FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
RUSSELL COUNTRY SPORTSMEN;
MONTANA TRAIL VEHICLE RIDERS
ASSOCIATION; GREAT FALLS TRAIL
BIKE RIDERS ASSOCIATION;
MEAGHER COUNTY LITTLE BELTERS;
GREAT FALLS SNOWMOBILE CLUB;
TREASURE STATE ALLIANCE;
MOTORCYCLE INDUSTRY COUNCIL;
SPECIALTY VEHICLE INSTITUTE OF
AMERICA; THE BLUERIBBON
COALITION, No. 10-35623
Plaintiffs-Appellees, D.C. No.
v. 4:08-cv-00064-SEH
UNITED STATES FOREST SERVICE;
LEWIS AND CLARK NATIONAL
FOREST; LESLEY THOMPSON, Forest
Supervisor,
Defendants,
and
MONTANA WILDERNESS
ASSOCIATION,
Intervenor-Defendant-Appellant.
18851
18852 RUSSELL COUNTRY SPORTSMEN v. USFS
GREAT FALLS SNOWMOBILE CLUB;
MONTANA TRAIL VEHICLE RIDERS
ASSOCIATION; GREAT FALLS TRAIL
BIKE RIDERS ASSOCIATION;
MEAGHER COUNTY LITTLE BELTERS;
MOTORCYCLE INDUSTRY COUNCIL;
RUSSELL COUNTRY SPORTSMEN;
SPECIALTY VEHICLE INSTITUTE OF
AMERICA; THE BLUERIBBON
COALITION; TREASURE STATE No. 10-35784
ALLIANCE,
Plaintiffs-Appellees, D.C. No.
4:08-cv-00064-SEH
v.
OPINION
UNITED STATES FOREST SERVICE;
LEWIS AND CLARK NATIONAL
FOREST; LESLEY THOMPSON, Forest
Supervisor,
Defendants-Appellants,
and
MONTANA WILDERNESS
ASSOCIATION,
Intervenor-Defendant.
Appeal from the United States District Court
for the District of Montana
Sam E. Haddon, District Judge, Presiding
Argued and Submitted
June 7, 2011—Portland, Oregon
Submission Withdrawn June 17, 2011
Resubmitted August 25, 2011
Filed October 12, 2011
RUSSELL COUNTRY SPORTSMEN v. USFS 18853
Before: Raymond C. Fisher, Ronald M. Gould and
Richard A. Paez, Circuit Judges.
Opinion by Judge Fisher
18856 RUSSELL COUNTRY SPORTSMEN v. USFS
COUNSEL
Ignacia S. Moreno, Assistant Attorney General, Jared S. Pet-
tinato and Allen M. Brabneder (argued), U.S. Department of
Justice, Washington, D.C.; Alan J. Campbell, U.S. Depart-
ment of Agriculture, Office of General Counsel, for the
defendants-appellants.
Matthew K. Bishop (argued) and Sarah McMillan, Western
Environmental Law Center, Helena, Montana, for the
intervenor-defendant-appellant.
Paul A. Turcke (argued), Moore Smith Buxton & Turcke,
Chtd., Boise, Idaho; William P. Horn, Birch Horton Bittner
Cherlot, Washington, D.C., for the plaintiffs-appellees.
OPINION
FISHER, Circuit Judge:
We decide whether the United States Forest Service’s (Ser-
vice) 2007 Travel Management Plan for parts of the Lewis
and Clark National Forest, including the Middle Fork Judith
Wilderness Study Area, violates the Montana Wilderness
Study Act of 1977 (Study Act) and the National Environmen-
tal Policy Act (NEPA). We hold that nothing in the Study
Act, which requires the Service to manage a wilderness study
area so as to “maintain” its wilderness character as it existed
in 1977, prohibits the Service from exercising its discretion to
enhance the wilderness character of a study area. We also
hold that NEPA does not require the Service to prepare a sup-
plemental draft environmental impact statement (EIS) where,
as here, the final decision makes only minor changes and is
qualitatively within the spectrum of the alternatives discussed
in the draft EIS. We accordingly reverse the judgment of the
district court.
RUSSELL COUNTRY SPORTSMEN v. USFS 18857
BACKGROUND
In 2007, the Service issued a revised Travel Management
Plan governing recreational motorized and nonmotorized use
on 1.1 million acres of the Lewis and Clark National Forest.
The area covered by the travel plan encompasses the Little
Belt Mountains, the Castle Mountains, the north half of the
Crazy Mountains and the 81,000-acre Middle Fork Judith
Wilderness Study Area.
The Service’s draft environmental impact statement
(DEIS), released in July 2006, considered five summer alter-
natives and three winter alternatives. The most restrictive
summer alternative would have allowed motorized use on
1287 miles of roads and trails. The least restrictive summer
alternative would have allowed motorized use on 2262 miles
of roads and trails.1 Each of the alternatives also would have
permitted motorized vehicles within 300 feet of a road or trail
for parking (i.e., accessing dispersed campsites), passing or
turning around.
