FILED
NOT FOR PUBLICATION JAN 07 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
THE PRYORS COALITION, a coalition No. 11-35733
of non-profit organizations and
individuals; WILDLANDS CPR, a non-
profit organization; EASTERN D.C. No. 1:10-cv-00016-RFC
WILDLANDS CHAPTER OF THE
MONTANA WILDERNESS
ASSOCIATION, a non-profit MEMORANDUM*
organization; YELLOWSTONE VALLEY
AUDUBON SOCIETY, a non-profit
organization; THE FRONTIER
HERITAGE ALLIANCE, a non-profit
organization; THE BEARTOOTH
BACKCOUNTRY HORSEMEN, a non-
profit organization; RICHARD WALTON,
an individual; SUSAN W. NEWELL, an
individual; PHIL JAQUITH, an individual,
Plaintiffs - Appellants,
v.
LESLIE WELDON, in her official
capacity as Regional Forester for the
United States Forest Service, Region One;
MARY ERICKSON, in her official
capacity as Acting Forest Supervisor of the
Custer National Forest; UNITED STATES
FOREST SERVICE, an agency of the
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
United States Department of Agriculture,
Defendants - Appellees,
TREASURE STATE ATV ASSOC.;
MONTANA TRAIL VEHICLE ASSOC.;
GREAT FALLS TRAIL BIKE RIDERS
ASS’N; FAMILIES FOR OUTDOOR
RECREATION; CITIZENS FOR
BALANCED USE; THE BLUERIBBON
COALITION,
Intervenor-Defendants -
Appellees.
Appeal from the United States District Court
for the District of Montana
Richard F. Cebull, Senior District Judge, Presiding
Argued and Submitted December 4, 2013
Seattle, Washington
Before: O’CONNOR, Associate Justice (Ret.),** and TALLMAN and BEA, Circuit
Judges.
Plaintiffs-Appellants, a coalition of groups and individuals who use the
natural wilderness of the Pryor Mountains (“Coalition”), appeal the summary
judgment dismissal of their action challenging the U.S. Forest Service’s 2008
Travel Management Plan (“Travel Plan”) for Montana’s Beartooth Ranger District
**
The Honorable Sandra Day O’Connor, Associate Justice of the United
States Supreme Court (Ret.), sitting by designation.
(“District”) within the Custer National Forest of south-central Montana. The
purpose of the Travel Plan is to identify and designate Forest Service roads and
trails for motorized and non-motorized use to provide recreational opportunities for
the public. The Coalition brings its challenge under Section 706(2)(A) of the
Administrative Procedure Act, which provides that “[t]he reviewing court shall . . .
hold unlawful and set aside agency action, findings, and conclusions found to be . .
. arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with
law.” Thus, while we review the district court’s award of summary judgment de
novo, Te-Moak Tribe of W. Shoshone of Nev. v. U.S. Dep’t of Interior, 608 F.3d
592, 598 (9th Cir. 2010), we “will reverse [the Forest Service’s] decision as
arbitrary and capricious only if the agency relied on factors Congress did not
intend it to consider, entirely failed to consider an important aspect of the problem,
or offered an explanation that runs counter to the evidence before the agency or is
so implausible that it could not be ascribed to a difference in view or the product of
agency expertise,” Ecology Ctr. v. Castaneda, 574 F.3d 652, 656 (9th Cir. 2009)
(citations and internal quotation marks omitted). We have jurisdiction under 28
U.S.C. § 1291, and we affirm.
I
3
The Coalition argues first that the Forest Service’s “No Action” alternative
erroneously treated “user-created routes” as status-quo system routes. It points to
the 1987 Travel Plan and maps from 1996 that do not appear to show some or all
of the challenged routes shown as in existence in the 2008 Travel Plan. The Forest
Service, however, acknowledged that in establishing its “No Action” alternative it
relied primarily on “the set of system roads identified in the 1987 Travel Plan
along with modifications that have been made to the system since 1987.”
