WildEarth Guardians et al v. Kraayenbrink et al

Filing 108

MEMORANDUM DECISION AND ORDER ON CROSS-MOTIONS FOR SUMMARY JUDGMENT, AND MOTION TO STRIKE. IT IS THEREFORE ORDERED that: Plaintiffs' Motion 80 is DENIED. The Forest Service's Motion 83 is GRANTED. The Forest Service's Motion 85 is GRANTED IN PART and DENIED IN PART. The Court will strike Exhibits A-F (Dkt. 80-3, 80-4, 80-5, 80-6, 80-7, 80-8). The Court will also strike Exhibits 1-6 attached to the Declaration of Kenneth Paur (Dkt. 83-5, 83-6, 83-7, 83-8, 83-9, 83-10). Signed by Judge Ronald E. Bush. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (st)

UNITED STATES DISTRICT COURT
DISTRICT OF IDAHO

WILDEARTH GUARDIANS, CASCADIA
WILDLANDS, KOOTENAI ENVIRONMENTAL
ALLIANCE, CENTER FOR BIOLOGICAL
DIVERSITY, WESTERN WATERSHEDS
PROJECT, PROJECT COYOTE,
Plaintiffs,

Case No.: 4:14-cv-00488-REB

MEMORANDUM DECISION AND
ORDER ON CROSS-MOTIONS FOR
SUMMARY JUDGMENT, AND
MOTION TO STRIKE

vs.
UNITED STATES FOREST SERVICE,
CHARLES A. MARK, in his official capacity,
Defendants.

Currently pending are cross-motions for summary judgment filed by Plaintiffs Wildearth
Guardians, et al. (“Plaintiffs”) and the United States Forest Service (“the Forest Service”) (Dkt.
80, 83), and a motion to strike filed by the Forest Service (Dkt. 85). The Court heard oral
argument on the motions, and having carefully considered the record and otherwise being fully
advised, the undersigned enters the following Memorandum Decision and Order.
PROCEDURAL BACKGROUND
This case involves Plaintiffs’ contentions that the Forest Service was required by law to
examine and potentially constrain a “predator derby” - that is, a private competition involving
the hunting of coyotes, wolves, and other wildlife1 (“the Derby”) - to take place on public lands

1

Hunting is subject to state regulation. See 16 U.S.C. § 528, § 1604(e)(1). Wolves are
not a listed endangered species in Idaho, as they were removed from Endangered Species Act
MEMORANDUM DECISION AND ORDER- 1

in the Salmon-Challis National Forest (“the Forest”) and other public or private lands near
Salmon, Idaho. Plaintiffs claim that the Forest Service violated its own regulations, the National
Environmental Policy Act (“NEPA”), and the Administrative Procedure Act (“APA”) by failing
to require a special use permit for this event. The event was first held on December 28-29, 2013
and challenged in a separate lawsuit, Wildearth Guardians v. Mark, Case No. 4:13-cv-00533CWD. In that case, before Magistrate Judge Candy W. Dale, Plaintiffs’ request for a temporary
restraining order to stop the Derby was denied. Plaintiffs voluntarily dismissed the case on
January 16, 2014. See Case No. 4:13-cv-00533-CWD, Dkt. 23 (also at 2013 WL 6842771 (D.
Idaho Dec. 27, 2013)), Dkt. 25.
Plaintiffs filed this case on November 13, 2014, seeking to enjoin a second Derby
proposed by the same private organization, Idaho for Wildlife, to take place on January 2nd
through 4th of 2015. Complaint (Dkt. 1) ¶ 41. In Plaintiffs’ Second Amended Complaint, they
allege that: (1) the Forest Service violated NEPA because the Forest Service’s decision that a
special use permit is not required was arbitrary and capricious and made without observance of
procedure; and (2) the Forest Service violated NEPA by failing to take a “hard look” at impacts
on the environment. Second Amended Complaint (“SAC”) (Dkt. 23) ¶¶ 108-123. Plaintiffs
request that the Court: (1) declare that the Forest Service violated NEPA in failing to evaluate
the Derby’s impacts on the environment on the Forest; (2) order the Forest Service to comply
with its own regulations and guidance regarding special use permits as they apply to the Derby;

protections in Idaho on May 5, 2011. Thomas Keegan Decl. ¶ 8 (FSAR000129). The Idaho
State Legislature enacted a wolf management plan to support the de-listing of wolves. Licensed
hunting and trapping by private individuals or group is the primary way the State regulates wolf
populations. Id. at ¶ 10 (FSAR000129). The Idaho Department of Fish Game has established
“wolf management zones” and sets harvest limits for these zones. Id. at ¶ 16 (FSAR000130).