The Service’s final plan, issued in October 2007, adopted
summer alternative 5, with several modifications, and winter
alternative 2.2 Overall, the plan designated 1366 miles for
motorized recreational use, including 870 miles of routes
open year-round and another 496 miles open seasonally.3 The
1
The recreational groups, plaintiffs-appellees in this case, contend that
the DEIS alternatives would have allowed motorized use on between 1951
and 3036 miles of roads and trails. As we explain below, however, the cor-
rect range is 1287 to 2262 miles.
2
The Service presented the plan in a record of decision and a final EIS.
3
The 1366 miles include 37 miles yearlong and 188 miles seasonally for
motorcycles; 121 miles yearlong and 101 miles seasonally for all-terrain
vehicles (ATVs); 128 miles yearlong and 50 miles seasonally for four-
wheel drive vehicles; and 584 miles yearlong and 157 miles seasonally for
full-size passenger vehicles. “Lower-level” vehicles can use routes desig-
nated for “higher-level” vehicles. Thus, for example, motorcycles, which
are the lowest-level motorized vehicles, can use all 1366 miles of routes,
whereas four-wheel drive vehicles can use only the routes designated for
four-wheel drive and full-size passenger vehicles.
18858 RUSSELL COUNTRY SPORTSMEN v. USFS
plan also designated about 304 miles for groomed over-snow
motorized travel and permitted over-snow, cross-country (i.e.,
off-road, off-trail) motorized travel on 483,000 acres between
December 1 and May 15.
The final plan dropped the 300-foot dispersed camping rule
and instead allowed “parking, passing, or turning around . . .
within the length of the vehicle and attached trailer” (about 70
feet), subject to certain conditions designed to ensure safety
and protect vegetation, soil and water. The modified dispersed
camping rule also permitted off-road travel beyond the “vehi-
cle length plus trailer” limit to access certain established
campsites.
Within the Middle Fork Judith Wilderness Study Area, the
plan “emphasize[d] non-motorized recreation,” reducing
routes designated for motorized recreational use from 112
miles under the previous travel plan to 38 miles under the new
plan. The Service’s record of decision explained this choice
as follows:
When Congress passed the Montana Wilderness
Study Act, it instructed the agency to maintain the
wilderness character of the Middle Fork of the Judith
Wilderness Study Act Area (WSA). Managing this
area primarily for non-motorized use best accom-
plishes this goal until Congress decides whether or
not the area should be designated as wilderness.
Presently there is an abundance of motorized use in
this area, some of which is necessary to access pri-
vate land in the middle of the WSA. To balance the
need to provide access to private land, the special
“highlight of the summer” trip some of the trails pro-
vide for motorized users, with the need to maintain
wilderness character, I have eliminated motorized
use except for one connected complex of trails
(approximately 12 miles) and the road system that
accesses the private land.
RUSSELL COUNTRY SPORTSMEN v. USFS 18859
Nine recreational groups having an interest in motorized
recreation subsequently filed suit against the Service, seeking
to invalidate the travel plan as violating NEPA and the Study
Act. The Montana Wilderness Association intervened as a
defendant, and the parties filed cross-motions for summary
judgment.
The district court granted the recreational groups’ motion
for summary judgment and denied the Service’s cross-motion.
The court concluded that the Service failed to comply with
NEPA by adopting a final decision that “fell outside the range
of alternatives [considered in the DEIS] and made numerous,
significant changes to the DEIS” without preparing a supple-
mental environmental impact statement as required by 40
C.F.R. § 1502.9(c), which states that “[a]gencies . . . [s]hall
prepare supplements to either draft or final environmental
impact statements if . . . [t]he agency makes substantial
changes in the proposed action that are relevant to environ-
mental concerns.” The court concluded that the final decision
departed from the range of alternatives discussed in the DEIS
in four areas:
1. “The chosen decision reduced total mileage
open for motorized travel by nearly thirty per-
cent beyond the most restrictive DEIS alterna-
tive.”4
2. The final decision “closed several trails not
specified for closure in the DEIS.”
4
This ruling was based on the mileage figures offered by the recre-
ational groups. As noted, the recreational groups contended that the DEIS
alternatives would have allowed motorized use on between 1951 and 3036
miles of routes, which placed the 1366 miles included in the final travel
plan outside the range of alternatives considered in the DEIS. The motor-
ized use authorized by the DEIS alternatives actually ranged from 1287 to
2262 miles, however.
18860 RUSSELL COUNTRY SPORTSMEN v. USFS
3. The final decision “reduced the snowmobile sea-
son short of any DEIS alternative.”5
4. The final decision “scrapped a 300-foot-off-
road-travel rule for a much more restrictive
‘vehicle plus trailer length’ area.”
