Lindberg v. United States Forest Service

Filing 21

ORDER: Plaintiff's motion for summary judgment 13 is DENIED, and the Forest Service's cross motion for summary judgment 16 is GRANTED. This case is dismissed. The parties' request for oral argument is denied as unnecessary. See formal ORDER. Signed on 9/15/2015 by Chief Judge Ann L. Aiken. (rh)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON

KREG LINDBERG,

Case No.

Plaintiff,

6:14-cv-1511-AA

OPINION AND ORDER

vs.
UNITED STATES FOREST SERVICE,
Defendant.
AIKEN, Chief Judge:
Plaintiff Kreg Lindberg filed suit alleging defendant United
States

Forest

Environmental

Service

("Forest

Policy

Act

Service")

( "NEPA")

and

violated the
the

National

National
Forest

IYlanagement Act ("NFMA"). Plaintiff moves under Fed. R. Civ. P. 56
for summary judgment on his NEPA and NFMA claims, seeking an order
to set aside the Welcome Station Trail Connections Project Decision
Notice ("DN") and Finding of No Significant Impact ("FONSI"), and
an injunction prohibiting the Forest Service from taking action on
Page 1 - OPINION AND ORDER

the

Project

Statement

without

(~EIS")

first

conducting

an

Environmental

Impact

. In turn, the Forest Service filed a cross-motion

for summary judgment on plaintiff's claims.

After reviewing the

parties' briefs and the administrative record, plaintiff's motion
for summary judgment is denied,

and the Forest Service's cross-

motion for summary judgment is granted.
BACKGROUND

This

dispute

involves

plaintiff's

challenge to

the

Forest

Service's approval of the Welcome Station Trail Connections Project
(~Project")

located in the Bend-Fort Rock Ranger District of the

Deschutes National Forest ("DNF"), approximately one-half mile west
of

the

City

of

Bend.

The

Project

is

located

in

an

area

with

numerous recreation trails for residents and visitors to the DNF.
The purpose of the Project is to provide a "Welcome Station" that
will serve as a portal to public lands, a non-motorized paved trail
connecting the Welcome Station to the City of Bend,

and mountain

bike trail connections to existing trail networks.
The Forest Service identified the need for the Project based
on the demand for non-motorized transportation pathways between the
City of Bend and the DNF; the current option for non-motorists is
to

bike

along

Furthermore,

the

shoulder

of

the

Cascade

Lakes

Highway.

the Cascade Lakes Scenic Byway Corridor Management

Plan 1 places high priority on the development of a trailhead with
1

This Plan, developed in 1996 and amended in 2011, was
designed to protect and preserve the scenic, natural, and
recreational qualities of the Cascade Lakes Scenic Byway for
future generations. Based on community input, this Plan
Page 2- OPINION AND.ORDER

an interpretive center and parking for forest users near the DNF
boundary with Bend. AR 14742, 15252.
To accomplish the purpose and need for the Project, the Forest
Service proposes to construct a trailhead comprised of a Welcome
Station with interpretive information and a gravel parking lot; a
paved, ADA-accessible, non-motorized path; and three single-track
mountain bike trails on National Forest System lands adjacent to
and around the Cascade Lakes Highway.
On January 31, 2013, the Forest Service published the Project
on the DNF project webpage. AR 14755. Plaintiff initially supported
such a project, asking the Forest Service to prioritize a pathway
that would connect the west side of Bend to forest lands, and to
create a parking lot in the location designated by this Project. AR
8745-46, 12540.
On

February

6,

2013,

the

Forest

Service

began

soliciting

public comments regarding the Project through the NEPA "scoping"
process. AR 14755.

In his comments, plaintiff advocated for more

off-leash dog areas,

adding that trail recreation has negligible

effects on wildlife. AR 12701-03.
In April 2013,

the

Project was published in the

Deschutes

National Forest Schedule of Proposed Actions. The Forest Service
published a draft Environmental Assessment ( "EA") in November 2 013,

identified enhancement and development priorities for the
corridor. The Plan identified creating hubs for trail
connectivity and multi-modal transit opportunities as one way to
meet the goal of preserving the Scenic Bywayas a major
attraction in the Pacific Northwest. AR 14742, 15252.
Page 3 - OPINION AND ORDER

and a 30-day public comment period was provided from November 23,
2013 to December 23,
Forest Service,

2013.

