Biodiversity Conservation Alliance v. United States Forest Service

FILED
United States Court of Appeals
Tenth Circuit

September 3, 2014
PUBLISH Elisabeth A. Shumaker
Clerk of Court
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

BIODIVERSITY CONSERVATION
ALLIANCE,

Petitioner - Appellant,
v. No. 12-8071
UNITED STATES FOREST
SERVICE,

Respondent - Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF WYOMING
(D.C. NO. 2:11-CV-00226-SWS)

John Meyer, Cottonwood Environmental Law Center, Bozeman, Montana (John
Persell, Biodiversity Conservation Alliance, Laramie, Wyoming, and Megan
Hayes, Corthell and King, P.C., Laramie, Wyoming, with him on the briefs) for
Petitioner-Appellant.

Mark R. Haag, United States Department of Justice, Environment & Natural
Resources Division, Washington, D.C. (Robert G. Dreher, Acting Assistant
Attorney General, John P. Tustin and Robert P. Stockman, United States
Department of Justice, Environment & Natural Resources Division, Washington,
D.C., and Randy Bramer, Senior Counsel, Office of the General Counsel, United
States Department of Agriculture, Golden, Colorado, with him on the brief) for
Respondent-Appellee.

Before TYMKOVICH, McKAY, and MATHESON, Circuit Judges.

TYMKOVICH, Circuit Judge.
 Biodiversity Conservation Alliance challenges a United States Forest

Service decision modifying trail use in the two-million-acre Medicine Bow

National Forest in southern Wyoming. In particular, the Forest Service formally

closed several hundred miles of unauthorized motorized trails, but allowed

motorcycle use on an approximately five-mile trail in the Middle Fork Inventoried

Roadless Area (Middle Fork IRA) and several connecting trails. The Alliance

(BCA) argues the Forest Service did not properly consider the impacts on

wetlands and non-motorized recreation in reaching its decision, and should have

found that significant impacts required the preparation of an Environmental

Impact Statement under the National Environmental Policy Act (NEPA).

We find the Forest Service’s Environmental Assessment adequately

supported its finding that the proposed decision would have no significant impacts

on wetlands or other users of the Middle Fork IRA. Accordingly, we affirm the

district court and uphold the Forest Service decision.

I. Background

This case arises out of the Forest Service’s efforts to manage motorized

recreation in and around the Middle Fork IRA, a 13,232-acre portion of the

Laramie Ranger District of the Medicine Bow National Forest near Centennial,

Wyoming. Before 2000, motor vehicle users were not restricted to authorized

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vehicle routes, and they created a network of unauthorized roads and trails 1 in the

Laramie Ranger District and elsewhere. For instance, users created a 4.7-mile,

single-track motorcycle trail known as the Albany Trail. The Albany Trail, now

over 30-years-old, is located in the Middle Fork IRA.

In 2000, the Forest Service issued new travel management regulations to

mitigate adverse impacts of the unmanaged, off-road travel. The decision

announced that the unauthorized routes causing especially severe environmental

impacts would be immediately closed. Meanwhile, other routes, including the

Albany Trail, remained open until the Forest Service completed site-specific

analyses.

In 2006, the Forest Service issued a draft of the Environmental Assessment

(EA) for Travel Management in the Eastern Snowy Range of the Laramie Ranger

District. The draft EA assessed a “Proposed Alternative,” “Alternative 2,” and a

“No-Action Alternative.” As required under the Endangered Species Act, the

Forest Service also completed a Biological Assessment, which it performed in

three stages: an initial assessment in 2005, an addendum in 2006, and a second

addendum in 2007. The second addendum focused primarily on analyzing the

impact of authorizing motorcycles on the handful of trails in the Middle Fork

IRA, including the Albany Trail.

1
A “road” is a vehicle route wider than 50 inches, and a “trail” is a route
narrower than 50 inches. 36 C.F.R. § 212.1. “Route” is a general term used to
describe either a road or a trail.

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 After completing the requisite notice and comment procedure, the Forest

Service issued its final EA. Alongside the final EA, the Forest Service issued two

Findings of No Significant Impact (FONSI) and accompanying decisions. The

first FONSI declared that the EA’s proposal to open some trails across the region,

totaling 92 miles, and to close other trails, totaling 292 miles, to motor vehicle

use would not have a significant impact, and the Forest Service issued a notice of

decision adopting that approach. BCA is not challenging this decision.

