Village of Yellow Pine Association et al v. US Forest Service et al

Filing 48

MEMORANDUM DECISION. Signed by Judge B. Lynn Winmill. Associated Cases: 1:11-cv-00233-BLW, 1:09-cv-00275-BLW(caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (cjm)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO
VALLEY COUNTY, IDAHO
Plaintiff,

Lead Case No. 1:11-CV-233-BLW

v.
UNITED STATES DEPARTMENT OF
AGRICULTURE, et al.,

MEMORANDUM DECISION

Defendants.

VILLAGE OF YELLOWPINE
ASSOCIATION; IDAHO RECREATION
COUNCIL; CHRIS and LOIS
SCHWARZHOFF; BIG CREEK LODGE
AND OUTFITTERS;

Member Case No. 1:09-CV-275-BLW

Plaintiffs,
v.
UNITED STATES FOREST SERVICE;
PAYETTE NATIONAL FOREST; Suzanne C.
Rainville, Forest Supervisor;
Defendants.

INTRODUCTION
The Court has before it cross-motions for summary judgment. The Court heard
oral argument and took the motions under advisement. For the reasons expressed below,
the Court will grant the motion of the Forest Service and deny the plaintiffs’ motion.

Memorandum Decision - 1

FACTUAL BACKGROUND
This litigation concerns the Forest Service’s closure of user-created roads in the
Big Creek - Yellow Pine area, located within the Krassel Ranger District of the Payette
National Forest (“PNF”). In 1995, the Forest Service adopted a Travel Management Plan
and Travel Map for the PNF. The Travel Map did not show that the Big Creek - Yellow
Pine area was closed to motorized traffic, and under then-existing regulations an area was
open to motorized traffic unless otherwise posted. The Big Creek - Yellow Pine area
contains roughly eighty miles of roads created by private users of the National Forest
area.1 In the Big Creek - Yellow Pine area, many of these undesignated roads were
created by private individuals using the National Forest to access private mining claims.
In 2003, the Forest Service approved the 2003 Payette National Forest Land and
Resource Management Plan (“2003 Forest Plan”). The 2003 Forest Plan noted the need
to revise and updated the 1995 Travel Management Plan and led to the Forest Service’s
adoption of the travel plan revisions at issue here. See FS020885.
The PNF travel plan revision process was also undertaken because of the United
States Department of Agriculture’s 2005 issuance of the nationwide Travel Management
Rule. See 70 Fed. Reg. 68,264-91 (Nov. 9, 2005). The Travel Management Rule
(“TMR”) was designed to promote uniform Forest Service management of off-highway

1

Forest Service documents refer to these roads, created by private individuals through
repeated use, as “user-created,” “undesignated,” or “unauthorized.” The Court will refer to them as
undesignated roads. According to the 2010 Big Creek - Yellow Pine Environmental Assessment, there
are 77.4 miles of undesignated roads in the area at issue in this lawsuit. See FS033513.
Memorandum Decision - 2

vehicle (“OHV”) use in light of its significant growth and environmental impacts on
National Forest Lands. Id. at 68,264-65. The TMR prohibits motor vehicle use on roads
not explicitly designated for their use, in effect reversing the previous “open unless posted
closed” policy. See 36 C.F.R. § 261.13.
Pursuant to its obligations under the 2003 Forest Plan and the Travel Management
Plan, the PNF presented its “Travel Management Plan Final Environmental Impact
Statement” (“FEIS”) to the public on April 2007. As required by federal regulation, the
EIS contained a “no action” alternative (Alternative A), intended to represent the status
quo option. See FS081343; see also 40 C.F.R. § 1502.14. Alternative A would have left
510,930 acres, approximately one-third of the PNF, open to motorized cross-country
travel. The FEIS noted that “[s]ome areas contain many miles of unauthorized road [sic]
where travel impacts may be concentrated but the extent is unknown.” See FS18405.
However, Alternative A did not propose allowing any cross-country motorized travel in
the Big Creek - Yellow Pine area. The Forest Service believed that it had prohibited
cross-country motorized travel in the Big Creek -Yellow Pine since 2000 through the
publication of an annual “Backroads Map” that showed the area as closed to crosscountry motorized use. See FS18445.
Each of the proposed alternatives, except for Alternative A, prohibited crosscountry motorized travel in the PNF. See FS018412. The FEIS recommended adoption
of Alternative E, which it described as “reduc[ing] roads and two-wheel motorized trails,

