Wildlands Cpr v. Usfs

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
WILDEARTH GUARDIANS; FRIENDS No. 12-35434
OF THE BITTERROOT; MONTANANS
FOR QUIET RECREATION, INC., D.C. No.
Plaintiffs-Appellants, 9:10-cv-00104-
DWM
v.
MONTANA SNOWMOBILE OPINION
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.
Appeal from the United States District Court
for the District of Montana
Donald W. Molloy, Senior District Judge, Presiding
2 WILDEARTH GUARDIANS V. USFS
Argued and Submitted
November 7, 2013—Seattle, Washington
Filed June 22, 2015
Before: Alex Kozinski, Richard A. Paez,
and Marsha S. Berzon, Circuit Judges.
Opinion by Judge Paez
SUMMARY*
Environmental Law
The panel affirmed in part and reversed in part the district
court’s judgment in an action challenging the United States
Forest Service’s decision to designate over two million acres
of public land in the Beaverhead-Deerlodge National Forest
for use by winter motorized vehicles.
Executive Order 11644, issued in 1972, directed agencies
to promulgate regulations concerning areas and trails
allowing off-road vehicles on public lands to minimize
environmental damages and minimize conflicts with other
recreational uses. The Secretary of Agriculture promulgated
the 2005 Travel Management Rule to improve
implementation of the Executive Order, and established the
“minimization criteria.” In 2010, the Forest Service issued a
Record of Decision implementing the travel management
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
WILDEARTH GUARDIANS V. USFS 3
decisions in a Revised Forest Plan, designating over two
million acres of the Forest for snowmobile use, which
decreased the area open to snowmobiles.
Addressing plaintiffs’ challenges under the National
Environmental Policy Act, the panel held that the
Environmental Impact Statement prepared by the Forest
Service did not provide the public adequate access to
information about the impact of snowmobiles on big game
wildlife and habitat, and did not allow the public to play a
role in the decision making process. The panel reversed the
district court’s grant of summary judgment to the Forest
Service on this issue. The panel also held that the Forest
Service provided sufficient information to establish that it
took a “hard look” at the impacts of snowmobile use on non-
motorized recreational uses throughout the Revised Forest
Plan area, and the panel affirmed the district court’s ruling
that the Environmental Impact Statement sufficiently
analyzed these conflicts.
Addressing plaintiffs’ challenge to the Forest Service’s
compliance with Executive Order 11644, the panel reversed
the district court’s ruling that the Forest Service adequately
applied the minimization criteria in the Travel Management
Rule. The panel held that the Forest Service must provide a
more granular minimization analysis to fulfill the objectives
of Executive Order 11644, which the Travel Management
Rule was designed to implement. The panel agreed with the
district court that plaintiffs’ challenge to the Subpart C
exemption in the Travel Management Rule, which exempted
over-snow vehicles from compliance with the minimization
4 WILDEARTH GUARDIANS V. USFS
criteria, was not ripe for review because the Forest Service
did not apply Subpart C to justify its actions in this case.
The panel remanded for further proceedings.
COUNSEL
Jack R. Tuholske (argued), Tuholske Law Office, P.C.,
Missoula, Montana; Sarah Peters, Eugene, Oregon, 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, Idaho, for Intervenors-Appellees Montana
Snowmobile Association, et al.
WILDEARTH GUARDIANS V. USFS 5
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
1
42 U.S.C. §§ 4321–4370.
6 WILDEARTH GUARDIANS V. USFS
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.
2
Subsequent to approval, additional edits were made to the Final
Environmental Impact Statement. These edits were contained in the
“Corrected Final Environmental Impact Statement.” All references to the
“EIS” are to this latter document.
WILDEARTH GUARDIANS V. USFS 7
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
3
The previous forest plans were created separately for the Beaverhead
National Forest (1986) and the Deerlodge National Forest (1987). In
1996, the forests were consolidated to achieve administrative efficiency.
8 WILDEARTH GUARDIANS V. USFS
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 GUARDIANS V. USFS 9
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 (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
10 WILDEARTH GUARDIANS V. USFS
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 policies embodied in NEPA.” Id. at 1072
(internal quotations omitted).
WildEarth raises two NEPA arguments: first, that the
Forest Service did not adequately analyze the site-specific
impact of snowmobile use on big game wildlife, and second,
that the Forest Service’s analysis of conflicts between
snowmobiles and other recreational uses was insufficient.
We examine these arguments in order.
A. Impact of snowmobile use on big game wildlife
As required by NEPA, the EIS is structured around
alternatives that provide varying degrees of protection for big
game wildlife by managing vehicle access.4 See 42 U.S.C.