The second FONSI and decision authorized use of the Albany Trail and 6.1

miles of connecting trails by motorcycles (but not four-wheeled vehicles). A total

of 5.8 miles of that trail, including the Albany Trail itself, is within the Middle

Fork IRA. Taking that action required amending the applicable forest plan to

change the designation of the relevant portion of the Middle Fork IRA from

“summer non-motorized” to “back-country recreation, year-round motorized.”

BCA challenged the Albany Trail decision. After the Forest Service

upheld it in 2007, BCA brought an action in the district court, alleging violations

of NEPA, the National Forest Management Act (NFMA), and several Forest

Service regulations. The district court upheld the agency decision, and BCA

appeals.

II. Analysis

On appeal, BCA brings only NEPA claims. “[W]e review an agency’s

NEPA compliance to see whether it is arbitrary, capricious, an abuse of

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discretion, or otherwise not in accordance with law.” New Mexico ex rel.

Richardson v. Bureau of Land Mgmt., 565 F.3d 683, 704 (10th Cir. 2009)

(internal quotation marks omitted); see also 5 U.S.C. § 706(2)(a). “When called

upon to review factual determinations made by an agency as part of its NEPA

process, short of a clear error of judgment we ask only whether the agency took a

hard look at information relevant to the decision.” Richardson, 565 F.3d at 704

(internal quotation marks omitted). “[D]ocuments prepared as part of NEPA’s

hard look requirement must not only reflect the agency’s thoughtful and probing

reflection of the possible impacts associated with the proposed project, but also

provide a reviewing court with the necessary factual specificity to conduct its

review.” Silverton Snowmobile Club v. U.S. Forest Serv., 433 F.3d 772, 781

(10th Cir. 2006) (internal quotation marks omitted).

“An agency’s decision to issue a FONSI and not prepare an EIS

[Environmental Impact Statement] is a factual determination which implicates

agency expertise.” Utah Shared Access Alliance v. U.S. Forest Serv., 288 F.3d

1205, 1213 (10th Cir. 2002). NEPA regulations give guidance to an agency’s

review and consideration of significant impacts underlying a decision. When

assessing the significance of an impact (the question at issue here), an agency

must consider both context and intensity. 40 C.F.R. § 1508.27.

Context [] means that the significance of an action must
be analyzed in several contexts such as society as a
whole (human, national), the affected region, the

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 affected interests, and the locality. Significance varies
with the setting of the proposed action. For instance, in
the case of a site-specific action, significance would
usually depend upon the effects in the locale rather than
in the world as a whole. Both short- and long-term
effects are relevant.

§ 1508.27(a). And “intensity [] refers to the severity of the impact.”

§ 1508.27(b). In addition, the regulations point to a number of non-exclusive

factors that inform an evaluation of intensity, including both beneficial and

adverse impacts on public safety, historic places, and listed species as well as

cumulative impacts and unknown risks. Id. Two of the factors set forth in the

regulations are especially relevant here: (1) the “[u]nique characteristics of the

geographic area such as proximity to historic or cultural resources, park lands,

prime farmlands, wetlands, wild and scenic rivers, or ecologically critical areas”;

and (2) “[t]he degree to which the effects on the quality of the human

environment are likely to be highly controversial.” Id. at § 1508.27(b)(3)–(4).

BCA contends the Forest Service failed in two ways to satisfy NEPA’s

requirements. First, BCA argues the Forest Service failed to take a hard look at

the impact on wetland areas known as fens. 2 Second, it argues the Forest Service

failed to acknowledge a substantial controversy regarding the Albany Trail

2
According to the EA, “[f]ens are wetlands with water-saturated substrates
and an accumulation of about 30 cm or more of peat (organic soil material).”
App. 125. “[M]any of the fens of [the Rocky Mountain Region] are over 10,000
years old, with organic soil accumulation rates ranging from about 4 to 16 inches
per thousand years. Because the rate of accumulation is so slow, these
ecosystems are essentially irreplaceable.” Id.

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decision’s effect on non-motorized recreation such as hiking and wildlife viewing.

As a result, BCA says the agency was required to prepare a full Environmental

Impact Statement before issuing the Albany Trail decision.

We discuss each argument in turn and uphold the Forest Service’s decision.

A. Impact on Fens

BCA first argues that the Forest Service failed to consider the unique

characteristics of the area around the Albany Trail. In particular, BCA suggests

the Forest Service failed to take a hard look at the impact of motorcycle use on

the surrounding fens.

