The Wilderness Society et al v. United States Forest Service et al

Filing 102

MEMORANDUM DECISION AND ORDER finding as moot in part and denying in part 25 Defendant's Motion for Summary Judgment; finding as moot in part and granting in part 29 Plaintiff's Motion for Summary Judgment. Defendants shall issue a Supp lemental Environmental Assessment no later than 3/31/2014. Thereafter, the parties shall pursue the requisite administrative review process concerning that supplemental Environmental Assessment. This case is ADMINISTRATIVELY CLOSED with the parties b eing granted leave to re-open the case, if necessary, after the supplemental EA has been issued and any further proceedings are concluded making it ripe for the Courts review. Signed by Judge Edward J. Lodge. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (cjm)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

THE WILDERNESS SOCIETY and
PRAIRIE FALCON AUDUBON, INC.,
Plaintiffs,
v.
THE UNITED STATES FOREST
SERVICE, et al,
Defendants,
and
MAGIC VALLEY TRAIL MACHINE
ASSOCIATION, an Idaho non-profit
Corporation; IDAHO RECREATION
COUNCIL, and Idaho unincorporated nonprofit association; and BLUERIBBON
COALITION, INC., an Idaho non-profit
corporation,

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Case No. CV08-363-E-EJL

MEMORANDUM DECISION
AND ORDER

Intervenor-Applicants.

On February 21, 2012 this Court entered an Order granting in part and denying in
part each of the Cross-Motions for Summary Judgment filed by the parties in this case.
(Dkt. 88.) In that Order the Court directed the Defendants to determine whether a
supplemental Environmental Assessment will be sufficient to satisfy NEPA’s
requirements or if an Environmental Impact Statement is necessary and ordered
Defendants to file a notice with the Court as to how they intend to proceed on or before
May 1, 2012. (Dkt. 88.) Such Notices were filed as well as responsive briefing. (Dkt. 89,

MEMORANDUM DECISION AND ORDER

1

90.) On August 8, 2012, the Court held a hearing on the matter taking the outstanding
issues under advisement; in particular the Plaintiffs’ claims as to the Clean Water Act and
compliance with the requirements of certain Executive Orders. (Dkt. 95.) The Court finds
as follows.
FACTUAL AND PROCEDURAL BACKGROUND1
On August 29, 2008, Plaintiffs, The Wilderness Society and Prairie Falcon
Audubon, Inc., filed the Complaint in this matter challenging the United States Forest
Service’s (“Forest Service”) actions and decisions made in relation to its February 22,
2008 Decision Notice (“DN”), Finding of No Significant Impact (“FONSI”), and
Environmental Assessment (“EA”). (Dkt. 1.)2 These actions and decisions resulted in the
project action at issue here, the Sawtooth National Forest Travel Plan Route Designation
Revision (“Travel Plan Revision”), which designated 1,196 miles of roads and trails for
motorized recreation use on the Minidoka Ranger District of the Sawtooth National
Forest in Idaho. Plaintiffs claim the Defendants’ decisions and actions violate the
Administrative Procedure Act (“APA”), 5 U.S.C. § 701 et seq.; the National
Environmental Policy Act (“NEPA”), 42 U.S.C. § 4321 et seq.; the Clean Water Act
(“CWA”), 33 U.S.C. § 1251 et seq.; National Forest Management Act (“NFMA”), 16
U.S.C. § 1600 et seq.; Executive Order 11644, as amended by Executive Order 11989;
and the implementing regulations of these statutes and executive orders. (Dkt. 1.)

1

The Court has used some of the same language from its previous Order in this Order as the facts
and claims have not changed. (Dkt. 88.)
2

The Complaint names several Federal Defendants including: Forest Service, Jane P. Kollmeyer,
and Scott C. Nannenga. This Order will refer to the Defendants collectively as “Defendants.”
MEMORANDUM DECISION AND ORDER

