Center for Biological Diversity et al v. U.S. Forest Service et al
MEMORANDUM DECISION AND ORDER. Plaintiffs Motion for Summary Judgment (Dkt. 20 ) is DENIED. Defendants Cross-Motion for Summary Judgment (Dkt. 23 ) isGRANTED. Signed by Judge B. Lynn Winmill. (alw)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO
CENTER FOR BIOLOGICAL
CONSERVATION LEAGUE; THE
LANDS COUNCIL; and SELKIRK
U.S. FOREST SERVICE; VICKI
CHRISTIANSEN, in her official
capacity as Chief of the U.S. Forest
Service; JEANNE HIGGINS, in her
official capacity as Forest Supervisor
for the Idaho Panhandle National
Forests; U.S. CUSTOMS AND
ALEJANDRO MAYORKAS, in his
official capacity as Secretary of the
U.S. Department of Homeland
Security; and TROY A. MILLER, in
his official capacity as Senior Official
Performing the Duties of the
Commissioner for U.S. Customs and
MEMORANDUM DECISION AND ORDER - 1
Case No. 2:20-cv-00128-BLW
Before the Court are the Parties’ cross motions for summary judgment. Dkt.
20, 23. The Court held a hearing on the motions on March 4, 2021. For the reasons
that follow, the Court will grant Defendants’ motion and deny Plaintiffs’ motion.
Plaintiffs allege that the Defendants’ approval of the Bog Creek Road
Project violates the National Forest Management Act (NFMA) and the National
Environmental Policy Act (NEPA).
The Bog Creek Road Project is located in the Idaho Panhandle National
Forest in northern Idaho. AR 005115. The Project will reopen the Bog Creek Road
(Forest Road #1013) for administrative use to provide an east-west route for U.S.
Customs and Border Protection (CBP) to use in monitoring the border. AR
004058; AR 005119. It will change use designations on over 20 miles of national
forest roads from seasonally restricted to administratively open or seasonally open.
AR 005119. Finally, it will formally close 26 miles of seasonally restricted roads
through decommissioning and long-term storage. Id.; AR 005158-59.
The Bog Creek Road is currently designated as a seasonally restricted road.
The Bog Creek Road was gated in the 1980s to create bear security habitat and is
now largely unpassable due to a culvert failure and vegetation growth. AR 004058.
MEMORANDUM DECISION AND ORDER - 2
The monitoring reports indicate that the road was accessed by CBP and Forest
Service staff using ATVs in 2011, 2012, and 2014. AR 029931, 029945, 029958.
CBP conducted vegetation-clearing activities on the eastern portion of the road in
2016 due to potential cross-border violations. AR 004058.
The Project is located almost entirely within the Blue-Grass Bear
Management Unit (BMU) of the Selkirk Grizzly Bear Recovery Zone (SRZ).1 AR
004058; AR 030044. The Blue-Grass BMU provides year-round high quality bear
habitat and is considered a “gateway” BMU because it is at the center at the SRZ
and allows genetic connectivity between bear populations in the U.S. and Canada.
AR 030054. Key risk factors for grizzly bear recovery are a lack of security
habitat, human caused mortality, and genetic isolation. AR 030047. In 2011 the
Forest Service adopted an Access Amendment to the forest plans within the SRZ
and Cabinet-Yaak Grizzly Bear Recovery Zone to improve grizzly bear recovery.
The Access Amendment requires each bear management unit to meet certain
standards for 1) open motorized route density, 2) total motorized route density, and
The SRZ is unique among the five recovery zones because half of it is located in
Canada. This was necessary because there is insufficient habitat within the U.S. portion to
support a viable grizzly bear population. AR 030047.
MEMORANDUM DECISION AND ORDER - 3
3) core area. AR 033586; AR 035392-93. Open motorized route density (OMRD)
is calculated by determining the linear miles of open roads, other roads not meeting
all restricted or obliterated criteria, and open motorized trails, per square mile of
BMU.2 AR 033585. Total motorized route density (TMRD) is calculated by
determining the linear miles of open roads, restricted roads, roads not meeting all
reclaimed criteria, and open motorized trails, per square mile of BMU. Id. Core
area is “[a]n area of secure habitat within a BMU that contains no motorized travel
routes or high use nonmotorized trails during the non-denning season … and is
more than 0.3 miles (500 meters) from a drivable road.” Id. “Core areas do not
include any gated roads but may contain roads that are impassible due to
vegetation or constructed barriers.” Id. Where a BMU does not meet OMRD,
TMRD, or core area standards – as established by the Access Amendment – any
project affecting the relevant standard must result in post-project improvement of
the standard. Id.