In the EA, the Forest Service concluded that, “[a]lthough 5.8 miles of

motorized trail are proposed for designation within the Middle Fork IRA, this

action is not expected to significantly impact” the fens within the project area.

App. 84. As an initial matter, the Forest Service recognized that there are six

potential fens within the project area and the Albany Trail crosses three of them.

According to the Forest Service’s Biological Assessment, “[m]otorized trail use

can change soil properties and infiltration of precipitation thus changing the

growing environment for plants. Recreational use within wetland/fen areas could

remove and/or injure plants, alter soil properties, change the hydrologic regime

and/or reduce the overall vigor of round leaf sundew.” App. 315. 3

3
In this section, the EA also notes that the worn path may impact
particular plants and draw livestock and game to the fens. App. 316 (“This
(continued...)

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 But the Forest Service concluded that the damage had already been done:

“The motorcycle trail in the Middle Fork IRA has been there for over 3 decades

and the wet areas have had corduroy laid down (logs laid in the stream/wetland to

stabilize the trail surface and raise it from flowing water). Most direct effects

occurred in the first 2 years of trail establishment and at the time the corduroy

was laid down.” Id.

1. Baseline

BCA first argues that the Forest Service improperly assumed that the

effects created by “previous illegal users are not significant,” 4 Aplt. Br. at 30,

without “detailing what those impacts were or why they were not significant.”

Reply Br. at 24. But the Forest Service made no such assumption, and its EA

recognizes the impact of prior use. BCA’s argument, in essence, asks the Forest

Service to assume the Albany Trail never existed as a baseline for the NEPA

analysis.

3
(...continued)
alternative has new trail designation that crosses three areas identified as having
characteristics of riparian, wetlands and potentially fens. Round leaf sundew
occurs in sedge dominated fens. Sedges are often palatable to livestock,
packstock and big game, therefore this species could be indirectly subject to
browsing and/or trampling impacts. In general, livestock avoid fens with quaking
mat components because of the instability but will create or use paths worn into
the fen vegetation to reach water. Concentrated livestock use in fen habitat could
alter the hydrology and water quality of this habitat.” (citations omitted))
4
It is worth noting that, although the motorized use was not authorized by
the 2003 Forest Plan, it does not constitute an “illegal” use.

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 NEPA requires analysis of “major Federal actions.” 42 U.S.C. § 4332. BCA

suggests that the Forest Service failed to prevent certain past uses and accordingly

asks the Forest Service to consider the impact not only of its actions but also of its

inaction in preventing harm. Governmental inaction will generally not constitute a

major federal action “where that failure to act is not otherwise subject to review by

the courts or administrative agencies under the Administrative Procedure Act or

other laws.” Mayaguezanos por la Salud y el Ambiente v. United States, 198 F.3d

297, 301 (1st Cir. 1999) (citing 40 C.F.R. § 1508.18 (defining a “major federal

action”)). Thus, “NEPA cannot be used to make indirectly reviewable a

discretionary decision not to take an enforcement action where the decision itself

is not reviewable under the APA or the substantive statute.” Scarborough Citizens

Protecting Res. v. U.S. Fish & Wildlife Serv., 674 F.3d 97, 102 (1st Cir. 2012); see

also 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”). BCA does not independently challenge the Forest Service’s response to

previous, unauthorized use under the Administrative Procedure Act or any other

substantive statute, and, in that context, BCA may not use NEPA to create an

independent pathway for federal courts to review agency inaction.

In general, NEPA analysis uses a no-action alternative as a baseline for

measuring the effects of the proposed action. See 40 C.F.R. § 1502.14 (requiring

that the agency assess a no-action alternative). “The no action alternative may be

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thought of in terms of continuing with the present course of action until that action

is changed. It establishes a baseline against which the proposed action and its

alternatives may be measured.” George Cameron Coggins and Robert L.

Glicksman, Discussion of Alternatives—The “No Action” Alternative, 2 Pub. Nat.

Resources L. § 17:47 (2nd ed. 2014) (internal quotation marks omitted). But,

according to BCA, the Forest Service must use the condition of the area before

motorcycle usage, rather than the status quo, as its baseline.

