The Pryors Coalition et al v. Weldon et al
ORDER denying 21 Plaintiffs' Motion for Summary Judgment; granting 30 Intervenors' cross Motion for Summary Judgment; granting 32 Defendants' Cross Motion for Summary Judgment; finding as moot 36 Motion to Strike. Signed by Judge Richard F. Cebull on 7/20/2011. (EMA)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
THE PRYORS COALITION; WILDLANDS
CPR; EASTERN WILDLANDS CHAPTER OF )
THE MONTANA WILDERNESS ASSOC.;
YELLOWSTONE VALLEY AUDUBON
SOCIETY; THE FRONTIER HERITAGE
ALLIANCE; THE BEARTOOTH
BACKCOUNTRY HORSEMEN; RICHARD
WALTON, an individual; SUSAN W. NEWELL, )
an individual; and PHIL JAQUITH, an individual, )
LESLIE WELDON, in her official capacity as
Regional Forester for the United States Forest;
MARY ERICKSON, in her official capacity as
Acting Forest Supervisor of the Custer National )
Forest ; and the UNITED STATES FOREST
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TREASURE STATE ATV ASSOC.; MONTANA )
TRAIL VEHICLE ASSOC.; GREAT FALLS
TRAIL BIKE RIDERS ASSOC.; FAMILIES
FOR OUTDOOR RECREATION; CITIZENS
FOR BALANCED USE; and THE BLUERIBBON)
Currently pending before the Court are the Parties’ cross-motions for
summary judgment. In bringing their Complaint, Plaintiffs are alleging that
Defendants’ implementation of the Record of Decision that sanctioned motorized
vehicle use within the Beartooth Ranger District would threaten certain aspects of
the unique and fragile ecological habitats found within the District. After review
and consideration of the administrative record and the parties’ briefing, the Court
is prepared to rule.
Plaintiffs are comprised of groups and individuals who use and enjoy the
natural wilderness of the Pryor and Absaroka Mountain ranges. Defendants
United States Forest Service and their officials represent the governmental agency
that is delegated to manage the Beartooth Ranger District within which the Pryor
and Absaroka Mountains range are contained. In addition, Intervenor-Applicants
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Great Falls Trail Bike Riders Association, et. al have also joined in Defendants’
Cross-Motion for Summary Judgment.
In December 2005, per direction of Executive Orders 11644 and 11989, the
Travel Management Rule (“TMR”) became effective and provided for the
regulation of motor vehicles. The TMR provides a framework for Defendants to
designate and map routes for public motorized use and development of a Travel
Management Plan (“TMP”). Further, the TMR prohibits cross-country motorized
travel outside of designated routes. Part of the reasoning for creating a motorized
vehicle public use map is to enable criminal penalization for the possession and/or
operation of a motor vehicle in non-designated areas. 36 C.F.R. §§ 212.51,
On June 2, 2008, Defendant U.S. Forest Service signed the Beartooth Travel
Management Record of Decision (“ROD”). The ROD was implemented on
September 23, 2008. The decision designated certain existing routes in the Pryor
and Beartooth Mountain ranges for public motorized use within the Beartooth
Ranger District. The purpose of the decision was to protect and manage increased
motorized and non-motorized recreational use within the Beartooth Ranger
District from negative social and ecological impacts.1
ROD at 1.
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For purposes of discussion, the routes shall be divided into the Pryor Unit
and the Beartooth Unit. The Beartooth Unit includes parts of the AbsarokaBeartooth wilderness and includes the Gallatin National Forest on the west and
has some common boundary with the Shoshone National Forest in Wyoming to
the south. The Pryor Unit contains the southern portion of the Pryor Mountain
Range. This unit is bordered on the north by the Crow Reservation. The entire
south boundary and the majority of the east and west boundaries are shared with
According to Defendants, all newly designated motorized use under the
ROD is based on routes already existing on the ground and creates no new routes.
Rather, it is nothing more than a legal designation that is intended to implement
the aforementioned TMR and institute a TMP.
This new ROD is intended to map existing “system” and “non-system”
routes within the Beartooth Ranger District. “System” routes are defined as roads
and trails that are determined by the Forest Service as necessary for the protection,
administration and utilization of the Forest Service System. 36 C.F.R. § 261.13.
“Non-system” routes generally refers to temporary roads/trails or unauthorized
roads/trails. 36 C.F.R. § 212.1.
Plaintiffs allege that the new TMP: makes 99% of the existing roads and
trails in the Pryors available for motorized vehicle use; authorizes dispersed
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vehicle camping within 300 feet of either side of every motorized road and trail in
the Pryor Mountains; and permanently and negatively impairs land productivity
and soil quality.