Memorandum Decision - 3

and provid[ing] greater ATV and OHV opportunities than Alternatives B and D, but less
than Alternative C.” See FS018315.
The PNF Forest Supervisor opted to issue separate decisions by ranger district.
See FS019657. For the Krassel Ranger District, the Record of Decision adopted
Alternative E, with some minor modifications. See FS019659-60. The ROD designated a
small number of “unauthorized roads” as ATV trails. See FS019667. Otherwise, the
ROD explicitly closed the entire area to motorized cross-country travel, though the Forest
Supervisor again indicated that he believed the entire Krassel Ranger District was already
closed to motorized cross-country travel through the Backroads Map. See FS019666.
The ROD noted a number of public comments in response to the FEIS that
challenged the FEIS’s characterization of the Big Creek - Yellow Pine area as previously
closed to cross-country motorized use. In response, the Forest Supervisor acknowledged,
“The Forest [sic] recognizes that there was some misunderstanding regarding the purpose
and the enforcement of the Backroads Map publication. Regardless, it was used to
determine the initial existing condition when beginning the travel plan.” See FS019669.
The Supervisor also committed to additional NEPA analysis to consider designating
undesignated roads in the area:
I also realize that these roads and trails that do not appear on Backroads Maps, but
do appear on the 1995 Travel Map are important to the recreating public, and will
identify ways to possibly designate some of the routes in the near future. This will
take additional site-specific NEPA, [sic] but these roads and trails will be high on
the project priority list for funding the analysis.

Memorandum Decision - 4

Id.
Pursuant to this commitment, the Forest Service initiated additional environmental
assessment of motorized vehicle route designation in the Big Creek - Yellow Pine area.
As a preliminary step, the Forest Service assembled two interdisciplinary teams to
conduct travel assessments for the Big Creek area and the Yellow Pine area. The travel
assessments were released in March and June of 2009. Both included an inventory of
area roads, including undesignated roads, and a partial survey of their use by the public.
See FS033295; FS033114. The road inventory in each assessment appears to rely principally
on a 2002 Forest Service road inventory undertaken in the area. See FS033280; FS033099. The
travel assessments also considered the general impact of roads on soil and water,
vegetation, fisheries, wildlife, recreation opportunities, and cultural resources. Finally,
the assessments made a recommendation of decommissioning or designating each of the
inventoried roads. See FS033195-96; FS033374-75. The assessments recommended
decommissioning the majority of roads. The recommendations were based on inventory
data on the number and quality of stream crossing, the propensity for erosion, and the
Forest Service’s assessment of each road’s recreational value.
In April 2010, the Forest Service published the Big Creek-Yellow Pine Travel Plan
Environmental Assessment (“2010 EA”). The 2010 EA no action alternative was defined
as continued management of the area “as specified in the 2008 TMP ROD,” i.e., with the
area closed to off-road motorized use. See FS033512. The EA also included two

Memorandum Decision - 5

alternatives that would have designated either 13.5 miles of currently undesignated roads
for motorized use, in Alternative B, or 26.6 miles, in Alternative C. See FS033513-14.
The EA study team rejected from detailed consideration an alternative that would have
adopted the recommendations of the Big Creek Travel Assessment and Yellow Pine
Travel Assessment because, though the route closures recommended “would have best
met many of the resource concerns for fisheries and water quality,” the assessments did
“did not take into consideration the public sentiment” in favor of maintaining existing
routes. See FS033511. The EA also eliminated from detailed consideration an alternative
that would have opened non-designated roads to motorized use because that policy was
inconsistent with the national TMR. See FS033510.
Shortly after the EA was released, also in April 2010, the Forest Supervisor issued
a “Big Creek Yellow Pine Travel Plan Project Decision Notice and Finding of No
Significant Impact.” The FONSI adopted the no action alternative from the EA, opting
for the status quo created by the 2008 ROD. The Forest Supervisor rejected alternatives
B and C on the grounds that the additional route designation without offsetting mitigation
would likely degrade fisheries through opening additional stream crossings and trails in
riparian areas. See FS033686-88. However, the Supervisor indicated that he would
continue to consider designation of some roads in the future, stating that “I would like to
proceed from here by re-analyzing the routes in the project area with more collaborative
public involvement. This will allow the Forest to consider offsetting mitigations such as

Memorandum Decision - 6

decommissioning of unused routes.” See FS033685.
LITIGATION BACKGROUND
Plaintiffs Idaho Recreation Council (IRC) and Chris and Lois Schwarzhoff filed
their complaint on June 9, 2009 in what was then a separate case (1:09-cv-00275-BLW)
before Idaho District Court Judge Edward Lodge. After the Forest Service issued its 2010
EA/FONSI, those Plaintiffs filed an Amended Complaint. Dkt. 26, 1:09-cv-00275-BLW.
The Amended Complaint alleges that the Forest Service, in promulgating the travel
management policy in the Big Creek - Yellow Pine area, violated the Administrative
Procedures Act (“APA”); the National Environmental Policy Act (“NEPA”), and the
National Forest Management Act (“NFMA”).
Valley County filed a complaint under the instant case number on May 19, 2011.
It similarly alleges that defendants’ actions violate the APA and NEPA but does not
allege a violation of the NFMA.
Valley County moved to consolidate the two cases on July 7, 2011. The Court
granted the motion and designated Valley County v. United States as the lead case. On
February 17, 2012, the IRC and the Schwarzhoffs filed the motion for summary judgment
at issue here, and Valley County has joined the motion.
The Court will refer to the plaintiffs collectively as “IRC” for ease of reference,
and for the same reason will refer to the defendants as the “Forest Service.”
LEGAL STANDARD