We have rejected this type of argument before. In Custer County Action

Association v. Garvey, 256 F.3d 1024 (10th Cir. 2001), the petitioners argued that

a federal agency had erroneously included “unlawful activity”—specifically low-

level airplane overflights—in its no-action alternative and that a “‘true’ no-action

alternative” may only reflect the impacts of lawful activity. Id. at 1040. We were

not persuaded and held that, “[i]n requiring consideration of a no-action

alternative, the Council on Environmental Quality intended that agencies compare

the potential impacts of the proposed major federal action to the known impacts of

maintaining the status quo. In other words, the current level of activity is used as

a benchmark.” Id. (citations omitted). We also identified the petitioner’s

argument as a back door challenge to past agency actions: “The requirement to

consider a no-action alternative does not provide Petitioners a vehicle in which to

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pursue allegations that past [agency] actions received insufficient environmental

analysis. The time has passed to challenge past actions.” Id. 5

For the same reasons, the Forest Service did not violate NEPA in

considering the effects of past usage on fens as part of its no-action alternative.

The Forest Service properly compared its proposed plan to its no-action

alternative—a plan that recognized the effects of previous trail use.

Other courts have concluded that, once the agency authorizes a user-created

route, the agency may be required to assess the impacts of that authorization. See,

e.g., Mont. Wilderness Ass’n v. Connell, 725 F.3d 988, 1008 (9th Cir. 2013)

(expressing that a Bureau of Land Management analysis was unsatisfactory in part

because it failed to assess the future impact of designating existing user-created

routes). But as we explain below, the Forest Service did, in fact, sufficiently

evaluate future impacts of its decision to authorize use of the Albany Trail.

Thus, the Forest Service properly employed existing usage as the basis for

its no-action alternative and the point of reference for measuring significant

impacts.

5
In a case with a fact pattern similar to the instant case, the Ninth Circuit
recently rejected this type of argument. Pryors Coal. v. Weldon, 551 F. App’x
426 (9th Cir. 2014) (unpublished). That court held the Forest Service did not err
in measuring the impact of its action from the status quo, which included routes
that had not been the subject of prior NEPA analysis. Id. at 429.

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 2. On-Site Visits

BCA next argues that the Forest Service failed to conduct on-site visits to

each of three sites identified as potential fens. As a result, it says the agency

reached a flawed decision and did not fully understand motorcycle usage’s effect

on fens.

As a part of its study, the Forest Service identified the relevant fens through

a “remote sensing/GIS effort” in 2002–03, App. 126, and also by the work of a

botanist, App. 176. The Forest Service then relied on satellite imagery to reach

some of its conclusions on the precise location and characteristics of the affected

fens. In addition, the record reveals that wildlife biologists walked the Albany

Trail. Aple. Supp. App. 22–23.

BCA argues the Forest Service’s efforts were not enough. It says the

regulations’ requirement that the agency evaluate effects on wetlands demands that

additional specialists visit each fen and perform full botanical surveys. See 40

C.F.R. 1508.27(b)(3). But NEPA does not require the agency to use particular

methodologies, and BCA does not point to any case law suggesting that an agency

cannot take a hard look at the impact on a particular site unless both botanists and

wildlife specialists conduct on-site visits. NEPA grants substantial discretion to

an agency to determine how best to gather and assess information. See Utah

Shared Access Alliance, 288 F.3d at 1212–13. And, because the question is

whether the agency’s decision was arbitrary and capricious, we look to whether the

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agency’s chosen method is sound, not whether there are competing methods that

might work as well. See id. (“[C]ourts are not in a position to decide the propriety

of competing methodologies, but should simply determine whether the challenged

method had a rational basis and took into consideration the relevant factors.”

(citing Comm. to Preserve Boomer Lake Park v. U.S. Dep’t of Transp., 4 F.3d

1543, 1553 (10th Cir. 1993))); see also Biodiversity Conservation Alliance v.

Jiron, ___ F.3d ___, No. 13-1352, 2014 WL 3827171, slip op. at 75–76 (10th Cir.

Aug. 5, 2014).

The Forest Service’s chosen method here allowed it to soundly evaluate the

impact on fens. Via satellite imagery, the Forest Service evaluated the number of

fens potentially affected and the plant life in the fens. It then concluded that

motorcycles had been used in those areas for thirty years and that users had

already built trails that would accommodate the anticipated amount of future use

without further significantly disturbing the fens. Given the deference we owe the

Forest Service, we cannot conclude that, absent reasons to question the Forest

Service’s factual findings, the failure to provide additional study renders the

Albany Trail decision arbitrary and capricious. 6

6
We note that, while failure to visit each fen does not constitute a NEPA
violation, it may violate the Forest Service’s Water and Aquatic Standard #15,
which requires on-site analysis for every project that takes place within 300 feet
of a fen. But the question of whether the Albany Trail decision is consistent with
Forest Service policies is not properly before us. Although BCA brought an
NFMA challenge before the district court, BCA appeals under NEPA alone.
(continued...)