2

Defendants counter that their decisions and actions were in accord and fully complied
with the applicable standards and requirements of these statutes. (Dkt. 10.) On March 6,
2009, both parties filed Motions for Summary Judgment. (Dkt. 25, 29.)3
Prior to the filing of those Motions, however, on February 20, 2009, the Court
denied a Motion to Intervene filed by Magic Valley Trail Machine Association, Idaho
Recreation Council, and BlueRibbon Coalition. (Dkt. 23.) The Court also denied a later
Motion for Reconsideration of that Order. (Dkt. 49.) A Notice of Appeal was filed as to
the decisions regarding intervention causing a lengthy delay in ruling on the pending
Motions for Summary Judgment in this case. (Dkt. 27.) That appeal was decided on
January 14, 2011. (Dkt. 66.) The Ninth Circuit Mandate issued on March 8, 2011 after
which the Court considered and granted an Amended Motion to Intervene. (Dkt. 68, 74,
75.) The Court then, on June 6, 2011, granted the parties’ Motion to Renew the Motions
for Summary Judgment. (Dkt. 77.) Each side was allowed time to supplement their
previous summary judgment briefing after which these Motions for Summary Judgment
finally became ripe. (Dkt. 77, 79-87.)
After reviewing all of those materials, the Court issued its Order granting in part
and denying in part the respective cross-motions for summary judgment. (Dkt. 88.)
Specifically, the Court concluded that the Defendants had satisfied their statutory duties
except with regard to the site-specific impacts of 94 miles of non-system routes, the
unknown cumulative impacts of the 650 miles of non-system routes, and the unique

3

Both sides also filed various corrections to their summary judgment materials that the Court has
considered. (Dkt. 31, 35, 52.)
MEMORANDUM DECISION AND ORDER

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aspects of the Minidoka Ranger District as to Yellowstone cutthroat trout. (Dkt. 88.) The
Court directed the Defendants to reexamine their conclusions regarding the project’s
significance and impact and determine whether it could resolve the shortcomings in the
EA by supplementation or if a full EIS is necessary. (Dkt. 88 at 25.) The Court reserved
its ruling on the claims alleging violations of the CWA and the Executive Orders.
In May of 2012, the Defendants submitted their Notice of Intent on How to
Proceed to which the Plaintiffs responded. (Dkt. 89, 90.) Defendants’ Notice proposed
that they would complete a supplemental EA no later than March 2014. (Dkt. 89.)
Plaintiffs question the adequacy of the Defendants’ proposal and requests interim relief
pending completion of the NEPA process to ensure the forest resources are protected.
(Dkt. 90.)
The Court held a hearing and took the outstanding issues under advisement in
anticipation of a decision in another Ninth Circuit case entitled Klamath-Siskiyou
Wildlands Center v. Grantham. (Dkt. 95.) The parties advised the Court once that
decision was issued and have also provided other supplemental authority they believe to
be applicable in this case. (Dkt. 96, 97, 98, 100, 101.) The Court has reviewed these
materials and finds as follows.
DISCUSSION
1.

Notice of Intent on How to Proceed
At the hearing, the parties disagreed regarding the timing of the proposed

supplemental EA, which Defendant proposed would be issued no later than March 2014.
The Court has considered this proposal at length and finds it to be reasonable. Given the

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size of the area and the seasonal nature of the additional research that needed to be
completed, the Court finds the time-frame for issuance of the supplemental EA as being
no later than March 2014 is appropriate.
Additionally, following the August, 2012 hearing, the parties notified the Court
that they agreed that the outstanding CWA and Executive Order claims were ripe for the
Court’s decision. The Court has gone back and reviewed the materials previously
submitted regarding these claims as well as the arguments made at the hearing and the
supplemental materials provided by the parties. Having done so, the Court finds as
follows.
2.

Violation of CWA by Failing to Analyze and Consider Water Quality
Standards
In the prior order on the Cross-Motions for Summary Judgement, the Court

reserved its ruling on the CWA issue in light of its decision on the NEPA and NFMA
claims until after the Forest Service either supplemented the EA or issued an EIS. (Dkt.
88 at 35.) At the last hearing, the parties agreed that the CWA claim is ripe for the Court’s
consideration. (Dkt. 95.)
Following the hearing, the Intervenor-Defendants filed a Notice of Supplemental
Authority citing to a recent decision in Klamath-Siskiyou Wildlands Center v. Grantham,
899 F.Supp.2d 948 (E.D. Cal. 2012). (Dkt. 96.) The Intervenor-Defendants argue that
case rejected similar CWA claims as those raised here. In response, Plaintiffs counter that
the Klamath-Siskiyou case is distinct from the claim raised here. (Dkt. 97.)