The Access Amendment adopted the following standards for the Blue-Grass
An open road is “a road without restriction on motorized vehicle use.” AR 020145. A
restricted road is “a road on which motorized vehicle use is restricted seasonally or yearlong”
and requires effective physical obstruction. Id. A reclaimed or obliterated road is “a route which
is managed with the long-term intent for no motorized use, and has been treated in such manner
so as to no longer function as a road.” Id. Trails are access routes that are not drivable by a
passenger car or pickup but may be used by 4-wheelers, 4-wheel drive vehicles, or trail bikes. Id.
MEMORANDUM DECISION AND ORDER - 4
BMU: 1) OMRD of greater than 1 mile per square mile on no more than 33 percent
of the BMU; 2) TMRD of greater than 2 miles per square mile on no more than 26
percent of the BMU; and 3) Grizzly bear core area habitat comprising at least 55
percent of the BMU. AR 005117; AR 033586. When the Access Amendment was
adopted the Blue-Grass BMU had an actual TMRD of 28 percent and core area of
50 percent,3 which did not meet the Access Amendment standards. AR 033586.
The OMRD based on the administrative designation of roads within the Blue-Grass
BMU is 14.9 percent, but the OMRD based on actual use has ranged from 22.8
percent to 34.7 percent between 2006 and 2018, with an average actual OMRD of
29.7 percent. AR 004126; See also AR 029877-030019 (2006-2018 Monitoring
Although the Bog Creek Road has been mostly impassible since the mid2000s and has been acting as security habitat, the Forest Service has never
included it in the core area calculation. AR 004074; See also AR 029877-030019
(2006-2018 Monitoring Reports). Thus, reopening of the Bog Creek Road will not
reduce the core area of the Blue-Grass BMU. AR 005125. The closure of 26 miles
of seasonally restricted roads, and other project activities will increase the core
In 2015 the Forest Service identified a previously unmapped roads that reduced the core
area of the Blue-Grass BMU from 50 percent to 48 percent. AR 029984.
MEMORANDUM DECISION AND ORDER - 5
area within the Blue-Grass BMU to 55.4 percent, which meets the access
amendment standard. Id. Like the Bog Creek Road, many of the roads slated for
closure have been impassible, but have never been designated closed, so they have
not counted toward core area. AR 004074; AR 005159. The Project will reduce the
TMRD to 19.3 percent and increase designated OMRD to 31.3 percent, bringing
the Blue-Grass BMU into compliance with the access amendments. AR 005126.
The Biological Assessment and Biological Opinion used “functional core”
habitat to account for roads that were undriveable for more than 10 years and
provide grizzly bear security habitat, even though they had never been formally
closed or counted in the core area. AR 030059-60; AR 043563. Functional core
habitat was used to better account on-the-ground conditions and impacts of the
project to grizzly bears. AR 030059. The BA calculated that the Blue-Grass BMU
has 30,442 acres of functional core habitat, which is still less than the 55 percent
Core Area standard.4 AR 30060. Once the Project is completed there will be a net
increase of 1,318 acres of functional core habitat.5 AR 030087-88.
The Blue-Grass BMU is 57,329 acres, thus the 30,442 acres of functional core habitat is
only 53 percent of the BMU. AR 004130; AR 30060.
There will be a net loss of functional core habitat in the Bog Creek Focus Area, but a
net increase in the Grass Creek Focus area. Because both focus areas are located within the Blue-
MEMORANDUM DECISION AND ORDER - 6
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. 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. Karuk Tribe of Cal. v. U.S. Forest Serv., 681 F.3d
1006, 1017 (9th Cir.2012) (en banc).
