Citizens for Balanced Use, et al v. Kathleen McAllister, et al

Filing

FILED OPINION (RAYMOND C. FISHER, RONALD M. GOULD and RICHARD A. PAEZ) AFFIRMED. Judge: RCF Authoring, FILED AND ENTERED JUDGMENT. [7984314] [09-36051, 09-36058, 09-36080]

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FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MONTANA WILDERNESS
ASSOCIATION; GREATER
YELLOWSTONE COALITION; THE
WILDERNESS SOCIETY, INC.,
Plaintiffs,
and
CITIZENS FOR BALANCED USE;
KENNETH ZAHN; BIG SKY
SNOWRIDERS; GALLATIN VALLEY
SNOWMOBILE ASSOCIATION,
Plaintiffs-Appellants,
v.
KATHLEEN MCALLISTER, Regional
Forester for Region 1; REBECCA
HEATH; UNITED STATES FOREST
SERVICE,
Defendants-counter-defendantsAppellees,
TREASURE STATE ALLIANCE;
MONTANA TRAIL VEHICLE RIDERS
ASSOCIATION; MONTANA
SNOWMOBILE ASSOCIATION; UNITED
FOUR-WHEEL-DRIVE ASSOCIATIONS;
BLUE RIBBON COALITION, INC.,
Defendant-intervenors-Appellees.

20573

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No. 09-36051
D.C. Nos.
9:07-cv-00039DWM
1:07-cv-00059DWM

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MONTANA WILDERNESS
ASSOCIATION; GREATER
YELLOWSTONE COALITION; THE
WILDERNESS SOCIETY, INC.;
CITIZENS FOR BALANCED USE;
KENNETH ZAHN; BIG SKY
SNOWRIDERS; GALLATIN VALLEY
SNOWMOBILE ASSOCIATION,
Plaintiffs-Appellees,
v.
KATHLEEN MCALLISTER, Regional
Forester for Region 1; REBECCA
HEATH; UNITED STATES FOREST
SERVICE,
Defendants-counter-defendantsAppellants,
and
TREASURE STATE ALLIANCE;
MONTANA TRAIL VEHICLE RIDERS
ASSOCIATION; MONTANA
SNOWMOBILE ASSOCIATION; UNITED
FOUR-WHEEL-DRIVE ASSOCIATIONS;
BLUE RIBBON COALITION, INC.,
Defendant-intervenors.







No. 09-36058
D.C. No.
9:07-cv-00039DWM

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MONTANA WILDERNESS
ASSOCIATION; GREATER
YELLOWSTONE COALITION; THE
WILDERNESS SOCIETY, INC.;
CITIZENS FOR BALANCED USE;
KENNETH ZAHN; BIG SKY
SNOWRIDERS; GALLATIN VALLEY
SNOWMOBILE ASSOCIATION,
Plaintiffs-Appellees,
v.
KATHLEEN MCALLISTER, Regional
Forester for Region 1; REBECCA
HEATH; UNITED STATES FOREST
SERVICE,
Defendants-counter-defendants,
and
TREASURE STATE ALLIANCE;
MONTANA TRAIL VEHICLE RIDERS
ASSOCIATION; MONTANA
SNOWMOBILE ASSOCIATION; UNITED
FOUR-WHEEL-DRIVE ASSOCIATIONS;
BLUE RIBBON COALITION, INC.,
Defendant-intervenors-Appellants.

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No. 09-36080
D.C. No.
9:07-cv-00039DWM
OPINION



Appeal from the United States District Court
for the District of Montana
Donald W. Molloy, District Judge, Presiding
Argued and Submitted June 7, 2011
Submission Withdrawn June 17, 2011
Resubmitted November 22, 2011
Portland, Oregon
Filed December 1, 2011

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Before: Raymond C. Fisher, Ronald M. Gould and
Richard A. Paez, Circuit Judges.
Opinion by Judge Fisher

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COUNSEL
Alan J. Campbell, Office of the General Counsel, U.S.
Department of Agriculture, Missoula, Montana; Ignacia S.
Moreno, Assistant Attorney General, Allen M. Brabender
(argued), David C. Shilton, Mark R. Haag, Julie Thrower,
Anna T. Katselas, Attorneys, U.S. Department of Justice,
Washington, D.C.; William W. Mercer, United States Attorney, and Leif Johnson, Assistant U.S. Attorney, Billings,
Montana, for the Federal appellants.
Douglas L. Honnold, Timothy J. Preso (argued) and Jenny K.
Harbine, Earthjustice, Bozeman, Montana, for appellees Montana Wilderness Association, et al.
Paul A. Turcke and Carl J. Withroe, Moore Smith Buxton &
Turcke, Chartered, Boise, Idaho; Catherine A. Laughner, M.
Christy S. McCann (argued) and Kyle W. Nelson, Browning,
Kaleczyc, Berry & Hoven, P.C., Bozeman, Montana, for
appellants Recreation Groups.

