Idaho State Snowmobile Association et al v. United States Forest Service et al

Filing 57

MEMORANDUM DECISION AND ORDER The motion to approve consent decree (docket no. 48 ) is CONDITIONALLY GRANTED. The parties inform the Court in writing within 20 days from this decision whether they will accept this conditional approval of the consent decree. The motion to file sur-reply brief (docket no. 54 ) is GRANTED. Signed by Judge B. Lynn Winmill. ((jp)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

IDAHO STATE SNOWMOBILE
ASSOCIATION; and THE
BLUERIBBON COALITION,

Case No. 3:12-CV-447-BLW
MEMORANDUM DECISION AND
ORDER

Plaintiffs,
v.
UNITED STATES FOREST SERVICE;
U.S. FOREST SERVICE, Northern
Region; CLEARWATER NATIONAL
FOREST; FAYE KRUGER; Regional
Forester, Northern Region; RICK
BRAZELL, Forest Supervisor,
Clearwater National Forest,
Defendants.
and,
GREAT BURN STUDY GROUP,
IDAHO CONSERVATION LEAGUE,
and THE WILDERNESS SOCIETY
Defendant-Intervenors

INTRODUCTION
The Court has before it a motion to approve a consent decree filed by the parties
and an objection thereto filed by the intervenors. The motion is fully briefed and at issue.
For the reasons explained below, the Court will conditionally approve the consent decree.
LITIGATION BACKGROUND
Plaintiffs Idaho State Snowmobile Association and The BlueRibbon Coalition
represent motorized recreationists. They have sued the Forest Service, challenging the
Memorandum Decision & Order – page 1

2011 Clearwater National Forest Travel Plan. To support the Travel Plan, three
environmental groups – the Great Burn Study Group, the Idaho Conservation League,
and the Wilderness Society – have intervened in the case.
The Clearwater National Forest contains 950,311 acres. It is governed by the
1987 Clearwater Forest Plan that identifies 198,200 acres of recommended wilderness
areas (RWAs). Under the 1987 Forest Plan, the Forest Service is to “manage each
[RWA] to protect its wilderness character.” Over the years, users of motorized vehicles
created routes through repeated public travel within the RWAs.
In 2005, the Forest Service promulgated a Travel Management Rule that generally
prohibited motor vehicle use on roads not explicitly designated for their use. See 36
C.F.R. § 261.13. Accordingly, the Clearwater National Forest began in that same year to
draft a detailed plan – a Travel Plan – to govern motor vehicle use. They received over
4,000 public comments, and released a draft EIS in 2009. In 2011 – six years after the
process started – the Forest Service released the ROD and FEIS that now constitute the
Travel Plan before the Court.
The Travel Plan largely prohibits motorized vehicles in the RWAs (except for one
small exception). The Forest Service justified this ruling by concluding that the “increase
in capability and popularity”of motorized vehicles will put “increased pressure” on
RWAs “unless those uses are restricted.” See AR 3343 at p. 38. Furthermore, the
“continuing or expanding use of vehicles will do nothing but reduce the chances of these
areas being designated as Wilderness. Accordingly, I am deciding to restrict all