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The court in Klamath-Siskiyou considered a Final Environmental Impact Statement
issued in regard to the Klamath National Forest Motorized Travel Management
Environmental Impact Statement. There, the court held that the Forest Service complied
with the provisions of the CWA concerning nonpoint source pollution and that the state
antidegradation requirements do not apply to federal agencies. Id. at 969-70. (noting the
distinction between the CWA’s regulations for point source discharges and nonpoint
source pollution).4 In Klamath-Siskiyou the court also concluded that the plaintiffs had not
identified any state water quality statutes or regulations that the federal agency had failed
to comply with. Id. at 969. Although the Klamath-Siskiyou decision is not binding
precedent, this Court has reviewed and considered it in light of the arguments raised by
the parties.
For the reasons discussed in this Order, the Court finds that the Defendants’
conclusion that they satisfied the applicable water quality statutes and regulations to be
arbitrary and capricious. In doing so, however, this Court questions whether the Plaintiffs
have identified any violations of Idaho’s water quality statutes or regulations that the
Defendants have failed to comply with. Absent any such violations, Plaintiffs’ CWA fails
as a matter of law. See Id. at 969. At this stage, however, the Court again finds it most
efficient to deem both motions for summary judgment to be moot as to the CWA claim
and direct the Defendants to address the water quality issues in the Supplemental EA that
is scheduled to be issued in March of 2014. If a violation of water quality statutes or

4

The Plaintiffs’ claim in this case goes to nonpoint source pollution violations. (Dkt. 29-1 at 20.)

MEMORANDUM DECISION AND ORDER

6

regulations exists, the Plaintiffs will have an opportunity to challenge the same at that
time. In an effort to give the parties some direction on this issue, however, the Court will
discuss the arguments regarding the CWA claim.
“The stated purpose of the Clean Water Act (33 U.S.C. §§ 1251 to 1376) is ‘to
restore and maintain the chemical, physical, and biological integrity of the Nation’s
waters.’” Greater Yellowstone Coal. v. Larson, 641 F.Supp.2d 1120, 1130 (D. Idaho
2009) (quoting 33 U.S.C. § 1251(a)). “The CWA requires federal agencies to determine
that approved actions do not result in pollution in violation of state water quality
standards.” Greater Yellowstone Coal. v. Lewis, 628 F.3d 1143, 1149 (9th Cir. 2012)
(citing 33 U.S.C. § 1323(a)). “Under the Act, federal agencies have a duty to ensure that
activities carried out on federal land comply with state water quality standards in the same
manner and to the same extent as any nongovernmental entity.” Larson, 641 F.Supp.2d at
1130 (citing 33 U.S.C. § 1323(a)).
The provision of the CWA that Plaintiffs allege has been violated is 33 U.S.C.
§ 1323 which provides the agency “shall be subject to, and comply with, all Federal,
State, interstate, and local requirements, administrative authority, and process and
sanctions respecting the control and abatement of water pollution....” In particular,
Plaintiffs point to the Water Quality Standards (“WQS”) applicable to the project area.
(Dkt. 51 at 9) (citing 40 C.F.R. § 131.2; IDAPA § 58.01.02.) “Idaho law authorizes the
Idaho Department of Water Quality (“IDEQ”) to promulgate regulations to achieve
maintenance of existing beneficial uses of waters.” Larson, supra (citing Idaho Code, §
39-3601; § 39-3603). The IDEQ regulations appear at Idaho Administrative Code

MEMORANDUM DECISION AND ORDER

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58.01.02.001, et seq. Id. The relevant Idaho law is that applicable to water quality as
contained in the antidegradation policy. Idaho Code § 39-3603; Idaho Admin. Code r.
58.01.02.051-052.
Specifically, Plaintiffs’ CWA claim asserts the “Forest Service violated CWA
because it failed to demonstrate that the designation of a 1,196-mile motorized route
network system adheres to water quality protections;” i.e. Defendants failed to properly
analyze and consider the impact of the project on water quality standards. (Dkt. 29-1 at
20.) Plaintiffs point, in particular, to the letter written by the EPA to the Forest Service
questioning whether the project complied with the CWA. (TM3247.) Plaintiffs also argue
the Forest Service failed to: properly account for the water quality impacts of the
abandoned 650 miles of non-system routes with no plan for stabilizing or
decommissioning of those routes; reduce designated route densities below its own
threshold measurements; and analyze the projects impacts on a subwatershed level. (Dkt.
29-1 at 22, Dkt. 51 at 9-11); see also (Dkt. 97) (arguing the net result of the Travel Plan
Revision is beneficial to water quality is arbitrary and capricious because: the Defendants
failed to properly consider the Travel Plan Revision’s impact on site-specific water
quality as required by the CWA; the Project does not satisfy Idaho’s water quality
standards that apply to specific waters; the Travel Plan Revision does not satisfy the
Defendants’ own subwatershed standards; and the Travel Plan Revision violates Idaho’s
Nonpoint Source Management Plan requirements for using BMP for the 650 miles of
non-system routes that were abandoned).

