Wildlands CPR, Inc. v. U.S. Forest Serv.

• Decision Date: 02 April 2012
• Docket Number: No. CV 10–104–M–DWM.,CV 10–104–M–DWM.
• Citation: 872 F.Supp.2d 1064
• Parties: WILDLANDS CPR, INC., Friends of the Bitterroot, Inc., Montanans for Quiet Recreation, Inc., Plaintiffs, v. UNITED STATES FOREST SERVICE, Leslie Weldon, in her official capacity as the Regional Forester for Region 1, Gloria Manning, in her official capacity of 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, Montana Snowmobile Association, and Idaho State Snowmobile Association, Intervenor–Defendants.
• Court: U.S. District Court — District of Montana

872 F.Supp.2d 1064

WILDLANDS CPR, INC., Friends of the Bitterroot, Inc., Montanans for Quiet Recreation, Inc., Plaintiffs,

v. UNITED STATES FOREST SERVICE, Leslie Weldon, in her official capacity as the Regional Forester for Region 1, Gloria Manning, in her official capacity of 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,Montana Snowmobile Association, and Idaho State Snowmobile Association, Intervenor–Defendants.

No. CV 10–104–M–DWM.

United States District Court,

D. Montana,

Missoula Division.

April 2, 2012.

Jack R. Tuholske, Tuholske Law Office, Missoula, MT, for Plaintiffs.

Beverly F. Li, U.S. Department of Justice, Washington, DC, Mark Steger Smith, Office of the U.S. Attorney, Billings, MT, for Defendants.

Paul A. Turcke, Moore Smith Buxton & Turcke, Boise, ID, Robert T. Bell, Reep, Bell & Laird, P.C., Missoula, MT, for Intervenor–Defendants.

ORDER

DONALD W. MOLLOY, District Judge.

I. Introduction

The Beaverhead–Deerlodge National Forest (“the Forest”), covering 3.35 million acres, is the largest national forest in Montana. (Record of Decision for the Final Environmental Impact Statement and Revised Land and Resource Management Plan for the Beaverhead–Deerlodge National Forest (“ROD # 1”) I1–01, 4.) It provides habitat for diverse species of plants and wildlife, contains many resources, and offers various recreational opportunities which contribute to local economies. ( Id. at 4–5.) Recreational activities in the Forest include both motorized and non-motorized travel in the summer and winter. ( Id. at 13–15.)

The parties to this case disagree about whether the United States Forest Service adequately analyzed the impacts of winter motorized travel ¹ when developing the Final Revised Land and Resource Management Plan for the Beaverhead–Deerlodge National Forest (“Revised Forest Plan”). Plaintiffs seek review of the issues under the Administrative Procedure Act (“APA”), 5 U.S.C. §§ 701– 706. They insist the Forest Service violated the National Environmental Policy Act (“NEPA”), 42 U.S.C. § 4321 et seq. by failing to adequately address site-specific impacts of snowmobiling on wildlife, on the environment, and on quiet recreation. The premise of their argument is the substantial increase in snowmobile use in the Beaverhead–Deerlodge National Forest in the past twenty-five years and the increased capability of snowmobiles to access steeper, more remote terrain. (Pls.' Mot. Summ. J., dkt. # 59, 1.)

They also argue the Forest Service violated Executive Orders 11644 and 11989 by failing to analyze criteria intended to minimize off-road vehicle impacts when selecting winter motorized travel areas. In the last prong of their challenge, Plaintiffs claim the Travel Management Rule, 36 C.F.R. 212.1 et seq. Subpart C, promulgated by the Forest Service in November 2005, should be set aside insofar as it exempts over-snow vehicles from mandatory route designation. They reason this exemption is inconsistent with Executive Orders 11644 and 11989.

Defendants take issue with Plaintiffs' positions and insist there are several justified defenses to their decision making. First, they contend Plaintiffs lack standing to bring these claims and maintain Plaintiffs failed to exhaust administrative remedies. They then argue NEPA does not require the level of site-specific analysis insisted on by Plaintiffs and that the Forest Service adequately analyzed snowmobiling impacts under NEPA. They conclude by insisting that Executive Orders are not subject to private action, that the Forest Service acted consistently with the Executive Orders, and that Subpart C of the 2005 Travel Management Rule complies with the Executive Orders.

Intervenors join Defendants' arguments but they reason Plaintiffs' challenges are time-barred because any injury is traceable to prior forest plans, not the Revised Forest Plan. They also maintain that Plaintiffs' facial challenge to Subpart C of the Travel Management Rule is not ripe because the Forest Service did not avail itself of the snowmobile exemption and in fact applied the Executive Orders' minimization criteria in designating areas open to winter motorized travel.