OPINION
FISHER, Circuit Judge:
A coalition of environmental groups (Montana Wilderness
Association, et al., hereinafter MWA) challenges the 2006

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Gallatin National Forest Travel Management Plan prepared
by the United States Forest Service, arguing that the travel
plan violates the Montana Wilderness Study Act of 1977
(Study Act). We hold that the Study Act requires the Service
to ensure that current users of a wilderness study area are able
to enjoy the wilderness character of the area as it existed in
1977, pending a congressional decision on whether to designate the area as wilderness. In this case, the Service has not
adequately explained how the 1977 wilderness character of
the relevant study area, particularly the opportunities for solitude it offers, has been maintained despite an increase in the
volume of motorized and mechanized recreation in the area.
We therefore conclude that the Service’s adoption of the
travel plan was arbitrary and capricious, and accordingly
affirm the district court’s decision finding that the Service’s
actions violate the Administrative Procedure Act (APA).
STATUTORY BACKGROUND
We begin with a brief overview of the statutes that govern
the land management decision challenged in this case.
The 1964 Wilderness Act established a National Wilderness Preservation System composed of congressionally designated wilderness areas. See Pub. L. No. 88-577, 78 Stat. 890
(1964); 16 U.S.C. § 1131(a). Under the Wilderness Act, “wilderness” is defined as “an area where the earth and its community of life are untrammeled by man, where man himself
is a visitor who does not remain.” 16 U.S.C. § 1131(c). The
definition further specifies:
An area of wilderness . . . (1) generally appears to
have been affected primarily by the forces of nature,
with the imprint of man’s work substantially unnoticeable; (2) has outstanding opportunities for solitude or a primitive and unconfined type of
recreation; (3) has at least five thousand acres of
land or is of sufficient size as to make practicable its

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preservation and use in an unimpaired condition; and
(4) may also contain ecological, geological, or other
features of scientific, educational, scenic, or historical value.
Id. Unlike national forests, which are generally managed to
sustain a variety of uses, see id. § 1604(e), wilderness areas
must be managed to preserve their “wilderness character,” id.
§ 1133(b). Only certain recreational uses are appropriate in
wilderness areas; motorized and mechanized activities are
generally prohibited. See id. § 1133(b), (c).
In 1967, the Forest Service undertook a nationwide inventory of large roadless areas within the National Forest System,
“select[ing] areas with the most merit for specific study as
possible additions” to the National Wilderness Preservation
System. S. Rep. No. 95-163, at 2 (1977). Congress became
concerned, however, that in conducting this review the Service may have “unjustifiably rejected from wilderness consideration” several large tracts in Montana. H.R. Rep. No. 95620, at 3 (1977). In response, Congress passed the Study Act,
which identified nine wilderness study areas in Montana for
renewed evaluation. See Pub. L. No. 95-150, § 2(a), 91 Stat.
1243 (1977). The Study Act directed the Secretary of Agriculture to review these study areas’ “suitability for preservation
as wilderness” and to advise Congress whether each study
area should be designated as wilderness or removed from
study area status. Id. § 2(a), (b). The Study Act also instructed
that, pending congressional action on the Secretary’s recommendations, the study areas “be administered . . . so as to
maintain their presently existing wilderness character and
potential for inclusion in the National Wilderness Preservation System.” Id. § 3(a). The Secretary, acting through the
Service, has long since made these recommendations. Congress, however, has not yet acted on them. Accordingly, until
Congress either designates the study areas as wilderness areas
or removes their Study Act protection, the Service must con-