The court also granted summary judgment to the recre-
ational groups on their Study Act claim. The court concluded
that the Study Act, which directs the Service to administer
wilderness study areas “so as to maintain their presently exist-
ing wilderness character,” Pub. L. No. 95-150, § 3(a), 91 Stat.
1243 (1977), requires the Service to preserve the wilderness
character of a wilderness study area against decline, but pro-
hibits the Service from enhancing the wilderness character of
the area. The court said that the Study Act:
directed the Forest [Service] to maintain the wilder-
ness character of Wilderness Study Areas as it
existed in 1977. To the extent the wilderness charac-
ter was there in 1977, it was to be maintained. To the
extent the wilderness character was lacking in 1977,
it was not to be imposed.
Noting that the final travel plan reduced overall motorized use
in the study area from 112 miles to 38 miles, the court con-
cluded that the travel plan “eliminate[d] roughly two-thirds of
the previously-available motorized routes” — which the court
construed as an impermissible “attempt at enhancement or
creation of wilderness character” in the study area.
5
Under the alternatives discussed in the DEIS, the snowmobile season
would have ended on May 15, whereas in the final travel plan the snow-
mobile season would have ended on May 1. During the appeals phase of
the administrative proceedings, however, the Service restored May 15 as
the end of the snowmobile season. It appears that the district court did not
take this last revision into account in its analysis.
RUSSELL COUNTRY SPORTSMEN v. USFS 18861
The court entered judgment setting aside the travel plan in
certain respects and remanding to the Service for further
action. The Service and the Montana Wilderness Association
separately appealed. We consolidated the two appeals, and,
after hearing argument, referred the matter for possible medi-
ation. The parties elected not to pursue mediation. The matter
is therefore ripe for decision.
STANDARD OF REVIEW
We review de novo a district court’s grant or denial of sum-
mary judgment. LaVine v. Blaine Sch. Dist., 257 F.3d 981,
987 (9th Cir. 2001). The Study Act and NEPA do not contain
their own provisions for judicial review. Accordingly, our
review of the Service’s decision under these statutes is gov-
erned by the judicial review provisions of the Administrative
Procedure Act (APA), 5 U.S.C. §§ 701-06. See City of Saus-
alito v. O’Neill, 386 F.3d 1186, 1205-06 (9th Cir. 2004).
Under the APA, agency decisions may be set aside if “arbi-
trary, capricious, an abuse of discretion, or otherwise not in
accordance with law.” 5 U.S.C. § 706(2)(A).
DISCUSSION
I. Montana Wilderness Study Act
[1] The Study Act requires the Service to administer wil-
derness study areas “so as to maintain their presently existing
wilderness character and potential for inclusion in the
National Wilderness Preservation System.” Study Act § 3(a).
This provision imposes two requirements. First, the Service
must administer study areas so as to maintain their wilderness
character as it existed in 1977. Second, the Service must
administer the areas so as to maintain their potential for desig-
nation as wilderness areas — i.e., as part of the National Wil-
derness Preservation System. The dispute here concerns the
first of these requirements.
18862 RUSSELL COUNTRY SPORTSMEN v. USFS
The recreational groups urge, and the district court con-
cluded, that the obligation to administer study areas so as to
“maintain their presently existing wilderness character” pro-
hibits the Service not only from degrading the wilderness
character of a study area, but also from enhancing it. They
argue that the Service improperly attempted to enhance the
study area’s wilderness character by reducing overall motor-
ized use miles in the study area beyond 1977 levels. The Ser-
vice disputes that interpretation, arguing that the Study Act
“creates a floor, not a ceiling, for environmental protection.”
[2] The Service is correct. The Study Act plainly mandates
preservation of a base level, but does not prohibit enhancing
the area’s wilderness character above that level. Webster’s
defines “maintain” as “to keep in a state of repair, efficiency,
or validity” and as to “preserve from failure or decline.” Web-
ster’s Third New International Dictionary 1362 (2002). Other
dictionaries confirm this meaning. See Owasso Indep. Sch.