Memorandum Decision & Order – page 2

motorized use . . . in [RWAs] with the exception of summer use on the Fish Lake Trail.”
Id.
The plaintiffs, whose members used motorized vehicles in the RWAs under the
prior management plan, brought this lawsuit seeking to overturn the 2011 Travel Plan.
One of their main challenges is that the Forest Service, in adopting the 2011 Travel Plan,
applied a guidance document created by the Forest Service’s Northern Region to manage
RWAs. Plaintiffs allege that this guidance document was never adopted pursuant to
NEPA and NFMA, and yet played a crucial role in the Forest Service’s decision to
restrict motorized travel in the 2011 Travel Plan.
In March of 2014, the Court granted plaintiffs’ request to conduct discovery into
the creation and effect of the Northern Region’s guidance document. In the months that
followed, the parties – that is, the plaintiffs and the defendant Forest Service – negotiated,
and eventually entered into a consent decree that they now present to the Court for
approval. The defendant-intervenors object to the consent decree and ask the Court to
deny approval, or to approve a modified version of the decree.
The consent decree would vacate and remand to the Forest Service that portion of
the Travel Plan pertaining to motorized and over-snow access for RWAs. While the
Forest Service reconsiders its ruling, those uses in the RWAs would be governed by the
1987 Forest Plan that contained no express prohibitions.
The Forest Service explained why it entered into the consent decree in the
Declaration of Regional Forester Faye Krueger. She explains that the guidance document
issued by the Northern Region – designed to offer suggestions for the consistent
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treatment of RWAs – was “never intended to establish new policy or binding direction.”
See Krueger Declaration (Dkt. No. 48-3) at ¶ 5. The guidance document, however, did
not produce the results the Forest Service sought, at least in Krueger’s analysis: “It has
recently come to my attention, however, that there is some confusion regarding the
guidance document with some Forests misinterpreting the guidance as providing
management direction for RWAs.” Id. at ¶ 6. The Forest Service is not conceding that it
made an error, but Krueger ultimately concluded that “[r]emand would allow the Forest
Service to make a decision regarding the RWAs based on a record which clearly reflects
the applicable management direction.” Id. at ¶ 7. The Forest Service represents that it
would “make its best efforts to issue a new decision” in about 60 days.
The defendant-intervenors object to the consent decree provision that vacates the
current Travel Plan and restores the management policy in the 1987 Forest Plan. They
argue that the 1987 Forest Plan allows the very motorized use that the Forest Service
found destructive in the 2011 Travel Plan ROD. They also argue that if the Forest
Service decides to make changes to the 2011 Travel Plan, the public notice and comment
period, along with other NEPA procedural requirements, will cause delays for years,
during which time motorized use will continue unabated. They ask the Court to keep the
2011 Travel Plan in effect during the remand, or at least put a 60-day limit on the Forest
Service to make a decision during the remand period to mitigate the harm from vacating
the Travel Plan.

Memorandum Decision & Order – page 4

ANALYSIS
A consent decree is a hybrid; it contains an agreement between the parties and
seeks relief from the Court. Conservation Northwest v. Sherman, 715 F.3d 1181. 1185
(9th Cir. 2013). Even though the parties agree to certain court-ordered relief, the Court
may not have authority to approve that relief if it “conflicts with or violates” the law. Id.
On the other hand, a consent decree typically represents “an amalgam of delicate
balancing, gross approximations, and rough justice,” and “need not impose all the
obligations authorized by law.” Id. (quoting United States v. Oregon, 913 F.2d 576, 581
(9th Cir.1990)).
Two recent decisions delineate the scope of the Court’s authority to approve
consent decrees. In Sherman, 715 F.3d at 1188, the consent decree was found improper
because it constituted a “substantial and permanent” amendment to agency rules. In that
case, environmentalists challenged a multi-agency plan to manage logging in the Pacific
Northwest. After the district court found NEPA violations, but before it imposed a
remedy, the parties entered into a consent decree that imposed permanent changes to the
multi-agency plan. An intervenor logging company objected, claiming that NEPA
required that any changes to the plan required a period of time for public notice and
comment, and that the consent decree ignored this requirement. The Circuit agreed and
struck down the consent decree. Id.
In contrast, the consent decree in Turtle Island Restoration Network v. U.S. Dep’t
of Commerce, 672 F.3d 1160, 1167 (9th Cir.2012) was found to be proper because it
“merely temporarily restore[d] the status quo ante pending new agency action and [did]
Memorandum Decision & Order – page 5