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tinue to manage them to maintain their 1977 wilderness character and potential for wilderness designation.
FACTUAL AND PROCEDURAL BACKGROUND
The Hyalite-Porcupine-Buffalo Horn Wilderness Study
Area, a 155,000-acre region within southwest Montana’s Gallatin National Forest, is managed under the Study Act. Until
recently, the Service administered the entire Gallatin National
Forest, including the study area, under a forest plan prepared
in 1987.1 Since the forest plan was prepared, however, recreation and travel uses of the Gallatin National Forest have
evolved substantially. Motorized and mechanized recreational
use has intensified: “[u]se of snowmobiles and ATVs has
grown in popularity,” for instance, and mountain bike activity
has “exploded.” Observations by Forest Service personnel
further indicate that motorized and mechanized recreational
use has increased in the study area in particular, not just in the
Gallatin National Forest in general, although the Service does
not possess “statistically sound” data fully illustrating these
historical changes. For example, during the winter of 19992000, snowmobile traffic on the Big Sky snowmobile trail,
which passes through the study area, was roughly double that
observed in the winter of 1978-79.
In 2002, realizing that “the demand for some recreation
opportunities” in the Gallatin National Forest might “be
reaching the point of exceeding the capability of the land to
provide them,” the Service began preparing the travel plan to
balance travel and recreational uses with other management
goals. In October 2006, the Service released the record of
decision (ROD) for the travel plan, along with a final environ1

See U.S. Dep’t of Agric., Forest Service, Forest Plan, Gallatin National
Forest (1987), available at http://www.fs.usda.gov/ (select “Gallatin” from
drop-down menu; follow “Go” hyperlink; select “Land & Resources Management,” then “Planning”; follow “Gallatin Forest Plan” hyperlink) (last
visited Aug. 29, 2011).

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mental impact statement (FEIS) prepared to satisfy the
National Environmental Policy Act (NEPA), 42 U.S.C.
§ 4321 et seq.
When preparing the portion of the travel plan that covers
the study area, the Service recognized that the increasing use
of motorized and mechanized transports like snowmobiles,
motorcycles and mountain bikes, none of which can be used
in designated wilderness areas, might potentially degrade the
study area’s wilderness character relative to the 1977 baseline, in contravention of the Study Act’s mandate that 1977
wilderness character be maintained.2 Thus, to comply with the
Study Act, the Service examined which portions of the study
area were available for motorized and mechanized recreational use in 1977, and compared the 1977 areas to the areas
available in 2006, when the travel plan was prepared. After
conducting this analysis, the Service restricted summer use of
motorcycles and mountain bikes to 168 total trail miles, and
restricted winter use of snowmobiles to an 11,000-acre open
area surrounded by a 7000-acre buffer zone.3 The parties dispute whether these restrictions amount to a net increase or
decrease in the physical area of motorized and mechanized
use relative to the 1977 baseline. All acknowledge, however,
that the Service at least attempted to comply with its Study
Act management obligations by reconfiguring the physical
areas in which such use occurs.
2

Although they are of course not motorized, mountain bikes are mechanized, or mechanical, transport vehicles that are not allowed in designated
wilderness areas. See Peter A. Appel, Wilderness and the Courts, 29 Stan.
Envtl. L.J. 62, 87 (2010) (“Bicycles, particularly mountain bikes, are now
popular forms of recreational transportation in back country areas but the
land management agencies prohibit them in wilderness areas because they
are ‘mechanical transport.’ ”).
3
Snowmobiles are not confined to trails, so the travel plan’s restrictions
on the area of snowmobile use are framed in terms of acreage rather than
trail miles.

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Although it reconfigured the area over which motorized
and mechanized use occurs relative to 1977, however, the
Service did not explicitly account for the increase in volume
of use over time. The Service acknowledged that use volume
has increased in the study area since 1977, but noted that
accounting for the increase was somewhat problematic
because there were no “reliable (statistically valid) recreation
use data available.” The Service concluded, however, that the
missing data were not relevant in any event because the Study
Act requires the Service to maintain only those physical characteristics that may affect a study area’s ability to provide a
wilderness experience in the event of future wilderness designation. The Service did not attempt to maintain the area’s
1977 wilderness character, including the relatively low motorized use volumes that existed at that time, for the enjoyment
of current users.
After the travel plan was finalized, MWA brought this
action under the APA, alleging the travel plan and FEIS
“allow motorized and mechanized activities [in the study
area] to increase beyond the 1977 status quo,” in contravention of the Study Act. MWA also alleged that the Service violated NEPA by failing adequately to disclose and analyze the
impact of the travel plan on the study area’s wilderness character. Citizens for Balanced Use, et al. (Citizens), a coalition
representing enthusiasts of motorized and mechanized recreation, filed a separate lawsuit against the Service, alleging just
the opposite: that the travel plan unlawfully restricts motorized use in the study area. On appeal, however, Citizens
largely supports the restrictions adopted by the Service and
argues that the Service’s decision is entitled to deference.4
4

