22,396 (May 3, 2002). The purpose of a forest plan is to guide decisions regarding natural resource management and other activity over a period of ten to fifteen years. Because a forest plan may have a significant impact on the environment, NEPA requires the Forest Service to prepare an environmental impact statement.

In January 2009, after considering various alternative plans, the Regional Forester signed and released a Record of Decision (“ROD”) approving the Environmental Impact Statement² (“EIS”) and adopting the Beaverhead–Deerlodge Revised Forest Plan (“Revised Forest Plan” or “Revised Plan”). The Revised Plan, which adopts “modified Alternative Six,” covers eight “revision topics,” including “Recreation and Travel Management,” which governs snowmobile access within the Forest. The Revised Forest Plan divides the Forest into twelve different “landscape areas,” which are, in turn, divided into multiple “management areas.” In 2010, the Forest Service issued a second ROD (“2010 ROD”) implementing the travel management decisions in the Revised Plan.

At issue in this case is the designation in the Revised Forest Plan of over two million acres, or 60%, of the Forest for snowmobile use. As compared to prior forest plans,³ the Revised Plan decreased the area open to snowmobiles. The revision, however, will not necessarily result in a reduction of snowmobile impacts. There has been a sharp increase in snowmobile use since the 1980s, and advances in technology allow snowmobiles to reach altitudes and terrain not previously accessible.

The Regional Forester acknowledged in the ROD that “the unmanaged expansion of motorized uses[, including snowmobiles,] has resulted in resource damage, wildlife impacts, and competition and conflict between user groups.” Snowmobiles affect wildlife in part because they stress animals and provoke a flight response during the winter season, when the animals are particularly vulnerable to depletion of their energy reserves. Because some species avoid all motorized vehicles, snowmobiles can effectively reduce the amount of available habitat. There is also evidence that snowmobiles can disturb reproduction cycles of wildlife species such as the wolverine. In addition to disturbing wildlife, snowmobiles can interfere with non-motorized winter recreation activities because of the noise and pollution they generate.

WildEarth and other groups filed a number of administrative appeals challenging the EIS and ROD. In October 2009, the Reviewing Officer for the Forest Service consolidated and rejected the appeals. WildEarth subsequently filed suit in the United States District Court for the District of Montana. Relevant to this appeal, WildEarth alleged that: (1) the Forest Service violated NEPA because it failed to analyze adequately the site-specific impacts of snowmobile use on big game winter habitat and conflicting recreational uses; (2) the Forest Service violated Executive Order 11644, 37 Fed.Reg. 2877 (Feb. 8, 1972), and Executive Order 11989, 42 Fed.Reg. 26,959 (May 24, 1977), because it failed to apply specified criteria when designating areas open to snowmobile use; and, (3) Subpart C of the 2005 Travel Management Rule (“TMR”), 36 C.F.R. §§ 212.80 –81, which exempts over-snow vehicles (“OSVs”) from compliance with the minimization criteria in Executive Order 11644 and 11989, is invalid. The Montana Snowmobile Association and the Idaho State Snowmobile Association intervened as Defendants.

The parties filed cross-motions for summary judgment, which the district court granted in part, and denied in part. Wildlands CPR, Inc. v. U.S. Forest Serv., 872 F.Supp.2d 1064 (D.Mont.2012). The court concluded that, although the Forest Service's environmental analysis of snowmobile impacts on wildlife “lack[ed] clarity,” the analysis was nevertheless adequate given the deference afforded to agencies by the Administrative Procedure Act (“APA”), 5 U.S.C. § 704, and NEPA. Id. at 1078. Turning to Executive Order 11644, the court concluded that the Forest Service met the Order's requirements in designating the general areas to close to snowmobile use, but not in making designations at the route-specific level. Id. at 1082. Finally, the court ruled that WildEarth's challenge to the exemption for over-snow vehicles in Subpart C of the TMR was not ripe because the Forest Service did not rely on Subpart C to justify its actions under the Revised Forest Plan. Id. at 1083.

WildEarth timely appealed. We have jurisdiction pursuant to 28 U.S.C. § 1291.

II.

We review de novo the district court's grant of summary judgment. Lands Council v. Powell, 395 F.3d 1019, 1026 (9th Cir.2005). A final agency action “for which there is no other adequate remedy in a court” is subject to judicial review under the APA. 5 U.S.C. § 704 ; W. Radio Servs. Co. v. U.S. Forest Serv., 578 F.3d 1116, 1122 (9th Cir.2009). We may set aside an agency's action if it is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A) ; Pauly v. U.S. Dep't of Agric., 348 F.3d 1143, 1148 (9th Cir.2003). “We must uphold agency decisions so long as the agenc[y] ha[s] considered the relevant factors and articulated a rational connection between the factors found and the choices made.” City of Sausalito v. O'Neill, 386 F.3d 1186, 1206 (9th Cir.2004) (internal quotations omitted). We have also said that an EIS is adequate if it “contains a reasonably thorough discussion of the significant aspects of the probable environmental consequences.” Id. (internal quotations omitted).

III.

NEPA serves two fundamental objectives. First, it “ensures that the agency, in reaching its decision, will have available, and will carefully consider, detailed information concerning significant environmental impacts.” Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 349, 109 S.Ct. 1835, 104 L.Ed.2d 351 (1989). And, second, it requires “that the relevant information will be made available to the larger audience that may also play a role in both the decisionmaking process and the implementation of that decision.” Id. NEPA does not impose substantive obligations on the action agency, but it does establish “procedural requirements designed to force agencies to take a ‘hard look’ at environmental consequences.” Earth Island Inst. v. U.S. Forest Serv., 351 F.3d 1291, 1300 (9th Cir.2003). NEPA and the Council on Environmental Quality's (“CEQ”) regulations implementing NEPA, 40 C.F.R. §§ 1500–1508, prescribe the procedures that must be followed in conducting environmental review. Churchill Cnty. v. Norton, 276 F.3d 1060, 1071 (9th Cir.2001). “We must ... strictly interpret the procedural requirements in NEPA and the CEQ regulations to the fullest extent possible consistent with the...