MEMORANDUM DECISION AND ORDER- 2

and (3) enjoin the Forest Service from allowing the Derby on the Forest until a special use
permit has been issued and environmental review pursuant to NEPA has been completed. Id. at
p. 32.2
FACTUAL BACKGROUND
The relevant Forest Service regulations were promulgated by the Department of
Agriculture pursuant to 16 U.S.C. § 551, which authorizes the Secretary of Agriculture to protect
the public forests against destruction by fire and depredation and to make rules and regulations
as will preserve the National Forests from destruction by regulating occupancy and use. Subpart
B of the regulations governs “special uses” of Forest Service lands. 36 C.F.R. § 251.50(a).
Most users engaging in “noncommercial recreational activities” on the Forest, e.g., hikers,
campers, hunters, and boaters, do not need a special use permit. Id. at § 251.50(c). Special use
permits are required, however, under section 251.50(c) for certain uses, including, commercial
uses (any use where an entry or participation fee is charged or the primary purpose is a sale of
good or service), recreation events (recreational activities for which an entry or participation fee
is charged), and noncommercial group uses (defined as a group of 75 or more people, either
participants or spectators). Id. at §§ 251.50, 251.51.
Idaho for Wildlife scheduled its first “Coyote and Wolf Derby” in December of 2013.
Participants were to sign in and attend a rules meeting in Salmon, Idaho on the first evening of
the event, followed by a weekend of hunting animals such as wolves, coyotes, skunks, weasels,

2

The Bureau of Land Management was initially a defendant in this case but the parties
reached an agreement to settle those claims out of court. See Dkt. 103, 107. Accordingly, this
decision pertains only to the claims and facts relating to the Forest Service.

MEMORANDUM DECISION AND ORDER- 3

jackrabbits, raccoons, and starlings on private land or federal or state land (including the Forest).
At the end of the contest period, participants were invited to attend a gathering in Salmon, where
prizes were awarded. The Forest Service concluded that there were no activities associated with
the 2013 Derby that required a special use permit. Plaintiffs sought a temporary restraining
order to halt the Derby, but that request was denied by Judge Dale in the case previously
referenced. See Wildearth Guardians v. Mark, 4:13-cv-00533-CWD, 2013 WL 6842771 (D.
Idaho Dec. 27, 2013). The Derby went forward on December 28-29, 2013, with approximately
26 hunters participating and no wolves were killed. Steve Alder Decl. (Dkt. 83-3) ¶ 3.
On August 7, 2014, Idaho for Wildlife submitted an application to the Forest Service for
a Special Use Permit for a Derby to be held on the Forest and other lands near Salmon, Idaho on
January 2-4, 2015. FSAR000198-199. On August 19, 2014, Charles Mark, Forest Supervisor
for the Salmon-Challis National Forest, sent a letter to Idaho for Wildlife informing the group
that “a permit will not be issued, nor is one needed for this event.” Id. Specifically, Mr. Mark
found that participants were not “paying organizers to go onto the National Forest to hunt, and
organizers are not offering equipment or services to facilitate hunting on the National Forest.
Participants . . . may hunt anywhere they wish, they are not limited to an area on NFS land, nor
are they being specifically invited to . . . NFS land.” Id. Additionally, Mr. Mark noted that the
Derby event “is confined to a business location in the Town of Salmon, and involves the award
of prizes to hunters who bring animals taken during noncommercial hunting activities to that
business location to compete for prizes.” Id.
Following this decision, several conservation organizations wrote to the Forest Service

MEMORANDUM DECISION AND ORDER- 4

asking it to take a “fresh look” at the Derby due to modifications Idaho for Wildlife had made to
its proposal. See FSAR000018-21. However, the Chief of the Forest Service, Thomas Tidwell,
agreed with Charles Mark’s decision, stating that “no special use permit is required for the
activities currently proposed by Derby organizers.” FSAR000327. Chief Tidwell also
explained why he believed the event was not a “group use”:
The development of a permit requirement for group uses was based
on the need to manage large, concentrated groups of people to
prevent unacceptable environmental impacts, by assuring
appropriate public health and sanitation measures are followed.
There are often 75 or more people on National Forests at the same
time who are participating in shared or similar activities, but that
does not, in and of itself, make them a ‘group’ for purposes of the
regulation.
FSAR000327-328.
STANDARD OF REVIEW
1.