An agency’s compliance with NFMA and NEPA is reviewed under the
Administrative Procedures Act (APA). All. for the Wild Rockies v. Bradford, 856
F.3d 1238, 1242 (9th Cir. 2017). 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, ... in excess of statutory jurisdiction, ... [or]
without observance of procedure required by law.” 5 U.S.C. § 706(2)(A), (C), (D).
Such a review is narrow and a court may not substitute its judgment for that of the
agency. Oregon Nat. Desert Ass'n v. United States Forest Serv., 957 F.3d 1024,
1033 (9th Cir. 2020). Neither should a court just “rubber-stamp” administrative
decisions. Ariz. Cattle Growers' Ass'n v. U.S. Fish and Wildlife Servs., 273 F.3d
Grass BMU there will be an overall increase in functional core habitat after the Project is
complete and the road closures are effective. AR 30091, 30093.
MEMORANDUM DECISION AND ORDER - 7
1229, 1236 (9th Cir. 2001).
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 clearly set forth the
grounds on which it acted. See Atchison T. & S.F. Ry. v. Wichita Bd. of Trade, 412
U.S. 800, 807 (1973).
National Forest Management Act
NFMA requires that all site-specific projects within a National Forest be
consistent with the relevant forest plan. 16 U.S.C. § 1604(i). Here the Idaho
Panhandle National Forest Plan was approved in 2015 and adopted the grizzly bear
Access Amendment as a standard that is binding on future site-specific decisions.
AR 035246, 035392-96; see Oregon Nat. Desert Ass'n v. United States Forest
MEMORANDUM DECISION AND ORDER - 8
Serv., 957 F.3d 1024, 1035 (9th Cir. 2020). Although the Forest Service must
strictly comply with the forest plan’s standards, the Ninth Circuit has held that
courts are to give the Forest Service latitude in “ensuring the consistency of its
actions with Forest Plans.” Id. (“We will conclude that the Forest Service acts
arbitrarily and capriciously only when the record plainly demonstrates that the
Forest Service made a clear error in judgment in concluding that a project meets
the requirements of the NFMA and relevant Forest Plan.” (quoting The Lands
Council v. McNair, 537 F.3d 981, 994 (9th Cir. 2008) (en banc)).
At the hearing, Plaintiffs argued that the Supreme Court’s opinion in Kisor
v. Wilkie, 139 S. Ct. 2400 (2019), effectively changed the deference owed to the
Forest Service’s interpretation of its forest plan. Plaintiffs argue that forest plans
are accorded the same amount of deference as agency regulations and thus Kisor’s
narrowing of Auer deference also reduced the amount of deference owed to the
Agency’s interpretation of its forest plan. See Dkt. 29 at 6.
In Kisor the Supreme Court explained that “the possibility of deference can
arise only if a regulation is genuinely ambiguous.” 139 S.Ct. at 2414. To the extent
that genuine ambiguity exists an agency’s reading must still be “reasonable.” Id. at
The only Ninth Circuit opinion to address Kisor in the context of a challenge
MEMORANDUM DECISION AND ORDER - 9
to the Forest Service’s interpretation of its forest plan is Friends of Rapid River v.
Probert, 816 F. App’x 59, 63 (9th Cir. 2020). There the Ninth Circuit held that
“[t]he relevant Forest Plan requirements either support the Forest Service’s view or
are at least “genuinely ambiguous,” and the Forest Service’s interpretation of them
is reasonable and contextually appropriate.” Id. (citing Kisor, 139 S.Ct. at 24142418). The Ninth Circuit also decided Oregon Natural Desert Association, 957
F.3d at 1035, after Kisor, but did not mention Kisor in its opinion. Instead, the
Ninth Circuit reiterated that “the Forest Service’s interpretation and
implementation of its own Forest Plan is entitled to substantial deference.” Id.
(quoting Native Ecosystems Council v. Weldon, 697 F.3d 1043, 1056 (9th Cir.
Here, whether the Forest Service’s interpretation of the Access Amendment
is accorded substantial deference or “Kisor deference,” the Court finds that the
Forest Service did not violate the National Forest Management Act.
Plaintiffs argue that the Forest Service’s interpretation of “core area” is
counter to the Access Amendment and, as such, the Project reduces core area
without in-kind replacement concurrently or prior to incurring the losses. Dkt. 29
at 5-6. The Government’s position is that core areas must be established through a
formal administrative decision and may not be created simply because an area is
MEMORANDUM DECISION AND ORDER - 10
serving is security habitat. Dkt. 23-2 at 14-15.