4
The Forest Service’s approach to big game protection centers on
vehicle access management, which, based on an expert study, the Forest
Service identified as the primary management tool for elk. See A.G.
Christensen et al., Elk Management in the Northern Region:
Consideration in Forest Plan Updates or Revisions (1993). WildEarth
does not dispute that vehicle access is the proper management tool for big
game species generally.
WILDEARTH GUARDIANS V. USFS 11
§ 4332(C)(iii). In the Wildlife Habitat section of the EIS,
Table 176 compares the alternatives in terms of the
percentage of big game winter range closed to snowmobiles
throughout the Forest and in each landscape area. In the same
section, Table 175 compares the “open road density for
wildlife” in each alternative. In addition to this quantitative
data, the EIS includes for each alternative a short qualitative
discussion of the effects that snowmobiles would have on
wildlife habitat, particularly the big game winter range.
WildEarth argues that the EIS fails to comply with
NEPA’s procedural requirements because it does not:
(1) identify the location of the winter range for big game
animals; (2) establish where snowmobiles impact that range;
and (3) discuss what options are available to avoid the
concomitant impacts. We agree. The information provided
in the EIS meets neither the public disclosure purpose of
NEPA nor the specific requirements in the CEQ regulations.
The CEQ regulations state that, to comply with NEPA, an
agency “must insure that environmental information is
available to public officials and citizens before decisions are
made and before actions are taken. The information must be
of high quality. Accurate scientific analysis, expert agency
comments, and public scrutiny are essential to implementing
NEPA.” 40 C.F.R. § 1500.1(b). To fulfill NEPA’s public
disclosure requirements, the agency must provide to the
public “the underlying environmental data” from which the
Forest Service develops its opinions and arrives at its
decisions. See Idaho Sporting Cong. v. Thomas, 137 F.3d
1146, 1150 (9th Cir. 1998), overruled on other grounds by
Lands Council v. McNair, 537 F.3d 981 (9th Cir. 2008) (en
banc). Alternately, the agency may incorporate publicly
available data underlying the EIS by reference. 40 C.F.R.
12 WILDEARTH GUARDIANS V. USFS
§ 1502.21; see Jones v. Nat’l Marine Fisheries Serv.,
741 F.3d 989, 998 (9th Cir. 2013). To incorporate underlying
data by reference, the agency must cite the source in the EIS
and briefly describe the content. 40 C.F.R. § 1502.21. A
source may be incorporated by reference only if “it is
reasonably available for inspection by potentially interested
persons within the time allowed for comment.” Id.; see also
40 C.F.R. § 1502.24 (requiring the agency to “make explicit
reference by footnote to the scientific and other sources relied
upon for conclusions in the [EIS]”).
Here, the Wildlife Habitat section of the EIS lists the
percentage of big game winter range protected in each
landscape area, but provides virtually no information about
where the big game winter range is actually located, nor the
concentration of game in each area. In other words, the EIS
does not make public the “underlying environmental data,”
nor specifically reference any documentary source that the
Forest Service relied upon in making its determinations on
snowmobile access. See Idaho Sporting Cong., 137 F.3d at
1150; 40 C.F.R. §§ 1502.21, 1502.24.
The Forest Service points to several parts of the EIS to
argue that it provided or referenced data adequately for the
public to assess snowmobile impacts on the big game winter
range. However, none are sufficient to satisfy NEPA’s
requirements.
First, the Forest Service refers to a “wolverine habitat
prediction” map in the EIS. This map uses the big game
winter range as an indicator of wolverine habitat because
wolverines depend on big game carrion for food. Notably,
the map is contained in an appendix that discusses impact on
wolverine denning habitat, not big game. The EIS does not
WILDEARTH GUARDIANS V. USFS 13
mention that the wolverine habitat map identifies the big
game winter range. Nor does the EIS explain anywhere that
the wolverine habitat prediction map serves as a proxy for a
map of the big game winter range. An interested person,
without more, would not be able to discern that a map entitled
“wolverine habitat prediction” provides the baseline data for
the tables depicting the big game winter range in the EIS. See
40 C.F.R. § 1502.21. And even if someone did manage to
make this connection, that wouldn’t be enough to access the
Forest Service’s baseline data, as the Forest Service concedes
that this map does not accurately depict the big game winter
range. The Forest Service states that it remedied this error by
using updated maps provided by Montana Fish, Wildlife &
Parks (“MFWP”) in its final analysis. But those maps are
neither included, nor referenced, in the EIS. “To take the
required ‘hard look’ at a proposed project’s effects, an agency
may not rely on incorrect assumptions or data in an EIS.”