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In response, Defendants maintain the project’s route densities do not violate the
CWA or Idaho law because the project reduces the route density in all but two
subwatersheds; and in those two subwatersheds the route density remains unchanged.
(Dkt. 31 at 19-22, Dkt. 43 at 17-18.) The Defendants also assert that the Forest Service
properly analyzed the projects impacts on the subwatersheds and considered Idaho’s law
as well as the SNF Plan in concluding the action would maintain or restore water quality
to fully supported beneficial uses. (Dkt. 43 at 20) (citing TM2048-49.) Defendants further
contend the project does not violate the CWA in regards to the 650 miles of non-system
routes. (Dkt. 43 at 19.) The project complies with the CWA, Defendants argue, pointing
out that there is no requirement that route densities be reduced below any particular
thresholds. (Dkt. 43 at 18) (Dkt. 50 at 12.) Defendants maintain that because the project
will overall be beneficial in reducing or maintaining existing route densities, including
those that exceed the thresholds, it has not violated the CWA or Idaho law. (Dkt. 31 at 21,
Dkt. 50 at 11.)
“Because the Clean Water Act does not articulate its own standard of review, we
review agency action pursuant to the Administrative Procedures Act. City of Olmsted
Falls, Ohio v. United States Environ. Protection Agency, 435 F.3d 632, 636-37 (6th Cir.
2006) (citation omitted). “We review agency actions to see if they were arbitrary,
capricious, or an abuse of discretion, or otherwise not in accordance with law.” Id. (citing
5 U.S.C. § 706(2)(A)). “We accord deference to the agency’s views, but we still conduct
‘a thorough, probing, in-depth review.’” Id. (quoting Citizens to Preserve Overton Park,
Inc., v. Volpe, 401 U.S. 402, 415 (1971) (abrogated on other grounds)).

MEMORANDUM DECISION AND ORDER

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a.

Consideration of the EPA’s Position

Plaintiffs assert the Defendants failed to properly consider a particular letter
written by the EPA on December 20, 2007 to the Forest Service questioning whether the
project complied with the CWA. (TM3247.) Defendants maintain this contention is not a
violation of the CWA or Idaho’s antidegradation policy and, regardless, the EPA is in
support of the Travel Plan Revision. (Dkt. 43 at 18.) The Court agrees with the
Defendants. The EPA’s letter (TM3247) does not amount to a violation of either the
CWA or Idaho law. As determined in the Court’s previous Order, the mere fact that the
Forest Service and EPA may have differing views of the project’s impact does not, in and
of itself, mean the Forest Service’s DN/FONSI are arbitrary and capricious. Just the
opposite here, the Court finds the Forest Service satisfied its obligation to “consider and
respond to the comments of other agencies,” even though it did not adopt the EPA’s
recommendations. Arkansas Wildlife Fed'n , 431 F.3d at 1101; Hells Canyon Pres.
Council, 9 F.Supp.2d at 1242 (“An agency is required to consider the comments of other
agencies, but it does not have to defer to them when a disagreement exists.”).
The Court does not, however, agree with the Defendants’ statement that the EPA is
“generally supportive” of the Travel Plan Revision. (Dkt. 43 at 18 n. 11.) The EPA’s
letter states that it supports the “overall reductions” in route density “as they are likely to
reduce sediment and other water quality impacts to nearby waterbodies.” (Dkt. 43 at 18 n.
11.) In reviewing the letter, however, the Court finds the letter generally reveals that the
EPA was troubled by the lack of specifics as to various aspects of the Travel Plan
Revision and suggested several clarifications of particular portions of the Travel Plan

MEMORANDUM DECISION AND ORDER

10

Revision be made in the EA. (TM3245-48.) Regardless, the fact remains that the letter
itself does not give rise to a violation of either the CWA nor Idaho law.
b.