Dist. No. I-011 v. Falvo, 534 U.S. 426, 433 (2002) (“The ordi-
nary meaning of the word ‘maintain’ is ‘to keep in existence
or continuance; preserve; retain.’ ” (quoting Random House
Dictionary of the English Language 1160 (2d ed. 1987)));
American Heritage Dictionary of the English Language 1055
(4th ed. 2000) (defining “maintain” as “To keep up or carry
on; continue,” and as “To keep in an existing state; preserve
or retain”); Oxford English Dictionary (online version June
2011) (defining “maintain” to include “To keep up, preserve,
cause to continue in being (a state of things, a condition, an
activity, etc.); to keep vigorous, effective, or unimpaired; to
guard from loss or deterioration.”). In sum, the Study Act
simply requires the Service to preserve a study area’s wilder-
ness character against decline. Enhancement of wilderness
character is fully consistent with the Study Act’s mandate,
although the Study Act does not require it.6
6
We recognize that the word “maintain” is sometimes used to mean
holding in a constant state. An engineer calculating a car’s gas mileage,
RUSSELL COUNTRY SPORTSMEN v. USFS 18863
[3] This meaning is confirmed by the purposes of the
Study Act. One of the Act’s express aims is to preserve a
study area’s “wilderness character” throughout the study
period. The Study Act does not define the term “wilderness
character,” but the parties agree that it borrows a definition of
wilderness from the Wilderness Act, Pub. L. No. 88-577, 78
Stat. 890 (1964) (codified at 16 U.S.C. § 1131(c)).7 The Wil-
derness Act defines “wilderness as an area that has, among
other things, ‘outstanding opportunities for solitude or a prim-
itive and unconfined type of recreation.’ ” Greater Yellow-
stone Coal. v. Timchak, No. CV-06-04-E-BLW, 2006 WL
for example, might instruct an assistant to maintain the car’s speed at 55
miles per hour, meaning that the assistant should keep the car moving at
exactly 55 miles per hour, no more and no less. Ordinarily, however, the
word is used to communicate the idea of preserving something against
decline, not preventing enhancement. A student who is told that she must
maintain a B average to retain a scholarship, for instance, will not lose her
scholarship if her grade point average rises to 4.0. A baseball player whose
contract provides for payment of a bonus if he maintains a .300 batting
average will still get the bonus if he bats .350.
7
Section 1131(c) defines wilderness as follows:
A wilderness, in contrast with those areas where man and his own
works dominate the landscape, is hereby recognized as an area
where the earth and its community of life are untrammeled by
man, where man himself is a visitor who does not remain. An
area of wilderness is further defined to mean in this chapter an
area of undeveloped Federal land retaining its primeval character
and influence, without permanent improvements or human habi-
tation, which is protected and managed so as to preserve its natu-
ral conditions and which (1) generally appears to have been
affected primarily by the forces of nature, with the imprint of
man’s work substantially unnoticeable; (2) has outstanding
opportunities for solitude or a primitive and unconfined type of
recreation; (3) has at least five thousand acres of land or is of suf-
ficient size as to make practicable its preservation and use in an
unimpaired condition; and (4) may also contain ecological, geo-
logical, or other features of scientific, educational, scenic, or his-
torical value.
16 U.S.C. § 1131(c).
18864 RUSSELL COUNTRY SPORTSMEN v. USFS
3386731, at *2 (D. Idaho Nov. 21, 2006) (applying the Wyo-
ming Wilderness Act of 1984, which contains language iden-
tical to the Study Act) (quoting 16 U.S.C. § 1131(c)).8 The
Study Act accordingly “requires the Forest Service to admin-
ister [wilderness study areas] to maintain” overall wilderness
character, including “opportunities for solitude or primitive
and confined recreation[,] that existed there in [1977],” until
the area is either designated as a wilderness area or removed
from the Study Act. Id. at *3; see also id. at *3-*6 (overturn-
ing the Service’s decision permitting increased heli-skiing in
the Palisades Wilderness Study Area where the Service failed
to show that increased helicopter use would not diminish cur-
rent users’ available opportunities for solitude compared to
1984 levels). The Service can accomplish this purpose — pro-
viding current users with opportunities for solitude compara-
ble to those that existed in 1977 — when the Service either
preserves against decline or enhances wilderness character.
The Study Act’s other express aim is to maintain a study
area’s “potential for inclusion in the National Wilderness
Preservation System.” Study Act § 3(a). Once again, the Ser-
vice acts consistently with this objective when it either pre-
serves against decline or enhances the wilderness protection
of the area. Preserving motorized recreational uses, by con-
trast, does nothing to maintain the area’s potential for wilder-
ness designation.
The Study Act’s legislative history also shows that
enhancement is permitted. The Senate report explains that the
Study Act “directs the Secretary to administer the proposed
study areas so as not to diminish their presently existing wil-
derness character and potential.” S. Rep. No. 95-163, at 1
8
The Wyoming Wilderness Act of 1984, Pub. L. No. 98-550, § 301(c),
98 Stat. 2807, requires the Secretary of Agriculture to administer wilder-
ness study areas “so as to maintain their presently existing wilderness
character and potential for inclusion in the National Wilderness Preserva-
tion System.”
RUSSELL COUNTRY SPORTSMEN v. USFS 18865
(1977) (emphasis added); see also id. at 2 (stating that the
study areas are “to be managed by the Secretary so as not to
diminish their presently existing wilderness character and
potential” (emphasis added)). The choice of the word “dimin-
ish” reveals that Congress intended to protect wilderness char-
acter from decline rather than to prevent enhancement.
The recreational groups point out, correctly, that Congress
appears to have contemplated that existing recreational activi-
ties, including motorized uses, could continue during the
study period, so long as those activities did not diminish wil-
derness character, undermine a study area’s potential for wil-
derness designation or conflict with the Service’s overall
forest management objectives. See S. Rep. No. 95-163, at 2
(1977) (explaining that the “language regarding wilderness
character and potential was added by the committee . . . to
assure continued enjoyment of the areas by those recreation-
ists whose pursuits will not, in the judgment of the Secretary,
preclude potential wilderness designation for the areas”); H.R.
