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Greater Yellowstone Coalition v. U.S. Forest Serv.

United States District Court, D. Idaho

March 31, 2014

GREATER YELLOWSTONE COALITION, Plaintiff,
v.
U.S. FOREST SERVICE, Defendant

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[Copyrighted Material Omitted]

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For Greater Yellowstone Coalition, Plaintiff: Andrea Lynn Santarsiere, LEAD ATTORNEY, Greater Yellowstone Coalition, Idaho Falls, ID; Shiloh Silvan Hernandez, LEAD ATTORNEY, PRO HAC VICE, Western Enviornmental Law Center, Helena, MT; Susan Jane M Brown, LEAD ATTORNEY, PRO HAC VICE, Western Enviornmental Law Center, Portland, OR.

For United States Forest Service, an administrative agency of the United States Department of Agriculture, Defendant: Julia Sharon Thrower, LEAD ATTORNEY, U.S. Department of Justice, San Francisco, CA; Joshua David Hurwit, United States Attorney's Office, District of Idaho, Boise, ID.

OPINION

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Honorable Ronald E. Bush, U.S. Magistrate Judge.

ORDER ON MOTIONS FOR SUMMARY JUDGMENT

Pending before the Court are Defendant's Motion for Summary Judgment (Dkt. 23) and Plaintiff's Cross-Motion for Summary Judgment (Dkt. 33). The dispute centers on a motorized vehicle trail proposed by the Forest Service in the Caribou Targhee National Forest, which Plaintiff argues will impact the forest's waters and other characteristics. The Court has considered the briefing, and oral arguments, and otherwise being fully advised, both motions are granted in part and denied in part for the reasons explained below.

FACTUAL & PROCEDURAL BACKGROUND

Plaintiff Greater Yellowstone Coalition (the " Coalition" ) challenges the United States Forest Service's (" Forest Service" ) proposed Winschell Dugway All Terrain Vehicle (" ATV" ) Trail Project (the " Project" ). The Project's stated goal is to provide visitors with the unique opportunity to experience mining history within the Soda Springs District of the Caribou National Forest. Def.'s Mem., p. 7 (Dkt. 32); (AR 17081) (describing the " purpose and need" of the Project as improving " motorized trail opportunities and provid[ing] a unique recreational experience allowing visitors to experience mining history within the project area while reducing sedimentation and erosion cause by motorized travel within the project area" ).

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The Project involves constructing and reconstructing [1] 7.8 miles of motorized trail and upgrading a 3.7 mile non-motorized trail. Def.'s Mem., p. 7 (Dkt. 32); Compl., ¶ 46 (Dkt. 1). The proposed trail starts at the southern end of the historic Winschell Dugway wagon road and terminates at Caribou City in the north. Def.'s Mem., p.7 (Dkt. 32); Compl., ¶ 52 (Dkt. 1). Additionally, as part of the Project the Forest Service will relocate 1.2 miles of the North Fork Eagle Creek ATV Trail to eliminate numerous water crossings. Def.'s Mem., p. 7 (Dkt. 32); Compl., ¶ 46 (Dkt. 1).

In August 2007, the Forest Service mailed a notice to interested parties seeking comments on the Project. Def.'s Statement of Fact, ¶ 9 (Dkt. 34). In 2011, the Forest Service published an Environmental Assessment for the Project and issued a Decision Notice and Finding of No Significant Impact. The Coalition administratively appealed the Forest Service's approval of the Project. Id. at ¶ 10. After consideration, the Appeal Deciding Officer reversed the decision, stating that the Project record did not " clearly show that the project is consistent with the Forest Plan." Id.

The Forest Service published an updated Environmental Assessment (" EA" )[2] for the Project in January 2012, and the Decision Notice and Finding of No Significant Impact was issued in February 2012. Def.'s Statement of Fact, ¶ 11 (Dkt. 34); AR 17192-203. The Coalition administratively appealed the Decision Notice, which ultimately was affirmed by the Appeal Deciding Officer with direction to " not proceed with ground disturbing activities covered under the [Decision Notice and Finding of No Significant Impact] until the final location of [a not precisely located 0.5 mile portion of] the trail is identified and laid out on the ground." Def.'s Statement of Fact, ¶ 11 (Dkt. 34). The Appeal Deciding Officer also recommended that the Forest Service " conduct and document an Interdisciplinary team sufficiency review of this final location to determine whether it changes the effects disclosed . . . ." Id.