Native Ecosystems Council v. U.S. Forest Serv., 418 F.3d
953, 964 (9th Cir. 2005) (citing 40 C.F.R. § 1500.1(b)). It
surely follows that the data the Forest Service provides to the
public to substantiate its analysis and conclusions must also
be accurate. If the wolverine habitat prediction map does not
accurately depict the big game winter range, and the Forest
Service ultimately worked from a different, accurate map,
then it is the accurate map that must be disclosed to the
public.5
5
The Forest Service refers to “polygon analysis” in the administrative
record as evidence that it revised its analysis on the basis of updated maps
from MFWP. The results of the polygon analysis are presented in a
spreadsheet that divides forest area into polygons and states how much of
the area in each polygon is big game winter range. The polygon analysis,
however, is not included in the EIS, and the Forest Service does not argue
that it is otherwise publicly available. Further, even if the polygon
analysis were available, the EIS does not reference the source of the data
14 WILDEARTH GUARDIANS V. USFS
Second, the Forest Service states that the information
WildEarth demands in the form of a map was “otherwise
provided” in the tables and accompanying qualitative
discussion in the EIS. As WildEarth acknowledges, the
Forest Service was not required to present the data in any
particular format. See Ecology Ctr. v. Castaneda, 574 F.3d
652, 667 (9th Cir. 2009) (“We defer to an agency’s choice of
format for scientific data.”). The issue, however, is one of
substance, not format. Without data on the location of the big
game winter range, the public was severely limited in its
ability to participate in the decision-making process.
For instance, MFWP’s comments show why geography
matters. It submitted extensive comments to the Forest
Service on the impact snowmobile use would have on moose,
one of the big game species, in several specific management
areas within the Boulder River Landscape. One comment
states that “[m]oose occur commonly throughout [the Boulder
River-Sheepshead Management Area] and their needs should
be specifically addressed, including the importance of not
approaching or stressing them during the winter . . . . [I]t is
apparent that snowmobiles are driving cross-country through
willow communities, likely . . . reducing moose forage.”
There is virtually nothing in the EIS responsive to the
MFWP’s comments.
The Forest Service maintains that it nonetheless did
adequately discuss impacts on moose. In support, the Forest
Service refers only to Table 176 in the EIS, showing the
percentage of big game winter range closed to snowmobiles,
upon which the analysis relied. Finally, without a map of the big game
winter range that corresponds to the polygon analysis, there is no way to
understand to which areas the polygons refer.
WILDEARTH GUARDIANS V. USFS 15
and a one-sentence statement that winter non-motorized
“allocations are designed to protect low elevation winter
range for deer, elk, and moose.” This paltry information does
not allow the public to determine where the range for moose
is located, whether the areas open to snowmobile use will
affect that range, or whether the Forest Service considered
alternatives that would avoid adverse impacts on moose and
other big game wildlife. In other words, the EIS does not
provide the information necessary to determine how specific
land should be allocated to protect particular habitat
important to the moose and other big game wildlife. Because
the Forest Service did not make the “relevant information”
available, Methow Valley Citizens Council, 490 U.S. at 349,
the public was limited to two-dimensional advocacy—
interested persons could argue only for the allocation of more
or less land for snowmobile use, but not for the protection of
particular areas. As a result, the Forest Service effectively
stymied the “public’s ability to challenge agency action.”
Ecology Ctr., 574 F.3d at 667.
Third, the Forest Service argues that it adequately
considered impacts on big game wildlife because it
acknowledged that “motorized winter recreation can
adversely affect wildlife by causing them to move away when
demands on their energy reserves are highest,” and provided
illustrative data. This data is contained in Table 179 of the
EIS showing the comparative probability that elk and mule
deer would take flight from all-terrain vehicles, bicycle
riders, horse riders, and hikers passing by at different
distances. There is no basis for concluding that this table
provides probative evidence of how big game wildlife would
respond to snowmobiles in winter.
16 WILDEARTH GUARDIANS V. USFS
The study from which Table 179 is drawn is specific to
mule, deer, and elk, not to big game species generally.
Michael J. Wisdom, et al., Effects of Off-Road Recreation on
Mule Deer and Elk, Transactions of the 69th North American
Wildlife and Natural Resource Conference 531–50 (2004).
Further, the study measures flight response to four-wheel all-
terrain vehicles, not snowmobiles. Id. at 534. And, notably,
the study measures flight response in spring, summer, and
fall, but not winter. There is no discussion in the EIS, nor the
study itself, whether this information is probative of how big
game, generally, would respond to snowmobiles in winter.