Memorandum Decision - 7

Summary judgment is appropriate when there is no genuine issue of material fact
and the moving party is entitled to judgment as a matter of law. Karuk Tribe of Cal. v.
U.S. Forest Serv., – F.3d –, 2012 WL 1959231, at *7 (9th Cir. 2012) (en banc). In an
administrative record review case, a court may direct summary judgment based upon
whether the evidence in the administrative record permitted the agency to make the
challenged decision. Id. Under the APA, the reviewing court must set aside the agency's
decision if it is “arbitrary, capricious, an abuse of discretion, or otherwise not in
accordance with law.” 5 U.S.C. § 706(2)(A). A decision is arbitrary and capricious if the
agency has relied on factors which Congress had 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.
O’Keeffe's, Inc. v. U.S. Consumer Product Safety Comm’n, 92 F.3d 940, 942 (9th Cir.
1996). An agency action is also arbitrary and capricious if the agency fails to articulate a
satisfactory explanation for its action including a rational connection between the facts
found and the choice made. Id. Finally, an agency must set forth clearly the grounds on
which it acted. See Atchison T. & S.F. Ry. v. Wichita Bd. of Trade, 412 U.S. 800, 807
(1973).
ANALYSIS
Prudential Standing

Memorandum Decision - 8

The Forest Service contends that the IRC lacks prudential standing under NEPA or
the NFMA. To establish prudential standing under the APA, the IRC must establish an
interest that is “arguably within the zone of interests to be protected or regulated by the
statute.” Clarke v. Securities Industry Ass’n, 479 U.S. 388, 395 (1987) (internal quotation
marks omitted). To fall under NEPA’s zone of interests, IRC must show that its interest
is environmental or that alleged economic injuries are casually related to a NEPAprotected injury. Ranchers Cattlemen Action Legal Fund United Stockgrowers of
America v. U.S. Dep’t Agric., 415 F.3d 1078, 1103 (9th Cir. 2005). IRC may also
proceed if they establish an interest in “recreational use and aesthetic enjoyment” of the
regulated area. See Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 886 (1990). The zone of
interest requirement under the NFMA is similar: IRC must establish that its interest is in
recreational use environmental preservation, or ensuring the continued diversity of plant
and animal communities. See 16 U.S.C. § 1604(g)(3)(B). Standing must be supported
“with the manner and degree of evidence required at the successive stages of the
litigation.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992).
Applying this standard, the Court concludes that each plaintiff has established
standing. With respect to the IRC, the administrative record establishes that the
organization’s interest is in facilitating its members’ access to Big Creek - Yellow Pine
Roads for recreational use. See FS033814, FS021916. With respect to the Schwarzhoffs,
the administrative record as well as supplemental affidavits establish that they have long

Memorandum Decision - 9

used undesignated roads in the area for recreation, birdwatching, huckleberry picking, and
sightseeing. See, .e.g., FS034034; Affidavit of Chris Schwarzhoff (Dkt. No. 51-2) at ¶¶ 67. This evidence establishes that the IRC and the Schwarhoffs both have an interest in
“recreational use and aesthetic enjoyment” of the area sufficient to establish prudential
standing. Nat’l Wildlife Fed’n,, 497 U.S. at 886.
With respect to Valley County, the Court has already ruled that “Valley County
alleges a concrete injury to its interests in the environment which falls within the zone of
interests of NEPA.” See Memorandum Decision (Dkt. No. 25) at p. 7. However, because
this case is now at the summary judgment stage, Valley County “can no longer rest on
such mere allegations, but must set forth by affidavit or other evidence specific facts,
which for purposes of the summary judgment motion will be taken to be true.” Defenders
of Wildlife, 504 U.S. at 561 (internal quotation marks and citation omitted). The Court
concludes that the Motion for Summary Judgment and accompanying Statement of Facts,
which Valley County has joined, set forth adequate facts to substantiate Valley County’s
standing at this stage. In particular, the Statement of Facts alleges that the Forest Service
incorrectly assumed that prior to the 2008 EIS/ROD Big Creek - Yellow Pine roads had
been closed to motorized traffic. See Statement of Facts (Dkt. No. 27-2) at ¶¶ 28-34.
These facts, taken to be true for standing purposes, support Valley County’s allegation
that the Forest Service failure to recognize that roads were previously opened causing it to
ignore potential environmental impact from closing the roads. See Complaint (Dkt. No.