Under direction of the Appeal Deciding Officer's decision, the Forest Service field-verified the final trail location for the 0.5 segment of trail. Def.'s Statement of Fact, ¶ 12 (Dkt. 34). The Forest Service found that " [t]his section of trail will traverse some steep, but stable, mountain slopes along the corridor of the old roadbed . . . ." Id. Ultimately, the Forest Service determined that " the current range of effects is within the scope of the effects disclosed in the previous analyses, . . . revision of the [Environmental Assessment] is not necessary," and preparation of an Environmental Impact Statement (" EIS" ) is not necessary. Id. at ¶ 13.

The Coalition contends that the Forest Service failed to adequately disclose and discuss the effects of the proposed action in the revised (2012) Environmental Assessment. Compl., ¶ ¶ 108, 122, 128. The Coalition further claims that the inadequate disclosures led to the Forest Service's failure to prepare an EIS, a decision it argues was arbitrary, capricious, and not in accordance with the law. Compl., ¶ 145 (Dkt. 1). The Coalition alleges that these actions violated the National Environmental Policy Act (" NEPA" ), the National Forest Management Act (" NFMA" ), the Administrative

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Procedure Act (" APA" ), and their implementing regulations. An injunction is sought to prevent the Forest Service from proceeding with the Project and the Coalition also asks that the Forest Service be ordered to withdraw the Project's Environmental Assessment and Decision Notice.[3]

The Forest Service strongly contests the Coalition's claims, and requests summary judgment in its favor with a declaration that it did not violate NEPA, NFMA, or the APA in designing and approving the Winschell Dugway ATV Trail Project. Thus, the Forest Service asks the Court to deny the Coalition's Motion for Summary Judgment, grant summary judgment to the Forest Service, and dismiss this case.

MOTIONS FOR SUMMARY JUDGMENT

The Coalition generally argues that the Forest Service could have chosen the No Action Alternative and declined to construct a trail at all because ATV access to Caribou City already exists and the landscape in the project area is unsuitable for an ATV trail due to steep slopes and unstable soils. The Coalition contends that Alternative Four from the EA also could have been chosen, resulting in construction of only a non-motorized trail. The Coalition contends that the alternative selected by the Forest Service was the result of an arbitrary and capricious decision. The Forest Service disagrees, arguing that neither option met the Project's purpose " to improve motorized trail opportunities and provide a unique recreation experience allowing visitors to experience mining history within the project area while reducing sedimentation and erosion caused by motorized travel within the project area." Def.'s Mem., p. 31 (citing AR 14487).

A. Legal Standards

This is an administrative review proceeding. The record is that of 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. Summary judgment is appropriate where the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine dispute as to any material fact and that the moving party is entitled to a judgment as a matter of law. See Fed.R.Civ.P. 56; see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

NFMA requires the Forest Service to " develop, maintain, and as appropriate, revise land and resource management plans for units of the National Forest System." 16 U.S.C. § 1604(a). Once a forest management plan has been developed, the Forest Service is required to manage its lands in accordance with the plan. Id. § 1604(i). The Forest Service adopted its current Caribou Revised Forest Plan (" Forest Plan" ) for the Caribou section of the Caribou-Targhee National Forest in 2003. See AR 1.

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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 decision making process and the implementation of that decision.

Dep't of Transp. v. Pub. Citizen, 541 U.S. 752, 768, 124 S.Ct. 2204, 159 L.Ed.2d 60 (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, 109 S.Ct. 1851, 104 L.Ed.2d 377 (1989).

Thus, NEPA requires that major agency decisions significantly affecting the environment consider the impacts of those decisions and explore possible alternatives, before a decision is reached. 42 U.S.C. § § 4321, et seq. ; 40 C.F.R. § 1501.1. NEPA's procedures ensure the so-called " hard look" at the environmental consequences of a federal agency's proposed action in advance of a final decision. Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 350-51, 109 S.Ct. 1835, 104 L.Ed.2d 351 (1989); Vermont Yankee Nuclear Power Corp. v. NRDC, 435 U.S. 519, 558, 98 S.Ct. 1197, 55 L.Ed.2d 460 (1978). Agency decisions governed by NEPA are reviewable under the APA, 5 U.S.C. § § 701-706. Lujan v. Nat'l Wildlife Fed'n, 497 U.S. 871, 882-83, 110 S.Ct. 3177, 111 L.Ed.2d 695 (1990); Laub v. United States DOI, 342 F.3d 1080, 1087 (9th Cir. 2003).