(emphasis added). In 1999, the Forest Service attempted to identify and inventory
all motorized and non-motorized routes in the Custer National Forest. It told the
public that it had conducted subsequent field reviews and had “a high confidence
level in the inventory.” The inventory reveals that the Forest Service considered
the challenged routes to be existing National Forest System routes rather than
unauthorized user-created routes. Importantly, the Forest Service conducted its
inventory several years after the creation of the maps relied on by the Coalition.
The Coalition presents no evidence postdating the inventory that contradicts the
Forest Service’s determination. Given this record, we cannot conclude that the
Forest Service’s reliance on its 1999 inventory to establish its “No Action”
alternative baseline was arbitrary or capricious.
4
From a practical standpoint, the continued designation of these routes did
not require additional analysis in the environmental impact statement (“EIS”)
under the National Environmental Protection Act (“NEPA”).1 See Nat’l Wildlife
Fed’n v. Espy, 45 F.3d 1337, 1344 (9th Cir. 1995) (“Discretionary agency action
that does not alter the status quo does not require an EIS.”); Upper Snake River
Chapter of Trout Unlimited v. Hodel, 921 F.2d 232, 235 (9th Cir. 1990) (“[W]here
a proposed federal action would not change the status quo, an EIS is not
necessary.”). This is fatal to the Coalition’s NEPA challenge.
Alternatively, we are also satisfied that the Forest Service’s EIS “fulfilled its
informational purpose.” Sierra Club v. Clark, 774 F.2d 1406, 1411 (9th Cir.
1985). The Forest Service took the requisite hard look at the environmental
impacts from the Travel Plan. The Coalition’s primary argument to the contrary is
that the Forest Service failed to take a hard look at impacts to elk and deer along
five high-elevation routes. The Forest Service provided a thorough analysis of
impacts to elk in the District. And we defer to its scientific judgment to use elk as
a surrogate for mule deer and white-tailed deer, which it justified “because there is
a large amount of overlap in habitat between deer and elk, and impacts of travel
1
There is also no evidence that these routes will experience greater
environmental impacts merely because they are now signed and mapped.
5
management on the District are expected to be very similar for these species.” See
Native Ecosystems Council v. Weldon, 697 F.3d 1043, 1053 (9th Cir. 2012) (“[W]e
are required to apply the highest level of deference in our review of the Forest
Service’s scientific judgments[.]”). “The mere fact that [the Coalition] disagrees
with the methodology does not constitute a NEPA violation.” Id. The Forest
Service also considered resource concerns along the five high-elevation routes—as
it did for every route—in its route-tracking spreadsheet. It imposed seasonal
restrictions on use of some of the five routes to address resource concerns, and it
designated certain portions of the five routes only for administrative use due to
erosion concerns. There is nothing arbitrary or capricious about this portion of the
Forest Service’s NEPA analysis.
II
The Coalition argues next that the Forest Service failed to apply the
minimization criteria provided in the 2005 Travel Management Rule, 36 C.F.R. §
6
212.55(b) (“TMR”).2 On review of the voluminous records supporting its decision,
we disagree that the Forest Service merely listed the minimization criteria without
documenting how it minimized environmental impacts.
The Forest Service’s consideration and application of the criteria is apparent
from the record. It considered numerous alternative plans for route designations
based on competing motorized and non-motorized uses. It ultimately modified one
of those plans—creating Alternative B Modified—“to provide additional points of
compromise among disparate user preference while minimizing effects” on the
2
The parties dispute what the TMR requires of the Forest Service. The
Coalition appears to argue that it requires some degree of actual minimization of
environmental impacts. The Forest Service interprets the TMR’s minimization
criteria as “objectives that the agency must evaluate in designating trails and areas,
rather than required outcomes.” Travel Management Rule; Designated Routes and
Areas for Motor Vehicle Use, 69 Fed. Reg. 42381-01 at 42387 (July 15, 2004).