Id. Nor is there any acknowledgment or explanation in the
EIS of the absence of data on snowmobile disturbance of
specific species. See 40 C.F.R. § 1502.22 (establishing that
if data is “incomplete or unavailable,” then “the agency shall
always make clear that such information is lacking”).
We have stated that NEPA “emphasizes the importance
of coherent and comprehensive up-front environmental
analysis to ensure informed decisionmaking to the end that
‘the agency will not act on incomplete information, only to
regret its decision after it is too late to correct.’” Blue
Mountains Biodiversity Project v. Blackwood, 161 F.3d 1208,
1216 (9th Cir. 1998) (quoting Marsh v. Or. Natural Res.
Council, 490 U.S. 360, 371 (1989)). Here, the Forest Service
asks us to assume the adequacy and accuracy of partial data
without providing any basis for doing so. NEPA requires
more.
In sum, we conclude that the EIS does not provide the
public adequate access to information about the impact of
snowmobiles on big game wildlife and habitat. The
information included in and referenced by the EIS therefore
does not allow the public to “play a role in both the
WILDEARTH GUARDIANS V. USFS 17
decisionmaking process and the implementation of that
decision.” See Methow Valley Citizens Council, 490 U.S. at
349. We reverse the district court’s grant of summary
judgment to the Forest Service on this issue.
B. Conflicts between snowmobiles and other recreational
uses
WildEarth next argues that the Forest Service violated
NEPA because it did not adequately address how the
snowmobile allocations in the Revised Plan affect other
winter recreational activities, such as cross-country skiing
and snowshoeing. We disagree and affirm the district court’s
ruling on this issue.
Under the Multiple-Use Sustained-Yield Act
(“MUSYA”), the Forest Service must administer national
forests in a manner that balances different uses and interests.
16 U.S.C. §§ 528–31. In allocating land for different uses,
the Forest Service was bound by this “multiple-use mandate.”
See 16 U.S.C. § 1604(e). As the ROD explains, “[d]ecisions
about the type and location of public recreation access are
among the most difficult for land managers because of the
delicate balance between competing public values and natural
resource protection.”
The Revised Forest Plan accomplishes this delicate task
by creating five categories of recreational opportunities:
(1) areas emphasizing motorized recreation; (2) areas where
motorized use is permitted in winter, but not in summer;
(3) areas where only non-motorized use is allowed,
“providing for quiet recreation year-round”; (4) “semi-
primitive backcountry” areas with a “wide mix” of motorized
and non-motorized designations; and (5) designated
18 WILDEARTH GUARDIANS V. USFS
wilderness areas where motorized use and as well as
mountain biking are prohibited. Although snowmobile use is
permitted in roughly 60% of the forest, 100% of the forest is
open to at least some non-motorized winter recreation
activities. The Forest Service explained in the EIS that it
allocated recreational opportunities to meet “different user
expectation[s]” and to “create logical areas where recreational
settings could effectively be managed.”
WildEarth’s argument that the Forest Service did not
adequately review the consequences of its recreation
allotments is not supported in the record. The EIS includes
a section devoted to “recreation and travel management,”
which covers both summer and winter recreation activities.
This section addresses the results of a survey estimating
visitation levels and the type of recreation in which visitors
engaged; discusses application of the “Recreation
Opportunity Spectrum,” a method used to “categorize,
evaluate, and monitor settings and opportunities based on the
natural, managerial, and social environment”; presents a
discussion of forest-wide recreation trends; and presents an
extensive comparison of recreational opportunities at the
landscape level under each alternative. The ROD and EIS
illustrate that the Forest Service collected information and,
based on that information, adopted guidelines that it applied
in its decision-making process. The Forest Service made that
information available to the public so that interested persons
could effectively participate in the process. See Methow
Valley Citizens Council, 490 U.S. at 349.
WildEarth specifically complains about the Forest
Service’s allocation decisions in the Mt. Jefferson
management area. The ROD notes that management of
snowmobile use will be difficult in this area because there is
WILDEARTH GUARDIANS V. USFS 19
not an “effective topographical barrier to illegal motorized
entry” into non-motorized areas. As we understand
WildEarth’s argument, the mere possibility of “illegal
motorized entry” triggered a responsibility under NEPA to
address in the EIS the possibility of non-compliance. NEPA,
however, does not require that the Forest Service
affirmatively address in an EIS every uncertainty. Cf. Lands
Council, 537 F.3d at 1001. Here, the Forest Service aimed to
balance recreational uses, acknowledged that the
effectiveness of its decision relies upon voluntary
compliance, created monitoring protocols for the area, and
stated that it plans to re-evaluate its decision if non-
compliance occurs.