Rep. No. 95-620 (1977), at 4 (“The use of off-road vehicles,
while generally prohibited in designated wilderness areas, is
entirely appropriate in wilderness study areas . . . .”). Con-
gress did not, however, mandate that motorized recreational
levels be maintained.9 And Congress made clear that the Ser-
vice was free to reduce motorized use levels when carrying
out its general obligations to manage national forests — as it
has done here. See id. (“Nothing in [the Study Act] will pro-
hibit the use of off-road vehicles, unless the normal Forest
Service planning process and travel planning process, which
9
Congress thus drew a distinction between wilderness areas on the one
hand and wilderness study areas on the other. In wilderness areas, roads
and use of motorized vehicles are generally prohibited. See 16 U.S.C.
§ 1133(c). In study areas, by comparison, motorized uses are not prohib-
ited; but neither are they afforded statutory protection. Furthermore, the
Study Act may require the Service to curtail motorized uses when neces-
sary to maintain a study area’s wilderness character or potential for desig-
nation.
18866 RUSSELL COUNTRY SPORTSMEN v. USFS
applies to all national forest lands, determines off-road vehi-
cle use to be inappropriate in a given area.”).10
[4] We therefore hold that nothing in the Study Act prohib-
its the Service from enhancing the wilderness character of a
wilderness study area. The district court’s decision that the
travel plan violates the Study Act is accordingly reversed.11
II. National Environmental Policy Act
The district court also concluded that the Service violated
NEPA by adopting restrictions on motorized use that “fell
outside the range of alternatives” considered in the DEIS and
by making “numerous, significant changes to the DEIS” with-
out preparing a supplemental draft environmental impact
statement, as required by 40 C.F.R. § 1502.9(c)(1)(i). The
Service challenges that ruling on appeal. We ordinarily
review the Service’s decision not to prepare a supplemental
EIS under the arbitrary or capricious standard. Cf. Friends of
the Clearwater v. Dombeck, 222 F.3d 552, 556-57 (9th Cir.
2000) (applying 40 C.F.R. § 1502.9(c)(1)(ii)). We reverse.
[5] NEPA requires the government to prepare an EIS for
any proposed federal action “significantly affecting the qual-
ity of the human environment.” 42 U.S.C. § 4332(2)(C). The
10
The Service manages national forests under the National Forest Man-
agement Act of 1976, which requires the Secretary of Agriculture to “de-
velop, maintain, and, as appropriate, revise land and resource management
plans for units of the National Forest System.” 16 U.S.C. § 1604(a). The
Secretary must assure that those plans “provide for multiple use . . . in
accordance with the Multiple-Use Sustained-Yield Act of 1960,” includ-
ing “coordination of outdoor recreation, range, timber, watershed, wildlife
and fish, and wilderness.” Id. § 1604(e)(1). The discretion afforded to the
Service under these statutes is, of course, qualified by the duties imposed
under the Study Act.
11
Because we hold that the Study Act permits the Service to enhance
wilderness character, we do not reach the Service’s alternative argument
that the travel plan at issue here did not enhance wilderness character.
RUSSELL COUNTRY SPORTSMEN v. USFS 18867
EIS must address, among other things, “the environmental
impact of the proposed action” and “any adverse environmen-
tal effects which cannot be avoided should the proposal be
implemented.” Id. § 4332(2)(C)(i)-(ii). Effects that may be
relevant to the EIS include ecological impacts, such as “ef-
fects on natural resources and on the components, structures,
and functioning of affected ecosystems,” as well as the “aes-
thetic, historic, cultural, economic, social, or health” effects of
the proposed action. 40 C.F.R. § 1508.8(b). The EIS must
“[r]igorously explore and objectively evaluate all reasonable
alternatives.” Id. § 1502.14(a).
[6] An agency can modify a proposed action in light of
public comments received in response to a draft EIS. See id.
§ 1503.4(a). “[A]gencies must have some flexibility to modify
alternatives canvassed in the draft EIS to reflect public input.”
California v. Block, 690 F.2d 753, 771 (9th Cir. 1982). If the
final action departs substantially from the alternatives
described in the draft EIS, however, a supplemental draft EIS
is required: “Agencies . . . [s]hall prepare supplements to
either draft or final environmental impact statements if . . .
[t]he agency makes substantial changes in the proposed
action that are relevant to environmental concerns . . . .” 40
C.F.R. § 1502.9(c) (emphasis added).