The Access Amendment sets the following “[p]arameters for establishing
and managing core habitat in all BMUs:”
1. In accordance with IGBC (1998) and Selkirk/Cabinet-Yaak
Ecosystem Subcommittee (1998) direction, core areas shall be
established for the purpose of providing secure habitat for grizzly
a) Core areas include high quality habitat within a BMU that
contains no motorized travel routes or high use trails.
b) Core areas do not include any gated or restricted roads but may
contain roads that are impassable due to re-growth of vegetation,
effective barriers other than gates, or placement of logging or
forest debris so as to no longer function as a motorized route.
c) When possible, core areas would be delineated by identifying
and aggregating the full range of seasonal habitats that are
available in the BMU.
e) Once route closures to create core areas are established and
effective, these core areas should remain in place for at least 10
years. Therefore, except for emergencies or other unforeseen
circumstances requiring independent section 7 consultation,
newly created core area shall not be entered for at least 10 years
f) Roads that are closed, decommissioned, or barriered in the future
to create core area would be put in a condition such that a need
for motorized access for maintenance is not anticipated for at
least 10 years. Until such closed roads are placed in the abovedescribed condition, they would not be considered as contributing
to core area.
2. Entering core area blocks for road decommissioning or stabilization
a) Without further section 7 consultation on grizzly bears, the
MEMORANDUM DECISION AND ORDER - 11
Forest Service may affect underlying core area (i.e., any core
habitat that is affected by the subject road and its buffer) within
a BMU once per 10-year time frame, and not to exceed one
bear year for the sole purpose of completing road
decommissioning/stabilization activities on existing closed or
barriered roads in core area habitat.
b) Subsequent needs to re-enter individual core areas within a
BMU more frequently than once per decade for the purposes of
road decommissioning shall be handled on a case-by-case basis
through standard section 7 consultation procedures. The effects
of additional entries would be analyzed pursuant to such project
level consultation. Pending the outcome of each analysis,
additional measures to minimize potential effects to grizzly
bears may be required.
3. Routine forest management may be proposed in a core area block
after 10-years of core area benefit. However, BMUs must remain at
or above the core standard. Therefore, potential losses to existing
core must be compensated with in-kind replacement concurrently or
prior to incurring the losses. Such in-kind replacement of core would
be established within the affected BMU in accordance with the
direction in Part I.B.1., above. … Following management, core areas
must subsequently be managed undisturbed for 10 years.
Plaintiffs focus narrowly on section 1.b., above, to argue that the Bog Creek
Road corridor qualifies as “core area” because it is overgrown and impassible. The
Forest Service argued that because it was gated it could not qualify under section
1.b. Section 1.b. is ambiguous whether a road that is gated and impassible due to
vegetation growth may be considered core area. However, the remaining section of
the Access Amendment are not ambiguous and, as the Forest Service argues,
MEMORANDUM DECISION AND ORDER - 12
requires core area to be “established.” While the Access Amendment never
explicitly states that core area must be established through a formal designation, it
certainly envisions as much. Section 1 directs that “core areas shall be
established….” Section 1.e provides that route closures creating core areas must be
established and effective and shall remain in place for 10 years, thus “newly
created core area shall not be entered for at least 10 years after creation.”
(emphasis added). Section 1.f. provides that roads must be closed,
decommissioned, or barriered such that entry is not required for 10 years before
they can be considered as contributing to core area.
Taken as a whole, the language of the Access Amendment requires the
Agency to affirmatively create and establish core area. While not stated explicitly,
this requires an affirmative decision or action by the Agency.
Even if the Access Amendment allowed core area to naturally accrue, the
Forest Service reasonably did not include the Bog Creek Road in its core area
calculation. The Forest Service and CBP have both used ATVs to access the Bog
Creek Road within the past 10 years, and CBP conducted brush clearing activity on
the eastern portion of the road in 2016. This use demonstrates that the Bog Creek
Road was not “closed, decommissioned, or barriered” such that no motorized
access is needed for 10 years. AR 035393. The 2011 monitoring report modeled
MEMORANDUM DECISION AND ORDER - 13
the Bog Creek Road as “open” due to CBP use. AR 029945. Further, the
monitoring reports demonstrate that, since 2006, the Forest Service has never
considered the Bog Creek Road as contributing to core area within the Blue-Grass
BMU. AR 029877-030019 (2006-2018 Monitoring Reports). This shows that the
Bog Creek Road was still acting as a “motorized travel route” and therefore was
properly not considered as part of core area.
