Home » Case Summaries » 2017 » Alliance for the Wild Rockies v. Bradford, 856 F.3d 1238 (9th Cir. 2017).

 
 

Alliance for the Wild Rockies v. Bradford, 856 F.3d 1238 (9th Cir. 2017).

 

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The Alliance for the Wild Rockies (Alliance) brought suit to enjoin the United States Forest Service (USFS) from constructing 4.7 miles of new roads in connection with the Pilgrim Creek Timber Sale Project (Pilgrim Project) in the Kootenai National Forest. Alliance sued under the National Forest Management Act (NFMA),[1] the Endangered Species Act (ESA),[2] and the National Environmental Policy Act (NEPA).[3] The United States District Court for the District of Montana had previously granted an injunction based on Alliance’s suit, which was subsequently lifted after USFS amended their Record of Decision.[4] The Alliance appealed, and the United States Court of Appeals for the Ninth Circuit, reviewing the matter under the arbitrary and capricious standard of the Administrative Procedure Act (APA),[5] affirmed.

In 2011, Montana’s Kootenai Forest Plan was amended by the Forest Plan Amendments for Motorized Access Management[6] within the Selkirk and Cabinet-Yaak Grizzly Bear Recovery Zones (Access Amendments). Design Element II(B) of the Access Amendments[7] caps the maximum linear miles of permanent road allowed in Kootenai National Forest. Standard II(B) further notes that temporary increases in linear miles of road are acceptable, and do not count toward a permanent increase in road miles, so long as the roads are not open for public use and remain closed in a manner that effectively prevents motorized access when their use by USFS ceases. In 2013, USFS approved the Pilgrim Project.

The Ninth Circuit held that it was not arbitrary and capricious for USFS to decide that roads closed to motorized access by their proposed barriers would not count toward the maximum linear miles of total road under Design Element II(B). Alliance conceded that USFS had promised to use a berm, barrier, or other device to close the 4.7 miles of road to motorized access after completion of the work, but argued that the roads would continue to count as permanent increases to the linear miles of total road. The court noted Alliance put forward arguments that supported an alternative interpretation of Design Element II(B), but in the face of ambiguity the court defers to USFS’s reading of their own Forest Plan, and Alliance’s arguments did not render USFS’s interpretation unreasonable.

The Ninth Circuit rejected Alliance’s argument that USFS’s planned closures would not effectively prevent motorized access as required under Design Element II(B). The court stated that Alliance had not put forward any evidence causing it to doubt that USFS would effectively barricade the road, but noted that if USFS were to fail in effectively preventing motorized access it would be in violation of Design Element II(B). For that reason, the court found that the initial injunction sought by Alliance was properly sustained, noting that USFS had not complied with the provision up to that point.

In sum, the Ninth Circuit affirmed the district court’s lifting of the injunction on USFS’s project. The court decided that Alliance had not put forward evidence to demonstrate that USFS’s reading of the Access Amendments was arbitrary or capricious, nor to cause doubt in USFS’s planned actions.

Footnotes    (↵ returns to text)

  1. 16 U.S.C. §§ 472a, 521b, 1600, 1611–1614 (2012).
  2. 16 U.S.C. §§ 1531–1544 (2012).
  3. 42 U.S.C. §§ 4321–4370h (2012).
  4. All. for the Wild Rockies v. Bradford, 35 F. Supp. 3d 1246, 1253–54 (D. Mont. 2014), affd sub nom., 856 F.3d 1238, 1241–42 (9th Cir. 2017).
  5. 5 U.S.C. § 706(2)(A) (2012).
  6. U.S. Dep’t of Agric., Forest Plan Amendments for Motorized Access Management within the Selkirk and Cabinet-Yaak Grizzly Bear Recovery Zones Record of Decision (2011).
  7. Id. at 62–63.
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