Statutory Framework
The National Environmental Policy Act (“NEPA”) was enacted to ensure that the federal

government makes major decisions significantly affecting the environment only after
considering the impacts of those decisions and exploring possible alternatives. 42 U.S.C.
§§ 4321, 4331; 40 C.F.R. § 1501.1. NEPA establishes procedures to ensure that federal
agencies take a “hard look” at the environmental consequences of their proposed action in
advance of a final decision. Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 350-51
(1989); Vermont Yankee Nuclear Power Corp. v. NRDC, 435 U.S. 519, 558 (1978).
The APA provides the authority for judicial review of agency decisions under NEPA. Pit
River Tribe v. U.S. Forest Serv., 469 F.3d 768, 778 (9th Cir. 2006). Under the APA, a court

MEMORANDUM DECISION AND ORDER- 5

must uphold an agency action unless it is “arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). This standard is “highly
deferential, presuming the agency action to be valid and affirming the agency action if a
reasonable basis exists for its decision.” Ranchers Cattlemen Action Legal Fund United
Stockgrowers of Am. v. U.S. Dep't of Agric., 499 F.3d 1108, 1115 (9th Cir. 2007). Generally,
“[a]n agency decision will be upheld as long as there is a rational connection between the facts
found and the conclusions made.” Barnes v. U.S. Dep't of Transp., 655 F.3d 1124, 1132 (9th
Cir. 2011). The court will deem an agency action to be arbitrary and capricious only “if the
agency has relied on factors which Congress has not intended it to consider, entirely failed to
consider an important aspect of the problem, offered an explanation for its decision that runs
counter to the evidence before the agency, or is so implausible that it could not be ascribed to a
difference in view or the product of agency expertise.” Motor Vehicle Mfrs. Ass'n of the U.S. v.
State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983).
The court may not overturn a decision simply because it disagrees with the decision or
with the agency’s conclusions about environmental impacts. River Runners for Wilderness v.
Martin, 593 F.3d 1064, 1070 (9th Cir. 2010) (citations omitted). The “court may not substitute
its judgment for that of the agency concerning the wisdom or prudence of the agency’s action.”
Id. (citation and marks omitted).
2.

Summary Judgment Standard
Federal Rule of Civil Procedure 56 provides, in pertinent part, that the “Court shall grant

summary judgment if the movant shows that there is no genuine dispute as to any material fact
and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). “Only disputes

MEMORANDUM DECISION AND ORDER- 6

over facts that might affect the outcome of the suit under the governing law will properly
preclude the entry of summary judgment.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986). For summary judgment purposes, an issue must be both “material” and “genuine.” An
issue is “material” if it affects the outcome of the litigation. An issue is “genuine” if it must be
established by “sufficient evidence supporting the claimed factual dispute . . . to require a jury or
judge to resolve the parties’ differing versions of the truth at trial.” Hahn v. Sargent, 523 F.3d
461, 464 (1st Cir. 1975) (quoting First Nat. Bank v. Cities Serv. Co. Inc., 391 U.S. 253, 289
(1968)); see also British Motor. Car Distrb.v. San Francisco Auto. Indus. Welfare Fund, 883
F.2d 371, 374 (9th Cir. 1989). “Where the record taken as a whole could not lead a rational trier
of fact to find for the non-moving party, there is no genuine issue for trial.” Matsushita, 475 U.S.
at 587 (citation omitted).
When parties submit cross-motions for summary judgment, the Court must independently
search the record for factual disputes. See Fair Hous. Council of Riverside Cnty., Inc. v.
Riverside Two, 249 F.3d 1132, 1136 (9th Cir. 2001). The filing of cross-motions for summary
judgment “where both parties essentially assert that there are no material factual disputes” does
not vitiate the Court’s responsibility to determine whether disputes as to material facts are
present. See id.
In considering a motion for summary judgment, the Court does not make findings of fact
or determine the credibility of witnesses, Anderson, 477 U.S. at 255; rather, it must draw all
inferences and view all evidence in the light most favorable to the nonmoving party. Matsushita
Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587–88 (1986); Whitman v. Mineta, 541
F.3d 929, 931 (9th Cir. 2008).

