MONTANA WILDERNESS ASS'N v. McAllister ( 2011 )

FILED
NOT FOR PUBLICATION
DEC 01 2011
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
MONTANA WILDERNESS No. 09-36051
ASSOCIATION; GREATER
YELLOWSTONE COALITION; THE D.C. Nos. 9:07-cv-00039-DWM
WILDERNESS SOCIETY, INC., 1:07-cv-00059-DWM
Plaintiffs,
MEMORANDUM*
and
CITIZENS FOR BALANCED USE;
KENNETH ZAHN; BIG SKY
SNOWRIDERS; GALLATIN VALLEY
SNOWMOBILE ASSOCIATION,
Plaintiffs - Appellants,
v.
KATHLEEN MCALLISTER, Regional
Forester for Region 1; REBECCA
HEATH; UNITED STATES FOREST
SERVICE,
Defendants-counter-
defendants - Appellees,
TREASURE STATE ALLIANCE;
MONTANA TRAIL VEHICLE RIDERS
ASSOCIATION; MONTANA
SNOWMOBILE ASSOCIATION;
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
UNITED FOUR-WHEEL-DRIVE
ASSOCIATIONS; BLUE RIBBON
COALITION, INC.,
Defendant-intervenors -
Appellees.
MONTANA WILDERNESS No. 09-36058
ASSOCIATION; GREATER
YELLOWSTONE COALITION; THE D.C. No. 9:07-cv-00039-DWM
WILDERNESS SOCIETY, INC.;
CITIZENS FOR BALANCED USE;
KENNETH ZAHN; BIG SKY
SNOWRIDERS; GALLATIN VALLEY
SNOWMOBILE ASSOCIATION,
Plaintiffs - Appellees,
v.
KATHLEEN MCALLISTER, Regional
Forester for Region 1; REBECCA
HEATH; UNITED STATES FOREST
SERVICE,
Defendants-counter-
defendants - Appellants,
and
TREASURE STATE ALLIANCE;
MONTANA TRAIL VEHICLE RIDERS
ASSOCIATION; MONTANA
SNOWMOBILE ASSOCIATION;
UNITED FOUR-WHEEL-DRIVE
ASSOCIATIONS; BLUE RIBBON
COALITION, INC.,
Defendant-intervenors.
2
MONTANA WILDERNESS No. 09-36080
ASSOCIATION; GREATER
YELLOWSTONE COALITION; THE D.C. No. 9:07-cv-00039-DWM
WILDERNESS SOCIETY, INC.;
CITIZENS FOR BALANCED USE;
KENNETH ZAHN; BIG SKY
SNOWRIDERS; GALLATIN VALLEY
SNOWMOBILE ASSOCIATION,
Plaintiffs - Appellees,
v.
KATHLEEN MCALLISTER, Regional
Forester for Region 1; REBECCA
HEATH; UNITED STATES FOREST
SERVICE,
Defendants-counter-
defendants,
and
TREASURE STATE ALLIANCE;
MONTANA TRAIL VEHICLE RIDERS
ASSOCIATION; MONTANA
SNOWMOBILE ASSOCIATION;
UNITED FOUR-WHEEL-DRIVE
ASSOCIATIONS; BLUE RIBBON
COALITION, INC.,
Defendant-intervenors -
Appellants.
Appeal from the United States District Court
for the District of Montana
Donald W. Molloy, District Judge, Presiding
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Argued and Submitted June 7, 2011
Submission Withdrawn June 17, 2011
Resubmitted November 22, 2011
Portland, Oregon
Before: FISHER, GOULD and PAEZ, Circuit Judges.
Citizens for Balanced Use, et al. (Citizens), a coalition of motorized
recreation groups, brought this action under the Administrative Procedure Act,
alleging that the Final Environmental Impact Statement (FEIS) prepared by the
United States Forest Service in conjunction with its 2006 Gallatin National Forest
Travel Management Plan (Travel Plan) violates the National Environmental Policy
Act (NEPA). The district court granted summary judgment to the Service.1 We
affirm.