In sum, the Forest Service provided sufficient information
to establish that it took a “hard look” at the impacts of
snowmobile use on non-motorized recreation in these
particular management areas and throughout the Revised Plan
area. See Earth Island Inst., 351 F.3d at 1300.
IV.
We next turn to WildEarth’s argument that the Forest
Service failed to comply with the minimization requirements
in Executive Order 11644.6 In 1972, President Richard Nixon
6
Although WildEarth frames its argument as a challenge to the Forest
Service’s implementation of both Executive Order 11644 and Executive
Order 11989, its argument is confined to the application of the criteria set
forth in 11644 § 3(1)–(3). Executive Order 11989, issued in 1977 by
President Jimmy Carter, amended Executive Order 11644 to require
additionally that agencies close areas or trails whenever the agency
determines that use of ORVs “will cause or is causing considerable
adverse effects on the soil, vegetation, wildlife, wildlife habitat or cultural
or historic resources of particular areas or trails.” Exec. Order No. 11989.
20 WILDEARTH GUARDIANS V. USFS
issued Executive Order 11644, directing agencies to
promulgate regulations that require that all “areas and trails”
allowing off-road vehicles (“ORVs”)7 on public lands be
located in areas that:
(1) . . . minimize damage to soil, watershed,
vegetation, or other resources of the public
lands[;] (2) . . . minimize harassment of
wildlife or significant disruption of wildlife
habitats[; and,] (3) . . . minimize conflicts
between off-road vehicle use and other
existing or proposed recreational uses of the
same or neighboring public lands, and to
ensure the compatibility of such uses with
existing conditions in populated areas, taking
into account noise and other factors.
Exec. Order 11644 § 3(1)–(3).
Before 2005, the Forest Service permitted each national
forest, or other administrative unit, to designate areas and
trails open to ORV use on an ad hoc basis. See 36 C.F.R.
§ 295.2 (repealed 2005); George Cameron Coggins & Robert
L. Glicksman, 3 Pub. Nat. Resources L. § 31:8 (2nd ed.)
(2010). Recognizing that a sharp increase in ORV use,
coupled with “advances in [ORV] power, range, and
capabilities,” had made it impossible to fulfill the intent of
Executive Orders 11644 and 11989 without taking a more
active approach to regulation, Final Rule: Travel
7
The Forest Service has acknowledged that snowmobiles are a type of
ORV for purposes of Executive Order 11644. Final Rule: Travel
Management; Designated Routes and Areas for Motor Vehicle Use,
70 Fed. Reg. 68264-01, 68273 (Nov. 9, 2005).
WILDEARTH GUARDIANS V. USFS 21
Management; Designated Routes and Areas for Motor
Vehicle Use, 70 Fed. Reg. 68264-01, 68265 (Nov. 9, 2005),
the Secretary of Agriculture8 promulgated the 2005 Travel
Management Rule (“TMR”) to improve implementation of
the executive orders and establish a national system of roads,
trails, and areas with restricted ORV use. Id.; 36 C.F.R.
§§ 212.50–212.57. The relevant section of the TMR requires
that,
in designating National Forest System trails
and areas on National Forest System lands,
the responsible official shall consider effects
on the following, with the objective of
minimizing: (1) Damage to soil, watershed,
vegetation, and other forest resources;
(2) Harassment of wildlife and significant
disruption of wildlife habitats; (3) Conflicts
between motor vehicle use and existing or
proposed recreational uses of National Forest
System lands or neighboring Federal lands.
36 C.F.R. § 212.55(b), (b)(1)–(3) (“minimization criteria”).
Notably, WildEarth does not frame its argument under the
TMR, but rather challenges the Forest Service’s
implementation of Executive Order 11644. Wildlands, 872
F. Supp. 2d at 1080–81. Where the Forest Service has placed
“restrictions or prohibitions” on snowmobile use within a
forest plan area, as it has here, the Forest Service must
comply with the TMR, including the section implementing
the criteria in Executive Order 11644. 36 C.F.R.
8
The Forest Service is an agency within the United States Department
of Agriculture.
22 WILDEARTH GUARDIANS V. USFS
§ 212.81(c).9 Thus, by challenging the Forest Service’s
implementation of Executive Order 11644’s minimization
criteria, WildEarth is necessarily challenging the
implementation of the TMR.
The district court concluded that Executive Order 11644
could be enforced through a private right of action. We need
not address that issue, however, because we construe
WildEarth’s claim as seeking to enforce the TMR. Under the
Administrative Procedure Act, an aggrieved person may
challenge an agency’s implementation of its own regulation,
see 5 U.S.C. §§ 702, 706; Gifford Pinchot Task Force v. U.S.