MEMORANDUM DECISION AND ORDER- 7

ANALYSIS
1.

Plaintiffs Have Standing
Article III of the United States Constitution limits judicial power to deciding cases and

controversies. The standing doctrine requires a plaintiff to allege a “personal stake in the
outcome of the controversy . . . to warrant his invocation of federal-court jurisdiction.” Warth v.
Seldin, 442 U.S. 490, 490-99 (1975). A plaintiff must establish that:
he is under threat of suffering “injury in fact” that is concrete and
particularized; the threat must be actual and imminent, not
conjectural and hypothetical; it must be fairly traceable to the
challenged action of the defendant; and it must be likely that a
favorable judicial decision will prevent or redress the injury.
Jayne v. Sherman, 706 F.3d 994, 999 (9th Cir. 2013); see also Summers v. Earth Island Inst., 555
U.S. 488, 493 (2009). It is Plaintiffs’ burden to demonstrate their standing. Id. at 493.
The concrete harm requirement can be satisfied by an injury to the “recreational or even
the mere esthetic interests of the plaintiff.” Summers, 555 U.S. at 493. The Ninth Circuit has
recognized that such an injury can be found in the testimony of a member of the environmental
group that he or she “had repeatedly visited an area affected by a project, that he had concrete
plans to do so again, and that his recreational or aesthetic interests would be harmed if the
project went forward without his having the opportunity to appeal.” Wilderness Society, Inc. v.
Rey, 622 F.3d 1251, 1256 (9th Cir. 2010). Further, “[w]here the recreational use of a particular
area has been extensive and in close proximity to the plaintiff, an affiant’s expressed intention to
continue using the land is sufficiently concrete to underwrite an injury-in-fact.” Jayne, 706 F.3d
at 999 (citation and internal quotation marks omitted). However, a “vague desire to return to the

MEMORANDUM DECISION AND ORDER- 8

area ‘without any description of concrete plans, or indeed any specification of when the some
day will be’ does not support a finding of actual or imminent injury.” Id.
Plaintiffs submit affidavits of several of their members. For example, Ms. Wagenknecht
splits her time between Salmon and Leadore, and she regularly recreates on the Salmon-Challis
National Forest in her personal time and through her volunteer work with the Salmon Animal
Shelter. Louise Wagenknecht Decl. (Dkt. 80-10); Wagenknecht Second Decl. (Dkt. 88-2). Ms.
Wagenknecht visits the Forest dozens of times a year and year-round for dog-walking, hiking,
wildlife-watching, and many other activities and intends to continue to do so in the future. Id.
Ms. Wagenknecht stated that she has concern the Derbies will harm her interests in viewing
wolves and coyotes on the Forest. Id. Further, she also has concerns and fears about recreating
on the Forest during the Derbies because she fears she and her dogs would not be safe as there
may be less careful hunting practices due to time pressure and cash prizes. Id. See also
Margaret Clay Decl. (Dkt. 80-9); Kenneth Cole Decl. (Dkt. 80-11); Julie Dalsaso Decl. (Dkt. 8012); Josh Laughlin Decl. (Dkt. 80-13); George Wuerthner Decl. (Dkt. 80-14).
In addition to injury in fact, the Forest Service also challenges the redressability of
Plaintiffs’ injuries. The Forest Services contends that because the 2013 and 2015 Derbies have
already taken place, and no subsequent Derbies have taken place or are scheduled, the Court
cannot redress Plaintiffs’ injuries. The Forest Service also argues that because hunting will
occur regardless of the Derby, enjoining future Derbies or requiring a special use permit will not
redress Plaintiffs’ concerns regarding wolf and coyote populations. See, e.g., Mayfield v. United
States, 599 F.3d 964 (9th Cir. 2010) (past injury by itself does not establish standing).