Even if the Access Amendment is ambiguous, which it is not, the Forest
Service’s interpretation regarding core area and whether the Bog Creek Road
qualifies as such, is entirely reasonable. The Court finds that the Bog Creek Road
does not meet the Access Amendment’s criteria as core area, and the Forest
Service appropriately refused to consider it as part of the core area within the BlueGrass BMU.6
It is clear from the record that the Forest Service has been conservative in its
To the extent Plaintiffs rely on the BA’s discussion of “functional core” habitat, that
reliance is misplaced. CBPs brush clearing activities on the Bog Creek Road demonstrate why
core area and functional core habitat are not the same. Because the Bog Creek Road was
seasonally restricted, CBP could continue to access and clear the road without a separate
administrative decision. While the Bog Creek Road corridor may have naturally accrued to
security habitat, CBP could just as easily remove it from security habitat. This directly conflicts
with the language and intent of the Access Amendment. Further, the BA recognizes that even
considering the entire functional core habitat, the Blue-Grass BMU is not meeting the core area
standard as required by the Access Amendment. AR 30060. Only after the project is completed,
and human activity has subsided on closed roads, would there be enough functional core habitat
to meet the access amendment standard. AR 030087-88.
MEMORANDUM DECISION AND ORDER - 14
estimate of core area within the Blue-Grass BMU, a decision that ultimately
allowed this project to proceed but in the long run is more protective of grizzly
Plaintiffs next argue that the Forest Service failed to demonstrate the Project
will meet the Access Amendment standards because it has failed to account for
“high levels of illegal overuse” of restricted roads within the Blue-Grass BMU.
Dkt. 21 at 23-24. Plaintiffs’ claim is without merit. As an initial matter, the
monitoring reports disclose very few instances of “illegal” motorized road use
within the Blue-Grass BMU. See AR 043559 (BiOp discussing illegal access in
SRZ); AR 029945 (2011 monitoring report discussing ATV driving around gate).
The Access Amendment allows seasonally restricted roads to have up to 57
trips per year before being considered as open for purposes of calculating OMRD.
AR 035394-95. The Forest Service repeatedly disclosed and discussed the
seasonally restricted roads that received more than 57 trips in a season. See AR
004072, 004126. The Access Amendment does not prohibit exceeding trip-limits,
but instead require the Forest Service to count toward OMRD roads which do
exceed trip-limits. AR 035394-95.
Plaintiffs focus on the OMRD of 14.9 percent listed in table 2.2.1. of the
Final EIS. AR 004072. Table 2.2.1. is based on the designated road status under
MEMORANDUM DECISION AND ORDER - 15
the Access Amendment, not actual use. Id. Table 3.1.3. discloses the average
actual use since 2006 – 29.7 percent (ranging from 22.8 percent to 34.7 percent).
AR 004126. The Final EIS repeatedly refers readers to the actual OMRD
calculation, not the calculation in table 2.2.1.
The Project changes almost 22 miles of roads from seasonally restricted to
administrative open. AR 005119. Essentially the Project changes the designation of
roads to better reflect reality on the ground. This was fully disclosed in the Final
EIS and is consistent with the Forest Plan.
National Environmental Policy Act
NEPA requires that agencies prepare an EIS for any proposed agency action
“significantly affecting the quality of the human environment.” 42 U.S.C. §
4332(C). NEPA is a pragmatic device that “‘does not mandate particular results,’
but ‘simply provides the necessary process’ to ensure that federal agencies take a
‘hard look’ at the environmental consequences of their actions.” Muckleshoot
Indian Tribe v. U.S. Forest Serv., 177 F.3d 800, 814 (9th Cir.1999) (quoting
Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 350 (1989)). Judicial
review of agency decision-making under NEPA is limited to the question of
whether the agency took a ‘hard look’ at the proposed action as required by a strict
reading of NEPA’s procedural requirements. Bering Strait Citizens for Responsible
MEMORANDUM DECISION AND ORDER - 16
Dev. v. U.S. Army Corps of Eng'rs, 524 F.3d 938, 947 (9th Cir.2008). Courts look
to the evidence the agency provided to support its conclusions, along with
materials in the record to determine if the agency took the requisite “hard look.”
