The opinion of the court was delivered by: Honorable Ronald E. Bush U. S. Magistrate Judge
MEMORANDUM DECISION AND ORDER ON CROSS-MOTIONS FOR SUMMARY JUDGMENT
Currently pending before the Court are: Plaintiffs' Motion for Summary Judgment (Docket No. 38) and Defendants' Cross-Motion for Summary Judgment (Docket No. 45). All parties consented to the jurisdiction of a United States Magistrate Judge. See Docket No. 20. The Court has carefully reviewed the record, including the briefing submitted by amici curiae (Docket No. 43)*fn1 ; has heard and considered the oral arguments of counsel; and now enters the following Memorandum Decision and Order.
Plaintiffs, the Idaho Conservation League ("ICL") and The Wilderness Society, appeal a decision of the Forest Service adopting a Travel Management Plan ("Travel Plan") for the Salmon-Challis National Forest ("SCNF" or "Forest"). Plaintiffs generally contend that the Travel Plan fails to ensure that motor vehicle use is properly sited and managed on the Forest in order to minimize adverse environmental impacts. More specifically, Plaintiffs claim that the Record of Decision ("ROD") and final environmental impact statement ("FEIS") violate the National Environmental Policy Act ("NEPA") and applicable Forest Service regulations and Executive Orders, because:
(1) with regard to the Travel Plan's specific impact on the Forest's Recommended Wilderness Areas ("RWAs") and Inventories Roadless Areas ("IRAs"), the EIS does not adequately address cumulative impacts or consider a reasonable range of alternatives;
(2) the decisional process did not address the Forest Service's duty to minimize adverse impacts of off-road vehicle use; and (3) the decision included a minimum road system determination that is both procedurally and substantively inadequate.
The Forest Service and Amici defend the Forest Service's decision, emphasizing that the Travel Plan drastically reduces the miles of roads and trails open to motorized use. The Forest Service and Amici also emphasize that the Forest Service has a multiple-use mandate that requires it to balance a number of competing uses of the Forest, including a range of recreational uses. The Amici support the Travel Plan, because they believe it reflects a fair compromise among diverse user groups.
The Court is mindful that the process of planning, preparing and revising a document such as this Travel Plan is an enormous undertaking. Extensive work is required of many Forest Service employee specialists, and considerable efforts are expended by those members of the public, such as the members represented by Plaintiffs and Amici, who also are involved in the process. The Court is aware that the Salmon Challis National Forest is a particularly large and diverse national forest, with over 4.3 million acres within its boundaries, that for many years was administered as two separate national forests. The SCNF includes a remarkable variety of natural wonders, irreplaceable flora, fauna, waters, and terrain, and critically important timber and mineral resources. The Forest draws an equally remarkable variety of human use. The undersigned has been a frequent visitor to the Forest, and a user of both its motorized routes and its non-motorized trails.
To review the administrative record of a decision made to implement the Travel Plan at issue here, is to review only a cross-section of the time, attention and expertise that went into the creation of the Travel Plan. Accordingly, consistent with the standard of review used by the Court in considering appeals such as this, the Court has deferred to the decisions of the Forest Service when those determinations have been reasonably drawn, consistent with the requirements of federal law. Nonetheless, the Court also must fulfill its responsibility to return such decisions to the agency when those decisions have not been made in a lawful manner or where discretion has been abused or capriciously exercised. In this case, the Travel Plan largely withstands the legal challenges made against it. However, certain discrete portions of the decisions incorporated by the Forest Service into the Travel Plan fall short of the required measure. The Court must, in those circumstances, return the Travel Plan to the agency for correction of those errors.
As further explained below, the Court finds that the Travel Plan violates the 2005 Travel Management Rule and NEPA in four substantial ways. First, the record does not support the agency's decision to exclude from its cumulative impacts analysis the combined effect of motorized routes less than one-half mile long on the wilderness values and roadless characteristics of the RWAs and IRAs. Second, the record does not reflect that the Forest Service adequately fulfilled its duty to make final route designations that meet the 2005 Travel Management Rule's minimization requirements. Third, the record does not reflect that the Forest Service considered Plaintiffs' site-specific comments. Fourth, the ROD must be amended to eliminate any suggestion that the Forest Service made a minimum road system determination for the SCNF.
