Home » Case Summaries » 2015 » WildEarth Guardians v. Montana Snowmobile Ass’n, 790 F.3d 920 (9th Cir. 2015)

 
 

WildEarth Guardians v. Montana Snowmobile Ass’n, 790 F.3d 920 (9th Cir. 2015)

 

In this case, WildEarth Guardians and other environmental groups[1] (collectively, WildEarth) brought an action against the United States Forest Service (USFS) under the National Environmental Policy Act (NEPA)[2] challenging USFS’s designation of over two million acres of public land in the Beaverhead-Deerlodge National Forest (the Forest) for use by snowmobiles and other winter motorized vehicles. The United States District Court for the District of Montana granted USFS’s motion for summary judgment. The Ninth Circuit affirmed in part, reversed in part, and remanded the case.

In 2002, USFS proposed revisions to its Land and Resource Management Plan (the Revised Plan) for the Forest, including revisions to the Plan’s snowmobile provisions. In 2009, USFS released its Environmental Impact Statement (EIS) studying the impacts of the Revised Plan and a Record of Decision (ROD) approving the EIS and adopting the Revised Plan. A second ROD in 2010 adopted the travel management component of the Revised Plan, which contained the revised snowmobile provisions. WildEarth filed a series of administrative challenges, all of which USFS rejected.

WildEarth then appealed to the district court, and both parties filed cross-motions for summary judgment. WildEarth alleged that: 1) USFS violated NEPA because it failed to adequately analyze the impacts of snowmobiles on either big game winter habitat or competing recreational uses in the Forest; 2) USFS violated Executive Order 11,644 (EO)[3] because USFS did not apply the EO’s minimization criteria for off-road vehicle (ORV) use on public land;[4] and 3) subpart C of the Department of Agriculture’s Travel Management Plan (TMP),[5] which was promulgated to better effectuate the EO’s minimization criteria goals, was invalid because that subpart impermissibly exempted over-snow vehicles (OSV) like snowmobiles when the EO did not distinguish between ORVs and OSVs. The district court granted USFS’s motion for summary judgment, holding that USFS’s impact analysis and compliance with the EO were both adequate, and holding that WildEarth’s challenge to subpart C of the TMP was not ripe for adjudication because USFS had not relied on subpart C to justify the Revised Plan.

The Ninth Circuit, reviewing de novo, held that the EIS prepared by USFS failed to comply with NEPA’s procedural requirements. The court also found that although USFS adequately reviewed consequences of its recreation allotments, USFS violated the EO by failing to comply with minimization criteria. Lastly, the Ninth Circuit held that WildEarth’s challenges to the TMP was unripe.

The Ninth Circuit began by addressing WildEarth’s two NEPA claims. Initially, the court explained that NEPA serves two objectives. NEPA first ensures that agencies will consider accurate information concerning the environmental impacts of agency decision making. NEPA next ensures that all relevant information will be made available to interested parties who may wish to play a role in the agency’s decision making and implementation process. While NEPA does not impose substantive obligations on agencies, it does establish procedural obligations requiring agencies to take a “hard look” at the environmental consequences of proposed agency actions.[6] NEPA is supplemented by the regulations of the Council on Environmental Quality (CEQ),[7] which state in part that agencies must make all environmental data underlying agency decisions available to the public before taking any action.[8] Alternatively, the agency may incorporate publicly available data supporting the EIS by reference.[9]

With that context in mind, the Ninth Circuit first found that USFS failed to comply both with NEPA’s procedural requirements and with the CEQ’s regulations because the EIS did not make public the underlying environmental data, or reference any documentary source of data, that USFS relied on in making its determinations regarding the impacts of snowmobile use in the Forest on big game winter habitat. The court determined that the maps in the EIS did not accurately reflect big game winter range, and noted that while USFS allegedly considered more accurate maps when making its final decision, those maps had not been incorporated into the EIS or otherwise been made available to the public. The court explained that, because the hard look at environmental impacts mandated by NEPA requires agencies to use accurate data, the data provided by those agencies to the public must be accurate as well. The court also determined that the EIS did not compensate for the inaccurate maps by otherwise providing accurate data regarding big game winter range and the impacts of snowmobile access on that range. The court concluded that this lack of data hindered the public’s ability to challenge USFS’s decisions regarding snowmobile use in the Forest. Finally, the court found that, although the EIS acknowledged that motorized vehicles may adversely affect wildlife, the EIS failed to provide the public with adequate information about the impact of snowmobiles as the data did not examine the impact on big game wildlife, failed to consider the impact of snowmobiles specifically, and did not examine the impacts on wildlife in winter. Thus, the Ninth Circuit held that USFS violated NEPA by releasing an EIS without adequate information on the impact of snowmobiles.