650 Miles of Existing Unauthorized Routes

Plaintiffs argue the Travel Plan Revision’s abandonment of 650 miles of nonsystem routes without any mitigation measures in place violates water quality standards.
(Dkt. 29 at 22-23.) Even if there may still be some adverse impacts to water quality by
virtue of the existence of the unauthorized routes, Defendants maintain the closing of
these routes to motor vehicle use will reduce adverse impacts to water quality. (Dkt. 43 at
20.)
The Court finds the Defendants did consider the impacts of the abandoned nonsystem routes to some extent; at least in so far as they identified the routes that would be
closed. (TM12993.) The EA recognizes the Forest Plan and its intent to maintain or
restore water quality to fully supported beneficial uses. (Dkt. 48 at 20) (citing SWST01,
TM2048-49.) Further, the EA cited to a document entitled Soil Water effects analysis Environmental Consequences, prepared by John Chatel, which contains tables detailing
the Remaining non-system route densities by subwatershed and alternative for
Alternatives 2, 3, and 4 in the various districts impacted. (TM12133-36.) As to the
Defendants’ finding that simply eliminating cross-country travel will reduce adverse
impacts on water quality, however, the Court finds that conclusion to be arbitrary and
capricious because it fails to consider mitigation efforts needed in regards to the
abandoned non-system routes.

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Many of the materials cited in the EA recognized the potential negative impacts on
water quality that may occur from the abandoned non-system routes and the need for
mitigation. (TM2009, 2047.) For instance, Mr. Chatel’s document states:

Routes subject to heavy motorized use are more likely to see greater erosion
from soil compaction than non-motorized routes, Many non-system routes
would also slowly revegetate and close in overtime reducing surface
erosion. Still, field reviews of the most problematic non-system routes
should be complete to determine if natural recovery alone is enough to elevate all problems. If it i
needed to prevent resource damages.
(TM12132.) Throughout the EA it is noted that the non-system routes that will remain
may “result in localized impacts to water quality” but then the EA goes on to state:
“However, impacts would not be as great as those portrayed under Alternative 1 because
non-system routes would not be open to motorized vehicles.” (TM2009, 2011.) Though
the EA recognizes the possible impact from the abandoned routes, it does not discuss or
propose possible mitigation solutions to be used to stabilize the non-system routes that are
proposed to be abandoned other than to say the abandoned routes should be monitored.
The EA’s conclusion again relies upon the fact that eliminating motorized use of the nonsystem routes will eventually result in better water quality conditions than if motorized
use is allowed to continue. The Court finds this failure to consider and discuss mitigation
measures in regards to the abandoned non-system routes to be arbitrary and capricious in
that it does not fulfill the Defendants’ obligations to address the mitigation needed to
minimize the impact the proposed activities will have on the water resources in the area.

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c.

Route Density Threshold Measures

Plaintiffs’ CWA claim argues the Forest Service violated the CWA by failing to
reduce route densities in all subwatersheds below certain threshold measures. Defendants
counter that neither Idaho law nor the CWA imposes such a requirement. (Dkt. 43 at 18.)
Defendants maintain that there is no violation of Idaho’s antidegradation policy as that
policy only requires that existing beneficial uses not be further impaired. Here,
Defendants argue, there will be no further impairment of beneficial uses because the
Travel Plan Revision reduces or maintains existing route densities; reducing route density
in all but two subwatersheds and in those two subwatersheds the route density remains
unchanged. (Dkt. 43 at 18) (comparing Table 13 at TM12074 with Table 42 at
TM12115.) Plaintiffs respond that the Defendants violated the CWA by reaching the
conclusory assertion that the Travel Plan Revision’s selected alternative would maintain
or restore water quality to fully supported beneficial uses even though there are
subwatersheds with high route densities that exceed the Defendants’ own threshold
measurements for “Functioning at Unacceptable Risk,” 1.7 mi/mi2, and “Functioning at
Risk,” 0.7 mi/mi2. (Dkt. 51 at 9-10.)
The Court agrees with the Defendants that there is no violation of either the CWA
or Idaho’s antidegradation policy solely by virtue of the fact that there are some
subwatersheds in the project area that exceed certain particular density measurements.
However, as to the Plaintiffs’ claim challenging the Defendants’ conclusion that it has
complied with the CWA even though there are high route densities in the area, the Court
finds the Defendants’ conclusions to be arbitrary and capricious.