Based on these allegations, Plaintiffs allege in the Complaint that
Defendants have failed to comply with and consequently violate the National
Environmental Policy Act (“NEPA”), the 2005 TMR, Executive Order 11644, and
the National Forest Management Act (“NFMA”). All of these substantive claims
fall under Plaintiffs’ claims that Defendants violated the Administrative
STANDARD OF REVIEW
The Administrative Procedures Act (“APA”) provides the authority for
judicial review of agency decisions under NFMA and NEPA. Pit River Tribe v.
U.S. Forest Serv., 469 F.3d 768, 778 (9th Cir. 2006). The APA requires that a
reviewing court “shall ... hold unlawful and set aside agency action, findings, and
conclusions found to be-arbitrary, capricious, an abuse of discretion, or otherwise
not in accordance with law.” 5 U.S.C. § 706(2)(A). This arbitrary and capricious
standard is deferential and as such, an agency will be reversed as arbitrary and
capricious “only if the agency relied on factors Congress did not intend it to
consider, entirely failed to consider an important aspect of the problem, offered an
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explanation 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.” Ecology Ctr. v. Castaneda, 574 F.3d 652, 656 (9th Cir. 2009).
Nevertheless, the Court must review the administrative action to ensure that
the agency has sufficiently “examine[d] the relevant data and articulate[d] a
satisfactory explanation for its action including a ‘rational connection between the
facts found and the choice made.’ ” Motor Vehicle Mfrs. Ass'n v. State Farm Mut.
Auto. Ins. Co., 463 U.S. 29, 43(1983) (quoting Burlington Truck Lines v. United
States, 371 U.S. 156, 168 (1962)). In reviewing the agency’s explanation, the
Court must “consider whether the decision was based on a consideration of the
relevant factors and whether there has been a clear error of judgment.” Id. (quoting
Bowman Transp. Inc. v. Arkansas-Best Freight System, 419 U.S. 281, 285(1975));
see also Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 416 (1971).
Making Existing Roads and Trails Available for Motorized Vehicle Use.
Relying on NEPA, NFMA, and the TMR, Plaintiffs alleged that Defendants
arbitrarily and capriciously converted unauthorized user-created and non-system
routes into motorized vehicle use routes without first taking a hard look at the
direct, indirect and cumulative impacts that its ROD would have on the Pryor Unit.
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In addition, Plaintiffs allege that Defendants failed to take a hard look at a
reasonable range of alternatives to their present ROD in order to mitigate the
impacts of their final decision.
In making these allegations, Plaintiffs noted that these user-created and
previously unauthorized routes were never included in Defendants’ 1987 Travel
Plan for the Custer National Forest area. Rather, they were illegally created by
individuals driving cars, all-terrain vehicles, off-highway vehicles, and off-road
motorcycles. Moreover, Plaintiffs contend that these user-created routes cause
environmental damage. Specifically, Plaintiffs cite to Routes ## 2095A, 2096,
2814, part of 2088, and two miles of 2092.
Defendants contend that their decision to convert existing system and nonsystem routes to authorized system routes actually reduced the total miles for
public motorized use from 287 miles to 267 miles.2 Specifically in the Pryor Unit,
where the crux of Plaintiffs’ claims lie, Defendants contend that they reduced the
miles of public motorized routes from 149 miles to 124 miles. Id. Because of
these reductions in public motorized routes, Defendants contend that they have
also reduced dispersed vehicle camping.
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In reaching their final ROD, Defendants contend that they reasonably relied
on a Final Environmental Impact Statement (“FEIS”) that considered the impact of
converting non-system routes to system routes as well as alternatives.
The Court notes that before the FEIS was published, it is undisputed that
Defendants held numerous open forum discussions starting in February 9, 2004
and running through November 1, 2007 to allow for public participation to raise
concerns by interested parties regarding the Beartooth Ranger District Travel
Management Environmental Impact Statement.3 A review of the FEIS reflects that
Defendants considered five alternatives regarding the development of a travel
management plan for the Beartooth Ranger District: Alternative A, Alternative B,
Alternative B Modified, Alternative C and the No Action Alternative.4
Each Alternative reflected Defendants’ consideration of the competing
interests between the recreational motorized-use activists and the recreational nonmotorized use activists. It is evident that although both groups have a shared
enthusiasm for the outdoors, their approaches to achieving this are largely
FEIS, pp. # 2-1 to 2-2. See also Appendix C.