MEMORANDUM DECISION AND ORDER- 9

The Court is persuaded, and for purposes of this litigation will assume, that Plaintiffs
have standing to bring their claims. “Environmental plaintiffs adequately allege injury in fact
when they aver that they use the affected area and are persons for whom the aesthetic and
recreational value of the area will be lessened by the challenged activity.” Friends of the Earth,
Inc. v. Laidlaw Envtl. Servs., Inc., 528 U.S. 167, 183 (2000). There is some tenuousness to
Plaintiffs’ arguments regarding redressability and injury given that no specific plans for future
Derbies have been announced, no wolves were killed in either the 2013 or 2015 Derbies, and the
State of Idaho continues to allow hunting on the Forest and other lands. Nonetheless, there is a
sufficient basis for standing as presented in the current record and the Court will address the
merits of Plaintiffs’ claims.
2.

The Forest Service’s Decision on the Special Use Permit was Not Arbitrary and
Capricious
A.

Special Use On Forest Service Land

The Forest Service, through Mr. Mark, concluded that no permit was required for the
Derbies because even though there was a “use of National Forest land,” participants were not
paying to go onto the Forest to hunt, they could hunt anywhere they wished, and the event of the
Derby, where participants gathered and the competition unfolded for the awarding of prizes, took
place in the city of Salmon, not on the Forest.
The Forest Service’s interpretation of its own regulation is entitled to substantial
deference. Mr. Mark’s rationale rested on the fact that although some part of the proposed
hunting activity might occur on the Forest, it would not necessarily occur there, and none of the

MEMORANDUM DECISION AND ORDER- 10

other events was to take place on the Forest. Some might disagree with that conclusion, as
Plaintiffs do here, but the Forest Service’s conclusion had a reasonable basis as its underpinning.
B.

Group Use

A group use is an activity “conducted on National Forest Service lands that involves a
group of 75 or more people.” 36 C.F.R. § 251.51. Similar to the discussion above, the
“activity,” specifically the awarding of prizes and any payment of fees (or making of donations),
did not take place on the Forest. The hunting of animals could occur on the Forest, but did not
necessarily as participants could hunt on private and state land as well.
Additionally, the group use rule (as its name describes and as Chief Tidwell explained in
his decision3) pertains to the congregation of large numbers of people in the forest. See United
States v. Masel, 54 F. Supp. 2d 904, 913 (W.D. Wis. 1999) (regulation is directed at the
congregation of large numbers of people in forest); see also Black v. Arthur, 18 F. Supp. 2d
1127, 1132 (D. Or. 1998), (“‘group’ refers to some collection of individual people”), aff’d on
other grounds, 201 F.3d 1120 (9th Cir. 2000). The rule was adopted to manage environmental
impacts associated with a large number of individuals, in a concentrated area. See 60 Fed. Reg.
45258-01 at 45259, 45262, 45264 (Aug. 30, 1995). By its very nature, the Derby would involve
hunters dispersed around the geographic footprint of the Derby. The participants could hunt
where and when they desired during the two to three days allotted for the Derby. Nothing in the

3

“The development of a permit requirement for group uses was based on the need to
manage large, concentrated groups of people to prevent unacceptable environmental impacts, by
assuring appropriate public health and sanitation measures are followed. There are often 75 or
more people on National Forests at the same time who are participating in shared or similar
activities, but that does not, in and of itself, make them a ‘group’ for purposes of the regulation.”
ARFS000327-328.

MEMORANDUM DECISION AND ORDER- 11

record indicates there would be a concentration or congregation, in the sense of what constitutes
a “group,” of 75 or more hunters on the Forest. (Further, there is no sense to the idea that the
predators would be congregated any more than the hunters seeking them out would be
congregated.) To the contrary, the nature of the use of the National Forest lands during the days
of the Derby would be much the same, or even much less in impact, than the peak periods of
hunting season, such as the opening weeks of bow season and rifle season for deer and elk when
there are thousands of hunters afield.4 E.g., Mark Decl. ¶¶ 9-13 (ARFS00125-000126); Keegan
Decl. ¶ 18 (FSAR000131). Even during those peak times, there are few reports of conflicts
between hunters and non-hunters. Id.
Hence, the Forest Service’s decision that the Derby was not a “noncommercial group”
has considered appropriate factors, and is supported by an appropriate and plausible explanation.
C.

Commercial Use

The definition of commercial use or activity is also tied to whether the activity is on
Forest lands:
any use or activity on National Forest System lands (a) where an
entry or participation fee is charged, or (b) where the primary
purpose is the sale of a good or service, and in either case,
regardless of whether the use or activity is intended for a profit.
36 C.F.R. § 251.51 (emphasis added).
Idaho for Wildlife initially proposed charging an entry fee, but decided instead to accept
donations if the participants were so inclined. The Court is mindful that sometimes such a

4

The Salmon-Challis National Forest is comprised of more than 4.3 million acres. Idaho
for Wildlife predicted, at most, 200 hunters. The 2013 Derby had approximately 26 hunters and
the 2015 Derby had approximately 86 hunters.