[7] Section 1502.9(c) does not define the terms “substan-
tial changes” and “relevant to environmental concerns.” The
Council for Environmental Quality (CEQ), however, has pub-
lished guidance on when changes to a proposed action will
require preparation of a supplemental EIS. The CEQ guidance
provides that supplementation is not required when two
requirements are satisfied: (1) the new alternative is a “minor
variation of one of the alternatives discussed in the draft
EIS,” and (2) the new alternative is “qualitatively within the
spectrum of alternatives that were discussed in the draft
[EIS].” Forty Most Asked Questions Concerning CEQ’s
National Environmental Policy Act Regulations [hereinafter
18868 RUSSELL COUNTRY SPORTSMEN v. USFS
“Forty Questions”], 46 Fed. Reg. 18,026, 18,035 (Mar. 23,
1981) (emphasis added).
[8] The First, Eighth and Tenth Circuits have adopted this
CEQ guidance as a framework for applying § 1502.9(c)(1)(i).
See New Mexico ex rel. Richardson v. Bureau of Land Mgmt.,
565 F.3d 683, 705 & n.25 (10th Cir. 2009); In re Operation
of Missouri River Sys. Litig., 516 F.3d 688, 693 (8th Cir.
2008); Dubois v. U.S. Dep’t of Agric., 102 F.3d 1273, 1292
(1st Cir. 1996).12 We now join them in doing so.
Here, the district court pointed to four changes in the Ser-
vice’s decision that the court concluded required supplemen-
tation of the DEIS. We address each in turn.
A. Overall Motorized Use Mileage
[9] The district court concluded that the Service was
required to prepare a supplemental draft EIS because the final
decision “reduced total mileage open for motorized travel by
nearly thirty percent beyond the most restrictive DEIS alterna-
tive.” According to the court, the most restrictive alternative
considered in the DEIS (summer alternative 4) permitted
motorized use on 1951 miles, and the least restrictive DEIS
alternative (summer alternative 1) permitted motorized use on
3036 miles. The court found that the final decision, which
allowed motorized use on just 1366 miles, fell outside the
range of alternatives considered in the DEIS, summarizing the
figures as follows:
12
In Block, we focused this inquiry on “(1) whether the alternative
finally selected by the Forest Service was within the range of alternatives
the public could have reasonably anticipated the Forest Service to be con-
sidering, and (2) whether the public’s comments on the draft EIS alterna-
tives also apply to the chosen alternative and inform the Forest Service
meaningfully of the public’s attitudes toward the chosen alternative.” 690
F.2d at 772. Thus, in applying the two-part Forty Questions framework,
we consider whether the commenting public would regard the change as
a minor variation or find the new alternative to be qualitatively within the
spectrum of alternatives previously considered.
RUSSELL COUNTRY SPORTSMEN v. USFS 18869
The Service argues that the DEIS total mileage figures
relied on by the district court are inappropriate for comparison
to the 1366 mileage figure for the final plan because they dou-
ble count route miles that are open to several motorized uses.
As we have noted, under the travel plan “lower-level” vehi-
cles can use routes designated for “higher-level” vehicles.
Thus, for example, a route that is open to both motorcycle and
ATV use is counted twice in the mileage totals relied on by
the district court. The Service has offered numbers that avoid
double counting, and these numbers show that the 1366 total
motorized route miles permitted in the final decision fall
within the range of alternatives discussed in the DEIS:
Total Miles Designated for Motorized Use
Summer 1 2262
Summer 3 1774
Summer 4 1287
Summer 5 1441
Decision 1366
[10] The recreational groups offer no credible reason to
doubt either the accuracy of the Service’s mileage figures,
which are supported by the administrative record, or the Ser-
vice’s assertion that the numbers relied on by the district court
are inappropriate for comparison to the 1366 figure because
18870 RUSSELL COUNTRY SPORTSMEN v. USFS
they reflect double counting. We therefore credit the Service’s
mileage figures. As a consequence, the overall motorized use
miles authorized by the travel plan are within the range of
alternatives included in the DEIS. The district court’s finding
of a NEPA violation therefore inadvertently relied on a mis-
taken premise.13
B. Trail Closures Not Specified in the DEIS
[11] The district court faulted the Service for not preparing
a supplemental draft EIS because the final decision included
several trail closures that were not included in any of the
alternatives discussed in the DEIS. Neither the district court
nor the recreational groups, however, explain why these mod-
ifications were “substantial changes . . . relevant to environ-
mental concerns.” 40 C.F.R. § 1502.9(c)(1)(i). They appear to
have been “minor variation[s]” that were “qualitatively within
the spectrum of alternatives that were discussed in the draft
[EIS].” Forty Questions, supra, 46 Fed. Reg. at 18,035.
Accordingly, no supplemental draft EIS was required.
C. Modification of the End Date of the Snowmobile
Season
The district court concluded that the Service was required
to prepare a supplemental draft EIS because the Service
13
The recreational groups correctly point out that the Service raised this
argument for the first time in its supplemental summary judgment briefing
rather than in its statement of genuine issues. Ordinarily, we would not
permit a party to dispute factual issues conceded in a statement of genuine
issues. It makes no sense, however, to affirm a NEPA violation and set
aside a travel plan that serves the public interest on account of a misunder-
standing about the administrative record. Cf. Tucson Woman’s Clinic v.