FEIS, pp. # 2-9 to 2-20. See also Appendix C.
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Alternative A would have motorized recreation represent approximately
three-quarters of the recreation experience within the Pryor Unit.5 This would
include loop experiences throughout the Pryor Unit including Big Pryor Mountain.
Non-motorized recreationists (hikers, bicyclists and horseback riders) would most
likely hear and encounter Off-Highway Vehicles (“OHVs”) during their travels
within the Pryor Unit.6 This alternative is similar to the No Action Alternative and
leans more toward interests of the motorized-use enthusiasts.
Alternative B would have two-thirds of the Pryor Unit designated for
motorized use.7 In addition, seasonal high-elevation loops would be available as
well. However, non-motorized outdoor recreation enthusiasts would have large
“enclaves” within the Pryor Unit with very little motorized use.8 These areas
would be expanded in size during the time when seasonal high-elevation loops are
Regarding off-road motorcycle enthusiasts, although they would have
access to motorized routes, they would no longer be allowed use of single track
FEIS at 2-10. See also Appendix C.
Id. at 2-10 to 2-11. See also Appendix C.
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In arriving at Alternative B, Defendants addressed the following concerns
that were raised in the course of public comment and participation:
In Alternative B, the Dryhead Vista Loop (Road #2308B) would not
be designated for public motorized use or administrative use, and
would be converted to a non-motorized system trail. Forest visitors
would be able to access the vista through non-motorized means. This
action is being proposed to minimize impacts to traditional cultural
practices in the area that are easily disturbed by motorized vehicle
access and/or vandalism.
The 300 foot access to dispersed camping allowance would not apply
to the Main Fork of Rock Creek (Road #2421). Dispersed vehicle
camping would continue to be allowed, but measures would be used
to limit the expansion of existing sites and the creation of new sites to
minimize impacts on cultural and natural resources.
Portions of routes where cultural resources are of concern were
removed from designation consideration due to potential of continued
site degradation and vandalism.
Portions of routes where soil and water resources are of concern were
removed from designation consideration due to unacceptable erosion
with little opportunity for engineered drainage without extremely
Meyers Creek (Trail #27) and Lodgepole (Trail #22) trails were
proposed not to be designated for motorized travel in favor of
non-motorized opportunities and wildlife habitat emphasis.
Season of use designations on roads above approximately 8,000 feet
elevation to minimize road and resource damage during spring
breakup or thawing of frozen soils and snow melt.10
Id. at 2-11. See also Appendix C.
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In response to public and internal comments regarding Alternative B,
Defendants made changes which resulted in Alternative B Modified. This
Alternative B Modified changed certain routes from highway-level vehicle use to
Alternative C would designate large enclaves within the Pryor Unit with
very little motorized use. Under this Alternative, half of the Unit would be
accessible by motorized vehicles and the remaining half would be limited to nonmotorized access. This alternative would also reduce dispersed vehicle camping.
Further, this Alternative would require recreationists to use non-motorized means
to access popular areas in the Pryor unit. This alternative would still prohibit
motorcycle use on single track routes. This alternative leans more toward interests
reflected by Plaintiffs and other non-motorized use enthusiasts.
Lastly, the Defendants’ FEIS also provides the No Action Alternative. This
alternative limits the TMP Plan to the existing route framework in the Beartooth
Ranger District.12 This is different from Alternative A which would designate
both existing system and non-system routes. In addition, the No Action
Id., p. 2-27, Table 2-5. Alternative B Modified Elements Different from Alternative B
and Rationale for Modification. Mix-motorized use refers to routes that can be used by off-road
vehicles, hikers and horseback riders.
Id., pp. # 2-12 to 2-13. See also Appendix C.
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Alternative would also include the use of existing vehicles and current use levels
on all present routes.
After considering these Alternatives, Defendants decided that Alternative B
Modified best reflected the balance of all competing interests across the
recreational use spectrum, while reducing the overall environmental and cultural
source impacts of system roads and trails.13
Under NEPA, federal agencies are required to rigorously explore and
objectively evaluate all reasonable alternatives and to briefly discuss the reasons
for eliminating any alternatives that were not developed in detail.14 In this
instance, it is evident that Defendants considered the broad spectrum of use
alternative within the Beartooth Ranger District. The record further reflects that
Defendants chose not to pursue an alternative that was overly favorable to one
interest group at the detriment of another. Rather, the FEIS reflects that in
reaching its conclusion that Alternative B Modified was the best alternative,
Defendants were attempting to strike a balance as best as they could against the
many competing interests.