Memorandum Decision - 10

1) at ¶¶ 140-42. In turn, the failure to keep those roads opened will result in a concrete
injury to its interests in the environment which falls within the zone of interests of NEPA/

Mootness
The Forest Service contends that IRC’s claims are moot. “[A]n issue is moot when
deciding it would have no effect within the confines of the case itself.” Tur v. YouTube,
Inc., 562 F.3d 1212, 1214 (9th Cir. 2009) (per curiam). IRC’s claim is moot, the Forest
Service argues, because (1) relief, even if granted, would leave in place a ban on use of
undesignated trails and (2) the Forest Service is currently engaging in a process to
potentially open undesignated routes. The Court disagrees with each contention.
The Forest Service’s first argument is that if the Court were to vacate the 2010
DN/FONSI this would leave the 2008 ROD in place. Because the 2008 ROD also
prohibits travel on the undesignated roads, the Forest Service maintains that the Court
cannot grant “effective relief.” Id. at 1213 (internal quotation marks omitted). But this
argument overlooks IRC’s request that the Court vacate the 2008 ROD as well as the
2010 DN/FONSI. If both Forest Service orders were vacated in the Big Creek - Yellow
Pine area, pending a new environmental assessment, IRC contends that motorized access
would be governed by the 1995 TMP, which allows public use of the undesignated roads.
Thus, as the Court has suggested in another context, “the Court could offer effective relief
by ordering the agency to restart the rulemaking process and adequately describe the no

Memorandum Decision - 11

action alternative.” Am. Independence Mines and Minerals Co. v. U.S. Dep’t of Agric.,
733 F. Supp. 2d 1241, 1255 (D. Idaho 2010).
The Forest Service’s argues next that it is currently in the midst of a route
designation review process that cures any defects in NEPA compliance alleged by IRC.
The Forest Service relies on the commitment of its Forest Supervisor, expressed in the
2010 FONSI, to consider individual route designations in the Big Creek - Yellow Pine
area. As explained by the Forest Supervisor “[t]he Krassel Ranger District would like to
have the opportunity to work with interested parties in a collaborative process in order to
come to a decision that could potentially add additional motorized routes, while
maintaining consistency with the Forest Plan.” See FS033685.
This process, whatever its merits, does not remedy the procedural defects alleged
by IRC, and thus does not moot its claims. The Forest Supervisor’s willingness to
“potentially” open additional motorized routes is not analogous to the relief requested by
IRC, which includes (1) a comprehensive re-evaluation of road designation with accurate
assessment of historic patterns of use of undesignated roads, (2) an environmental review
that gives consideration to several factors that IRC alleges were have not been properly
addressed in the Forest Service’s environmental review, and (3) a return to the 1995
Travel Management Plan for the Big Creek - Yellow Pine area pending the completion of
a new environmental assessment.
NEPA Claims

Memorandum Decision - 12

IRC argues that the 2008 EIS/ROD and the 2010 EA/FONSI were arbitrary or
capricious because they (1) incorrectly treated unclassified roads as closed at the
inception of the environmental review process and as a result failed to include an
alternative that allowed continued use of unclassified Big Creek - Yellow Pine roads, and
(2) failed to properly address the value of the unclassified Big Creek - Yellow Pine roads
for recreational opportunity, public safety, general access, socioeconomic value to
neighboring communities, and access to natural and cultural resources. The Court will
consider each argument in turn.
Though IRC focuses almost entirely on the 2008 FEIS/ROD, it is the 2010
EA/FONSI that currently constitutes Forest Service policy on road designation in the Big
Creek - Yellow Pine Area. The Court therefore first considers IRC’s arguments in the
context of the 2010 EA/FONSI.
1.

The “No Action” Alternative and Unclassified Roads
NEPA requires federal agencies to “[s]tudy, develop, and describe appropriate

alternatives to recommended courses of action in any proposal which involves unresolved
conflicts concerning alternative uses of available resources.” 42 U.S.C. § 4332(2)(E).
Each assessment must include a “no action” alternative. 40 C.F.R. § 1502.14. “The no
action alternative is meant to provide a baseline against which the action alternative . . . is
evaluated.” Ctr. for Biological Diversity v. U.S. Dep’t. of Interior, 623 F.3d 633, 642 (9th
Cir. 2010). “The touchstone for [the Court’s] inquiry is whether an EIS’s selection and

