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Friends of Clearwater v. United States Forest Service

United States District Court, D. Idaho

March 11, 2015

UNITED STATES FOREST SERVICE, an agency of the U.S. Department of Agriculture, and RICK BRAZELL, in his capacity as Forest Supervisor for the Clearwater National Forest, Defendants.


EDWARD J. LODGE, District Judge.

Pending before the Court in the above-entitled matter are the Cross-Motions for Summary Judgment filed by the parties in this environmental case. The matters have been fully briefed and are ripe for the Court's consideration. Having fully reviewed the record, the Court finds that the facts and legal arguments are adequately presented in the briefs and record. Accordingly, in the interest of avoiding further delay, and because the Court conclusively finds that the decisional process would not be significantly aided by oral argument, the Motions shall be decided on the record before this Court without a hearing.


Plaintiffs, Friends of the Clearwater, Alliance for the Wild Rockies, and the Sierra Club, have brought this action against the Defendants, the United States Forest Service ("Forest Service") and Rick Brazell, in his capacity as Forest Supervisor for the Clearwater National Forest. Plaintiffs challenge the Forest Service's decisions approving the November 11, 2011 Clearwater National Forest Public Wheeled Motorized Travel Management Record of Decision ("ROD"), the August 2011 Final Environmental Impact Statement ("FEIS"), and the April 12, 2012 denial of Plaintiffs' administrative appeal. (Dkt. 1.) These decisions relate to the Forest Service's proposed implementation of the Clearwater National Forest Travel Plan ("Travel Plan") in the form of the chosen action alternative in the ROD, Alternative C Modified, which designates motorized roads and trails in the Clearwater National Forest ("CNF").

Plaintiffs' claims are brought under the Administrative Procedure Act ("APA"), 5 U.S.C. § 701 et seq., alleging the Defendants' violated the National Environmental Policy Act ("NEPA"), 42 U.S.C. § 4321 et seq.; National Forest Management Act ("NFMA"), 16 U.S.C. § 1600 et seq.; Executive Order 11644, as amended by Executive Order 11989; and the implementing regulations of these statutes and executive orders. (Dkt. 1.) Defendants counter that their decisions and actions were in accord and fully complied with the applicable standards and requirements of these statutes. (Dkt. 13.) Both parties have filed Motions for Summary Judgment which the Court has taken up in this Order and finds as follows. (Dkt. 27, 32.)[1]


1. Standing

Defendants challenge the Plaintiffs' standing to bring their claims arguing they have failed to demonstrate an imminent and concrete injury resulting from the approval of the Travel Plan. (Dkt. 32 at 10.) In particular, Defendants assert that the Plaintiffs' declarations fail to provide specific facts showing their members have concrete plans to return to the affected areas of the CNF in the future. Plaintiffs counter that they have adequately demonstrated standing in their members' declarations by showing their long-term relationships with specific areas adversely affected by the Travel Plan and their firm stated intentions to return to those places in the future. (Dkt. 38.) To bolster their position, Plaintiffs have submitted two supplemental declarations which include specific averments of the declarants' definite plans and intentions to visit particular areas affected by the Travel Plan. (Dkt. 38-1, 38-2.)[2]

Article III of the United States Constitution restricts judicial power to deciding actual cases and controversies. Summers v. Earth Island Inst., 555 U.S. 488, 493 (2009). Thus, the doctrine of standing "requires federal courts to satisfy themselves that the plaintiff has alleged such a personal stake in the outcome of the controversy as to warrant his invocation of federal-court jurisdiction." Id. (citations and quotations omitted). Plaintiffs bear the burden of establish standing by showing they are:

under threat of suffering "injury in fact" that is concrete and particularized; the threat must be actual and imminent, not conjectural or hypothetical; it must be fairly traceable to the challenged action of the defendant; and it must be likely that a favorable judicial decision will prevent or redress the injury.

Jayne v. Sherman, 706 F.3d 994, 999 (9th Cir. 2013); see also Summers, 555 U.S. at 493.