Fish & Wildlife Serv., 378 F.3d 1059 (9th Cir. 2004).
The Forest Service argues that its analysis of snowmobile
allocations in the EIS satisfied the TMR.10 Specifically, the
Forest Service cites to generalized statements in the EIS that
it designed snowmobile allocations to “protect low elevation
winter range for deer, elk, and moose; . . . [to] protect[] high
elevation secure habitat for mountain goat and wolverine;[]
and to provide quiet winter recreation opportunities in
locations people can drive to” as evidence that it considered
9
Under the current regulations, if there are no restrictions or prohibitions
placed on snowmobile use, then Forest Service is not required to comply
with the TMR. 36 C.F.R. §§ 212.51(a)(3), 212.81(c). The parties refer to
this as the “Subpart C exemption,” which is discussed in more detail infra.
10
We do not interpret the minimization criteria as requiring the agency
to impose an “absolute, discernible limit” on snowmobile use, regardless
of whether there are competing uses or resources. Instead, our inquiry
assumes that the TMR requires the Forest Service to comply with the
minimization criteria in a manner that is feasible, prudent, and reasonable
in light of the agency’s multiple-use mandate. See Great Old Broads for
Wilderness v. Kimbrell, 709 F.3d 836, 853 (9th Cir. 2013).
WILDEARTH GUARDIANS V. USFS 23
the minimization criteria. The district court agreed,
concluding that the NEPA analysis, with its comparison of
the environmental impacts in each of the six alternatives,
adequately demonstrated that the Forest Service complied
with the minimization criteria in designating areas open to
snowmobile use.
We disagree. The EIS’s reference to plan-wide data and
general decision-making principles is inadequate under the
TMR. There is nothing in the TMR, or anywhere else, that
allows the Forest Service to designate multiple areas for
snowmobile use on the basis of a single forest-wide analysis
and general decisionmaking principles. Instead, the TMR
requires the Forest Service to apply the minimization criteria
to each area it designated for snowmobile use.
True, the TMR refers to a designated area as “an area on
National Forest System lands that is designated for motor
vehicle use,” 36 C.F.R. § 212.1, without specifying how
narrowly an area must be drawn. But it is apparent that the
Forest Service must provide a more granular minimization
analysis to fulfill the objectives of Executive Order 11644,
which the TMR was designed to implement. See Proposed
Rules: Travel Management; Designated Routes and Areas for
Motor Vehicle Use, 69 Fed. Reg. 42381-01, summary (July
15, 2004); 70 Fed. Reg. 68264-01, summary (Nov. 9, 2005).
Executive Order 11644 directs affected agencies to
promulgate rules requiring application of the minimization
criteria for “designation of the specific areas and trails on
public lands on which the use of off-road vehicles may be
permitted.” Exec. Order 11644 § 3 (emphasis added).
Our conclusion does not require the Forest Service to
conduct an entirely separate environmental review for each
24 WILDEARTH GUARDIANS V. USFS
area and trail it designates for snowmobile use. The TMR
does not prevent the Forest Service from conducting an
analysis of multiple areas and trails at once, nor from
integrating NEPA and TMR compliance into a single
process.11 Indeed, the Forest Service has contemplated such
efficiencies in its rulemaking and guidance. See, e.g., 70 Fed.
Reg. at 68279 (explaining that “public involvement
associated with the NEPA process will often fulfill” the
public participation requirements in the TMR). If there is
data available pertinent to compliance with both NEPA and
the TMR, the Forest Service can certainly use it for both
purposes. What is required is that the Forest Service
document how it evaluated and applied the data on an area-
by-area basis with the objective of minimizing impacts as
specified in the TMR. There is nothing in the record to
suggest that the Forest Service did so.
In fact, the EIS and ROD demonstrate that the Forest
Service neglected to consider the minimization criteria in the
TMR at all. At the end of each of sixteen sections in the
principal substantive chapter of the EIS devoted to
“environmental consequences analysis,” the Forest Service
identified the “[l]egal and [a]dministrative framework” for
the preceding section. For instance, the Recreation and
Travel Management section identifies seven “laws and
executive orders,” and five “regulation[s] and polic[ies]” that
form the legal and administrative framework for the analysis
11
We do not mean to imply that if the Forest Service complies with
NEPA, it necessarily will have satisfied the TMR criteria. Although
related, NEPA and TMR set forth separate requirements. See 70 Fed.