A different coalition of motorized recreational use groups also intervened in MWA’s lawsuit and cross-claimed against the Service, also
alleging unlawful restrictions on motorized use. In this opinion, we refer
to all recreational use groups collectively as “Citizens.”
One coalition of recreational groups also brought NEPA claims relating
to the entire travel plan, not just the portion addressing the study area. Citizens’ cross-appeal challenges the district court’s rejection of these claims.
We address the cross-appeal in a memorandum disposition filed concurrently with this opinion.

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The district court consolidated the two cases. It then
granted MWA’s motion for summary judgment and denied
the cross-motions of the Service and Citizens. The court concluded that the Service failed adequately to explain how the
travel plan’s reconfiguration of the physical areas open to
motorized and mechanized use satisfied the Study Act’s mandate to maintain 1977 wilderness character, in light of
acknowledged increases in use volume. See Mont. Wilderness
Ass’n v. McAllister, 658 F. Supp. 2d 1249, 1255 (D. Mont.
2009). The court recognized that the Service lacked complete
historical data that would allow it to quantify the volume of
use increase precisely, see id., but held that the Service was
nonetheless not permitted to ignore increased volume of use
altogether. See id. at 1256. The court found that the Service
had done so, and that the omission “render[ed] the decision
arbitrary and capricious” in violation of the APA. Id. at 1255.
The court also ruled that, by asserting that the missing historical volume of use data were not relevant to its Study Act
analysis, the Service violated its NEPA obligation to include
in the FEIS “a statement of the relevance of . . . incomplete
or unavailable information to evaluating reasonably foreseeable significant adverse impacts on the human environment.”
40 C.F.R. § 1502.22(b)(2); see McAllister, 658 F. Supp. 2d at
1255-56. The court enjoined the Service from continued
implementation of the travel plan and remanded to the
agency. See McAllister, 658 F. Supp. 2d at 1266. The Service
appealed.
JURISDICTION AND STANDARD OF REVIEW
We have jurisdiction over the Service’s challenge to the
district court’s remand order under 28 U.S.C. § 1291. See
Chugach Alaska Corp. v. Lujan, 915 F.2d 454, 457 (9th Cir.
1990) (holding that an agency may appeal immediately from
a remand order because “review would, as a practical matter,
be foreclosed if an immediate appeal were unavailable”).

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“We review the district court’s summary judgment de
novo, applying the same standards that applied in the district
court.” Pit River Tribe v. U.S. Forest Serv., 469 F.3d 768, 778
(9th Cir. 2006). Because NEPA and the Study Act do not contain independent judicial review provisions, our review of the
travel plan’s compliance with these statutes is governed by
the APA, which allows us to set aside agency decisions that
are “arbitrary, capricious, an abuse of discretion, or otherwise
not in accordance with law.” 5 U.S.C. § 706(2)(A).
In reviewing the Service’s justification for its decision
under the arbitrary and capricious standard, we ask only
whether 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 [an
explanation that] 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, 993 (9th
Cir. 2008) (en banc) (alteration in original) (quoting Motor
Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463
U.S. 29, 43 (1983)) (internal quotation marks omitted), abrogated on other grounds by Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7 (2008).
In reviewing the Service’s interpretation of the Study Act,
we apply the framework set forth in Chevron U.S.A. Inc. v.
Natural Resources Defense Council, Inc., 467 U.S. 837
(1984). See Coeur Alaska, Inc. v. Se. Alaska Conservation
Council, 129 S. Ct. 2458, 2469 (2009).
DISCUSSION
I.
We agree with the district court that the travel plan does not
adequately address the Service’s Study Act obligation to
maintain the study area’s 1977 wilderness character. The Ser-