Organizations may establish "the concrete and particularized injury" by pointing "to their members' recreational interests in the National Forests. While generalized harm to the forest or the environment will not alone support standing, if that harm in fact affects the recreational or even the mere esthetic interests of the plaintiff, that will suffice." Summers, 555 U.S. at 493 (citing Sierra Club v. Morton, 405 U.S. 727, 734-736 (1972)). The Ninth Circuit has recognized that such an injury can be found in the testimony of a member of an environmental group that he or she "had repeatedly visited an area affected by a project, that he had concrete plans to do so again, and that his recreational or aesthetic interests would be harmed if the project went forward without his having the opportunity to appeal." Wilderness Society, Inc. v. Rey, 622 F.3d 1251, 1256 (9th Cir. 2010). Further, "[w]here the recreational use of a particular area has been extensive and in close proximity to the plaintiff, an affiant's expressed intention to continue using the land is sufficiently concrete to underwrite an injury-in-fact." Jayne, 706 F.3d at 999 (citation and internal quotation marks omitted). However, a "vague desire to return to the area without any description of concrete plans, or indeed any specification of when the some day will be' does not support a finding of actual or imminent injury." Id.

The Court finds the declarations provided in this case are sufficient to establish standing. These declarations evidence the members' repeated visits to particular areas within the affected area over a long period of time as well as their firm intention to return to these areas in the future. (Dkt. 29-1, 29-2, 29-3, 29-4) (Dkt. 38-1, 38-2.) Such statements show that Plaintiffs will suffer an imminent, concrete injury from approval of the Travel Plan. Accordingly, the Court concludes that the Plaintiffs have established standing in this case.

2. The Clearwater National Forest Plan

The CNF lies in north-central Idaho and comprises 1, 827, 380 total acres of forest lands offering a mix of diverse outdoor opportunities to its visitors including camping, hunting, hiking, skiing, biking, off-road vehicular travel, fishing, whitewater boating, and bird/nature viewing. Approximately half of the CNF, 950, 311 acres, are designated as inventoried roadless areas ("IRA"). (AR3343.) 198, 200 acres of the IRAs have been deemed recommended wilderness areas ("RWA"); meaning they are considered candidates for prospective Wilderness designation. (AR3342.) The CNF is also home to many species of animals and fish as well as their habitats.

In 1987, the Forest Service approved the CNF Land and Resource Management Plan ("Forest Plan") which set forth goals and objectives for multiple resource management in the CNF as well as standards and guidelines for specific activities and projects. (AR42365, 42885.) In 2005, the Forest Service published the Travel Management Rule, 36 C.F.R. §§ 212.1-261.55, which mandates certain changes to the management of motor vehicle use on National Forest System lands. Prior to the Travel Management Rule, motor vehicle use on public lands was largely unregulated resulting in uncontrolled cross-country motor vehicle use, unplanned routes, and damage to the resources. The Travel Management Rule was instituted to eliminate cross-country motor vehicle use by requiring designation of routes and areas for motor vehicle use. See 36 C.F.R. §§ 212.50(b), 212.55. The designated routes are displayed on a Motor Vehicle Use Map ("MVUM") which is annually updated and provided to the public. Any motor vehicle use inconsistent with the MVUM is prohibited. See 36 C.F.R. § 261.13.

In response to the 2005 Travel Management Rule, the Forest Service compiled the November 2011 ROD and August 2011 FEIS, as well as the related materials in the Administrative Record, for the CNF that are at issue in this case. These documents identify the alternative selected by the Forest Supervisor for the CNF as Alternative C Modified which establishes the Travel Plan with a system of designated routes for summer motorized uses, which Defendants argue, provides the best mix of motorized and non-motorized opportunities in the CNF and proposes an amendment to the Forest Plan. (AR3308, 3321.)[3]