MEMORANDUM DECISION AND ORDER- 12

distinction is artificial, but there is nothing in the record to establish that people could not
participate unless they made a donation. Further, the Derby was focused on the competition in
town at which participants could choose, but were not required, to present animals they had
taken in their hunting and compete for prizes.
Further, Idaho for Wildlife could not have conditioned the right of the participants to
hunt on the Forest land upon the payment, or donation, of a fee. A similar case in the Tenth
Circuit involved the application of a similar regulation (36 C.F.R. § 261.10(c)) to the delivery of
snowmobiles by a snowmobile retailer to customers on Forest Service land. The defendant
argued that he was paid on private land, and therefore not conducting a commercial activity on
Forest land. The court disagreed, holding that one could not bypass permit requirements by
conducting part of the activity, i.e., receiving payment, off Forest Service lands. United States v.
Brown, 200 F.3d 710, 713-14 (10th Cir. 1999). In this case, however, the Derby awards prizes
for the results of hunts undertaken by participants which may have occurred at any of a number
of locations, not limited to Forest land, and which did not require payment to, the permission of,
or the assistance of Idaho for Wildlife to be able to use Forest land.5 Thus, these facts starkly
contrast to the facts of Brown, where the defendant’s commercial transaction required the use of
the National Forest land and the customers of his business could only accomplish their particular
use of the Forest land when he delivered snowmobiles to them inside the Forest boundaries.
Idaho for Wildlife did not charge a fee for either the 2013 or 2015 Derby. The “primary
purpose” of the Derby was not the sale of a good or service. The Derby did involve hunting, and

5

The Court is not persuaded by Plaintiffs’ argument that the primary purpose of the
Derby was the sale of furs from animals killed during the contest.

MEMORANDUM DECISION AND ORDER- 13

possibly hunting on the Forest, but that hunting was a legal activity each of the participants could
pursue on Forest land if they chose to do so, independent of and unrelated to the Derby.
Accordingly, the Forest Service’s decision that the Derby did not involve a commercial use has
considered appropriate factors, and is supported by an appropriate and plausible explanation.
D.

The Derby was Not a Recreation Event

For the same reasons discussed above, the Derby does not fall within the definition of a
“recreation event,” as Plaintiffs contend in an attempt to invoke Section 251.50(d)(1).6 A
recreation event is a “recreational activity conducted on National Forest System lands for which
an entry or participation fee is charged, such as animal, vehicle, or boat races, dog trials, fishing
contests, rodeos, adventure games, and fairs.” 36 C.F.R. § 251.51. Without an entry or
participation fee, there is no basis for applying this section of the regulation and requiring a
special use permit. Further, the Forest Service also emphasized more generally that if there was
any event involving a gathering of people that was a part of the Derby, that event was to be held
in Salmon, not on the Forest. To the extent that any use of forest roads was to occur, under the
Forest Service’s interpretation of its own regulations, it would be for hunting activity, which
was available to the participants independent of the Derby. Such a view of its own regulations
might be subject to disagreement, but the Forest Service’s interpretation of its regulations on this
perspective is also entitled to deference and is not arbitrary, capricious, or an abuse of discretion.

6

“Travel on any National Forest System road shall comply with all Federal and State
laws governing the road to be used and does not require a special use authorization, unless: The
travel is for the purpose of engaging in a noncommercial group use, outfitting or guiding, a
recreation event...” 36 C.F.R. § 251.50(d)(1).

MEMORANDUM DECISION AND ORDER- 14

3.