Second, the Ninth Circuit affirmed the district court’s holding that USFS did not violate NEPA when addressing how the snowmobile allocations in the Revised Plan affected other winter recreation activities. Under the Multiple-Use Sustained-Yield Act,[10] USFS is required to administer National Forests in a manner that balances various interests and uses.[11] The Ninth Circuit found that USFS complied with this mandate. The Revised Plan created categories of recreational opportunities, including motorized and nonmotorized uses, and allotted different categories to different portions of the Forest.The court found that the EIS provided adequate justification for USFS’s allocation decisions. The EIS contained a section titled “Recreation and Travel Management,” which analyzed and compared competing recreational uses and examined forestwide recreation trends. In addition, the EIS addressed the risk of noncompliance by creating a monitoring program, with a pledge to reevaluate the Revised Plan’s designations in the event of noncompliance. The Ninth Circuit concluded that USFS complied with NEPA because USFS took the requisite hard look at the impacts of its recreational snowmobile allotments on other recreational activities throughout the Forest.

The court then addressed WildEarth’s non-NEPA claims. First, the court agreed with WildEarth that USFS failed to comply with the minimization requirements in the EO and TMP. The EO, issued in 1972, directed agencies to promulgate regulations requiring that all trails allowing ORVs on public lands be located in areas that minimize damage to natural resources, impacts on wildlife, and conflicts between ORVs and other recreational uses.[12] In 2005, the Secretary of Agriculture promulgated the TMP to improve implementation of the EO.[13] The Ninth Circuit first noted that, although WildEarth argued that USFS failed to properly implement the EO, the challenge was essentially directed at USFS’s implementation of the TMP, which incorporated and expanded on the EO’s requirements. The court therefore determined that WildEarth’s challenge was appropriate because the Administrative Procedure Act[14] allows an aggrieved person to challenge an agency’s implementation of its own regulation.[15] The court then found that the EIS was not demonstrably in compliance with the TMP’s minimization criteria. The EIS referenced a single forestwide analysis and applied general decision making principles to designate multiple areas of the Forest for snowmobile use. The TMP, however, explicitly requires USFS to apply the minimization criteria to each individual area designated for snowmobile use. After examining the EIS and ROD, the court concluded that USFS failed to consider the TMP’s minimization criteria at all when making recreation allocations. While the ROD indicated that USFS would consider the TMP’s requirements at a later date, the court admonished that mere consideration of the minimization criteria was insufficient. Instead, USFS was obligated to conduct an area-by-area analysis to determine whether the Revised Plan complied with the minimization criteria. Because USFS failed to do so, the Ninth Circuit reversed the district court.

Finally, the Ninth Circuit affirmed the district court’s ruling that WildEarth’s challenge to subpart C of the TMP was unripe. WildEarth had argued that subpart C, which exempts OSVs from compliance with the EO’s minimization criteria, was invalid because the EO itself did not distinguish between ORVs and OSVs. The Ninth Circuit began by describing the standard for assessing ripeness, which first requires the court to consider whether the issues raised are fit for judicial review, and second requires the court to examine the potential hardship to the parties of withholding that review. The court explained that judicial review should be reserved for where the controversy has been fleshed out by instances of concrete action that harm or threaten to harm the complainant. The court then found that USFS did not rely on subpart C of the TMP in crafting the Revised Forest Plan. As a result, WildEarth’s challenge to subpart C was abstract and not a response to concrete agency action. The Ninth Circuit therefore affirmed the district court’s holding that WildEarth’s challenge to subpart C was unripe.

The Ninth Circuit ultimately reversed the district court’s determination that the EIS adequately analyzed the impacts of snowmobiles on big game winter habitat and that USFS satisfied the EO’s minimization criteria. The Ninth Circuit affirmed the district court’s determination that the EIS adequately examined the impacts of snowmobiles on competing recreational uses and that WildEarth’s challenge to subpart C of the TMP was not ripe for adjudication. The court remanded the case for further proceedings consistent with those holdings.

Footnotes    (↵ returns to text)

  1. Plaintiff-appellants included Friends of the Bitterroot and Montanans for Quiet Recreation, Inc.
  2. National Environmental Policy Act of 1969, 42 U.S.C. §§ 4321–4370h (2012).
  3. Use of Off-Road Vehicles on the Public Lands, Exec. Order No. 11,644, 3 C.F.R. 368 (1973).
  4. WildEarth Guardians v. Mont. Snowmobile Ass’n, 790 F.3d 920 (9th Cir. 2015).
  5. Travel Management: Designated Routes and Areas for Motor Vehicle Use, 70 Fed. Reg. 68,264 (Nov. 9, 2005).
  6. WildEarth Guardians, 790 F.3d at 924.
  7. 40 C.F.R. §§ 1500–1508 (2015).
  8. Id. § 1500.1(b).
  9. Id. § 1502.21.
  10. Multiple-Use Sustained-Yield Act of 1960, 16 U.S.C. §§ 528–531 (2012).
  11. Id. § 529.
  12. Use of Off-Road Vehicles on the Public Lands, Exec. Order No. 11,644, 3 C.F.R. 368 (1973).
  13. Travel Management: Designated Routes and Areas for Motor Vehicle Use, 70 Fed. Reg. 68,264 (Nov. 9, 2005).
  14. 5 U.S.C. §§ 551–559, 701–706, 1305, 3105, 3344, 4301, 5225, 5372, 7521 (2012).
  15. See id. § 702 (“A person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof.”). See also id. § 706 (explaining the courts scope of review).
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