Moreover, in reaching its decision, Defendants considered direct, indirect
and cumulative impacts including, among others, land zoning, route construction,
FEIS, p. 2-24.
40 C.F.R § 1502.14.
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seasonal game retrieval, road analysis, not adding non-system routes, soil issues,
vegetation, and wildlife road density.15 In addition, Defendants did analyses and
gave consideration to the effects of their ROD on water quality, wildlife,
recreation and noise, and archaeological and cultural resources.16 Further,
Defendants not only identified each non-system route that they converted to a
system route, they provided rationale as to why the road was converted. It is
evident that Defendants’ decisions regarding the development of a travel
management map within the Beartooth Ranger District was not arbitrary and
capricious. Rather, careful consideration of the environmental impacts of their
decisions were made in an effort to balance the competing uses within the area.
Having concluded that Defendants gave the requisite “hard look” in their
decision to convert unauthorized user-created and non-system routes to motorized
vehicle use routes, this Court now looks to Plaintiffs’ specific objections.
Regarding Route #2095A, Plaintiffs contend that the route is a “3.4 miles long
user-created route that wanders through sensitive sub-alpine meadows Big Pryor
plateau (above 8,000 feet) and into secure elk (and deer) habitat.”17 Plaintiffs
contend that by making this user-created route into a system route, Defendants
FEIS, pp. 2-20 to 2-23.
FEIS 3-85 to 3-102, 3-111 to 3-124, 3-143 to 3-145, 3-14-3-34, 3-52 to 3-77,
MEMORANDUM OF LAW IN SUPPORT OF PLAINTIFFS’ MOTION FOR
SUMMARY JUDGMENT (Doc. # 21) at 9.
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failed to perform the required detailed analysis of the impact on wildlife security,
native vegetation and soils that this designation would have.
In response, Defendants note that through modifications of the 1987 Travel
Plan, Route #2095A has been a part of the system routes long before their present
action. Consequently, Route #2095A has been open for public motorized use and
Defendants’ present challenged decision did not expand the route’s use in any
way. In addition, under the ROD, Defendants have the given Route #2095A
greater environmental protection in that the ROD closes the route during the
spring months, from April 15 to May 22, in order to protect soil and vegetation
growth at higher elevations. This reasoning carries into Plaintiffs’ allegations
regarding endangering elk habitats as well. As stated earlier, Route #2095A was
already a public motorized-use route prior to Defendants’ ROD. As such, with the
seasonal closure of the Route, Defendants’ ROD affords elk habitats greater
protection than before the ROD.
Because of the reduced public motorized use of Route #2095A under the
ROD than under the 1987 Travel Plan, Plaintiffs cannot show any environmental
injury. Douglas County v. Babbit, 48 F.3d 1495, 1499 (9th Cir. 1995). Defendants
present ROD action did not expand environmental use of the Route in anyway. To
the contrary, motorized use has been reduced.
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Looking next at Route #2096 which is open for motorized use under the
ROD, Plaintiffs contend that there is no site-specific analysis even though
Defendants’ hydrologist noted that Route #2096 was located on “very steep slopes
in the headwaters of Bridge Hollow that burned during the Red Waffle Fire. The
Bridge Hollow channel system is highly unstable due to on-going post-fire
In their response, Defendants note that its FEIS only examined water quality
and watershedding issues on moderate and high risk non-system routes.
Defendants contend that regardless of Plaintiffs’ citation, Route #2096 was not
designated as a moderate or high-risk route. Although a reading of Plaintiffs’
excerpt does reflect some concern about the stability of the Route, the
hydrologist’s report does not recommend closure. Because Route #2096 was
never designated as a moderate or high-risk route, this Court cannot conclude that
Defendants were required to give the Route a “hard look” as required under
In addition, Plaintiffs cite to other routes that they allege were not given the
required “hard look” under NEPA, specifically Routes ## 2814, 2088, and 2092.
However, Plaintiffs do not provide any specific support as to why these Routes
were not adequately analyzed by Defendants. Consequently, this Court is not able
Hydrologist Report, AR V-037-01.
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to determine the validity of Plaintiffs’ allegations. For the foregoing reasons,
Defendants’ Motion for Summary Judgment on this ground shall be GRANTED.
Authorizing Dispersed Vehicle Camping within 300 feet of Either Side of
Every Motorized Road and Trail in the Pryor Mountains.