not promulgate a new substantive rule.” In that case, environmentalists challenged
agency fishing regulations, one part of which limited how many loggerhead turtles the
fishing boats could take in their nets. Midway through the litigation, the parties entered
into a consent decree that (1) vacated that portion of the new rule setting the turtle limit,
(2) temporarily re-imposed the prior rule until the agency could reconsider its new rule,
and (3) remanded the case to the agency to reconsider the new rule. Id. at 1164. An
intervenor fishing company objected, claiming that by vacating the new rule, the agency
had made a substantive change to the rule without engaging in the required public notice
and comment. The Circuit disagreed, finding that the new rule was only temporarily
vacated while the agency reconsidered it, and that the consent decree “leaves [the agency]
free on remand to fashion a new rule . . . without imposing any substantive requirements
on its terms.” Id. at 1168.
At first glance, this case appears more like Turtle Island than Sherman. The
consent decree here merely temporarily restores the status quo ante and does not
promulgate any new rule. Like the consent decree in Turtle Island, this decree imposes
no substantive constraints on the agency’s reconsideration of the rule.
But as Sherman made clear, each consent decree is evaluated on its own merits,
and there are some unique features to this one. First, it appears here that if the Forest
Service decides to keep the 2011 Travel Plan intact, without changes, the process might
be done within 100 days or so. On the other hand, if changes are necessary, the prior
experience of public notice and comment dragging out over six years signals that a new
Travel Plan might not be completed for years.
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Moreover, the Forest Service has not admitted error but only confusion. So the
2011 Travel Plan has not yet been branded as violating any statute or regulation either by
the agency or by the Court. There is therefore no urgency to vacate it now, especially if
the Forest Service ultimately keeps it intact and renders that decision within just two or
three months. It makes little sense to vacate the 2011 Travel Plan now, and then
relatively quickly reinstate it, when there has been no finding or admission that it violates
the law. See California Communities Against Toxics v. EPA, 688 F.3d 989, 992 (9th Cir.
2012) (holding that in examining consent decrees, courts should consider the seriousness
of the error allegedly made by the agency and the potential disruptive consequences of an
interim change). These circumstances would present – under the California Communities
analysis – no serious error by the agency and potentially disruptive consequences of
vacating and then reinstating agency action. That warrants denying the request to vacate.
This analysis would change, however, if upon reconsideration the Forest Service
finds flaws in the 2011 Travel Plan requiring changes. At that point, a strong argument
could be made that the Plan cannot remain intact and should be vacated, reinstating the
1987 Forest Plan management scheme. It would appear that under the California
Communities analysis, the error by the agency – creating an illegal Travel Plan – would
be so serious that it would outweigh the disruptive effect of vacating the Plan. But the
Court need not make that finding now. If the Forest Service finds the 2011 Travel Plan
flawed, the parties can come before the Court seeking to vacate the 2011 Travel Plan at
that time.

Memorandum Decision & Order – page 7

CONCLUSION
In conclusion, the Court will conditionally grant the motion to approve the consent
decree. The condition to approval is that the parties accept the following limitation to its
ruling. The Court will approve the consent decree to the extent it seeks remand to the
Forest Service to reconsider the 2011 Travel Plan. The Court will not vacate the 2011
Travel Plan at this time. If the Forest Service decides that the 2011 Travel Plan is flawed
and that changes are necessary, the parties may return to the Court to seek to vacate the
2011 Travel Plan at that time. The Court will give the parties 20 days to determine
whether they will accept this conditional approval of the consent decree.
ORDER
In accordance with the Memorandum Decision set forth above,
NOW THEREFORE IT IS HEREBY ORDERED, that the motion to approve
consent decree (docket no. 48) is CONDITIONALLY GRANTED. The condition to
approval is that the parties accept the following limitation: The Court will approve the
consent decree to the extent it seeks remand to the Forest Service to reconsider the 2011
Travel Plan. The Court will not vacate the 2011 Travel Plan at this time. If the Forest
Service decides that the 2011 Travel Plan is flawed and that changes are necessary, the
parties may return to the Court to seek to vacate the 2011 Travel Plan at that time.
IT IS FURTHER ORDERED, that the parties inform the Court in writing within
20 days from this decision whether they will accept this conditional approval of the
consent decree.

Memorandum Decision & Order – page 8

IT IS FURTHER ORDERED, that the motion to file sur-reply brief (docket no.
54) is GRANTED.

DATED: February 26, 2015

_________________________
B. Lynn Winmill
Chief Judge
United States District Court

Memorandum Decision & Order – page 9