Memorandum Decision - 13

discussion of alternatives fosters informed decision-making and informed public
participation.” Westlands Water Dist. v. U.S. Dep’t. of Interior, 376 F.3d 853, 868 (9th
Cir. 2004) (internal quotation marks omitted). NEPA does not require the agency to
conduct “a separate analysis of alternatives which are not significantly distinguishable
from alternatives actually considered, or which have substantially similar consequences.”
Headwaters, Inc. v. Bureau of Land Mgmt., 914 F.2d 1174, 1181 (9th Cir. 1990).
IRC’s central argument is that the Big Creek - Yellow Pine area was never closed
to off-road motorized use at any time prior to the issuance of the 2008 ROD. In IRC’s
view, the area was opened to off-road motorized use by the 1995 TMP and Travel Map
and the Forest Service never issued a valid order prohibiting off-road motorized use prior
to the 2008 ROD. Thus, the “no action” alternative in the 2008 FEIS constituted an
unacknowledged change in Forest Service policy. Even though the 2008 ROD did not
result in the selection of the no action alternative, IRC contends the failure of the FEIS to
accurately identify the status quo condition tainted the comparison of alternatives and
rendered the election of Alternative E arbitrary or capricious, since none of the potential
alternatives actually considered maintaining the status quo condition of unregulated
motorized use of undesignated trails in the Big Creek -Yellow Pine area. Finally, IRC
contends that this error was only compounded by the subsequent 2010 EA/FONSI, which
characterized the ban on off-road vehicle use created by the 2008 ROD as the status quo
condition.

Memorandum Decision - 14

IRC thus put two issues before the Court: (1) Whether the 2008 FEIS accurately
described the status quo condition, i.e., did the Forest Service validly close the Big Creek
- Yellow Pine area to off-road motorized use prior to 2008?; and (2) If the Big Creek Yellow Pine area was in fact open to off-road motorized use prior to 2008, whether this
error in the characterization of the 2008 FEIS no action alternative was significant enough
to render the management decision announced in the 2010 EA/FONSI arbitrary or
capricious.
The parties devote considerable argument to the first question, i.e., whether the
Forest Service legally closed the Big Creek - Yellow Pine area to off-road motorized
vehicles prior to 2008. While the Court agrees that this is a difficult question,2 it disagrees
that determining the legality of off-road vehicle use in the Big Creek - Yellow Pine area

2

Both parties agree that under the 1995 Travel Plan and Travel Map, the Big Creek Yellow Pine area was not closed to off-road motorized vehicles. The Forest Service contends that the
1995 Travel Map was supplanted by the issuance of a “Backroads Map” that, beginning in 2000, showed
the Big Creek - Yellow Pine Area as “CLOSED Yearlong ” to all cross country motorized use other than
bicycle. See, e.g., FS033979 (2004 Backroads Map). IRC contends the Backroads Maps were not valid
closure orders and were not displayed “in such locations and manner as to reasonably bring the
prohibition to the attention of the public” as required by 36 C.F.R. § 261.51.
Even assuming the Forest Service followed the necessary process, the Backroads Maps are
ambiguous as to whether they were intended to effect an area closure. On the one hand, the front page of
the map displays, in large font, the phrase “Travel Map Revision.” FS033974. It also states that, “This
publication is designed to help identify . . . any changes in the travel plan that have occurred over the past
year.” On the other hand, it emphasizes, “Keep in mind that this publication is only a general guide. The
1995 Forest Visitor/Travel Map provides more detailed information, such as closed roads . . . . This
BACKROADS publication needs to be used in conjunction with the 1995 Forest Visitor/Travel Map.” Id.
The Forest Service also point to a 1997 Special Order that prohibits “[u]sing any motor vehicle
off of Forest Development Roads” on “roads, trails and areas, described in this order.” But the Order
relies exclusively on several maps to describe the closure, including the “Payette National Forest, McCall
and Krassel Ranger Districts Map, 1995 Edition.” The Forest Service does not direct the Court to this
map, and it is not clear if it can be found in the administrative record, which is contained on several CDs.
IRC contends that this map is the same as the 1995 TMP, which does not show the Big Creek - Yellow
Pine area as closed to motorized vehicles.
Memorandum Decision - 15

between 1997 and 2008 is essential to its review of the NEPA process at issue here. The
purpose of the no action alternative, as with NEPA’s requirement that the agency consider
multiple alternatives, is to facilitate comparison of “the environmental impacts of the
proposal and the alternatives.” 40 CFR § 1502.14 (emphasis added). A Forest Service
error in describing the legal regulations governing an area of the PNF does not amount to
a violation of NEPA so long as the environmental assessment nonetheless adequately
“fosters informed decision-making and informed public participation.” Westlands Water
Dist., 376 F.3d at 868. In other words, even if the Forest Service erred in concluding that
it had closed the area, that would invalidate the 2010 EA/FONSI only if it skewed the
agency’s assessment of baseline environmental impacts or usage patterns in such a way as
to render the comparison of alternatives arbitrary or capricious. See Te-Moak Tribe of
Western Shoshone of Nev. v. U.S. Dep’t of Interior, 608 F.3d 592, 600 (9th Cir. 2000)
(“NEPA’s ultimate focus is on the assessment of environmental impacts and a project’s
details are usually a means to that end.”).
The Court thus assumes without deciding that the Forest Service did not legally
close the Big Creek - Yellow Pine area to off-road motorized use prior to 2008 and turns
to the central inquiry: Whether the 2010 EA/FONSI discussion of alternatives was
adequate to facilitate informed decision-making and public participation. Westlands
Water Dist., 376 F.3d at 868. Because the 2010 EA/FONSI explicitly considered the
designation of undesignated roads as an alternative and examined the environmental
impacts stemming from the use of undesignated roads in the area, the Court concludes
Memorandum Decision - 16