Reg. at 68268 (explaining that regulations implementing NEPA should not
be conflated with regulations implementing the TMR, and that the TMR
does not address NEPA compliance).
WILDEARTH GUARDIANS V. USFS 25
in that section. There is not a single citation to the TMR,
Executive Order 11644, or Executive Order 11989 in the
Recreation and Travel Management Section, or any of the
other fifteen sections.
It is not clear why the Forest Service omitted the TMR
from its analysis. But, in one of the few references to the
TMR in the record, the ROD explains that the “Forest
Supervisor will issue a second ROD . . . making site-specific
decisions based on the Revised Forest Plan . . . that will
include further analysis to designate routes for motorized
travel under 36 C.F.R. [§] 212.” The second ROD, issued in
2010, states that it “enacts the allocations and standards set
forth in the 2009 Revised Forest Plan” and incorporates all its
underlying analysis. The 2010 ROD acknowledges that
“[t]he 2005 Travel Management Rule (36 C.F.R. [§] 212)
prescribed a new process for making site-specific decisions”
for route and area designations. Yet the 2010 ROD again
defers compliance with the TMR when it states that “[t]he
next stage of travel planning will include further analysis to
formally designate routes for motorized travel in areas where
motorized use is permitted under 36 C.F.R. [§] 212 Subpart
B.” This discussion in the 2010 ROD illustrates that, upon
implementation of the allocations in the Revised Forest Plan,
the Forest Service had not complied with § 212.55, but was
waiting until the “next stage of travel planning.” The Forest
Service does not explain when—or whether—this “next
stage” of planning occurred, nor whether it ever considered
the TMR for purposes of winter motorized travel
designations. There is no evidence in the record that it did.
Moreover, as various district courts have held, mere
consideration of the TMR’s minimization criteria is not
sufficient to comply with the regulation. In Idaho
26 WILDEARTH GUARDIANS V. USFS
Conservation League v. Guzman, for example, the district
court determined that, although matrices included in an EIS
showed that the Forest Service “met its duty to consider the
minimization criteria,” 766 F. Supp. 2d 1056, 1071 (D. Idaho
2011), the Forest Service nonetheless failed to comply with
the TMR because it did not include a “description of how the
selected routes were designed ‘with the objective of
minimizing’ impacts,” id. at 1073 (quoting 36 C.F.R.
§ 212.55(b)). As a result, there was “no way to know how or
if the Forest Service used [the information in the matrices] to
select routes with the objective of minimizing impacts.” Id.
at 1072. As another district court explained, the Forest
Service is under an “affirmative obligation . . . to actually
show that it aimed to minimize environmental damage when
designating trails and areas.” Cent. Sierra Envtl. Res. Ctr. v.
U.S. Forest Serv., 916 F. Supp. 2d 1078, 1096 (E.D. Cal.
2013); see also Defenders of Wildlife v. Salazar, 877 F. Supp.
2d 1271, 1304 (M.D. Fla. 2012).
Center for Biological Diversity v. United States Bureau
of Land Management, 746 F. Supp. 2d 1055, 1079–81 (N.D.
Cal. 2009) similarly noted that, “‘[m]inimize’. . . does not
refer to the number of routes, nor their overall mileage. . .
[but] to the effects of route designations, i.e. the [Bureau of
Land Management] is required to place routes specifically to
minimize ‘damage’ to public resources, ‘harassment’ and
‘disruption’ of wildlife and its habitat, and minimize
‘conflicts’ of uses.” Id. (quoting 43 C.F.R. § 8342.1(a)–(c)).12
12
Although there are some small distinctions between the Bureau of
Land Management’s and the Forest Service’s minimization criteria, they
are largely analogous. Compare 36 C.F.R. § 212.55(b) with 43 C.F.R.
§ 8342.1.
WILDEARTH GUARDIANS V. USFS 27
We agree with the approach taken by these district courts.
First, mere “consideration” of the minimization criteria is not
enough to comply with the TMR. Rather, the Forest Service
must apply the data it has compiled to show how it designed
the areas open to snowmobile use “with the objective of
minimizing” “damage to . . . forest resources,” “harassment
of wildlife,” and “conflicts [with other] recreational uses.” 36
C.F.R. § 212.55(b), (b)(1)–(3). Second, the Forest Service
cannot rely upon a forest-wide reduction in the total area open
to snowmobiles as a basis for demonstrating compliance with
the minimization criteria. The TMR is concerned with the
effects of each particularized area and trail designation. The
minimization criteria must be applied accordingly.
In sum, the Forest Service’s designation of areas open to
snowmobile use was “not in accordance with law.” 5 U.S.C.