For the reasons stated below, Plaintiffs' motion for summary judgment is granted as to standing, statute of limitations and as to the limited claim that the Forest Service failed to adequately analyze the minimization criteria at the route-specific level as required by Executive Order 11644 insofar as the Forest Service has designated specific routes. Defendants' and Intervenors' cross-motions for summary judgment are granted on all other issues. This means the case is remanded to the Forest Service for the limited purpose of applying E.O. 11644 at the route-specific level.

II. Factual Background

The Beaverhead–Deerlodge National Forest was formed in 1996 when two national forests and their respective forest plans were consolidated for administrative purposes. (Corrected Final Environmental Impact Statement, Beaverhead–Deerlodge National Forest Land and Resource Management Plan (“CFEIS”) A1–40, 1.) The Beaverhead National Forest Plan and the Deerlodge National Forest Plan had been approved in 1986 and 1987 respectively. They were later modified by the Forest Service; in particular, additional areas were closed to public motorized use. (CFEIS, 1, 23; Defs.' SUF, 7.)

In 2002, the Forest Service initiated the extensive process of revising the consolidated forest plans. (CFEIS, 10.) A Proposed Action for Forest Plan Revision was first published in August 2003 (A1–04), and then in June 2005, the Forest Service released the Draft Environmental Impact Statement and Forest Plan for public comment. (CFEIS, 559.) The draft EIS triggered 11,188 comments. (ROD # 1, 2.) In February 2008, the Forest Service published the Final Environmental Impact Statement; it sparked 32,536 more comments. (Final Environmental Impact Statement, A1–26; ROD # 1, 2.) The Revised Forest Plan was then approved on January 12, 2009 in a Record of Decision (ROD # 1) signed by then-Regional Forester Thomas L. Tidwell. (ROD # 1, 42.) The Corrected Final Environmental Impact Statement was also released at that time. (CFEIS, 1.)

“Recreation and travel management” was one of eight topics addressed throughout the revision process. Explaining the reason this issue needed attention, the Forest Service observed:

Motorized recreation, particularly the use of ATV's and over-snow vehicles, has increased substantially since the 1986 and 1987 Plans were approved. Advancing technology has also expanded use into new terrain. For much of the [Beaverhead–Deerlodge National Forest], this use has evolved over time with little management intervention. The unmanaged expansion of motorized use has resulted in resource damage, wildlife impacts, and competition and conflict between user groups.

(ROD # 1, 13.) The Forest Service's fundamental job was to decide where to allow summer motorized travel and where to allow winter motorized travel. It tried to reduce the negative impacts of motorization while still providing opportunities for motorized use of the Forest.

The Revised Forest Plan closed more of the Forest to snowmobiles than had previously been closed.² The new plan prohibits winter motorized travel in 40% of the Forest. (ROD # 1, 15.) Under the old plans,³ winter motorized travel was forbidden in only 16% of the Forest. (CFEIS, 39.)

III. Summary Judgment Standard

A party is entitled to summary judgment if it can demonstrate “that there is no genuine issue as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c). Summary judgment is warranted where the documentary evidence produced by the parties permits only one conclusion. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). On a motion for summary judgment, the task is to determine whether a fair-minded fact-finder could return a verdict for the non-moving party. Id. at 252, 106 S.Ct. 2505. Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude entry of summary judgment; factual disputes which are irrelevant or unnecessary to the outcome are not considered. Id. at 248, 106 S.Ct. 2505.

IV. Analysis

A. Standing and Statute of Limitations

Plaintiffs have established standing to sue through the affidavits of members who have a particularized interest in specific subareas of the Forest that are affected by the Revised Forest Plan. See Summers v. Earth Is. Inst., 555 U.S. 488, 496–99, 129 S.Ct. 1142, 173 L.Ed.2d 1 (2009). They allege the Revised Forest Plan harms their interests. They need not produce affidavits alleging interests in all affected subareas of the Forest. See Nuclear Info. & Resource v. Nuclear Reg. Commn., 457 F.3d 941 (9th Cir.2006). Nor need they find an affiant to allege an interest in each environmental impact. See Forest Serv. Employees for Envtl. Ethics v. U.S. Forest Serv., 726 F.Supp.2d 1195, 1222 (D.Mont.2010).

That less area of the forest is open to snowmobiling now than was open under the previous plans does not impact Plaintiffs' standing. See Douglas Co. v. Babbitt, 48 F.3d 1495, 1506, n. 13 (9th Cir.1995); Natl. Wildlife Fedn. v. Espy, 45 F.3d 1337, 1341, n. 3 (9th Cir.1995). This case is distinguishable from Pryors Coalition v. Weldon, 803 F.Supp.2d 1184 (D.Mont.2011), because Pryors did not discuss standing and because NEPA compliance is statutorily required for a revised forest plan, even if it merely continues in effect decisions from previous plans. See16 U.S.C. § 1604(f)(5). When a decision to continue a previous decision is part of a final agency action, it is reviewable by the courts and the clock for the six-year statute of limitations is reset. See28 U.S.C. § 2401(a); see also Wind River Mining Corp. v. United States, 946...