Tri-Valley CAREs v. U.S. Dep't of Energy, 671 F.3d 1113, 1124 (9th Cir. 2012).
Plaintiffs raise four distinct claims regarding the Agency’s NEPA analysis.
First the Plaintiffs argue that the Forest Service failed to take a hard look at how
the project – specifically reopening of the Bog Creek Road – will prevent bear
movement and limit genetic diversity.
The bear population within the SRZ has the lowest genetic diversity of the
ESA-listed grizzly bear populations. AR 030051. Thus, connectivity between bears
in the U.S. and Canada is considered critical for bear recovery. Id. The Final EIS
recognizes that the Blue-Grass BMU is an important bear movement corridor
between other BMUs in the U.S. and the Canadian portion of the SRZ. AR
004169. It then discusses, in some detail, the effect reopening the Bog Creek Road
will have on grizzly bear movement between the U.S. and Canada. Id. There is a
network of open roads just north of the border that, combined with open motorized
routes in the U.S., likely act as a semipermeable barrier to grizzly bear movement.
AR 004143. The Forest Service recognizes that reopening the Bog Creek Road
would add to this semipermeable barrier and may reduce genetic flow between the
MEMORANDUM DECISION AND ORDER - 17
U.S. and Canada. AR 004169, 004188; see also AR 004102-04 (table summarizing
impacts of each proposed action to grizzly bears). While the Project may reduce
connectivity with Canada, it will also improve connectivity to the Trapper Creek
burn area and other BMUs south of the Blue-Grass BMU, which will be beneficial
for grizzly bears. AR 004099, 004188.
The BiOp supports the analysis of the Final EIS, stating that while the
reopened Bog Creek Road may reduce movement, bears will still cross the road
and move between the U.S. and Canada.7 AR 043605. This supports the Forest
Service’s discussion within the Final EIS, and other NEPA documents, regarding
the effects of reopening the Bog Creek Road on genetic connectivity. The Court
concludes that the Forest Service took a hard look at bear linkages and genetic
Second, Plaintiffs contend that the Agency failed to analyze the extent to
which the Project will impact bear recovery under the ESA, including how the
Project may negatively impact achieving specific recovery goals listed in the
Grizzly Bear Recovery Plan. This contention is without merit.
The BiOp was issued after the Final EIS and cannot relieve the Agency of its duty to
take a hard look within the EIS. But, the analysis in the BiOp is useful in determining whether
the agency considered the relevant factors and made a reasoned decision.
MEMORANDUM DECISION AND ORDER - 18
The U.S. Fish and Wildlife Service identified motorized access
management, habitat security, human caused mortality, and genetic fragmentation
as key risks to grizzly bear recovery in the SRZ. AR 030046-47. The Final EIS
quantifies project impacts to grizzly bears based on these factors. Further, the
Access Amendment was explicitly adopted to serve the goals of the grizzly bear
recovery plan. AR 033590. The Access Amendment uses OMRD, TMRD, and
Core Area as surrogates for grizzly bear recovery risk factors. AR 033590-94; AR
The Final EIS conducted an in-depth analysis of the effects of the project
OMRD, TMRD, and Core Area. It went further and specifically analyzed human
activity, fragmentation and linkages, and impacts to habitat by type. AR 00416972, 004188-91. These are the risk factors identified as limiting grizzly bear
recovery in the SRZ and the Forest Service took a hard look at them.
Third, the Plaintiffs argue that the Forest Service failed to take a hard look at
illegal motorized use in the Blue-Grass BMU. As discussed above there is very
little “illegal” motorized use in the Blue-Grass BMU or SRZ. AR 043559; AR
029945. Plaintiffs rely on notes from a 2013 meeting where one participant
suggested the Agencies would need to “go above and beyond” to stop illegal use.
See SUP AR 17.