Plaintiffs allege that Defendants’ ROD decision to allow dispersed vehicle
camping was not adequately analyzed. As noted by Plaintiffs, dispersed vehicle
camping (DVC) refers to the ability to drive off roads and trails for the purposes of
camping. Under the challenged ROD, Defendants are allowing dispersed vehicle
camping within 300 feet of every designated motorized route within the Pryor
Unit. Plaintiffs contends that this creates a 600 ft corridor along all roads and
trails that is subject to potential vehicle and camping damage. Plaintiffs further
contend that this corridor, when aggregated across all motorized roads and trails
within the Pryor Unit, constitutes 8,900 acres of environmentally endangered land.
In objecting to the extent of Defendants’ allowance of DVC, Plaintiffs
contend that Defendants utilized the least preferred application of DVC and
applied it in an overly broad manner.19 When implementing dispersed vehicle
camping decisions, Plaintiffs contend Defendants should apply it with caution and
carefully consider the impacts at the local and individual route level. Plaintiffs
36 C.F.R. § 212.51 creates a descending preferential hierarchy of dispersed vehicle
decisions ranging from not allowing any DVC to allowing DVC under the authority of the Travel
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contend that the Pryor Unit is an area that is rich in botanical species and diversity
and that Defendants failed to take a hard look at the impact that their DVC
decision would have on the native botanical population. Specifically, Plaintiffs
Defendants erroneously determined the impact assessment of DVC on
vegetation based on a 300 foot wide corridor rather than the actual
600 foot corridor. As such the impacts of DVC are twice what the
Defendants originally estimated.
In determining the impact assessment of DVC, Defendants only
considered areas where individuals camp and fail to take into account
the total area impacted by vehicles driving to and from the campsites.
Defendants erroneously assumed that off-road travel within the DVC
corridor is limited to the direct route going to and from the campsite.
Rather than actually taking the time to walk, see and survey the
environmental impact of the DVC corridor, Defendants relied on GIS
topographic maps and satellite imagery in order to make their
Their FEIS noted areas that would suffer greater effects of DVC but
failed to discuss the site-specific impacts of their ROD on these areas.
As a contrast, Plaintiffs cite to Defendants’ analysis of the Main Fork of
Rock Creek in the Beartooth Unit where Defendants took a hard look at how DVC
would impact water quality, cultural resources and the aesthetics of the area. In
that instance, Defendants limited camping to within a vehicle’s length from the
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In response, Defendants contend that under the TMR, Defendants, as the
responsible official “may include in the designation the limited use of motor
vehicles within a specified distance of certain designated routes, and if appropriate
within specified time periods, solely for the purposes of dispersed camping . . .”
36 C.F.R. § 212.51(b). Based on this, Defendants contend that their decision to
use their discretion under the TMR to designate the scope and range of DVC was
not in violation of law.
Contrary to Plaintiffs’ claims, FEIS discussions regarding DVC note that
the resulting DVC corridor is 600 ft.20 Further, regardless of any hierarchical
considerations in making DVC decisions, Plaintiffs have failed to show how
Defendants exceeded the scope of their authority by establishing the DVC corridor
in the manner that they did. This is specifically reflected in 36 C.F.R. § 212.51
which allows for Defendants to determine the manner and breadth of DVC
decisions under the TMR. Moreover, compared to the 2001 Tri-State OHV
decision, the Defendants’ current ROD provides greater protections to Plaintiffs
regarding dispersed camping within the Pryor Unit by reducing the number of
routes available for motorized use and by restricting certain routes to seasonal
access. Defendants’ obligations under NEPA is to limit the environmental impact
of its proposed agency action. 42 U.S.C. § 4332(C)(i). Given that the ROD
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reduced the availability of DVC across the Pryor Unit by reducing the available
routes to camp along, Plaintiffs cannot show how the ROD negatively impacted
the Pryor Unit environment.
As to Plaintiffs’ statements relating to Defendants’ detailed impact analysis
and limitation on use at Main Fork of Rock Creek in the Beartooth Unit, the FEIS
noted the very high use and undesirable impact that DVC would have on that area.
Because of that, it limited the DVC use within that area. This reflects a detailed
consideration and the required “hard look” at the impacts of Defendants’ ROD.
Through public comments found in the FEIS, Defendants were aware of the
Plaintiffs’ concerns about the potential impact DVC would have on soil,
vegetation, erosion and environmental damage.21 Defendants further noted that
they were tracking the DVC use within the Beartooth District and have noticed
some effects at certain site-specific locations but no widespread effect across the
entire District.22 In rejecting public comments that sought to narrow the scope of
DVC, Defendants relied on the 2001 Tri-State OHV Decision which allowed for
the same DVC within 300 feet of motorized routes. Lastly, Defendants’ FEIS
considered concerns relating to impact on soils, vegetation and found that
FEIS, 5-54 to 5-56.