that the discussion of alternatives was adequate under NEPA.
First, the Forest Service undertook the 2010 EA/FONSI because it recognized that
there was some public disagreement about the pre-2008 status of undesignated roads in
the Big Creek - Yellow Pine area. The Forest Supervisor acknowledged this in the 2008
ROD and committed the Forest Service to site specific environmental assessment to
consider designation of some of the undesignated roads in the area. FS019669. The 2010
EA/FONSI process was instigated to compare the options that IRC contends the 2008
FEIS/FONSI ignored: closure of undesignated roads in the Big Creek - Yellow Pine area
versus their designation for use by motorized vehicles. This fact alone significantly
undercuts IRC’s argument that the 2010 EA/FONSI somehow exacerbated the alleged
error in the 2008 FEIS/ROD.
Second, and most significant, the 2010 EA/FONSI compared alternatives
designating from zero miles of certified roads to designating approximately one third of
the undesignated roads in the area. Alternative A, designated the “no action” alternative,
kept the 2008 ROD in place and designated no new roads.3 Alternative B proposed
designating 13.5 miles of currently undesignated roads for motorized use and Alternative
C proposed designating 26.6 miles. FS033513-14.
The Forest Service found that Alternatives B and C were both unworkable due to
their cost and environmental impacts. With regard to cost, the Forest Service concluded
3

The Court notes that, as a technical matter, the 2010 EA/FONSI did accurately describe
the status quo condition, given that the 2008 ROD had unambiguously closed the area to off-road vehicle
use.
Memorandum Decision - 17

that (1) Alternatives B and C were more expensive than Alternative A; (2) budget
allocations for road maintenance “have historically been minimal”; (3) the funding of
Alternative B “is likely not feasible”; (4) the funding of Alternative C “is considered
unrealistic”; and (5) “[e]ven complete funding of Alternative A is problematic.”
FS033547. With regard to environmental impacts, the Forest Service concluded that
additional route designation would impede restoration of water quality in the area and
adversely affect several fisheries. FS033686-88.
IRC argues that the analysis would change depending on whether the Forest
Service was (1) assuming roads were closed and deciding whether to open roads or (2)
assuming roads were open and deciding whether to close roads. But the analysis just
discussed regarding costs and environmental impacts would not change – either way, the
undesignated roads were too expensive and too harmful.
IRC does not challenge the Forest Service’s conclusions on cost and
environmental impacts. Instead, it contends that the Forest Service should have
considered leaving the entire area open to unregulated off-road use, or should have
considered designating all of the undesignated trails in the area. However, the Forest
Service is not required to separately analyze alternatives which have “have substantially
similar consequences” to those alternatives actually considered. Headwaters, Inc., 914
F.2d at 1181. Given the Forest Service’s undisputed finding that designating a limited
number of routes would be unrealistically expensive and harm the environment, the
agency was not obliged to consider designation of an even greater number of roads.
Memorandum Decision - 18

Third, the administrative record shows that the Forest Service’s review included
consideration of surveys of undesignated roads, their use, and the environmental impact
of that use. In particular, both travel analyses relied principally on a 2002 survey which
measured “road distance, number of stream crossings, erosion points, drainage features,
width and gradient of the roadbed, presence of vegetation in the roadbed, and type of
access.” See FS0330996. The EA referenced the same 2002 study, which was
supplemented by three field trips taken during 2009. FS033586-87. Surveys also assessed
the usage rates of undesignated roads. See FS033588 (“During field evaluation of these
[undesignated] routes, use levels were determined to be light. In mid July, some of the
routes still had blow down across the travel way that had not been cut out.”). The EA
thus considered usage patterns on undesignated roads, including during the pre-2008
window which IRC contends constituted the period that should have been regarded as the
baseline condition against which the proposed alternatives were measured.
Further, this survey data and the assessment of the environmental impact of the
pattern of use of undesignated roads was central to the no action recommendation of the
EA and the selection of this alternative in the FONSI. Both documents noted that a 2009
study reported that the watershed condition indicator (WCI) for many of the streams in
the area were “functioning at risk” (FR) or “functioning at unacceptable risk” (FUR). As
the administrative record documents, motorized vehicle use, particularly on roads with
stream crossings or that run along streams, negatively contributed to these watershed
conditions. See FS033567. The EA noted that the negative environmental impacts of
Memorandum Decision - 19