A. Forest Service Land Management
The Forest Service manages the lands it administers under a multiple-use management framework set forth in the Multiple-Use Sustained Yield Act ("MUSYA") of 1960, 16 U.S.C.A. §§ 528-531. MUSYA requires a careful balancing of often competing resources, including "outdoor recreation, range, timber watershed, and wildlife and fish purposes." 16 U.S.C. § 528.
In addition, forest-specific management decisions are guided by the National Forest Management Act ("NFMA"), 16 U.S.C. § 1601, et seq. NFMA incorporates MUSYA's multiple-use management direction, adding "wilderness" as an additional management philosophy within the multiple use framework, 16 U.S.C. § 1604(e), reflecting the passage of the Wilderness Act of 1964. 16 U.S.C. § 1311, et seq.
The Wilderness Act establishes the National Wilderness Preservation System. Under the Wilderness Act, the Forest Service identifies "primitive" lands in the National Forest System and make recommendations to Congress as to those lands deemed deserving of "wilderness" status. See 16 U.S.C. § 1132. Both RWAs and IRAs are areas the Forest Service has identified as suitable for possible wilderness designation.*fn2
Congress ultimately decides whether these lands obtain wilderness designation. 16 U.S.C. § 1131. Designated "wilderness" is managed under the Wilderness Act in order to preserve its wild and pristine character.
B. Forest Service Travel Management
There are two sources of law specific to travel management on the national forests. First, there are two related executive orders specific to Off-Road Vehicle ("ORV") travel on trails and other areas. See Exec. Order No. 11644, 37 Fed. Reg. 2877 (Feb. 9, 1972), as amended by Exec. Order No. 11989, 42 Fed. Reg. 26,959 (May 25, 1977) (collectively, "ORV Executive Orders"). Second, the Forest Service must comply with its own travel management regulations as revised in 2005. See Travel Management; Designated Routes and Areas for Motor Vehicle Use(70 Fed. Reg. 68264 (2005)); 36 CFR Parts 212, 251, 261, and 295 ("2005 Travel Management Rule").
In 1972, President Nixon issued Executive Order No. 11644 directing the land management agencies, including the Forest Service, to adopt regulations providing for administrative designation of areas and trails open and closed to motor vehicle use. Exec. Order No. 11,644, § 3; 37 Fed. Reg. 2877 (Feb. 9, 1972). These regulations must "direct that the designation of such areas and trails will be based upon  the protection of the resources of the public lands,  promotion of the safety of all users of those lands, and  minimization of conflicts among the various uses of those lands." Id. These regulations also must "require that the designation of such areas and trails shall be in accordance with" the follow "minimization criteria:"
(1) Areas and trails shall be located to minimize damage to soil, watershed, vegetation, and other resources;
(2) Areas and trails shall be located to minimize harassment of wildlife or significant disruption of wildlife habitats;
(3) Areas and trails shall be located to minimize conflicts between off-road vehicle use and other existing or proposed recreational uses of the same or neighboring public lands, and to ensure the compatibility of such uses with existing conditions in populated areas, taking into account noise and other factors; and
(4) Areas and trails shall not be located in officially designated Wilderness Areas or Primitive Areas. Areas and trails shall be located in areas of the National Park system, Natural Areas, or National Wildlife Refuges and Game Ranges only if the respective agency head determines that off-road vehicle use in such locations will not adversely affect their natural, aesthetic, or scenic values. . . . Id.