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vice first erroneously determined that the Study Act does not
require it to maintain the 1977 wilderness character of the
study area for the enjoyment of the area’s current users. Then,
based on its misinterpretation of the Study Act, the Service
ignored the obvious impact of increased volume of motorized
and mechanized use on current users’ ability to enjoy the
study area’s 1977 wilderness character. Because the Service
entirely failed to consider this important aspect of its Study
Act obligation, the travel plan is arbitrary and capricious.
A.
We first address the Service’s interpretation of the Study
Act.
[1] As we explained in Russell Country Sportsmen v.
United States Forest Service, ___ F.3d ___, No. 10-35623,
slip op. 18851 (9th Cir. Oct. 12, 2011), the Study Act imposes
two requirements. “First, the Service must administer study
areas so as to maintain their wilderness character as it existed
in 1977. Second, the Service must administer the areas so as
to maintain their potential for designation as wilderness areas
— i.e., as part of the National Wilderness Preservation System.” Id. at 18861. The dispute in this case centers on the first
requirement, to maintain 1977 wilderness character.
The parties offer competing interpretations of this requirement. The first — offered by the Forest Service in its appellate brief — is that the statute requires only that the Service
maintain those “physical, inherent characteristics” of the
study areas that will make them suitable for future wilderness
use. The second — urged by MWA, and implicitly adopted by
the district court — is that the Service must maintain 1977
wilderness character, including 1977’s relatively low volumes
of motorized use, for the enjoyment of current users of the
study areas, in addition to ensuring that the areas’ physical
potential for future wilderness designation is not destroyed.
We conclude, based not only on the language of the Study Act

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and the 1964 Wilderness Act but also on basic common sense,
that MWA’s interpretation is correct.
[2] The Service’s argument that it can satisfy its statutory
obligation to maintain a study area’s wilderness character by
preserving only its physical wilderness characteristics is out
of step with the 1964 Wilderness Act, which the Service
agrees should inform the definition of “wilderness character”
for purposes of the Study Act. The Wilderness Act does not
define “wilderness” solely according to “physical, inherent
characteristics.” Instead, it states that, in addition to having
physical characteristics such as large acreage, a wilderness
“has outstanding opportunities for solitude.” 16 U.S.C.
§ 1131(c). An area’s ability to provide solitude depends on a
current user’s perception of other users around him — not just
on the physical characteristics of the land. See American Heritage Dictionary of the English Language 1655 (4th ed. 2000)
(defining “solitude” as “The state or quality of being alone or
remote from others”); Oxford English Dictionary (online version June 2011) (defining “solitude” as “The state of being or
living alone; loneliness; seclusion; solitariness (of persons)”).
Furthermore, because the Wilderness Act governs current
wilderness areas, the term “opportunities for solitude” must
include the experience of current, as well as future, users of
the area. See Webster’s Third New International Dictionary
2170 (2002) (defining “opportunity” as “a combination of circumstances, time, and place suitable or favorable for a particular activity or action <the many small rivers . . . offered
unlimited opportunities for water transport — Amer. Guide
Series: R. I.> <artists are given ~ to do creative work —
Amer. Guide Series: N. H.>” (alteration in original)). The Service’s focus on physical characteristics alone, without regard
to the opportunities for solitude currently available, fails to
capture this important aspect of wilderness character.
[3] In Russell Country Sportsmen, ___ F.3d at ___, slip op.
18864, we interpreted the statutory mandate to maintain wilderness character to require that the Service “provid[e] cur-

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rent users with opportunities for solitude comparable to those
that existed in 1977” (emphasis added). This interpretation
accords not only with the language of the Wilderness Act, but
also with common sense. If the Study Act allowed the Service
to focus on physical wilderness characteristics alone, even a
massive escalation in noisy, disruptive motorized use would
trigger no management response so long as there was no
resulting physical degradation. For example, the Service
could allow sightseeing helicopters to fly over the study areas
in unlimited numbers, filling the study areas with loud and
intrusive noise. Because the helicopters would likely never
touch the ground, however, their presence — which from a
common-sense perspective would plainly degrade the areas’
wilderness character — could persist uncontrolled. We agree
with the district court that confronted this very situation that
Congress could not have intended to permit such a result. See
Greater Yellowstone Coal. v. Timchak, No. CV-06-04-EBLW, 2006 WL 3386731, at *3-*4 (D. Idaho Nov. 21, 2006)
(sensibly observing, in analyzing the impacts of helicopters
used for heli-skiing in a Wyoming wilderness study area, that
“loud helicopter flights [can] be inconsistent with solitude,”
and holding that the Service was required to address the
impact of a tenfold increase in helicopter flights on the study
area’s wilderness character).
The Service’s determination that it need not maintain wilderness character for the enjoyment of current study area
users is also inconsistent with its own past practice. See S.
Coast Air Quality Mgmt. Dist. v. EPA, 472 F.3d 882, 901
(D.C. Cir. 2006) (examining the agency’s statutory interpretation for consistency with its past practice). For example, in the
portion of the 2006 Region 1 supplement to the Forest Service
Manual that explains how study areas should be managed to
maintain their 1977 wilderness character, the Service stated
that “[i]f conflicting uses are occurring” in a study area,
responsible officials should “consider separating the uses geographically through an appropriate planning process” by, for
example, “identify[ing] areas for snowmobiling and areas for