We need not resolve this dispute, as we conclude that the Forest Service met its
obligations even if it was required to show actual minimization. Nor must we
decide whether the Coalition can privately enforce Executive Order 11644 because
the Coalition asserts that “both E.O. 11644 and the [TMR] contemplate the same
result.”
7
TMR’s environmental criteria.3 Specifically, it reduced the total mileage of
motorized routes from approximately 150 to 125. It made a number of its route
designations contingent on first reducing negative impacts to soil, fisheries, and
water quality. It avoided route designations that would clearly contribute to
unacceptable resource impacts, for example, by not allowing public motorized use
on routes 21401A, 21401B, and 241412 to minimize impacts to water quality.
And it imposed seasonal restrictions on roughly 64 miles of routes to reduce
impacts on soil, vegetation, water quality, and wildlife. Notably, the seasonally
restricted routes included 2088, 2091, and 2095A—three of the higher-elevation
routes the Coalition identifies as traversing sensitive areas.
On this record, we are satisfied that the Forest Service did not act arbitrarily
or capriciously in applying the TMR’s minimization criteria to its route
designations. Nor were the Forest Service’s minimization actions “plainly
3
The Coalition points to Meyers Creek trail as one example where the Forest
Service failed to minimize use conflicts. This assertion is belied by the record.
Alternative B Modified was selected, in part, “because it responds to users[’]
requests to keep Meyers Creek [trail] . . . available for motorcycle use, but includes
a season of use designation of 6/15 to 12/1 . . . . [to] provide[] a non-motorized
experience during the motorized restricted period” and to “reduce[] concerns about
motorized disturbance of wintering big game and moose calving in the vicinity of
the trail[].”
8
erroneous or inconsistent with the language of the regulation[.]” League of
Wilderness Defenders v. U.S. Forest Serv., 549 F.3d 1211, 1218 (9th Cir. 2008).
III
The Coalition also attacks the Forest Service’s decision to allow off-road
vehicle camping within 300 feet of all public motorized routes in the Pryor Unit.
Like its challenge to the Forest Service’s route designations, the Coalition claims
that the Forest Service did not take the requisite “hard look” under NEPA or apply
the TMR’s minimization criteria. We disagree.
We note at the outset that off-road vehicle camping appears to have been
permitted before the Travel Plan was enacted, either by virtue of the 1987 Travel
Plan or the 2001 Off-Highway Vehicle Travel Plan. We are reluctant, however, to
divest the Forest Service entirely of its obligation to conduct a NEPA analysis, see
Hodel, 921 F.2d at 235, as both the 1987 Travel Plan and the 2001 Off-Highway
Vehicle Travel Plan included restrictions on off-road vehicle camping that the
9
current 2008 Travel Plan may not.4 Thus, while the Travel Plan may have altered
the existing off-road vehicle camping regulations, it did not uproot the status quo
entirely.
A
The Forest Service’s vegetation analysis satisfied NEPA requirements. It
relied primarily on satellite-assisted Geographical Information System (“GIS”)
methods to identify vegetation risk categories based on (1) the frequency, duration,
and timing of motorized travel, and (2) the resistance and resilience of vegetation
to trampling. It used this risk stratification to describe how many acres of low,
moderate, and high risk areas could be impacted by off-road vehicle camping. It
concluded that, under Alternative B Modified, the “[p]otential impacts from
frequent motorized use [in high risk areas] constitute about 2% . . . of the total
Pryor Unit.” It further explained that, “While impacts resulting from camping . . .
4
For example, the 1987 Travel Plan allowed visitors to drive 300 feet off
designated routes to access campsites, but required travel on an existing access
road to the site. The 2001 Off-Highway Vehicle Travel Plan allowed off-road
vehicle camping within 300 feet of roads and trails, but required visitors to select
campsites by non-motorized means and access the campsites by the most direct
route causing the least damage. The Forest Service contends that, under the 2008
Travel Plan, recreationists must still drive the most direct route to their off-road
campsite. We find no such requirement in the Record of Decision or the final EIS.