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As the Court stated in its prior Order, the conclusions reached in the EA on this
issue are “based on the same generalized beneficial assumptions” that the Court
previously determined are “insufficient to satisfy the analytical demands required” to
satisfy the CWA. (Dkt. 88 at 35.) In the EA, the Forest Service recognizes that nonsystem routes will remain on the landscape and “may contribute to localized impacts to
aquatic resources, however, not to the same degree as when they were open to motorized
uses. Many non-system routes would also slowly revegetate and close in over time,
reducing potential effects to aquatic resources.” (TM2049.) This conclusion suffers from
the same shortcomings as the Court determined to be lacking in the NEPA analysis; doing
something is better than doing nothing. (Dkt. 88.) The Court is not second guessing the
expertise of the Defendants. Instead, the Court finds that the Defendants’ explanation for
there decision fails to consider important aspects of the issue and is, therefore, arbitrary
and capricious. See Motor Vehicle Mfrs. Ass’n v. State Farm Mutual Auto. Ins. Co., 463
U.S. 29, 43 (1983).
The Court’s conclusion that the Defendants’ findings are arbitrary and capricious
is based on the fact that the Defendants failed to provide a rational explanation for their
generalized assumption that closing roads to motorized use will improve water quality
even though there is research to show that the existence of the roads themselves, without
any mitigation efforts, may still negatively impact water quality. Motor Vehicle Mfrs.
Ass’n, 463 U.S. at 43 (finding an agency must examine the relevant data and articulate a
satisfactory explanation for its action including a “rational connection between the facts
found and the choice made.”). As such, the Court concludes that the Defendants have not

MEMORANDUM DECISION AND ORDER

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adequately complied with their obligations under the CWA and Idaho’s antidegradation
act to show that the waters in the project area will not be negatively impacted by the
project and/or that mitigation measures would cure any such negative effects. The Court
directs the Defendants to address this issue in the supplemental EA that is due to be
issued no later than March of 2014.
3.

Violation of Executive Order 11644's Travel Planning Route Designation
Criteria
Plaintiffs final argument is that the Forest Service failed to minimize damage to

soil, watershed, vegetation, or other resources as required by Executive Order 11644, as
amended by Executive Order 11989, and 36 C.F.R. § 212.55 because it did not properly
account for the harm caused by the prior cross-country travel management regime. (Dkt.
1 at ¶ E and Dkt. 29-1 at 24.) Defendants counter that Executive Order 11644 is not
actionable; i.e. that private parties may not enforce compliance with executive orders.
(Dkt. 31 at 25, Dkt. 43 at 23.) Alternatively, Defendants argue they have satisfied the
requirements of the Executive Orders. (Dkt. 43 at 24.)
“In 1972, President Nixon issued Executive Order No. 11644 directing the land
management agencies, including the Forest Service, to adopt regulations providing for
administrative designation of areas and trails open and closed to motor vehicle use.”
Idaho Conservation League v. Guzman, 766 F.Supp.2d 1056, 1060-61 (D. Idaho 2011)
(citing Exec. Order No. 11,644, § 3; 37 Fed. Reg. 2877 (Feb. 9, 1972)).5 “These
5

Executive Order 11644 was implemented to “establish policies and provide procedures that will
ensure that the use of off-road vehicles on public lands will be controlled and directed so as to protect the
resources of those lands, to promote the safety of all users of those lands, and to minimize conflicts
among the various uses of those lands.” See Gardner v. United States Bureau of Land Mgmt., 633
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regulations must ‘direct that the designation of such areas and trails will be based upon
[1] the protection of the resources of the public lands, [2] promotion of the safety of all
users of those lands, and [3] minimization of conflicts among the various uses of those
lands.’ These regulations also must “require that the designation of such areas and trails
shall be in accordance with” certain “minimization criteria.” Id. The reason for the order
was to “further the purpose and policy of NEPA” and established “criteria by which
federal agencies were to develop regulations and administrative instructions for the
designation of areas and trails on which ORVs would be permitted.” See Gardner v.
United States Bureau of Land Mgmt., 633 F.Supp.2d 1212, 1217 (D.Or. 2009). It also
required agencies to “monitor the effects” of ORV use on the public lands and “[o]n the
basis of the information gathered, they shall from time to time amend or rescind
designations of areas or other actions taken pursuant to this order as necessary to further
the [NEPA].” Id.
Thereafter, in 1977, President Carter issued Executive Order No. 11989, amending
Executive Order 11644 and adding additional protections, “which strengthened the
agencies’ obligation to protect public lands from the harm caused by ORV use.” Gardner,
633 F.Supp.2d at 1217 (citing Exec. Order 11989, 42 Fed.Reg. 26959 (May 24, 1977));
Guzman, 766 F.Supp.2d at 1061 (citing Exec. Order No. 11989; Utah Shared Access
Alliance v. Carpenter, 463 F.3d 1125, 1130 (10th Cir. 2006)). “Executive Order 11989
directs the land management agencies, including the Forest Service, to close certain trails