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cross-country skiing and snowshoeing.” But user conflict has
no clear impact on an area’s physical landscape — the only
sort of impact the Service now argues is relevant — although
it does have an obvious effect on the study area’s current
users. The Service’s determination, in its own manual supplement, that easing user conflict may help maintain wilderness
character shows that it once considered current user impacts
to be relevant to its Study Act obligations, even if it has abandoned that position in this litigation.
Likewise, in evaluating the wilderness character of the
Middle Fork Judith Wilderness Study Area at issue in Russell
Country Sportsmen, the Service examined current users’ perceptions of the study area. In a preliminary assessment of historical changes in the area’s wilderness character, which the
Service included in its final environmental impact statement,
the Service focused on wilderness experience for current
users, explaining, for example, that “[t]he opportunity to find
natural quiet during the winter is the same now as in 1977,”
and commenting that “[l]evels of use in the backcountry have
not increased dramatically since 1977.” The Service’s extensive discussion of these changes in current users’ ability to
enjoy the wilderness character of the Middle Fork Judith Wilderness Study Area undermines its assertion in this case that
it has never interpreted the statute “to require management
that would provide a wilderness experience in the study
areas,” comparable to that available in 1977, before a decision
on wilderness designation is made.
[4] We therefore conclude, consistent with the Wilderness
Act and with the Service’s own past practice, that the Study
Act requires the Service to maintain a study area’s 1977 wilderness character for the enjoyment of current users. Thus,
because wilderness character depends in part on the availability of opportunities for solitude, the Service must “provid[e]
current users with opportunities for solitude comparable to
those that existed in 1977.” Russell Country Sportsmen, ___

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F.3d at ___, slip op. 18864. The Service’s determination to
the contrary is inconsistent with the Study Act.
The Service contends that we should defer to its interpretation of the Study Act, which it says can be inferred from its
focus on the study area’s physical wilderness characteristics
in the travel plan and FEIS. We recognize that cogent administrative interpretations of ambiguous statutes “warrant
respect,” Alaska Dep’t of Envtl. Conservation v. EPA, 540
U.S. 461, 488 (2004) (quoting Wash. State Dep’t of Social &
Health Servs. v. Guardianship Estate of Keffeler, 537 U.S.
371, 385 (2003)) (internal quotation marks omitted), even if
they are not the product of any “relatively formal administrative procedure,” such as notice-and-comment rulemaking,
United States v. Mead Corp., 533 U.S. 218, 230 (2001). We
do not believe, however, that any cogent interpretation of the
Study Act can be discerned from the brief discussion of wilderness character in the travel plan and FEIS or from the 2006
Region 1 supplement to the Forest Service Manual. Moreover,
the Service’s interpretation of the statute deviates from the
terms of the Wilderness Act and Study Act, as well as from
the Service’s own past practice. It is therefore not entitled to
deference. See Chevron, 467 U.S. at 842-43.
B.
The Service entirely failed to explain how the travel plan
provides current study area users with opportunities for solitude comparable to those that existed in 1977 despite
increased volume of motorized and mechanized use.
[5] The Service recognized that motorized use has
increased in volume, but reasoned that it need not account for
the increase because the area’s physical features, such as
“size, presence of vegetative or topographic screening, [and]
distance from civilization,” had not changed. This is nonresponsive. Increased volume of motorized use has obvious
and potentially significant impacts on the opportunities for