In 1977, President Carter issued Executive Order No. 11989, amending Executive Order 11644 and adding additional protections. See Exec. Order No. 11,989; Utah Shared Access Alliance v. Carpenter, 463 F.3d 1125, 1130 (10th Cir. 2006). Executive Order 11989 directs the land management agencies, including the Forest Service, to close certain trails and other areas upon a finding that ORV use "will cause or is causing considerable adverse effects on the soil, vegetation, wildlife, wildlife habitat or cultural or historic resources of particular areas or trails of the public lands." Id. at § 2. These areas are to stay closed until the agency "determines that such adverse effects have been eliminated and that measures have been implemented to prevent future recurrence." Id.
2. The 2005 Travel Management Rule
Before 2005, the Forest Service implemented the ORV Executive Orders through regulations that allowed each Forest to determine the appropriate location and extent of ORV use in the national forests within the land management planning process. See 36 C.F.R. § 295.2 (repealed 2005); George Cameron Coggins & Robert L. Glicksman, 3 Pub. Nat. Resources L. 2nd Ed. § 31:8 (2010). In 2005, the Forest Service revised these regulations in a comprehensive new rule, the 2005 Travel Management Rule.
The 2005 Travel Management Rule requires each national forest to specify designated routes, vehicle types, and seasons of use for motorized travel on national forest roads, trails, and other areas. 36 C.F.R. §§ 212.50(a), 212.51(a). Any motor vehicle use not in accordance with these designations is prohibited. 36 C.F.R. § 261.13.
The 2005 Travel Management Rule contains general and specific criteria for the Forest Service to consider in designating routes for motor vehicle use. 36 C.F.R. § 212.55. The general criteria, applicable to roads, trails, and other areas, require that the Forest Service:
[C]onsider effects on National Forest System natural and cultural resources, public safety, provision of recreational opportunities, access needs, conflicts among uses of National Forest System lands, the need for maintenance and administration of roads, trails, and areas that would arise if the uses under consideration are designated; and the availability of resources for that maintenance and administration. 36 C.F.R. § 212.55(a).
The specific criteria, applicable to trails and other areas but not necessarily roads, generally reflect the minimization requirements from the ORV Executive Orders. The specific criteria require that the Forest Service:
[C]onsider effects on the following, with the objective of minimizing:
(1) Damage to soil, watershed, vegetation, and other forest resources;
(2) Harassment of wildlife and significant disruption of wildlife habitats;
(3) Conflicts between motor vehicle use and existing or proposed recreational uses of National Forest System lands or neighboring Federal lands; and
(4) Conflicts among different classes of motor vehicle uses of National Forest System lands or neighboring Federal lands.
36 C.F.R. § 212.55(b). The Forest Service must also consider the "compatibility of motor vehicle use with existing conditions in populated areas, taking into account sound, emissions, and other factors." Id.
The 2005 Travel Management Rule also includes provisions for the Forest Service to exercise its distinct authority to close trails and other areas. Basically consistent with Executive Order 11989, the regulations allow the Forest Service to temporarily close roads, trails, or other areas when it finds that ORV use "is directly causing or will directly cause considerable adverse effects on public safety or soil, vegetation, wildlife, wildlife habitat, or cultural resources associated with that road, trail, or area." 36 C.F.R. § 212.52(b)(2).
The Forest Service's duty to designate comprehensive travel management plans is distinct from its authority to close trails and other areas. For example, the Forest Service may exercise its authority over "[t]emporary, emergency closures" without prior notice to the public. Id. (notice must be provided "as soon as practicable following the closure"). In contrast, the 2005 Travel Management Rule requires that the Forest Service allow public participation in the designation of roads, trails, and other areas for motorized use in the context of developing a comprehensive travel management plan.
Executive Order 11989 also reflects the distinct nature of these procedures. Executive Order 11989 provides, "[n]otwithstanding the provisions of Section 3 of this Order," the Forest Service may close certain trails or other areas upon a finding of "considerable adverse effects." Exec. Order 11989, 42 Fed. Reg. 26959. This means that, apart from the agency's duty under Section 3 to designate a comprehensive system of trails and other areas open or closed to motorized use, the agency also has the discretion to immediately close certain trails, even if those trails are otherwise designated as appropriate for motorized use in a travel plan, provided that the motorized use is causing "considerable adverse effects."