ongoing use of the undesignated roads were increasing:
In the project area many routes not designated for public motorized use were indeed
receiving such use. The motorized use of many of these routes was on-going and
technically represented trespass. Although these undesignated routes have been
receiving use, there has been no official or formal maintenance. As a result, resource
conditions have continued to degrade. In some situations there has been a substantial
deterioration of the road- or trail-bed due to this lack of maintenance and continued
use.
See FS033574. Thus, the FONSI elected to prohibit the off-road motor vehicle use which
has played a role in poor watershed conditions in the area and which, the Forest Service
concluded, would be exacerbated by the road construction and maintenance activities that
would be required if the roads were designated. See FS033686-88. In short, the
administrative record refutes IRC’s assessment that the Forest Service ignored the history
and environmental impact of off-road vehicle use in the study area.
The Ninth Circuit’s decision in Kilroy offers strong support for the Court’s
conclusion that the Forest Service’s comparison of alternatives was adequate in this
instance. There, the plaintiffs challenged the EIS for the City of Los Angeles’s
wastewater treatment plan. Kilroy, 738 F.2d at 1450-51. That EIS described the “no
action” alternative as one of dewatering the sewage sludge and trucking it in solid form to
a waste dump. Id. at 1453. However, in actuality the status quo policy was to discharge
the sludge into the ocean through an outfall pipe and the dewatering policy was a
proposed interim policy that had never actually been adopted. Id. at 1451.
Despite this error, the Kilroy court nonetheless held that the EIS met NEPA
requirements for two reasons. First, the EIS “includ[ed] some discussion of the existing
Memorandum Decision - 20

outfall disposal method” because the interim project contemplated use of the outfall pipe
when sludge exceeded dewatering capacity. Id. at 1453. Second, the court noted that an
amendment to the Clean Water Act as well as a consent decree entered into by the City of
Los Angeles prohibited outfall disposal after the current outfall permit expired. Id. at
1453-54. The court explained that “in deciding whether an alternative is reasonable, we
may certainly take into account the strength and vitality of legislation that forbids it.” Id.
at 1454.
Both of these factors support the reasonableness of the Forest Service’s assessment
here. As discussed above, the EA considered, based upon available survey and
environmental data, the consequences of off-road vehicle use in the area. Further, as in
Kilroy, the Forest Service review was conducted against the backdrop of a national
regulatory change that prohibited unregulated off-road use of motorized vehicles. In
Kilroy, amendments to the Clean Water Act prohibited future use of outfall disposal of
sludge. Id. at 1453-54. Here, the 2005 Travel Management Plan required the Forest
Service to “to undertake a process by which routes were designated and cross-country
travel eliminated.” Wilderness Soc. v. U.S. Forest Service, -- F. Supp. 2d --, 2012 WL
551005, at *9 (D. Idaho Feb. 21, 2012); See 36 C.F.R. § 261.13. The Travel Management
Plan does not take a position as to whether designation or closure is the preferred
alternative. See 70 Fed. Reg. 68268 (“The Department believes that evaluation of
user-created routes is best handled at the local level by officials with first-hand
knowledge of the particular circumstances, uses, and environmental impacts involved”).
Memorandum Decision - 21

Nonetheless, the Travel Management Rule prohibits a return to a condition of unrestricted
off-road motorized vehicle use after the designation process in which the Forest Service
was engaged. Thus, the status quo alternative of unregulated use that IRC argues the
Forest Service did not adequately consider was one that was precluded by a new
nationwide regulation. As in Kilroy, this regulatory backdrop meant “it would be
unreasonable and wasteful to require extensive development and discussion of such a
remote alternative.” Kilroy, 738 F.2d at 1455.
2. Hard Look at Environmental Consequences
An EA must include a “brief discussion” of “the environmental impacts of the
proposed action and alternatives.” 40 C.F.R. § 1508.9(b). The Court applies the “rule of
reason,” in evaluating whether an environmental assessment contains a “reasonably
thorough discussion of the significant aspects of probable environmental consequences.”
Neighbors of Cuddy Mt. v. U.S. Forest Serv., 137 F.3d 1372, 1376 (9th Cir. 1998)
(internal quotation marks omitted).
IRC presents a laundry list of issues it contends were not discussed or were
inadequately discussed: public safety, general access, recreational opportunity, access to
natural and cultural resources, and socioeconomic impacts. Though IRC superficially
alleges that these are deficiencies of both the 2008 FEIS/ROD and the 2010 EA/FONSI, it
does not specifically identify any deficiency in the 2010 EA/FONSI. See IRC Brief (Dkt.
No. 27-1) at p. 31. In fact, the EA discusses and evaluates each issue that IRC claims was
overlooked. See FS033502 (public safety); FS033502-03 (general access); FS 33501-02
Memorandum Decision - 22

(socioeconomic impacts); FS033573-74 (recreation opportunities); FS 330502 (natural
resources). IRC does not raise any alleged inadequacy in these sections of the EA, and
the Court concludes, upon its review, that the discussion of each of these consequences
was reasonably thorough. See Neighbors of Cuddy Mt., 137 F.3d 1372, 1376.
3.