The Forest Service’s Decision that a Special Use Permit was Not Required Did Not
Trigger NEPA
“NEPA was passed by Congress to protect the environment by requiring that federal

agencies carefully weigh environmental considerations and consider potential alternatives to the
proposed action before the government launches any major federal action.” Lands Council v.
Powell, 395 F.3d 1019, 1026 (9th Cir. 2005). In addition, NEPA is a procedural statute and does
not mandate any particular substantive results. Robertson v. Methow Valley Citizens Council,
490 U.S. 332, 350 (1989).
NEPA requires preparation of an environmental impact statement (“EIS”) only for
“major Federal actions significantly affecting the quality of the human environment.” See 42
U.S.C. § 4332(2)(C). The federal regulations define “major Federal action” as “actions with
effects that may be major and which are potentially subject to Federal control and
responsibility.” 40 C.F.R. § 1508.18. “Actions” include: failure to act by responsible official
where that failure is subject to review; new and continuing activities; new or revised agency
rules, regulations, plans, policies, or procedures; or approval of specific projects including
actions approved by permit or other regulatory decision. Id.
It is true that “if a federal permit is a prerequisite for a project with adverse impact on the
environment, issuance of that permit does constitute major federal action . . .” Ramsey v. Kantor,
96 F.3d 434, 444 (9th Cir.1996) (citations omitted). Likewise, federal inaction can trigger
NEPA’s EIS requirement. Id. at 445. Every denial of a request to act, however, is not
considered a “major federal action.” See Drakes Bay Oyster Co. v. Jewell, 747 F.3d 1073 (9th
Cir. 2014); State of Alaska v. Andrus, 591 F .2d 537, 540 (9th Cir. 1979) (explaining that “even

MEMORANDUM DECISION AND ORDER- 15

if the Secretary had some power under a delegation by Congress to stop the wolf-kill program . .
. his inaction was not the type of conduct that requires an environmental impact statement.”);
Maughan v. Vilsack, 2014 WL 201702 (D. Idaho Jan. 17, 2014); Fund for Animals v. Thomas,
932 F. Supp. 368, 371 (D.D.C.1996) (holding that Forest Service policy of deferring to states on
game-baiting was not a major federal action).
Here, the Forest Service implicitly concluded that the Derby, and an agency decision
upon whether the activities of the Derby required the Forest Service to regulate or constrain the
actions of anyone participating or sponsoring the Derby, did not rise to the level of a major
Federal action significantly affecting the quality of the human environment. On this record, the
Court is similarly persuaded that there was nothing in the Forest Service’s consideration and
action (or inaction) upon the fact of the Derby and its actual or anticipated impact upon the
Forest lands that would constitute a “major Federal action” as “actions with effects that may be
major and which are potentially subject to Federal control and responsibility.” 40 C.F.R.
§ 1508.18. In reaching that conclusion, the Court has considered that the Derby involved:
(1) the potential use of some portion of the vast expanse of the lands of the SalmonChallis National Forest;
(2) by persons scattered across those lands in the conduct of an activity – hunting – which
otherwise occurs on an ongoing basis in the Forest, consistent with Idaho’s regulation of hunting
activities;
(3) whose use of the Forest, even if they participated in a contest with other individuals
about the results of their hunting activities, did not require payment of an entry fee or the use of
commercial services to be able to use the Forest Service lands; and,

MEMORANDUM DECISION AND ORDER- 16

(4) whose use of the Forest roads, if they were to use the Forest roads, was not to
participate in a recreation event which called for an entry or participation fee.
On this record, the Court is not persuaded that the nature of any activities that might
occur on the Forest in connection with the Derby is qualitatively or quantitatively different from
the activities of hunters in any other year on the same Forest lands, in any way that might
implicate NEPA. Neither the underlying details of, nor the Forest Service’s decision not to
require a special permit, constituted a major Federal action significantly affecting the quality of
the environment. Even assuming that Derby participants used the Forest lands, the nature of
their activities in hunting for predators upon the Forest lands is a permissible and common use of
a multiple use public resource, already subject to other constraints that the Forest Service
employs through its regulations to protect that resource and subject to regulation of that activity
by the state of Idaho. The Court does not doubt the genuineness of the Plaintiffs’ declarants who
testify that the nature of their own experience of the Forest is altered or diminished by the fact of
a Derby that features such hunting activities or the potential result of the such hunting activities
in reducing the numbers of certain wildlife. But such use is permitted under the Idaho’s
regulation of hunting, including for predators, and is a use that has existed on the Forest since the
days that Theodore Roosevelt first set aside the forest reserve in 1906 that later became the
Forest.
Hence, the Court is not persuaded that the provisions of the National Environmental
Policy Act are implicated by the Forest Service actions at issue in this lawsuit.
MOTION TO STRIKE
The Forest Service moves to strike six exhibits Plaintiffs have included with their motion