Under the APA, agency action must be upheld unless it is found to be " arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2)(A); Friends of Earth v. Hintz, 800 F.2d 822, 830-31 (9th Cir. 1986). A decision is arbitrary and capricious if the Service:

relied on factors Congress did not intend it to consider, 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.

Lands Council v. McNair, 537 F.3d 981, 987 (9th Cir. 2008) (en banc) (internal quotation marks omitted), overruled on other grounds by Winter v. NRDC, Inc., 555 U.S. 7, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008); see also League of Wilderness Defenders-Blue Mountains Biodiversity Project v. U.S. Forest Serv., 689 F.3d 1060, 1068 (9th Cir. 2012).

Consideration of whether an agency action is arbitrary and capricious requires the court to review whether the agency considered the relevant factors and articulated a rational connection between the facts found and the choices made. Pac. Coast Fed'n of Fishermen's Ass'n, Inc. v. NMFS, 265 F.3d 1028, 1034 (9th Cir. 2001). If the agency decision was based on the relevant factors and there is no clear error of judgment, the reviewing court may not overturn the agency's action

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as arbitrary and capricious. Arizona v. Thomas, 824 F.2d 745, 748 (9th Cir. 1987).

" Deference to an agency's technical expertise and experience is particularly warranted with respect to questions involving scientific matters." United States v. Alpine Land and Reservoir Co., 887 F.2d 207, 213 (9th Cir. 1989). Nonetheless, the " presumption of agency expertise may be rebutted if the decisions, even though based on scientific expertise, are not reasoned." Greenpeace v. NMFS, 80 F.Supp.2d 1137, 1147 (W.D.Wash. 2000). " Where an agency fails to articulate a rational connection between the facts found and the choice made, the Court may not supply a reasoned basis for the agency's action that the agency itself has not given." Defenders of Wildlife v. Babbitt, 958 F.Supp. 670, 679 (D.D.C.1997) (internal quotation marks and citations omitted).

Hence, judicial review is " searching and careful," but remains " narrow." A court should not substitute its judgment for that of the agency. Mt. Graham Red Squirrel v. Espy, 986 F.2d 1568, 1571 (9th Cir. 1993). Overturning agency action is warranted only if the agency " relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision 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." Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983).

B. NEPA CLAIMS

1. The Forest Service failed to properly disclose and analyze the effects of the Project on the Caribou Mountain Recommended Wilderness Area.

The Project proposes constructing a motorized trail near the Caribou Mountain Recommended Wilderness Area (" Recommended Wilderness Area" or " RWA" ) that comes within one-half mile of the RWA for about two miles of the trail's length and is located, in part, on a ridgeline.[4] The Coalition argues that the Forest Service failed to consider the effects of having an ATV trail so close to a recommended wilderness area, and this failure amounts to an arbitrary and capricious decision that violates NEPA. Pl.'s Mem., p. 7 (Dkt. 24). See also 40 C.F.R. § 1508.27(b)(3) (explaining that, in evaluating intensity, the Forest Service should consider " [u]nique characteristics [5] of the geographic area such as proximity to historic or cultural resources, park lands, prime farmlands, wetlands, wild and scenic rivers, or ecologically critical areas" ).

Under the Revised Forest Plan (" Forest Plan" or " Plan" ), " [n]o new road or motorized trail construction" is allowed, but " [i]mprovements to existing motorized trails are allowed if they do not lead to long-term adverse changes in wilderness character. " AR 90 (emphasis added). Thus, despite the Forest Plan's stated goal to " [p]rotect and maintain wilderness character," AR 88, it does not contemplate that no motorized activity will occur

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near the area; just that if it does occur it will not have corresponding long term adverse changes in wilderness character. See also AR 88 (explaining that the Recommended Wilderness Area " will be managed to retain its wilderness character until Congress takes action on the recommendation" ). Indeed, as the Forest Plan describes, the area already has multiple uses, offering an " excellent opportunity for solitude or a primitive and unconfined type of recreation," although " [v]isitors may encounter ...


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