Home » Case Summaries » 2017 » Wild Wilderness v. Allen, 871 F.3d 719 (9th Cir. 2017).

 
 

Wild Wilderness v. Allen, 871 F.3d 719 (9th Cir. 2017).

 

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Wild Wilderness, Winter Wildlands Alliance, and Bend Backcountry Alliance (collectively, Wild Wilderness) sued the United States Forest Service (USFS) in the United States District Court for the District of Oregon. Oregon State Snowmobile Association and other pro-snowmobile groups[1] (collectively, Snowmobile Association) joined the case as defendant-intervenors. Wild Wilderness brought the action under the Administrative Procedure Act (APA),[2] alleging that USFS’s approval of the Kapka Sno-Park, a parking lot in the Deschutes National Forest in Central Oregon, violated the National Environmental Policy Act (NEPA)[3] and the National Forest Management Act (NFMA).[4] The district court entered summary judgment in favor of USFS.[5] The United States Court of Appeals for the Ninth Circuit, reviewing de novo, affirmed.

This controversy involved USFS’s response to conflicts between cross-country skiers and snowmobilers in the Cascade Lakes Highway area of Deschutes National Forest. In 2004, USFS banned snowmobiles from approximately 1,375 acres of the forest in an effort to reduce conflicts over parking as well as the noise and tracks left by snowmobiles. In 2006, USFS proposed building a new sno-park to reduce parking congestion and user conflicts over the area. While Kapka Butte Sno-Park would be primarily for motorized users, the neighboring Dutchman Sno-Park and its immediate surroundings would close to motorized use.

USFS then narrowed its focus. In 2009, it issued a new proposal addressing only the parking shortage near the Dutchman area. USFS issued a Draft Environmental Impact Statement (EIS) in April 2011 with a stated purpose of providing additional parking capacity and trails for Nordic skiers with dogs. No alternatives that would have limited motorized use were considered.

In 2012, days after deciding to jointly lead the EIS with Federal Highway Administration (FHWA), USFS withdrew the Draft EIS and issued a Finding of No Significant Impact (FONSI) and an Environmental Assessment (EA) instead. Two months later, USFS issued its final EA. The final project consisted of a parking lot with a capacity for seventy vehicles with trailers and two connector trails. The trails were not opened to dogs. Wild Wilderness filed administrative appeals, which were denied, and then filed this suit. USFS has since completed construction of Kapka Snow-Park.

As a preliminary matter, the Ninth Circuit first analyzed Snowmobile Association’s argument that the case was moot since construction of Kapka Sno-Park had been completed. Pointing to several available remedies identified in Wild Wilderness’s brief, the court held that the case was not moot because Snowmobile Association had failed to establish that no effective relief remained. Relatedly, the court considered whether Wild Wilderness’s claims lacked redressability. Arguing that Wild Wilderness’s true goal was to reduce the areas available to snowmobiles, Snowmobile Association claimed that no remedy was available because the contested action did not result in more areas opened to snowmobile use. The court concluded that Wild Wilderness’s claims did not lack redressability because the court could still grant some effective relief.

The Ninth Circuit next considered the merits of the case. Wild Wilderness argued that USFS violated the NFMA by approving Kapka Sno-Park in a manner inconsistent with the Deschutes Forest Plan. First, Wild Wilderness claimed that USFS failed to comply with steps that would “generally be taken” when conflicts developed between non-motorized groups, including closing the area to motorized use. Wild Wilderness argued that the provision mandated closure to motorized users in times of conflict and forbade USFS from building extra parking because user conflicts persisted. Reasoning that these steps were merely aspirational, the court held that the plan did not mandate closure of any area to motorized use. The court found no evidence in the record to show that USFS had ever interpreted the Forest Plan this way.

Second, Wild Wilderness argued that under the NFMA, Kapka Sno-Park was inconsistent with the Forest Plan’s Recreation Opportunity Spectrum. Wild Wilderness asserted that the parking area was improperly sited in a “Scenic Views” area because “[p]arking facilities . . . will normally be placed where they are not visible from significant viewer locations.”[6] Like the first provision, the court found this language to be nonbinding guidance on USFS.

Third, the Ninth Circuit analyzed Wild Wilderness’s claims under NEPA. Wild Wilderness first claimed that USFS violated NEPA by issuing the Draft EIS only to reverse course and issue a FONSI and a final EA instead. Wild Wilderness argued that USFS was required to issue a reasoned explanation of its decision to issue an EA instead of an EIS. Furthermore, they asserted that USFS improperly withdrew the EIS so the FHWA would not have to sign a Record of Decision required of both joint-lead agencies on the EIS. The court disagreed. It concluded that USFS was obligated to explain why the EIS was no longer necessary, present a summary or an EA, and publish a withdrawal notice in the Federal Register—all steps taken by the agency. However, it found no support for a procedural requirement to explain why it chose to reverse course or how it planned to comply with its own procedural requirements.

Wild Wilderness also claimed that USFS violated NEPA by failing to provide a convincing statement of reasons that Kapka Sno-Park would not significantly affect the environment. Wild Wilderness argued that the degree to which the project would affect the environment was likely to be highly controversial, satisfying the “intensity” factor of the significance test. The court again disagreed, finding that Wild Wilderness’s anecdotal evidence did not satisfy the sort of scientific controversies needed for this factor to undermine the reasonableness of USFS’s conclusions.[7]

Finally, the Ninth Circuit considered Wild Wilderness’s claims that the EA’s Statement of Purpose and Need as well as range of alternatives for Kapka Sno-Park were unreasonably narrow because they ignored on-snow user conflicts. Wild Wilderness argued USFS itself had determined the issues of parking shortage and user conflicts could only be adequately addressed together. However, the court found no evidence in the record to support such a conclusion. The court held that given the agency’s discretion to articulate an action’s Statement of Purpose and Need, USFS was not unreasonable to tackle only parking congestion. Thus, since the Statement of Purpose and Need was not unreasonably narrow, the court concluded that neither was the range of alternatives. The court reasoned that by considering four significantly distinct alternatives in detail, along with seven briefly considered additional alternatives, the agency satisfied its requirement to evaluate alternates reasonably related to the purpose of the action.[8]

In sum, the Ninth Circuit held that USFS acted within the Forest Plan and NFMA when it approved construction of the Kapka Sno–Park, and USFS complied with the procedural and substantive requirements under NEPA in doing so. For these reasons, the court affirmed the district court’s grant of summary judgment.

Footnotes    (↵ returns to text)

  1. Intervenor Oregon State Snowmobile Association was joined by Snowmobile Associations, Ken Roadman, and Elk Lake Resort.
  2. 5 U.S.C. §§ 551–559, 701–706, 1305, 3344, 4301, 5335, 5372, 7521 (2012).
  3. 42 U.S.C. §§ 4321–4370h (2012).
  4. 16 U.S.C. §§ 472a, 521b, 1600, 1611–1614 (2012).
  5. Wild Wilderness v. Allen, 12 F. Supp. 3d 1309, 1330 (D. Or. 2014).
  6. U.S. Dep’t of Agric., Record of Decision for Deschutes Forest Plan (1990).
  7. Wild Wilderness also argued that the action threatened a violation of federal law, the NFMA. Having already concluded that the Kapka Sno-Park did not violate the NFMA, the court held that the action did not threaten a violation of federal law.
  8. Wild Wilderness further argued that the project may cause cumulatively significant effects. The court rejected this argument, too, because the EA examined the cumulative effects with related actions and none of the related potential actions appeared to compound on-snow user conflicts.
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