§ 706(2)(A). We therefore reverse the district court’s
summary judgment ruling on this claim as it relates to area
designations and remand for further proceedings.
V.
We turn to WildEarth’s final argument, that the district
court erred when it concluded that the challenge to Subpart C
of the TMR was unripe. As explained above, Subpart B of
the TMR implements the minimization criteria in Executive
Order 11644. 36 C.F.R § 212.55. Subpart C, however,
exempts over-snow vehicles (“OSV”) from compliance with
Subpart B if the Forest Service does not “propose[]
restrictions or prohibitions on use by over-snow vehicles.” 36
28 WILDEARTH GUARDIANS V. USFS
C.F.R § 212.81(c) (“Subpart C exemption”).13 WildEarth
argues that the Subpart C exemption is invalid because there
is no distinction between motor vehicles and OSVs in
Executive Order 11644. The district court determined that
because the Forest Service did not apply the Subpart C
exemption to justify its actions in this case, the issue was not
ripe for review. Wildlands, 872 F. Supp. 2d at 1082–83.
Indeed, the Forest Service argued in the district court, and
continues to argue before this court, that it satisfied the
minimization criteria.
The ripeness doctrine serves to “prevent courts from
entangling themselves in abstract disagreements over
administrative policies, and also to protect the agencies from
judicial interference until an administrative decision has been
formalized and its effects felt in a concrete way by the
challenging parties.” Abbott Labs. v. Gardner, 387 U.S. 136,
148-49 (1967), abrogated on other grounds by Califano v.
Sanders, 430 U.S. 99 (1977). To determine ripeness, a
reviewing court considers: (1) whether the issues are fit for
judicial decision, and; (2) the hardship to the parties of
withholding review. Id. at 149. “Agency action is fit for
13
In 2013, a district court struck down the Subpart C exemption on the
ground that it violated Executive Order 11644. Winter Wildlands Alliance
v. U.S. Forest Serv., No. 1:11-CV-586-REB, 2013 WL 1319598 (D. Idaho
Mar. 29, 2013). The district court ordered the Forest Service to issue a
new rule compliant with Executive Order 11644 by September 9, 2014.
The Forest Service has promulgated a proposed revision for public
comment. Use by Over-snow Vehicles (Travel Management Rule),
79 Fed. Reg. 34678-01 (June 18, 2014). Although the Forest Service did
not appeal the district court’s decision striking down the Subpart C
exemption, intervenors in the case did file an appeal, which was later
dismissed on the intervenors’ motion. See Winter Wildlands Alliance v.
U.S. Forest Serv., No. 13-35660 (9th Cir. Filed Sept. 19, 2013).
WILDEARTH GUARDIANS V. USFS 29
review if the issues presented are purely legal and the
regulation at issue is a final agency action.” Ass’n of Am.
Med. Colleges v. U.S., 217 F.3d 770, 780 (9th Cir. 2000)
(internal quotations omitted). In Lujan v. National Wildlife
Federation, 497 U.S. 871, 873 (1990), the Supreme Court
cautioned against engaging in judicial review before the
“controversy has been reduced to manageable proportions,
and its factual components fleshed out, by concrete action
that harms or threatens to harm the complainant.”
Although the TMR itself was a final agency action, the
Forest Service has not applied subpart C of the TMR in this
case. WildEarth’s challenge to the exemption is therefore a
purely abstract disagreement at this juncture. Moreover,
because the Forest Service has not invoked the exemption, the
record contains no facts concerning the exemption’s impact
to inform our decisionmaking. Finally, because we fully
review compliance with the minimization criteria under the
TMR, there is no hardship to WildEarth in declining to
exercise jurisdiction over the validity of the Subpart C
Exemption. In sum, we conclude that the district court did
not err in ruling that WildEarth’s challenge to the Subpart C
exemption is unripe.
VI.
We affirm the district court’s ruling that the EIS
sufficiently analyzed the conflicts between snowmobiles and
other recreational uses in the Revised Forest Plan. Further,
we agree that WildEarth’s challenge to the Subpart C
exemption in the TMR is not ripe for review. We reverse the
district court’s NEPA ruling, in part, because the Forest
Service did not properly disclose the information underlying
its analysis of snowmobile impacts on big game wildlife in
30 WILDEARTH GUARDIANS V. USFS
the EIS. We also reverse the district court’s ruling that the
Forest Service adequately applied the minimization criteria in
the TMR. We remand for further proceedings consistent with
this opinion. The parties shall bear their own costs on appeal.
AFFIRMED IN PART, REVERSED IN PART, AND
REMANDED.