C. Travel Management on the Salmon Challis National Forest
The SCNF Travel Plan challenged in this lawsuit was developed by the Forest Service to comply with the 2005 Travel Management Rule. (AR 046274). Previous management of motorized use in the SCNF came from the Salmon National Forest Land and Resource Management Plan (1988), the Salmon National Forest Travel Plan (1988), the Challis National Forest Land and Resource Management Plan (1989), and the Challis National Forest Travel Plan (1994). (AR 046274). Under those previous plans, the Forest generally was open to motorized use unless specifically closed. The previous system included designated routes (referred to as "authorized routes") and user-created routes (referred to as "unauthorized routes") developed in those areas open to cross-country travel.*fn3
This is an administrative review proceeding limited to the administrative record before the agency. Consequently, the parties seek to resolve this action as a matter of law on their respective cross-motions for summary judgment brought under Federal Rule of Civil Procedure 56.
Plaintiffs challenge the SCNF Travel Plan under the Administrative Procedure Act ("APA"). See 5 U.S.C. §§ 702, 706. Under the APA, the Court may overturn agency action only if the action is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law," or if the agency acted in excess of its statutory jurisdiction or authority. 5 U.S.C. § 706(2)(A), (C).
Though the APA review standard is deferential, the Court must nonetheless engage in a "thorough, probing, in depth review" of the agency action, in order to fulfill its own duties under the APA. Citizens of Overton Park, Inc. v. Volpe, 401 U.S. 402, 415 (1971). The Court must decide whether the agency has articulated a "rational connection between the facts found and the decision made."Gifford Pinchot Task Force v. U.S. Fish & Wildlife Serv., 378 F.3d 1059, 1065 (9th Cir. 2004). Moreover, the Court must reject an agency decision if it is based on an erroneous interpretation of law or "entirely failed to consider an important aspect of the problem, or offered an explanation 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." League of Wilderness Defenders v. Forest Serv., 549 F.3d 1211, 1215 (9th Cir. 2008) (quotations omitted).
The Court first considers Plaintiffs' argument that the SCNF Travel Plan ROD and FEIS violate NEPA, because, with specific regard to the RWAs and IRAs, Defendants did not properly analyze the cumulative impacts of the proposed action and the range of alternative actions considered was unreasonable. As explained more fully below, the Court finds Plaintiff's arguments persuasive only with regard to the Forest Service's failure to explain why routes shorter than one-half mile in length, even in aggregate, were minimally-intrusive on wilderness values and roadless characteristics.
NEPA requires federal agencies to prepare an environmental impact statement ("EIS") for all "major Federal actions significantly affecting the quality of the human environment." 42 U.S.C. § 4332(2)(C). The EIS "shall provide full and fair discussion of [the] significant environmental impacts" of the proposed action. 40 C.F.R. § 1502.1. That discussion serves two purposes:
First, it ensures that the agency, in reaching its decision, will have available, and will carefully consider, detailed information concerning significant environmental impacts.
Second, it guarantees that the relevant information will be made available to the larger audience that may also play a role in both the decisionmaking process and the implementation of that decision.
Dep't of Transp. v. Pub. Citizen, 541 U.S. 752, 768 (2004) (internal quotation marks, brackets, and citation omitted). By focusing agency and public attention on the environmental effects of proposed agency action, "NEPA ensures that the agency will not act on incomplete information, only to regret its decision after it is too late to correct." Marsh v. Or. Natural Res. Council, 490 U.S. 360, 371 (1989).
A. Cumulative Impact Analysis of Travel Plan's Effect on Inventoried Roadless and Recommended Wilderness Areas
The parties do not dispute that Defendants had a duty under NEPA to
consider the potential impacts of the Travel Plan on wilderness values
and roadless characteristics in the Forest's RWAs and IRAs.*fn4
Plaintiffs contend that the Forest Service failed to meet
this duty, because it did not consider the environmental impacts of
past motorized use or the aggregate effects of motorized routes less
than one-half mile in length ("micro-routes") when evaluating ...