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 3. Hard Look at Adjacent Fens

BCA next contends that, even if the Forest Service’s methodology for

gathering information about the surrounding fens was acceptable, the Forest

Service failed to take the requisite hard look at the impact of motorized traffic on

fens.

According to BCA, because fens have unique value, we should review only

portions of the Forest Service’s analysis that explicitly discusses fens in particular,

without considering analysis of the impact on any other types of riparian

landscapes and wetlands. Even if we adopt that premise, however, the Forest

Service sufficiently addressed the impact on fens to satisfy the hard look standard.

We determine whether the agency “took a ‘hard look’ at information

relevant to the decision,” Richardson, 565 F.3d at 704, by asking whether the

agency “entirely failed to consider an important aspect of the problem, offered an

explanation for its decision 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.” Motor Vehicle Mfrs. Ass’n v. State Farm Mut.

Auto. Ins. Co., 463 U.S. 29, 43 (1983). “[W]e may not supply a reasoned basis for

the agency’s action that the agency itself has not given. We will, however, uphold

6
(...continued)
Unlike NFMA, 16 U.S.C. § 1604, NEPA does not require consistency with agency
policy.

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a decision of less than ideal clarity if the agency’s path may reasonably be

discerned.” Id. (citation and internal quotation marks omitted).

The EA itself addresses the impact on fens in several sections. The Forest

Service articulates in the EA its goal to avoid damage to fens. See, e.g., App. 190

(“Design criteria: . . . Avoid loss of rare wetlands such as fens and springs”). The

EA concluded that authorizing the Albany Trail “is not expected to significantly

impact this area.” App. 126. The EA also concludes that authorizing the Albany

Trail would not significantly impact three plant species of concern that grow in

fens. In particular, the Forest Service found that the action “may adversely impact

individuals but [is] not likely to result in loss of viability on the Planning Area nor

cause a trend toward federal listing or a loss of species viability range wide.”

App. 91.

In support of these conclusions, the Forest Service also points to its

Biological Assessment of the area. The Biological Assessment concluded that

continuing use of the Albany Trail will not significantly affect sensitive plant

species, including plants that grow in fens.

Most direct effects occurred in the first 2 years of trail
establishment and at the time the corduroy was laid
down. Continuing direct effects to Astragalus leptaleus,
if present, would occur if the trail users establish new
routes through wetlands widened the route through use,
through sediment from the trail and from hydrologic
changes from the crossing area.

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 Recreational trail use can affect the presence of
pollinators that are needed by Astragalus leptaleus
(Weiss 1999). Pollinators are negatively influenced by
the fragmentation produced by motorized routes
(Bhattacharya et al. 2003). Motorized trail use can
change soil properties and infiltration of precipitation
thus changing the growing environment for plants.
(Trimble and Mendel 1995).

App. 275.

The Biological Assessment offers similar analyses of the impact on dozens

of other plant species that grow in fens. See, e.g., App. 316 (“Motorized trail use

can change soil properties and infiltration of precipitation thus changing the

growing environment for plants (Trimble and Mendel 1995). Recreational use

within wetland/fen areas could remove and/or injure plants, alter soil properties,

change the hydrologic regime and/or reduce the overall vigor of round leaf

sundew. Recreational trail use can affect the presence of pollinators that are

needed by Drosera rotundifolia (Weiss 1999). Pollinators are negatively

influenced by the fragmentation produced by motorized routes (Bhattacharya et al.

2003). Other effects to Drosera rotundifolia would be similar to those described

for Astragalus leptaleus (see previous section).”). The Forest Service’s Report on

Species of Local Concern (“Report”) also evaluated the impact of its action on

plant species native to fens. See, e.g., App. 444 (assessing the impact of opening

the Albany Trail on Carex lasiocarpa and concluding that most direct effects

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occurred within the first two years after trail establishment and at the time the

corduroy was laid down).