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for summary judgment. (Dkt. 85) These include determinations and special use permits from
other Forests regarding hunting, or shooting, competitions. See, e.g., Exhibits A, B (Dkt. 80-3,
80-4) (Special Use Permit for coyote and fox hunting competition in Hoosier National Forest),
Exhibit C (Dkt. 80-5) (Special Use Permit for “club campout and shooting competition” at Perry
Pit in Coconino National Forest), Exhibit D (Dkt. 80-6) (special use permit for “Cowboy Action
Shooting Match” to occur on National Forest Service lands), Exhibit E (Dkt. 80-7) (letter from
Malheur National Forest concerning a JMK Coyote Hunt), Exhibit F (Dkt. 80-8) (letter from
Southwestern Region of the Forest Service regarding statewide competition coyote hunt in New
Mexico).
Judicial review of an agency decision focuses on the administrative record in existence at
the time of the decision. Southwest Ctr. for Biological Diversity v. United States Forest Serv.,
100 F.3d 1443, 1450 (9th Cir. 1996). There are a limited number of exceptions for the allowance
of materials not contained in the administrative record: “(1) if admission is necessary to
determine whether the agency has considered all relevant factors and has explained its decision,
(2) if the agency has relied on documents not in the record, (3) when supplementing the record it
is necessary to explain technical terms or complex subject matter, or (4) when plaintiffs make a
showing of agency bad faith.” See Lands Council v. Powell, 395 F.3d 1019, 1030 (9th Cir.
2005) (quoting Southwest Ctr., 100 F.3d at 1450). The Court will apply these rules of APA
review in addressing the motion.
The six exhibits that the Forest Services seeks to strike were not before the SalmonChallis National Forest at the time it made its decision. Plaintiffs argue that these exhibits show
how the Forest Service had inconsistently interpreted and applied its own regulations regarding

MEMORANDUM DECISION AND ORDER- 18

Special Use Permits. Plaintiffs seek to have these documents added to the record through
judicial notice. See Fed. R. Evid. 201. However, even if these documents may be subject to
judicial notice, that does mean any one or more fall within one of the enumerated exceptions of
APA review. The Court concludes that none of the exceptions to the APA’s review rules applies
here. Therefore, such exhibits are not properly part of the record for this Court’s review, and the
Court will grant the Forest Service’s motion to strike these exhibits.
The Forest Service also seeks to strike several statements found in the declarations
submitted in support of Plaintiffs’ standing argument. See Motion to Strike, App’x A (Dkt. 852). The Forest Service contends that several statements found in these declarations are
inadmissible under the Federal Rules of Evidence for various reasons (foundation, improper
expert opinion). The Court does not find it necessary to strike these statements. Such
declarations were considered for standing purposes, and to the extent that some statements in the
declarations carried less persuasive value because of potential evidentiary infirmities, the Court
has been able to consider such potential flaws and give such statements less weight.
Accordingly, the Forest Service’s motion to strike will be granted in part and denied in
part.
The Forest Service likewise submitted several “extra-record” documents. See Exhibits 16 attached to the Declaration of Kenneth Paur (Dkts. 83-5 – 83-10). Plaintiffs contend that if the
Forest Service’s motion to strike is granted, these documents should likewise be stricken. See
Pls.’ Reply (Dkt. 88) p. 13, n.8. The Court agrees and orders that these extra-record documents
filed by the Forest Service are also stricken.

MEMORANDUM DECISION AND ORDER- 19

ORDER
IT IS THEREFORE ORDERED that:
1)

Plaintiffs’ Motion for Partial Summary Judgment on the Forest Service Claims
(Dkt. 80) is DENIED;

2)

The Forest Service’s Motion for Summary Judgment (Dkt. 83) is GRANTED; and

3)

The Forest Service’s Motion to Strike (Dkt. 85) is GRANTED IN PART and
DENIED IN PART. The Court will strike Exhibits A-F (Dkt. 80-3, 80-4, 80-5,
80-6, 80-7, 80-8);

4)

The Court will also strike Exhibits 1-6 attached to the Declaration of Kenneth
Paur (Dkt. 83-5, 83-6, 83-7, 83-8, 83-9, 83-10).

DATED: March 31, 2017

Honorable Ronald E. Bush
Chief U. S. Magistrate Judge

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