3. NEPA Claims

The Complaint raises two claims alleging the Defendants violated NEPA. (Dkt. 1.) Because NEPA does not contain a separate provision for judicial review, we review an agency's compliance with NEPA under the APA, 5 U.S.C. § 706(2)(A). Ka Makani O Kohala Ohana Inc. v. Water Supply, 295 F.3d 955, 958 (9th Cir. 2002) (citing Churchill Cnty. v. Norton, 276 F.3d 1060, 1071 (9th Cir. 2001)). Claims alleging a violation of NEPA are governed by two standards of review. See Price Rd. Neighborhood Ass'n, Inc. v. United States Dept. of Transp., 113 F.3d 1505, 1508 (9th Cir. 1997). Factual or technical disputes, which implicate substantial agency expertise, are reviewed under the "arbitrary and capricious" standard. Id. (citing Marsh v. Oregon Natural Res. Council, 490 U.S. 360, 376-77 (1989)). That is to say, when an agency reaches a decision based on its expert review of the facts, a reviewing court should determine only whether the decision was "arbitrary or capricious." Id. Legal disputes, however, are reviewed under the less deferential "reasonableness" standard. Id. (citation omitted).[4] The issues presented in this case involve factual and/or technical matters and, therefore, the arbitrary and capricious standard applies to all issues.

In reviewing an agency action under this standard, the Court must determine whether the action is "arbitrary, capricious, an abuse of discretion or otherwise not in accordance with the law." 5 U.S.C. § 706(2)(A). A decision is arbitrary and capricious:

only if the agency 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.

Wildland CPR, Inc. v. United States Forest Serv., 872 F.Supp.2d 1064, 1074-75 (D. Mont. 2012 (quoting Gardner v. United States BLM, 638 F.3d 1217, 1224 (9th Cir. 2011) (quoting Lands Council v. McNair, 537 F.3d 981, 987 (9th Cir. 2008)).

Review under the arbitrary and capricious standard "is narrow, and [we do] not substitute [our] judgment for that of the agency." McNair, 537 F.3d at 987 (citations omitted); Wildland CPR, 872 F.Supp.2d at 1074-75. Nevertheless, the agency must examine the relevant data and articulate a satisfactory explanation for its action including a "rational connection between the facts found and the choice made." Wildland CPR, 872 F.Supp.2d at 1075 (citing Burlington Truck Lines v. United States, 371 U.S. 156, 168 (1962)). In reviewing that explanation, the court must "consider whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment." Id. (citation omitted); see also Marsh, 490 U.S. at 378 (quoting Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416 (1971)).

In general, courts must grant substantial deference to the decisions and actions of federal agency defendants in adopting and implementing the certain agency activities. Kettle Range Conservation Grp. v. United States Forest Serv., 148 F.Supp.2d 1107 (E.D. Wash. 2001). NEPA "does not mandate particular results, but simply describes the necessary process" that an agency must follow in issuing an EIS. Id. (citing Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 349 (1989)). NEPA serves two fundamental purposes: (1) to require agency consideration of detailed information concerning significant environmental impacts; and (2) to ensure that the public can both access and contribute to that body of information via comments. San Luis Obispo Mothers for Peace v. Nuclear Regulatory Comm'n, 449 F.3d 1016, 1034 (9th Cir. 2006) (citation omitted). NEPA is strictly a procedural statute designed to ensure that federal agencies will take a "hard look" at the environmental consequences of any proposed agency action. Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 23 (2008). Taking a "hard look" at environmental consequences of major federal actions includes "considering all foreseeable direct and indirect impacts" as well as involve "a discussion of adverse impacts that does not improperly minimize negative side effects." N. Alaska Envtl. Ctr. v. Kempthorne, 457 F.3d 969, 975 (9th Cir. 2006) (internal quotation marks and citations omitted); see also Or. Natural Res. Council Fund v. Brong, 492 F.3d 1120, 1133 (9th Cir. 2007) ("[G]eneral statements about possible effects and some risk do not constitute a hard look absent a justification regarding why more definitive information could not be provided.") (internal quotation marks omitted).

Judicial review of administrative agency decisions under the APA is based on the administrative record compiled by the agency-not on independent fact-finding by the district court. Camp v. Pitts, 411 U.S. 138, 142 (1973). Courts may resolve APA challenges via summary judgment. See Nw. Motorcycle Ass'n v. United States Dep't Agric., 18 F.3d 1468, 1472 (9th Cir. 1994). Summary judgment is appropriate where "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." See Fed.R.Civ.P. 56(a).

Here, Plaintiffs argue the Defendants violated NEPA because 1) the Travel Plan lacks a site-specific analysis and 2) the Defendants failed to consider a reasonable range of alternatives. (Dkt. 1.) The Court will apply ...

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