F.Supp.2d 1212, 1217 (D.Or. 2009) (quoting Exec. Order No. 11644, 37 Fed.Reg. 2877 (Feb. 8, 1972)).
MEMORANDUM DECISION AND ORDER

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and other areas upon a finding that ORV use ‘will cause or is causing considerable
adverse effects on the soil, vegetation, wildlife, wildlife habitat or cultural or historic
resources of particular areas or trails of the public lands.’ These areas are to stay closed
until the agency “determines that such adverse effects have been eliminated and that
measures have been implemented to prevent future recurrence.” Guzman, 766 F.Supp.2d
at 1061; see also Gardner, 633 F.Supp.2d at 1217 (citing § 2 (amending Exec. Order
11644, § 9(a))).
In the Court’s prior Order it held that “the Plaintiffs can challenge the Defendants’
compliance with Executive Orders 11644 and 11989.” (Dkt. 88 at 42.) There, however,
the Court reserved its ruling as to whether the Defendants violated the Executive Orders.
(Dkt. 88 at 44.) The parties now seek a ruling on whether the Defendants complied with
the Executive Orders.
The standard for reviewing compliance with the Executive Orders is described in
Carmel-By-The-Sea, wherein the Ninth Circuit stated:
An agency’s findings under an Executive Order will be set aside only if
they are “arbitrary, capricious, [or] an abuse of discretion” under the
Administrative Procedure Act, 5 U.S.C. § 706(2)(A). National Wildlife, 629
F.2d at 592 (citing Citizens to Preserve Overton Park, Inc. v. Volpe, 401
U.S. 402, 416 (1971)). We consider whether the agency's “decision was
based on a consideration of the relevant factors and whether there has been
a clear error of judgment.” Id. Our inquiry is to be “searching and careful,”
but our review remains narrow: we will not substitute our judgment for that
of the [agency]. Id.
123 F.3d at 1166. Plaintiffs claim the Defendants have not complied with the minimizing
requirements of Executive Order 11644, as amended by Executive Order 11989, in
particular as to the Minidoka Ranger District’s degrade water quality, aquatic, and

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watershed conditions. (Dkt. 51 at 14.) The language of those directives that Plaintiffs
allege has been violated, § 3 of Executive Order 11644, mandates that the Forest Service
regulations be in accordance with a set of criteria regarding route designations to include
minimizing “damage to soil, watershed, vegetation, or other resources of the public
lands,” “harassment of wildlife or significant disruption of wildlife habitats,” and
“conflicts between off-road vehicle use and other existing or proposed recreational uses
of the same or neighboring public lands, and to ensure the compatibility of such uses with
existing conditions in populated areas, taking into account noise and other factors.” Exec.
Order 11644 § 3(a). These minimizing considerations are essentially mirrored in the
Forest Service Regulations. See 36 C.F.R. § 212.55(b). Likewise, the 2005 Travel
Management Rule requiring designation of routes for motor vehicle use whereby the
agency considers the various effects of those designations and a host of defined factors
includes similar language. Plaintiffs argue there is no rational connection between the
designation of the 1,196-mile route network, the abandonment of 650-miles of nonsystem routes, without plans for stabilization and decommissioning, and the route
designation criteria. (Dkt. 51 at 15.) In particular, Plaintiffs assert that the Defendants
failed to properly account for the past damage to water quality, aquatic, and watershed
conditions across the Minidoka Ranger District caused by the motorized cross-country
travel management regime. (Dkt. 29 at 24-25.)
Defendants counter that they have complied with the route designation criteria by
minimizing the effects of the Travel Plan Revision on the forest resources as displayed in
its analysis in the EA. (Dkt. 43 at 24.) In particular, Defendants point to the sections of

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the EA discussing the effects of the Travel Plan Revision on bald eagles in the Minidoka
Ranger District, sage-grouse nesting habitat and early/late brood rearing habitat, and the
northern goshawk. (Dkt. 43 at 24.) Further, the Defendants point to the Forest Plan
consistency checklist as demonstrating that the Travel Plan Revision’s potential effects
will be consistent with appropriate standards and guidelines for soil, water, riparian, and
aquatic resources. (Dkt. 43 at 24.)
The Court has reviewed the EA and administrative record including, in particular,
those sections identified by the Defendants concerning this issue. Having done so, the
Court finds the Defendants’ findings and conclusions made in regard to the Executive
Orders claim are arbitrary and capricious.
The portions of the administrative record cited to by the Defendants containing
documents that discuss the Travel Plan Revision’s impact on certain species: bald eagles,
sage-grouse, and the northern goshawk. In addition, the Defendants cite to the Travel
Management Plan’s consistency checklist. (Dkt. 43 at 24) (citing TM13617-26.) The
checklist contains a section entitled “Management Direction for Soil, Water, Riparian,
and Aquatic Resources - STANDARDS” that generally states the actions “shall be
designated in a manner that maintains or restores water quality to fully support beneficial
uses and native and desired non-native fish species and their habitat....” (TM13619.) The
checklists then identifies where, why, and how the direction will be implemented and
show compliance stating:
The proposed action would maintain or restore water quality to fully
support beneficial uses and native and desired non-native fish species and
their habitat. It would accomplish this by eliminating cross-country travel