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allowing a 600 foot DVC corridor would be a means of minimizing heavy use and
Looking next at the risks of DVC on native vegetation, it is evident that the
Defendants did look at affected areas of low to high DVC use.24 The FEIS
analyzed the magnitude and potential DVC effects on native vegetation under all
the different Alternatives.25 Based on this, the FEIS noted that the potential
impact for motorized and non-motorized use on vegetation for frequent use, which
includes DVC, for the ROD’s chosen Alternative B Modified, was less than 1% of
the total Pryor Unit high risk areas.26 In addition, under the ROD, Defendants
recognized the seasonal impact of motorized use on native vegetation and thus
limited motorized use during certain seasons, like spring thaw, in order to protect
vegetation resources.27 Based on these considerations, the FEIS concluded that the
implementation of its ROD would not have significant cumulative effects
associated with native vegetation.28 Defendants further acknowledge that the
impact of camping can be locally very significant. However, they noted that the
Id at 5-56 to 5-57.
Id. at 3-182.
Id. at 3-184 to 3-193.
Id. at 3-187.
Id. at 3-188.
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total area of impact is small when compared against the various ecosystems of the
Next, Plaintiffs contend that Defendants never analyzed how DVC would
impact water and soil quality and productivity. Specifically, Plaintiffs contend
that any soil quality discussions were general in nature and did not address the
specific impact that DVC would have. Plaintiffs contend that a soil specialist
report should have been performed and submitted. Further, they contend that
Defendants erred when they chose to rely on an allegedly outdated 35 year old
Carbon County Soil Survey.
The record notes that Defendants did consider the effects of DVC and
motorized use on soils during certain times of the year by restricting motorized use
on 58 miles of routes during certain times of the year.30 Further, Defendants
considered the impact that DVC would have on water quality and therefore limited
DVC when near a stream or watershed.31 Moreover, any sediment issues affecting
water quality that could arise from DVC use is minimal when compared against
other sediment load causing factors.32 The Court notes that many routes were not
Id. at 3-190.
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included in the Defendants’ final ROD because of the detrimental effects that such
continued use would have on the soil.
Plaintiffs also claim that Defendants violated NEPA by not adequately
taking a “hands-on” approach to their consideration of DVC effects within the
Beartooth District. However, the Court’s review of the record is replete with field
studies, inventories, detailed GIS mapping, site-specific discussions, and
discussions of every system and non-system routes and its environmental impacts.
To the extent that Plaintiffs allege that Defendants erroneously relied on a
35 year old Carbon County Soil Survey, Plaintiffs fail to point out how the survey
is outdated and does not reflect the present character of the Pryor Unit’s soil
composition. Further, relying on the Carbon County Soil Survey, Defendants’
FEIS noted that the extent and distribution of soil crusts within the Pryor Unit was
very limited and could only exist in areas of low vegetative cover and lower
elevations.33 Moreover, soil crusts do not normally occur on or near existing road
or trails due to the level of existing disturbance and the majority of regularly used
campsites currently have some level of disturbance, thus minimizing the
likelihood of soil crusts. Lastly, the more heavily used dispersed campsites are
Id. at 3-168.
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generally found in areas with higher vegetative cover, some shade, and at higher
elevations and thus have no effect on soil crusts.34
Based on these discussions, this Court concludes that the Defendants
sufficiently considered the potential impact of DVC use on soil systems and soil
crusts. Defendants’ conclusion that the impact of DVC on the soil would be
largely limited to the pre-ROD disturbance was not arbitrary and capricious.
Lastly, Plaintiffs allege that Defendants violated NEPA and the TMR by
failing to perform soil standard testing. This Court disagrees. The scope of the
ROD at issue is to manage the manner and use of transportation and routes within
the Beartooth District which include the DVC corridor. The purpose of the ROD
is not to manage soil use within the District. Although the DVC corridor has some
soil impact, this Court concludes that its character and impact is more aligned with
transportation and route use and thus the Defendants did not violate NEPA and the
TMR for failing to perform soil standards testing.
For these reasons, this Court concludes that Defendants took a hard look at
the effects of DVC on soil, vegetation and overall environmental damage.