Although the Endangered Species Act, rather than NEPA, required the

Forest Service to prepare the Biological Assessment, 16 U.S.C. § 1536(c)(1), we

may look to the findings of the Biological Assessment, as well as the contents of

the Report, to determine whether the agency took a hard look at the challenged

impact. See Fund for Animals, Inc. v. Rice, 85 F.3d 535, 546–47 (11th Cir. 1996)

(concluding the Corps of Engineers’ preparation of an EA/FONSI for a landfill

project met NEPA’s hard look requirement because the agency had the benefit of

biological opinions, expert opinions, and public hearings); see also Cascadia

Wildlands v. U.S. Forest Serv., 937 F. Supp. 2d 1271, 1276 (D. Or. 2013), appeal

dismissed (Feb. 27, 2014); Strahan v. Linnon, 967 F. Supp. 581, 604 (D. Mass.

1997), aff’d, 187 F.3d 623 (1st Cir. 1998). By the time the Forest Service made its

decision, the agency had identified and considered the impacts it described in the

Biological Assessment and the Report. Thus, it is safe to say that the EA, the

Biological Assessment, and the Report satisfy NEPA’s twin aims of obligating

“the agency to consider every significant aspect of the environmental impact” and

ensuring “that the agency will inform the public that it has indeed considered

environmental concerns.” Forest Guardians v. U.S. Fish & Wildlife Serv., 611

F.3d 692, 711 (10th Cir. 2010) (quoting Baltimore Gas & Elec. Co. v. Natural Res.

Def. Council, 462 U.S. 87, 97 (1983)).

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 BCA contends the Biological Assessment and the Report reach only the

conclusion that opening the trail will not significantly affect certain plant species.

According to BCA, those documents do not address the broader impact on fens

generally, and thus the Forest Service did not explicitly indicate that the reasoning

in the Biological Assessment and the Report supports its conclusion of no

significant impact. BCA identifies that, in addition to the plant species that grow

in fens, the Forest Service should have separately considered the impact on soil

properties and hydrological function.

But, when the Forest Service analyzed motorcycles’ impact on plants that

grow in fens, it essentially considered how motorcycles affect the fens. The

Biological Assessment indicates that changes in soil properties or hydrologic

function would change the growing environment for plants. Thus, we can easily

infer that the agency adequately considered the action’s impact on soil properties

and hydrologic function when it assessed the impact on plant species. 7 In that

context, the Forest Service’s analysis identifies that, because motorcyclists have

been driving on the Albany Trail for decades, the potential damage―not only to

sensitive plant species but also to the soils and hydrologic function upon which

7
It is important to note that, because the Forest Service had not done
botanical surveys of each of these areas, the Forest Service did not limit its
impact analysis to small areas where certain plants were actually present. The
Forest Service “assume[d] presence of any species likely to occur in the vicinity
of the trail routes,” App. 275, and therefore considered the impact on plants and,
by extension, soil and hydrologic function, in the wider area.

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those plants depend―had already been done. That conclusion is reasonable, and

we do not see evidence in the record that undermines it.

Thus, we cannot conclude the agency “entirely failed to consider an

important aspect of the problem,” Motor Vehicle Mfrs. Ass’n, 463 U.S. at 43, or

that the assessment of the impact on adjacent fens was arbitrary and capricious.

4. Hard Look at Other Fens

Even if the Forest Service successfully took a hard look at the impact on

fens immediately adjacent to the Albany Trail, BCA argues the Forest Service

failed take a hard look at the impact on the other fens in the area. Specifically,

BCA asks us to conclude that the Forest Service failed to consider the likelihood

that opening the Albany Trail would draw additional motorcyclists, who would in

turn create new unauthorized routes across fens in other parts of the Middle Fork

IRA.

BCA cites the EA for the proposition that opening the Albany Trail will

increase the overall number of users, but the EA actually suggests that the Forest

Service expects off-road vehicle use in the Medicine Bow National Forest to

increase regardless of which alternative the Forest Service selects.

In fact, the Forest Service’s concern about the environmental impact of the

growing number of users and resulting unauthorized trails is what prompted the

agency to consider trail restrictions in the first place and to close numerous trails.

While the Forest Service eventually designated 102 miles of trail for motor vehicle

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use, it closed 292 miles to protect against environmental damage as well as

conflicts between different types of recreational uses. See App. 11, 49.