Eden, 379 F.3d 531, 554 (9th Cir. 2004) (“We normally do not reach
claims raised for the first time on appeal, but we may exercise discretion
to do so where manifest injustice would otherwise result.”). We accord-
ingly rely on the correct numbers, without approving of the Service’s inex-
plicable failure to raise this argument sooner.
RUSSELL COUNTRY SPORTSMEN v. USFS 18871
changed the end of the snowmobile season from May 15 in
the DEIS to May 1 in the final decision. The Service restored
the May 15 date during the appeals phase of the administra-
tive proceedings. Any continued objection to this change is
therefore moot.
D. Modification of the Dispersed Camping Rule
[12] Finally, the district court concluded that the Service
violated NEPA because the final decision included a modified
dispersed camping rule that was not discussed in a supple-
mental draft EIS. The DEIS proposed permitting off-road
driving in a 300-foot corridor on either side of roads and trails
for parking, passing and turning around. In the final decision,
the Service dropped that proposal in favor of a plan allowing
“parking, passing, or turning around . . . within the length of
the vehicle and attached trailer,” subject to certain conditions.
The plan also permitted off-road travel beyond the “vehicle
length plus trailer” limit to access certain established dis-
persed campsites. The Service explained its decision as fol-
lows:
Several respondents were concerned about the possi-
bility of a 600-foot wide roaded corridor resulting
from the 300 foot dispersed camping rule. I did not
find specific information in the Final EIS (FEIS) that
indicates this was happening on the ground, how-
ever, in too many cases, users are developing roads
or trails out of dispersed camp sites and extending
the area covered by the 300 foot rule. Once a trail or
road is created, another user may travel on that
newly created road or trail and camp 300 feet
beyond the newly developed road or trail, allowing
the road or trail to continue to grow. My decision
will reduce the creation of new trails out of dispersed
camp sites by prohibiting travel off designated routes
to a campsite, while still allowing access to continue
to the majority of existing dispersed campsites.
18872 RUSSELL COUNTRY SPORTSMEN v. USFS
The Service says the district court’s decision requiring sup-
plementation was wrong for two reasons. We reject the Ser-
vice’s first argument but agree with its second.
The Service argues that it was not required to prepare a
supplemental draft EIS because the changes to the dispersed
camping rule would have only lessened environmental
impacts in comparison to the alternatives discussed in the
DEIS.14 The Service contends that a change in a proposed
action that only lessens environmental impacts is, as a cate-
gorical matter, not a change that is “relevant to environmental
concerns” for purposes of § 1502.9(c)(1)(i).
We agree with the Service up to a point. That a modified
alternative only lessens environmental impacts may tend to
show that the new alternative is a “minor variation of one of
the alternatives discussed in the draft EIS” and is “qualita-
tively within the spectrum of alternatives that were discussed
in the draft [EIS].” Forty Questions, supra, 46 Fed. Reg. at
18,035. See, e.g., Sierra Club v. Van Antwerp, 526 F.3d 1353,
1360 (11th Cir. 2008) (“When the change to the proposed
action is a ‘minimizing measure,’ . . . the agency ‘is not auto-
matically required to redo the entire environmental analysis’
. . . because a minimizing measure’s effects on the environ-
ment will usually fall within the scope of the original NEPA
analysis” (quoting Sierra Club v. U.S. Army Corps of Eng’rs,
295 F.3d 1209, 1221 (11th Cir. 2002))); Friends of the Bow
v. Thompson, 124 F.3d 1210, 1218-19 (10th Cir. 1997)
(“Although we are not prepared to say that a reduction in the
environmental impact of an action can never trigger a require-
14
We need not decide whether the modifications to the dispersed camp-
ing rule only lessened environmental impacts. See Michael S. Freeman &
Meg Parish, Supplemental NEPA Analyses: Triggers and Requirements,
Rocky Mountain Mineral Law Foundation, Special Institute on the
National Environmental Policy Act (2010), at n.34 (stating that a court
should be “wary of simplistic characterizations of a change as reducing the
impacts of a proposal”). Because we reject the Service’s argument on
another ground, we have no occasion to address that question.
RUSSELL COUNTRY SPORTSMEN v. USFS 18873
ment to prepare a supplemental [environmental assessment],
we believe that a reduction in environmental impact is less
likely to be considered a substantial change relevant to envi-
ronmental concerns than would be an increase in the environ-
mental impact.”).
A new alternative, however, may lessen environmental
impacts and yet fall outside the range of alternatives discussed
in a draft EIS. Supplementation may be required, for example,
when modifications to a proposed action, although lessening
environmental impacts, also alter the overall cost-benefit anal-
ysis of the proposed action. In Massachusetts v. Watt, 716
F.2d 946, 948-49 (1st Cir. 1983) (Breyer, J.), for instance, the
court required preparation of a supplemental analysis when
the government lowered its estimate of the benefits expected
to be gained from granting oil drilling leases in the North
Atlantic Ocean. The court reasoned that additional analysis
was required because the adverse environmental conse-
quences of the action — although diminished — might no
longer be justified in light of the drastically reduced expecta-
tion of economic benefit. See id.