Moreover, the ROD has reduced prior motorized and non-motorized routes with
the Beartooth District. As such, the Defendants’ present actions provides greater
environmental protections to the District then were afforded under the prior
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regulatory regime, specifically the 2001 Tri-State OHV Decision. For the
foregoing reasons, Defendants’ Motion for Summary Judgment on this ground is
Permanently and Negatively Impairs Land Productivity and Soil Quality.
Plaintiffs allege that Defendants’ ROD failed to take in the impact of
damage to soils, watershed, vegetation and wildlife habitat as required by
Executive Order 11644 and the TMR. Plaintiffs go so far as to contend that
Defendants are obligated to “reduce (not necessarily eliminate) to the smallest
possible degree the unwanted damages to soils, native vegetation, and elk and deer
habitat.”35 Plaintiffs allege that Defendants’ decision under the ROD that allows
for DVC along every motorized trail and road in the Pryor Unit evidences
Defendants’ failure to take any steps to minimize damage to environmental
resources. Specifically, Defendants have allegedly (1) permitted routes that
invade secure elk and deer habitat; and (2) designated seasons of use based less on
protection of forest resources than on appeasing motor recreationists.
Although Plaintiffs concede that Defendants have addressed minimization
by identifying resource concerns, by designating a number of system resources, by
not designating certain routes, and limiting seasons of use on certain routes, they
Memorandum in Support of Plaintiffs’ Motion for Summary Judgment, pp. 20-21.
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argue that Defendants have not gone far enough, choosing instead to accommodate
Looking at Defendants’ decisions relating to the timing of seasonal use
restrictions, they point to scientific support and analysis by way of snow pack
telemetry data that determines when certain routes are more susceptible to soil
damage.36 As such, Defendants have stated a non-arbitrary and non-capricious
reason for setting the seasonal restrictions on motorized use.
More importantly, Defendants note that the applicable regulation that
Plaintiffs rely on does not mandate minimization of environmental damage.
Rather, it states that,
In designating National Forest System trails and areas . . . the responsible
official shall consider the effects on the following with the objective of
minimizing . . . (3) Damage to soil, watershed, vegetation, and other forest
resources . . .” 36 C.F.R. § 212.55(b)(2) (emphasis added).
After review and consideration, this Court concludes that this section does
not mandate action. Rather, it is intended to lend guidance and maintain the
regulation’s objectives. Where a regulation does not require action or create a
compulsory duty on behalf of the agency, a plaintiff cannot compel agency action.
Norton v. Southern Utah Wilderness Alliance, 542 U.S. 55, 64 (2004). The ability
to compel agency action is carefully circumscribed to situations where an agency
FEIS, Appendix F at F-1.
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has ignored a specific legislative command. Hells Canyon Pres. Council v. U.S.
Forest Serv., 593 F.3d 923, 932 (9th Cir.2010). From the language of the
applicable regulation, this Court cannot conclude that such a command for agency
action exists. Defendants’ Motion for Summary Judgment on this ground is
USFS Failed to Minimize Conflicts
Lastly, Plaintiffs contend that Defendants failed to minimize conflicts of use
between recreational off-road users and other types of recreational users as
required under Executive Order 11644 and the TMR. 36 C.F.R. § 212.55(b)(3). In
support, Plaintiffs cites to public comments regarding certain steep and narrow
routes that pose risks of danger when mixed recreational use is permitted.37
Plaintiffs contend that even though Defendants acknowledge these risks, they
declined to consider it as a criteria in their determination of routes designated for
A review of this claim makes no allegation that any specific action by
Defendants was arbitrary and capricious. Rather, much like the aforementioned
discussion regarding 36 C.F.R. § 212.55(b)(2), 36 C.F.R. § 212.55(b)(3) appears
One comment related to the risks that stock could get “excited and dangerously reactive
when overtaken or approached by noisy machines.” Plaintiffs Memorandum of Law in Support
of Motion for Summary Judgement, p. 20.
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to lend guidance and maintain the regulation’s objectives rather than legislatively
mandate action. From this Court’s review, the applicable regulation appears to
remind the Agency when designating route use, to strike a balance between the
range of disparate recreational users. This Court concludes that the regulation
does not require action or create a compulsory duty on behalf of the agency. Hells
Canyon Pres. Council v. U.S. Forest Serv., 593 F.3d 923, 932 (9th Cir.2010). As
such, Plaintiffs cannot compel Defendants to “minimize conflicts.”