In that context, the EA directly assesses the impact of future unauthorized

use. Of course, the precise number of motorcyclists likely to create new,

unauthorized trails is difficult to predict. But the Forest Service’s inability to

quantify that illegal behavior did not prevent the Forest Service from assessing the

relative impact of each of the EA’s alternatives. The Forest Service reasonably

anticipated that, if it took no action, users would create unauthorized routes at a

higher rate. In attempt to counter that trend, the Forest Service identified that,

by providing a legitimate means for [off-road vehicle]
users to derive some of the backcountry motorized
experiences they seek, fewer users would be inclined to
participate in unauthorized travel (Blahna 2006, USDA
2005, Yankoviak 2000, Crimmins 1999). Motorcycle
user compliance would likely see the greatest increase,
with little to no increase expected for traditional 4x4
users (since the trail system would not affect their travel
options). Increases in regulatory compliance are
expected to result in 50 percent less use of unauthorized
routes slated for closure. . . . [And] the gradual
expansion of unauthorized motorized trails is predicted
to slow from its current pace due to the provision of
adequate authorized trail opportunities.

App. 135; see also App. 98 (“It is also anticipated that, when quality trails are

built, riders will use them. When riders use properly constructed trails,

environmental impacts can be minimized, monitored, and controlled. No amount

of restriction or enforcement can begin to provide the environmental protection

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achieved through the provision of adequate facilities and rider education.”).

Absent countervailing evidence in the record, we can conclude from the EA

that the Forest Service took a hard look at the relevant information and determined

that opening motorized trails would slow the creation of unauthorized routes in the

area and, accordingly, the impact on fens in other parts of the Middle Fork IRA.

B. Impact on Non-Motorized Recreation

BCA next argues that the decision has a significant impact because of the

“[t]he degree to which the effects on the quality of the human environment are

likely to be highly controversial.” 40 C.F.R. § 1508.27(b)(4). “Controversy in the

NEPA context does not necessarily denote public opposition to a proposed action,

but a substantial dispute as to the size, nature, or effect of the action.” Middle Rio

Grande Conservancy Dist. v. Norton, 294 F.3d 1220, 1229 (10th Cir. 2002).

Specifically, BCA alleges there is a substantial dispute regarding the

conflicts between motorized and non-motorized users. BCA makes two arguments

to support this position, neither of which is persuasive.

1. Internal Contradictions

BCA first argues there is a wide disparity in the estimates of non-motorized

users in the affected area, as evidenced by internal contradictions in the EA. In

response to public comments about the EA, the Forest Service concluded, “the

areas in question are used infrequently by non-motorized recreationists (indeed, if

the opposite were true and they were popular non-motorized recreation

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destination[s] or contained non-motorized trails, the proposed changes could have

significant impacts).” App. 1118. But the Forest Service has also indicated that

“many people value” the Middle Fork IRA’s pristine condition and the opportunity

for solitude. App. 602. According to BCA, those two Forest Service statements

are directly contradictory.

Given the context, however, it is clear to us that, while “many people” may

value the pristine condition of the Middle Fork IRA in general, those people do not

necessarily value—let alone actually use—the relatively small Albany Trail area in

particular for their non-motorized activities. Thus, we find no internal

contradiction. The language is simply too unspecific to hold the weight that BCA

attempts to give it.

2. Hard Look at Non-Motorized Recreation

Second, BCA argues that a substantial dispute arises because the Forest

Service failed to substantiate its claims that the impact on recreation user conflict

would not be significant.

Although the Forest Service eventually selected the Proposed Alternative, it

also adopted the portion of the other “action” alternative, Alternative 2, that

allowed opening the Albany Trail to motorcycle use. The Forest Service

concluded that, regarding the impact on recreation opportunities and experiences,

Alternative 2 “would the be same as the Proposed Action, with the following

exceptions: . . .

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 Inventoried Roadless Areas (IRAs): . . . Designating 5.8
miles of motorcycle/ATV trails within the Middle Fork
IRA would result in the loss of roughly 200 acres
classified as Semi-Primitive Non-Motorized recreation.

Dispersed Recreation: Changes to dispersed recreation
opportunities would occur locally due to slight
differences in the transportation system. . . .

[Off-Road Vehicle (ORV)]-Caused Resource Damage:
ORV user compliance with regulations is expected to
increase from current levels, and could possibly increase
more than under the Proposed Action for two reasons: 1)
more overall ORV trails to ride; and 2) the inclusion of
two popular motorcycle trails [including the Albany
Trail].

Recreation User Conflicts: No significant change from
the proposed action.

App. 94–95 (emphasis added).