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solitude available within a study area, even if the area remains
physically unchanged. Increased noise from snowmobiles and
motorcycles, for example, may greatly disturb users seeking
quiet and solitude. See Timchak, 2006 WL 3386731, at *3. If
a hypothetical hiker traversing a certain route in 1977 would
have encountered one noisy motorcycle, but today would
encounter 20, his opportunities for solitude have plainly
decreased, unless the impact can somehow be offset by other
factors or considered so small as to make no qualitative difference.
[6] The Service made no attempt to consider or account for
these impacts of increased volume of use. There is nothing in
the travel plan or FEIS that explains how current users’ ability
to seek solitude in the study area has not declined since 1977,
given the increased volume of motorized and mechanized
vehicles. Cf. id., 2006 WL 3386731, at *4 (“If the FEIS had
discussed how the overall . . . wilderness character — that is,
the opportunities for solitude and primitive recreation —
would be maintained by the [Service’s decision], despite the
ten-fold increase in the effects of helicopter use, the FEIS
would comply with the Wyoming Wilderness Act[, which
contains an identical mandate to maintain 1984 wilderness
character]. However, that analysis is missing.”). The Service
therefore entirely failed to consider an important aspect of its
obligation to maintain 1977 wilderness character, making the
travel plan arbitrary and capricious. See Lands Council, 537
F.3d at 993 (describing arbitrary or capricious review). The
Service must take a fresh look at its decision and determine,
after taking into account all of the impacts of increased motorized use volume, whether the motorized use restrictions it
imposes are adequate to maintain 1977 wilderness character
for the enjoyment of current users.5
5

Because we remand so that the Service may reconsider its motorized
and mechanized use restrictions, we need not resolve the parties’ factual
dispute regarding the extent to which the restrictions adopted by the travel
plan alter the physical area in which motorized and mechanized uses will

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C.
Our holding does not require the Service to do the “impractical” or the “nearly impossible,” as the Service protests.
Although the Service must ensure that the study area’s overall
1977 wilderness character is not degraded, there is no requirement that it replicate 1977 conditions precisely. We recognize
that the Service’s attempt to maintain 1977 wilderness character, including 1977 opportunities for solitude, may necessarily
be approximate and qualitative.
We also acknowledge that the Service does not possess
complete historical data illustrating changes in the volume of
recreational use in the study area over time. But the proper
response to that problem is for the Service to do the best it can
with the data it has, not to ignore the volume of use increase
completely. Agencies are often called upon to confront difficult administrative problems armed with imperfect data. See,
e.g., Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins.
Co., 463 U.S. 29, 52 (1983) (“It is not infrequent that the
available data do not settle a regulatory issue and the agency
must then exercise its judgment in moving from the facts and
probabilities on the record to a policy conclusion.”); Natural
Res. Def. Council, Inc. v. EPA, 529 F.3d 1077, 1085 (D.C.
Cir. 2008) (describing the agency’s efforts to evaluate health
risks caused by certain industrial chemicals despite “gaps in
the data” by backfilling certain data points with “environmentally protective defaults”). Our decision requires only that the
Service grapple with the problem the statute defines.
occur relative to the 1977 baseline. We do, however, agree with the district court in principle that any comparison the Service may choose to conduct between the physical extent of motorized use under the travel plan
and the extent of such use in 1977 would most sensibly be focused, to the
extent practicable, on the area over which use actually occurred in 1977,
as opposed to the area in which use was authorized. After all, recreational
use most clearly impacts wilderness character in the areas in which it actually occurs, not merely the areas in which it is formally permitted.

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We likewise do not dictate the correct substantive outcome
on remand. We do not necessarily agree with the district
court, for example, that “the only way [the Service’s] decision
can survive the arbitrary and capricious standard of review is
to substantially reduce the overall area for vehicle use or to
reduce overall motorized and mechanized vehicle access.”
McAllister, 658 F. Supp. 2d at 1256 (emphasis added).
Although the Service might reasonably compensate for an
increase in the volume of motorized use by reducing the overall area of impact, we do not assume that this is the only
proper response to increased volume of use when relevant
data are scarce. We do assume there may be other reasonable
management responses to the problem the Service faces.
II.
[7] The Service’s failure to appreciate the relevance of the
historical increase in volume of use for purposes of its Study
Act analysis also resulted in a failure to comply with NEPA
regulations requiring acknowledgment that relevant data are
unavailable or incomplete. Under 40 C.F.R. § 1502.22:
When an agency is evaluating reasonably foreseeable significant adverse effects on the human environment in an environmental impact statement and
there is incomplete or unavailable information, the
agency shall always make clear that such information is lacking. . . .
(b) If the information relevant to reasonably foreseeable significant adverse impacts cannot be obtained
because the overall costs of obtaining it are exorbitant or the means to obtain it are not known, the
agency shall include within the environmental
impact statement: (1) A statement that such information is incomplete or unavailable; (2) a statement of
the relevance of the incomplete or unavailable information to evaluating reasonably foreseeable signifi-