MEMORANDUM DECISION AND ORDER - 19
The Final EIS and Record of Decision discuss the measures that will be used
to fully close roads designated for closure. AR 004077; AR 005158. Many of the
seasonally restricted road segments in the Blue-Grass BMU are already gated and
there is no indication that that will change. Further, the Forest Service regularly
monitors restricted roads within the BMU as required by the Access Amendment.
See AR 004126; AR 035396. Finally, gates will be installed at both ends of the
Bog Creek Road, which are designed to minimize potential destruction,
dismantling, or breaching. AR 004076, 004447. These gates will be regularly
monitored and would be posted with signs stating: “Public Motorized Entry
Prohibited – This Road is Under Surveillance – Violators will be Prosecuted.” AR
The Forest Service took a hard look at truly illegal motorized use within the
BMU. As the BiOp noted, enhanced monitoring following the project will actually
reduce the potential for illegal use. AR 043642.
Plaintiffs real gripe is with the annual trip exceedances on restricted roads.
But as discussed above, the Forest Service properly accounted for these trips in the
OMRD calculation. The Forest Service in no way tried to disguise or hide the
exceedances, instead it fully discussed them in the EIS and proposed to change the
status of roads that commonly exceed trip limits from restricted to administratively
MEMORANDUM DECISION AND ORDER - 20
open. This will bring the designated road status into alignment with actual road use
while meeting the Access Amendment OMRD standard. The Final EIS took a hard
look at road use in the Blue-Grass BMU and the Forest Service considered ways to
accommodate both administrative needs with grizzly bear needs.
Finally, Plaintiffs argue that the Forest Service failed to take a hard look at
the Projects impacts to two hiking trails on the west side of the Blue-Grass BMU.
If the trails were to be designated “high use” (over 20 parties per week) they would
no longer contribute to core area within the Blue-Grass BMU. AR 035393.
The Final EIS discusses both trails and states they are being monitored to
determine whether they should be considered high use. AR 004146, 004343-44.
Monitoring documented that the trials are receiving an average of up to 16 parties
per week during the summer season. AR 004146. In the short term the Final EIS
states that the trailhead for the Continental Creek trail may be more difficult to
access due to work on the Bog Creek Road. AR 004359. The Final EIS recognizes
that if a trail becomes high use, it will reduce core area within the BMU. But, it
also indicates that the core area reduction will be dependent on which trail
segment(s) are designated as high-use and which alternative is chosen to
implement the core area reduction. AR 004521.
Plaintiffs rely on some discussion in the BiOp and meeting notes to support
MEMORANDUM DECISION AND ORDER - 21
their argument that the Forest Service failed to consider impacts the Project will
have to the trails. The BiOp discusses non-motorized recreation generally and
indicates that the Bog Creek Road repair will likely increase the amount of
recreational use in the area or redistribute existing users. But the BiOp does not tie
the increase in recreation in the area to increased use on the trails. AR 043594. The
meeting notes indicate that there is interest from mountain bikers and other
recreationalists in using the repaired Bog Creek Road, which may lead to increased
trail use. SUP AR 000014; SUP AR 000042.
The Government is not required to analyze potential impacts where there is
not enough information available to permit meaningful consideration. Env't Prot.
Info. Ctr. v. U.S. Forest Serv., 451 F.3d 1005, 1014 (9th Cir. 2006). The road
leading to both trails is already open to the public. AR 004339. While the Bog
Creek Road may attract more non-motorized recreationalists in the long term, it
will not provide an additional route to access the trails. And, in the short term the
project may actually reduce trail access opportunities. Any actual increase in use of
the trails is speculative. The Forest Service is monitoring trail use, even though it is
under no obligation to do so. AR 043641. Because the impacts to non-motorized
recreation are speculative the Forest Service’s consideration of the Project’s effects
on trail use is not arbitrary and capricious.
MEMORANDUM DECISION AND ORDER - 22
IT IS ORDERED that:
Plaintiff’s Motion for Summary Judgment (Dkt. 20) is DENIED.
Defendant’s Cross-Motion for Summary Judgment (Dkt. 23) is
DATED: June 4, 2021
B. Lynn Winmill
U.S. District Court Judge
MEMORANDUM DECISION AND ORDER - 23
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