BCA argues that section of the EA makes a conclusory assertion that the

Proposed Alternative, which would have designated 12.2 miles of trail, and

Alternative 2, which would have designated 80.2 miles of trail, would have similar

impacts on conflicts between motorized and non-motorized recreation. Based on

what BCA believes to be a hole in the Forest Service’s logic, BCA argues that

there is a substantial dispute about the action’s effect on non-motorized recreation.

A substantial dispute can be found, for example, when other information in

the record “cast[s] substantial doubt on the adequacy of the agency’s methodology

and data.” Hillsdale Envtl. Loss Prevention, Inc. v. U.S. Army Corps of Eng’rs,

702 F.3d 1156, 1181 (10th Cir. 2012). BCA can point to no evidence in the record

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contradicting the conclusion that the Proposed Alternative and Alternative 2 would

have significantly similar impacts on recreation user conflicts. 8 Instead, BCA

argues that there is not enough evidence in the record to support that conclusion.

But a dearth of factual information cannot serve as proof of a dispute.

In absence of a substantial dispute, we consider whether the Forest Service

took a hard look at the likely conflict between recreation users. The Forest

Service points to several factual findings indicating that it took a hard look at the

impact of the course of action it eventually adopted—the Proposed Action plus the

opening of the Albany Trail.

First, the Forest Service identified in several sections of the EA that

motorcyclists have been using the Albany Trail regularly for years. It is

reasonable to suspect that existing motorists may have already caused

non-motorized visitors who primarily value solitude to move to other parts of the

Middle Fork IRA. See App. 133 (discussing general trends toward site-specific

displacement as a result of “negative perceptions associated with ORVs and the

spread of ORV use”).

8
BCA suggests the Wyoming Game and Fish Department’s opposition to
the decision to allow motorcycles on the Albany Trail provides evidence of a
dispute. But the Department’s comments focus on the impacts on wildlife, not
user conflict. And we cannot infer from the Department’s general opposition that
the Department believes opening the Albany Trail would have significantly more
impact on user conflicts than the Proposed Alternative.

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 Second, the Forest Service makes the related point that the Albany Trail is a

very small part of the Middle Fork IRA. The Forest Service identifies that

opening the Albany Trail required reclassifying 200 acres of the Middle Fork

IRA’s 13,000 acres. Thus, allowing off-road vehicles on the Albany Trail does not

prevent non-motorized users from recreating in pristine areas of the Middle Fork

IRA. For that reason, it is not the case that adding the Albany Trail to the list of

trails opened under the Proposed Alternative undermines the Forest Service’s

conclusion that the action would not cause significant displacement. See App. 136

(indicating the Proposed Action “may result in the site-specific displacement of

non-motorized recreationists, but no off-Forest displacement of non-motorized

recreationists or loss in [Recreation Visitor Days] is expected.”)

Furthermore, the Forest Service identified that opening the Albany Trail and

a network of other trails may improve the experience of non-motorized users in

other parts of the Middle Fork IRA because, especially given the popularity of the

Albany Trail with motorcyclists, fewer motorized users are expected to use

unauthorized trails. See App. 135–7, 266. Based on those sections of the Forest

Service’s analysis, we conclude that it sufficiently considered recreation user

conflicts on and around the Albany Trail.

BCA also contends the Forest Service should have quantified the number of

affected non-motorized users before reaching this conclusion. But, as we have

already noted, the court’s role is not to identify the ideal methodology but simply

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to ensure that neither the agency’s methodology nor its conclusions are arbitrary

and capricious. Although the Forest Service’s analysis does not involve the kind

of empirical inquiry for which BCA had hoped, we cannot overturn the agency’s

conclusion simply because it is based on forest managers’ observations of visitor

behavior and common sense—especially since unauthorized usage is particularly

difficult to measure.

Accordingly, we find the Forest Service’s methodology and analysis

rationally support its conclusion that designating the trails in the Proposed

Alternative as well as the Albany Trail would not have a significant impact on

recreation user conflict.

III. Conclusion

The Forest Service action was not arbitrary and capricious. The Forest

Service took a hard look at the relevant factors, and we can identify adequate

support in the record for its conclusions. Finally, we note that BCA contends that

it is entitled to a permanent injunction against the Forest Service, but, in light of

BCA’s failure to proceed on the merits of its principle claims, we are not

persuaded that BCA is entitled to a permanent injunction.

We therefore AFFIRM the district court and decline to set aside the agency

decision.

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