The 2008 ROD/EIS
Though IRC focuses its arguments on the alleged inadequacies of the 2008

ROD/EIS, the 2010 EA/FONSI, promulgated in the midst of this litigation, is now the
final agency action setting policy on motorized vehicle use in the Yellow Pine - Big
Creek area. When an intervening event prevents the Court from granting effective relief, a
request for relief becomes moot. Calderon v. Moore, 518 U.S. 149, 150 (1996). That is
the case here. IRC’s request that the Court vacate the 2008 FEIS/ROD is moot because
that rule is no longer in effect. See Theodore Roosevelt Conservation Partnership v.
Salazar, 661 F.3d 66, 79 (D.C. Cir. 2011) (“We can neither invalidate, nor require the
[agency] to adhere to, a Record of Decision that has disappeared into the regulatory
netherworld”). Even if IRC is correct that the 2008 FEIS/ROD process violated NEPA
procedures with respect to the rule set in the Big Creek - Yellow Pine area, the Court “can
grant no relief that would ‘undo’ the operation of the [ROD] during the period between
issuance” of the 2008 ROD and the 2010 EA. Aluminum Co. of Am. v. Adm’r, Bonneville
Power Admin., 175 F.3d 1156, 1163 (9th Cir. 1999).
The Court notes that, in some circumstances, “dilatory or ex post facto
environmental review cannot cure an initial failure to undertake environmental review.”
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Pit River Tribe v. U.S. Forest Serv., 469 F.3d 768, 785 (9th Cir. 2006). This rule applies
when the agency delay in conducting a proper environmental review skews the process or
outcome of the environmental review process. Thus, in Pit River Tribe, the court held
that federal agencies should have prepared an EIS that considered denying the extension
of leases authorizing Calpine to develop geothermal resources on federal land. Id. at 784.
The court rejected the argument that a subsequent EIS approving construction of a
particular geothermal plant mooted the earlier failure to prepare an EIS, since the tardy
EIS did not address the central issue that should have earlier been addressed: “[W]hether
the land in question should be leased at all.” Id. at 786. And in Metcalf v. Daley, 214
F.3d 1135, 1143-44 (9th Cir. 2000), the court held that an EA addressing agency approval
of the hunting of gray whales by the Makah Tribe was inadequate because it was
conducted after the agencies had already entered into two written agreements supporting
the Tribe’s proposal to resume hunting. There, the agencies’ actions violated NEPA
because the signing of the agreements with the Tribe constituted an “an irreversible and
irretrievable commitment of resources” that tainted the consideration of environmental
consequences, as required by NEPA. Metcalf, 214 F.3d at 1145 (internal quotation marks
omitted).
To the degree that IRC raises this argument, there is no indication that the 2010
EA/FONSI was similarly distorted by the 2008 FEIS/ROD decision. Unlike Pit River
Tribe, the 2010 EA here thoroughly considered the core comparison that IRC alleges the
2008 FEIS/ROD overlooked, i.e., whether undesignated roads in the Big Creek - Yellow
Memorandum Decision - 24

Pine area should be designated or closed. Pit River Tribe, 469 F.3d at 786. As the Court
has explained, regardless of any continued failure of the 2010 EA to acknowledge the
legality of off-road vehicle use from 2000-2008, it adequately considered the history and
environmental impact of off-road use during that time. Further, the 2008 FEIS/ROD did
not involve a commitment of resources that “predisposed” the Forest Service to select the
no action alternative from the 2010 EA. Metcalf, 214 F.3d at 1146. The 2008 ROD, in
adopting the no action alternative, did not set into motion the expenditure of resources or
otherwise improperly wed the agency to a policy precluding consideration of route
designation in the future. In short, the 2010 EA/FONSI cured the alleged NEPA
violations of the 2008 FEIS/ROD.
NFMA & TMR Claims
IRC argues that the Forest Service failed to consider the Forest Plan and thus
violated NFMA. IRC’s arguments on these points were all rejected above, and so
summary judgment on this claim is warranted for the Forest Service. The same result
follows for IRC’s claims under the TMR.
CONCLUSION
For the reasons stated, the Court will deny IRC’ motion for summary judgment and
will grant the Forest Service’s motion for summary judgment. The Court will enter a
separate Judgment pursuant to Rule 58(a).

Memorandum Decision - 25

DATED: July 27, 2012

Honorable B. Lynn Winmill
Chief U. S. District Judge

Memorandum Decision - 26