It would thus behoove the Forest Service to include this restriction, if it exists, on
its Motorized Vehicle Use Map for the area. But that correction does not mandate
vacating the entire decision and remanding to the district court.
10
can be locally very significant, the total area of impact is small when compared to
various ecosystems of the project area,” and that “[s]election of any alternative
would be consistent with the regulatory framework relative to vegetation
sustainability at the level of this project’s scale.” It is clear that the Forest
Service’s analysis contained significantly more than vague and conclusory
statements, as alleged by the Coalition.
We are not convinced that the Forest Service’s GIS methodology was
unreliable or that reliance on GIS methods was arbitrary or capricious. See Native
Ecosystems Council, 697 F.3d at 1053 (“We are required to apply the highest level
of deference in our review of the Forest Service’s scientific judgments[.]”). Nor
was the Forest Service required to supplement its analysis with on-the-ground
testing or studies. See Lands Council v. McNair, 537 F.3d 981, 991-92 (9th Cir.
2008) (“The Forest Service is at liberty, of course, to use on-the-ground analysis if
it deems it appropriate or necessary, but it is not required to do so.”).
We also find unpersuasive the Coalition’s argument that “the Forest Service
may have made a significant error in its GIS analysis by underestimating the size of
the potential use corridor” by analyzing a 300 foot buffer instead of a 600 foot
buffer. Even if the single map identified by the Coalition contained such an error,
we see nothing in the record demonstrating whether or how this map was used in
11
the Forest Service’s NEPA analysis. Indeed, this spatial analysis appears to be one
of several, as the map’s cover page explains that “[f]urther GIS runs were made per
methodology outlined” in the final EIS.
The Coalition also fails to provide a cite to the administrative record
supporting its assertion that GIS mapping cannot identify campsites smaller than
10,000 square feet. Even if true, we find no support for the Coalition’s conclusory
assertions that smaller campsites “are much more common and likely used” than
larger campsites, or that “driving off-road to car camp in small to moderate areas
has just as much impact as driving to large flat areas.” Furthermore, despite the
Coalition’s argument to the contrary, the Forest Service did analyze both flat areas
(0–4 percent slopes), which it designated as “frequent use areas,” and non-flat
areas, which it labeled “infrequent use areas.” In short, it is beyond our role to
“insert our opinions in the place of those of forest [scientists],” Native Ecosystems
Council, 697 F.3d at 1053, and we again decline to do so here.
The Coalition takes issue with the Forest Service’s assumption that not all
areas within the off-road vehicle camping corridor will be traveled because visitors
must take a direct route to campsites. Even if the Forest Service’s assumption is
faulty, it nevertheless analyzed potential environmental impacts based on total
acreage, not just the subset of acreage that it believed would be impacted by direct-
12
route traveling. Nothing in this record leads us to conclude that the Forest
Service’s vegetation impacts analysis was arbitrary or capricious.
Neither was the Forest Service’s soil analysis. The Forest Service relied
heavily on a 1975 Soil Survey of Montana’s Carbon County (“Survey”) to describe
land formations and determine erosion hazards in the Pryor Unit. The Survey is
maintained on the U.S. Department of Agriculture’s website. Relying on the
Survey, along with a number of additional sources, the Forest Service estimated the
potential for erosion after soil disturbance, including the number of miles of roads
and trails that would traverse low, medium, high, and very high risk erosion areas.
In response to public requests, the Forest Service also added a discussion of
soil crust impacts in the final EIS. It concluded that soil crusts are probably very
limited in the Pryor Unit and would likely not exist in areas popular for off-road
vehicle camping, i.e., high elevation areas with higher vegetative cover and some
shade. Instead, soil crusts are typically found in high elevation areas with bare
ground, or at lower elevations. That it was unable to locate information on the
distribution and extent of soil crusts in the specific project area does not render its
analysis inadequate.5 The Coalition contends that the Forest Service should have
5
The Survey did not contain soil crust data, and the Soils State Office in
Bozeman, Montana, had no knowledge of any soil crust studies in the Pryor Unit.