1. Response to comments. Citizens argues that the Service should have
included in the FEIS a formal response to “a large binder of miscellaneous
documents” Citizens submitted, even though the binder contained “no introduction
or even a discussion of the reason” Citizens submitted it. We disagree. An agency
cannot be faulted for declining to respond to “cryptic and obscure” comments like
this one. Vt. Yankee Nuclear Power Corp. v. Natural Res. Def. Council, Inc., 435
U.S. 519, 554 (1978). We reject Citizens’ unsupported argument that the Service’s
1
A coalition of environmental groups (Montana Wilderness Association, et
al., or MWA) challenged the FEIS and Travel Plan in a separate lawsuit that was
consolidated with this one in the district court. We address MWA’s claims in an
opinion filed concurrently with this memorandum disposition.
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decision to allow Citizens to file an administrative appeal of the Travel Plan
demonstrates that Citizens must have submitted a cogent substantive comment
warranting formal NEPA response.
Citizens also contends that the Service should have responded to several
comments submitted by Dr. Kenneth Zahn. We agree with the Service, however,
that it adequately responded to the substance of Dr. Zahn’s comments in the FEIS,
even if it did not discuss the comments explicitly. See Navajo Nation v. U.S.
Forest Serv., 479 F.3d 1024, 1056-57 (9th Cir. 2007), adopted in relevant part,
535 F.3d 1058, 1079 (9th Cir. 2008) (en banc).
2. No-action alternative. Citizens’ contention that the Service failed to
consider a valid no-action alternative, as required by 40 C.F.R. § 1502.14(d), is
without merit. Because the Service was uncertain how it would ultimately
implement the Regional Forester’s 2001 Off-Highway Vehicle (OHV) Decision, it
constructed two no-action alternatives. Alternative 1 would have continued uses
allowed under the Service’s most recent travel planning document, and Alternative
2 attempted to model future management actions that might be taken to implement
the 2001 OHV Decision. We find nothing unreasonable about the Service’s
formulation of these no-action alternatives. See Kilroy v. Ruckelshaus, 738 F.2d
1448, 1453-54 (9th Cir. 1984) (holding that, by discussing both the status quo and
an alternative reflecting a potential policy shift that might be implemented in light
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of recent legislative changes, the agency satisfied the no-action alternative
requirement). In fact, we find it ironic that, despite contending that Alternative 1
improperly failed to implement the 2001 OHV Decision, Citizens nonetheless
attacks Alternative 2, which attempted to model future management actions that
might be taken to implement the Decision, as impermissibly adopting a new
management direction.
3. Range of alternatives. We also reject Citizens’ contention that the
Service did not consider a reasonable range of alternatives because it failed to
include an appropriate alternative increasing motorized access. Alternative 1
would have increased motorized access that may otherwise be foreclosed through
implementation of the 2001 OHV Decision. Citizens is correct that the Service did
not ultimately favor Alternative 1, but that does not mean it was not a reasonable or
feasible alternative. See City of Carmel-by-the-Sea v. U.S. Dep’t of Transp., 123
F.3d 1142, 1159 (9th Cir. 1997) (rejecting a challenge to the range of alternatives
where “[n]o one alternative fulfilled all the [project] goals completely,” the agency
reasonably selected the alternative it deemed most suitable and “[u]ltimately, [the
plaintiff’s] disagreement with the [FEIS] appears to be a substantive one”).
4. Cumulative impacts. Assuming NEPA requires discussion of cumulative
recreational impacts at all – a proposition the Service disputes – the FEIS
adequately discussed the cumulative impact of the Travel Plan and other past
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management decisions on motorized recreational access. The FEIS explained that
current recreational opportunities in the Gallatin are the result of an accumulation
of management decisions, and discussed the “net effect” of these decisions. There
was no failure to analyze “individually minor but collectively significant actions
taking place over a period of time.” 40 C.F.R. § 1508.7.
AFFIRMED.
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