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and establishment of new motorized non-system routes, removing several
system routes, and limiting motorized use to designated routes only. These
actions would help to reduce impacts from surface erosion, route
encroachments of stream channels and riparian areas, fish passage from
stream fords, and slope hydrology from water interception where current
activities are decreased the most. Collectively, these actions would help
reduce risks and threats to aquatic resources and help make small
improvements to fish habitat and water quality.
(TM13619.) The checklist references the MATRIX located in Appendix B to assist in
determining compliance with this standard. In the GUIDELINES portion of the same
section relating to water and aquatic resources, the checklist recognizes the need to
comply with the CWA and the Idaho Nonpoint Source Management Plan stating “The
proposed action has been designed to minimize water quality impacts and meet
specifications outlined in TMDLs.” (TM13621-22.) This section goes on to provide a
nearly identical statement to that quoted above from the STANDARDS section with the
only exception being the conclusion that: “Therefore, it would not impact water quality
and cause the need to address the 11 questions outline[d] in the Nonpoint Source
Management Plan.” (TM13622.)
These materials identified by the Defendants reveal that the Defendants found that
the proposed action would not impact water quality and, therefore, they need not address
the 11 questions outlined in Idaho’s Nonpoint Source Management Plan to achieve
federal consistency with the CWA as implemented by the State. Effectively concluding
that water quality is not impacted by the project because it eliminates cross-country
travel, establishes new motorized non-system routes, removes several system routes, and

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limits motorized use to designated routes. The Court finds this conclusion to be arbitrary
and capricious for the same reasons as stated previously as to the other claims.
The fact that the Travel Management Rule will designate some roads,
decommission others, and eliminate cross-country travel does not, in and of itself, led to
the conclusion that water quality will not be impacted by the project. As Plaintiffs point
out, the abandonment of routes may result in a greater impact to water quality as those
routes deteriorate. (TM12132) (“field reviews of the most problematic non-system routes
should be complete to determine if natural recovery alone is enough to elevate all
problems. If it is not, then more permanently removals may be needed to prevent resource
damages.”) The fact that this was not considered, or at least the administrative record
does not show that the Defendants properly considered it, renders the Defendants’
conclusions that water quality would be maintained or restored lacking in a proper
explanation.6 Because the Defendants’ failed to consider important aspects of the issue,
the Court finds the Defendants acted arbitrarily and capriciously and in violation of the
Executive Orders. See Motor Vehicle Mfrs. Ass’n, 463 U.S. at 43. The Defendants should
address this issue in the anticipated March 2014 supplemental EA.

6

It may be that the Defendants did consider this issue in reaching its conclusion. The is simply
nothing in the record that shows the Defendants gave proper consideration and/or explanation to the issue
before concluding that no resource damage would occur. This may be corrected in the anticipated
Supplemental EA.
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ORDER
NOW THEREFORE IT IS HEREBY ORDERED as follows:
1)

Defendants shall issue a Supplemental Environmental Assessment no later
than March 31, 2014. Thereafter, the parties shall pursue the requisite
administrative review process concerning that supplemental Environmental
Assessment.

2)

The Plaintiffs’ Motion for Summary Judgment and the Defendants’ Motion
for Summary Judgment are deemed MOOT as to the Clean Water Act
Claim.

3)

The Plaintiffs’ Motion for Summary Judgment is GRANTED and the
Defendants’ Motion for Summary Judgment is DENIED as to the Violation
of Executive Orders Claim.

4)

This case is ADMINISTRATIVELY CLOSED with the parties being
granted leave to re-open the case, if necessary, after the supplemental EA
has been issued and any further proceedings are concluded making it ripe
for the Court’s review.
DATED: October 22, 2013

Honorable Edward J. Lodge
U. S. District Judge

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