Regardless, Defendants’ FEIS recognized the differing interests and
opinions regarding the appropriate use of the Beartooth District.38 This is fully
evident from a review of the extensive and varying public comments found in the
FEIS. Defendants’ FEIS makes detailed discussion of the disparate interests of the
human environment in the Beartooth District as they relate to each specific
Alternative. The FEIS noted trends in increased popularity in outdoor recreation
use, increased motorized off-road use, and increases in the Montana population.39
Taking these concerns together, the FEIS recognized two major groups of
recreationists: motorized users and non-motorized users. The FEIS noted that
motorized and off-road vehicle users utilize their activity as a way for families and
FEIS, 3-36 to 3-39.
Id. 3-35 to 3-36.
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friends to enjoy the outdoors together or to retrieve game during hunting season.40
Many of these users also indicated a need for some restrictions on motorized use
and a greater law enforcement presence. In contrast, non-motorized users utilize
the Beartooth District as a place for quiet, peaceful experiences away from the
rushing and crowding of everyday life. The FEIS noted non-motorized user
concerns revolve around conflicts with motorized users including visuals, noise,
wildlife displacement, harassment, and resource damage.41 The FEIS went on to
discuss the conflicts and use ramifications each Alternative would have on these
distinct groups of users. The FEIS noted that given the divergent means of
enjoyment by these recreationist, “as travel management decisions are made . . .
conflict is not likely to be alleviated.”42
Common sense informs the Court that these divergent approaches to the
enjoyment of the Beartooth District are irreconcilable. Given the wide spectrum
of recreational users of the Beartooth District, it is evident that no single
alternative would fully appease all users. Rather, Defendants like the USFS are
tasked with the difficult and often precarious duty of striking the best balance
possible in order to protect the environmental integrity of its charge while
Id. at 3-36.
Id. at 3-39.
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ensuring that the maximum recreational use of natural resources are available to
all interested parties. From of all the five available Alternatives, Defendants’
decision to proceed with Alternative B Modified reflects that precarious balance.
All other remaining Alternatives favored one group of users at the detriment of
other users. Consequently, this Court concludes that Defendants did take the
necessary “hard look” at the potential conflicts between users and their decision to
proceed with Alternative B Modified was not arbitrary and capricious.
Defendants’ Motion for Summary Judgment on this ground shall be GRANTED.
An agency's decision must be upheld unless it is “arbitrary, capricious, an
abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. §
706(2)(A). “Review under the arbitrary and capricious standard is narrow, and we
do not substitute our judgment for that of the agency.” Lands Council v. McNair,
537 F.3d 981, 987 (9th Cir.2008), overruled in part on other grounds by Winter v.
Natural Res. Def. Council, Inc., 555 U.S. 7 (2008).
The FEIS that was the basis for Defendants’ Record of Decision took
roughly four years in the making and constitutes almost 600 pages of
environmental review, consideration of alternatives, public comments,
environmental studies, detailed analyses and discussion. It considered all relevant
Page 29 of 31
environmental impacts that the creation of a TMP would have on the Beartooth
District including soil, vegetation, wildlife, wildlife habitat, cultural resources,
historical resources, threatened or endangered species, wilderness suitability, other
authorized uses, and other resources. The FEIS considered and performed a route
by route review of every single route that was designated to be a system route,
including routes that were ultimately discarded from the TMP. It considered the
impact that dispersed vehicle camping would have on the surrounding terrain. In
fashioning and deciding on proceeding with Alternative B Modified, Defendants
considered what was the best balance of use and resources in order to
accommodate the wide and divergent class of recreational users in the Beartooth
District. Lastly, Defendants’ present actions provides greater environmental
protections to the Beartooth District then were afforded under the prior regulatory
regime, specifically the 2001 Tri-State OHV Decision.
On this record, this Court cannot conclude that the Defendants acted in an
arbitrary and capricious fashion when they designated certain existing roads and
trails for public motorized use and allowed dispersed vehicle camping along those
routes. Therefore, this Court holds that the Defendants’ FEIS and ROD did not
violate NEPA, NFMA, the TMR and Executive Order 11644.
For the foregoing reasons, IT IS HEREBY ORDERED that:
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Defendants’ Cross-Motion for Summary Judgment (Doc. # 32) is
Plaintiffs’ Motion for Summary Judgment (Doc. # 21) is DENIED.
Intervenors’ Cross-Motion for Summary Judgment (Doc. # 30) is
The Clerk of Court shall enter Judgment in favor of Defendants and
All other pending motions are DENIED as MOOT.
The Clerk of Court shall notify the Parties of the making of this Order.
DATED this 20th day of July, 2011.
/s/ Richard F. Cebull
HON. RICHARD F. CEBULL
CHIEF U. S. DISTRICT JUDGE
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