13
conducted its own soil crust studies, presumably throughout the 8,900
acres—approximately 14 square miles—it claims will be impacted by off-road
vehicle camping. We disagree, as “NEPA does not require the government to do
the impractical.” See Inland Empire Pub. Lands Council v. U.S. Forest Serv., 88
F.3d 754, 764 (9th Cir. 1996) (citation omitted).
Finally, we reject the Coalition’s contention that the Forest Service needed
to rely on its own soil quality standards. The Coalition concedes that “nothing in
NEPA mandates compliance with soil standards.” Moreover, as a supplement to
the Forest Service Manual, the soil standards do not have the force and effect of
law. See W. Radio Servs. Co. v. Espy, 79 F.3d 896, 901 (9th Cir. 1996) (finding
that the Forest Service Manual is “not promulgated in accordance with the
procedural requirements of the Administrative Procedure Act,” is “not [a]
regulation[],” and thus “do[es] not have the independent force and effect of law”).
We conclude that the Forest Service took the requisite hard look at the
environmental impacts from continuing to allow off-road vehicle camping along
public motorized routes.
B
The Forest Service also took several steps to minimize off-road vehicle
camping’s environmental impacts, and thus complied with the TMR’s
14
minimization criteria. Its initial analysis revealed that “[e]ffects from dispersed
vehicle camping have been observed at site-specific locations and [are] not
widespread along the District’s motorized routes.” Accordingly, it used the
existing 300 foot standard “as the starting point and considered alternatives to this
standard where there was a need to do so.” Alternative B Modified “specifically
address[ed] where there have been resource issues with allowing 300 foot
dispersed vehicle camping[.]”6
Several more general actions as part of Alternative B Modified will also
directly alleviate environmental impacts from off-road vehicle camping. The
Forest Service purposely declined to designate a number of roads and portions of
roads for motorized use because of the impacts on cultural resources, water quality,
and erosion. This will prevent off-road vehicle camping in the same sensitive
areas. The Forest Service reduced the miles of motorized routes (and thus the
amount of acreage open to off-road vehicle camping) from approximately 150 to
125. It prohibited off-road vehicle camping along 27 miles of non-system routes.
It designated 18 miles of system roads for administrative use only, along which
6
For example, in the Beartooth Unit the Forest Service prohibited off-road
vehicle camping within 100 feet of the West Fork of Rock Creek or its tributaries,
limited off-road vehicle camping along the Main Fork of Rock Creek to one
vehicle length from the edge of designated spurs off system road 2421, and closed
over 20 camping sites due to environmental resource concerns.
15
off-road vehicle camping is prohibited. And it imposed seasonal restrictions on
roughly 64 miles of routes, including higher elevation routes 2088, 2091, and
2095A, the same sensitive routes with which the Coalition is particularly
concerned. Seasonal closures during the spring thaw will protect not only the
roads and trails, but also the adjacent land that would otherwise have been open for
off-road vehicle camping.
These steps satisfy us that the Forest Service “consider[ed] effects on” the
TMR’s environmental criteria “with the objective of minimizing” the
environmental impacts from off-road vehicle camping. See 36 C.F.R. § 212.55(b).
* * *
We are mindful of the Coalition’s interest in non-motorized recreation
opportunities in the Pryor Unit and of the considerable environmental resources at
stake. But we must give deference to the Forest Service’s actions unless they were
arbitrary, capricious, an abuse of discretion, or contrary to law. See 5 U.S.C. §
706. Here, they were not. The Forest Service complied with NEPA, the TMR, and
Executive Order 11644.
AFFIRMED.
16