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cant adverse impacts on the human environment; (3)
a summary of existing credible scientific evidence
which is relevant to evaluating the reasonably foreseeable significant adverse impacts on the human
environment, and (4) the agency’s evaluation of such
impacts based upon theoretical approaches or
research methods generally accepted in the scientific
community.
In addressing § 1502.22, the Service noted that historical
data tracking changes in the volume of recreational use within
the study area could not be obtained, but concluded that such
data were not necessary in any event. This conclusion was
apparently based on the Service’s faulty determination that it
was not obligated to maintain the study area’s 1977 wilderness character, including 1977 opportunities for solitude, for
the benefit of current users. The FEIS stated:
Historic recreation use data specifically for the
[study area] is not available, nor is it possible to
acquire such data at the present time.
1502.22(b)(2) directs the Agency to provide a statement of relevance of the incomplete or unavailable
information to evaluating reasonably foreseeable significant adverse effects on the human environment.
Changes in recreation use have certainly occurred
within the [study area] since 1977 . . . . However, the
volume of recreation use was not a component the
original WARS evaluations of these areas were conducted relative to opportunities for solitude. [sic]
Rather the WARS analysis required consideration of
the physical parameters of the area. Size, distance
from roads, topographic and vegetative screening
were the primary factors used to evaluate opportunities for solitude. Thus — discrete data that tracks
changes in the volume of use over time are not necessary for evaluating the effects of proposed travel

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plan changes relative to [study area] physical characteristics that provide opportunities for solitude.
[8] This discussion does not satisfy the requirements of
§ 1502.22. As we have explained, the historical increase in
volume of use is relevant to the Study Act analysis, contrary
to the Service’s reasoning. We accept the parties’ agreement
that if historical volume of use data are relevant to the Study
Act analysis, they are also relevant for purposes of NEPA
analysis, and thus are “relevant to reasonably foreseeable significant adverse impacts” under § 1502.22. We therefore hold
that the Service incorrectly determined that historical volume
of use data are irrelevant for § 1502.22 purposes.
We do not agree with the Service that this error was harmless. See 5 U.S.C. § 706 (directing that, in the course of judicial review of agency action, “due account shall be taken of
the rule of prejudicial error”). As explained above, the Service’s failure to consider the impact of increased use volume
on the study area’s wilderness character caused it to ignore an
important aspect of the problem before it. We cannot conclude that this shortcoming “clearly had no bearing on the
procedure used or the substance of [the] decision reached.”
Riverbend Farms, Inc. v. Madigan, 958 F.2d 1479, 1487 (9th
Cir. 1992) (quoting Sagebrush Rebellion, Inc. v. Hodel, 790
F.2d 760, 764-65 (9th Cir. 1986)) (internal quotation marks
omitted).6
6

To the extent the district court suggested otherwise, in finding that the
Service properly “considered the direct and indirect effects of plan alternatives to the Study Area” using “ ‘theoretical approaches or research methods,’ ” Mont. Wilderness Ass’n, 658 F. Supp. 2d at 1256 n.4 (quoting 40
C.F.R. § 1502.22(b)(4)), we disagree. Section 1502.22(b)(4) requires that
an agency unable to fill a gap in the relevant data “deal with uncertainties”
that result from the missing data by evaluating potential impacts using theoretical means. San Luis Obispo Mothers for Peace v. NRC, 449 F.3d
1016, 1033 (9th Cir. 2006). Here, although the Service analyzed the direct
and indirect effects of travel plan alternatives generally, it did not attempt
to use theoretical approaches or research methods to deal with uncertainties stemming from the gaps in the available volume of use data because
it erroneously concluded that such data were irrelevant altogether.

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On remand, the Service must acknowledge the relevance of
the missing information and comply with § 1502.22(b)’s
instructions for assessing reasonably foreseeable adverse
impacts despite gaps in the relevant data.
CONCLUSION
We hold that the travel plan improperly ignores the impact
of increased volume of motorized and mechanized use on current users’ ability to seek quiet and solitude in the study area.
Because the Service entirely failed to consider this important
aspect of its duty to maintain the study area’s 1977 wilderness
character, its decision is arbitrary and capricious. We affirm
judgment in favor of MWA and against the Service and Citizens.
AFFIRMED.