The Service relies on the Third Circuit’s decision in South
Trenton Residents Against 29 v. Federal Highway Adminis-
tration, 176 F.3d 658, 664-66 (3d Cir. 1999). That case, how-
ever, involved a Department of Transportation (DOT)
regulation that expressly omits a duty to prepare a supplemen-
tal EIS when a new alternative lessens environmental impacts.
The DOT regulation states that “a supplemental EIS will not
be necessary where. . . [t]he changes to the proposed action
. . . result in a lessening of adverse environmental impacts
evaluated in the EIS without causing other environmental
impacts that are significant and were not evaluated in the
EIS.” 23 C.F.R. § 771.130(b). Section 1502.9(c) contains no
similar language. The government’s reliance on South Tren-
ton Residents is therefore misplaced.
[13] Although we disagree with the Service that modifica-
tions that lessen impacts never require supplementation, we
18874 RUSSELL COUNTRY SPORTSMEN v. USFS
nonetheless agree that the modifications to the dispersed
camping rule here did not require preparation of a supplemen-
tal draft EIS. We hold that the final decision was a “minor
variation” and “qualitatively within the spectrum of alterna-
tives” discussed in the DEIS. Forty Questions, supra, 46 Fed.
Reg. at 18,035.
[14] We reach this conclusion for several reasons. First,
the dispersed camping rule is a secondary rather than a pri-
mary aspect of the overall travel plan. Second, the modifica-
tions are relatively minor — scaling back the 300-foot limit
to approximately 70 feet. Third, there is very little reason to
believe the modified travel plan will have environmental
impacts that the agency has not already considered. The Ser-
vice modified the rule to eliminate the risk that users would
develop roads or trails out of dispersed camp sites. The
change eliminates that adverse impact, leaving only the
impacts caused by parking, passing and turning around that
have already been fully considered. Although the modified
dispersed camping rule has the potential to concentrate motor-
ized travel in a smaller area, which could theoretically pose
different or additional impacts relative to the 300-foot rule,
there does not appear to have been much actual use beyond
the 70-foot perimeter even under the original rule. Finally,
there is no indication that the modifications alter the overall
cost-benefit analysis of the proposed action.
The recreational groups argue that supplementation is
required in light of the Tenth and First Circuits’ decisions in
New Mexico ex rel. Richardson v. Bureau of Land Mgmt.
(“BLM”), 565 F.3d 683 (10th Cir. 2009), and Dubois v. U.S.
Department of Agriculture, 102 F.3d 1273 (1st Cir. 1996).
BLM and Dubois, however, involved substantial modifica-
tions that went to the heart of the proposed action and posed
new and previously unconsidered environmental questions.
RUSSELL COUNTRY SPORTSMEN v. USFS 18875
They are therefore readily distinguishable from the dispersed
camping modifications adopted here.15
CONCLUSION
[15] We hold that the Service’s 2007 travel plan conforms
to the Study Act and NEPA. The judgment of the district
court is accordingly reversed.
REVERSED.
15
In BLM, the Tenth Circuit held that the government was required to
prepare a supplemental analysis when it substantially modified a proposed
action for oil and gas exploration on New Mexico grasslands. The original
proposal would have allowed exploration within 492 feet of roads,
whereas the revised proposal permitted exploration anywhere within the
project area, but only on up to 5 percent of the total surface land area. See
BLM, 565 F.3d at 692. The court found that the modified plan could result
in “wildly different impacts on plants and wildlife” in comparison to the
original plan. Id. at 706. The modified plan “was qualitatively different
and well outside the spectrum of anything BLM considered in the Draft
EIS.” Id. at 707. The government was thus “required to issue a supplement
analyzing the impacts of that alternative under 40 C.F.R.
§ 1502.9(c)(1)(i).” Id.
In Dubois, the Service adopted a modified proposal for expansion of a
skiing facility within a national forest in New Hampshire. The original
proposal would have expanded the facility to a new part of the forest,
whereas the modified proposal would have squeezed much of its expan-
sion into the existing permit area. See Dubois, 102 F.3d at 1292. The mod-
ified proposal envisioned a 28,500-square-foot base lodge facility within
the existing permit area; proposed developing ski trails, access roads and
lifts on land that the previous alternative would have left as a woodland
buffer; and would have widened existing trails, eliminating existing buff-
ers separating trails. See id. The court held that these were “substantial
changes from the previously-discussed alternatives, not mere modifica-
tions ‘within the spectrum’ of those prior alternatives.” Id. The modified
configuration posed “wholly new problems” and “environmental impacts
that the Forest Service has not yet considered.” Id. at 1293. Supplementa-
tion was therefore required.