Plaintiff submitted comments to the

ho longer expressing support for the paved path

component of the Project and asserting that the core issue was a
lack of off-leash dog recreation areas near the Deschutes River. AR
14606, 15186.
In March 2014, the Forest Service issued the final EA for the
Project,

along with a

Draft

ON and FONSI.

The

District Ranger

selected Alternative 2 from the EA, which has several components.
First,

a

0. 68

acre

trailhead would be

constructed featuring

a

"Welcome Station" with information and interpretive materials, and
a gravel parking lot accommodating up to 40 cars with two handicap
accessible spaces. The trailhead would be located on the south side
of Cascade Lakes Highway and would serve as a connection portal to
existing trail networks, while providing a safe place for visitors
to park. Second, Trail 1, a 3.4 mile non-motorized, ADA-accessible,
paved recreation path, would be constructed parallel to and within
150 feet of the Cascade Lakes Highway. Trail 1 would connect the
City

of

trailhead.

Bend's
Third,

Haul

Road

trail

to

the

new

Welcome

Station

three mountain bike trails would be developed.

Trail 2, a 4.8 mile dirt trail, running parallel to and within 150
feet of Forest Service Road 41, would serve to alleviate congestion
on the very popular Deschutes River Trail. Trails 3 and 4, totaling
about

7. 4 miles,

would be

located north

of

the

Cascade

Lakes

Highway and serve to reroute and connect existing trails. Fourth,
1.1 miles of existing trail would be obliterated and rehabilitated.
Page 4 - OPINION AND ORDER

The Forest Service manages the DNF lands at issue in this
lawsuit pursuant to the Deschutes National Forest Land and Resource
Management Plan

(~Forest

Plan") as amended by the Upper Deschutes

Wild and Scenic River Comprehensive Management Plan

(~UDWSR

CMP").

The Forest Service worked with the Oregon Department of .Fish and
Wildlife

( ~oDFW")

management

when developing the

objectives

for

elk

and

Forest

deer

Plan to determine

habitat

in

the

DNF.

Management measures were also developed for recreational use within
the Ryan Ranch Key Elk Area

Ranch KEA"), which the Project

(~Ryan

area partially overlaps.
In May

2014,

plaintiff

filed

an

objection

to

the

Forest

Service's Draft ON and FONSI. The ODFW also filed an objection. The
Forest Service held objection resolution meetings with the

two

objecting parties and formally responded to their objections on
July 17,

2014.

final

and

ON

On July 29,
FONSI

for

2014,

the

the Forest Service issued the

Project,

deciding

to

proceed with

Alternative 2 as presented in the final EA.
On

September

23,

2014,

plaintiff

filed

this

lawsuit,

challenging the completeness of the EA and the Forest Service's
decision to
Forest

issue a

Service

ON and FONSI.

failed

to

take

cumulative impacts to wildlife,

a

Plaintiff contends
~hard

look"

at

the

namely elk and deer,

Upper Deschutes Wild and Scenic River

(~UDWSR")

that

the

Project's
and to the

corridor. Plaintiff

contends that the cumulative impacts are significant, and therefore
require

the

Forest

Service

to

prepare

an

EIS.

Plaintiff

also

maintains that the Project violates NFMA because it does not comply
Page 5 - OPINION AND ORDER

with Forest Plan management requirements for the Ryan Ranch KEA or
the UDWSR CMP requirements.
The Forest Service timely answered plaintiff's complaint and
lodged the Administrative Record with the Court.

Plaintiff moved

for summary judgment on February 27, 2015, and the Forest Service
also moved for summary judgment on April 27, 2015.
STANDARD OF REVIEW

A plaintiff seeking to challenge a federal agency's compliance
with NEPA must bring their claim under the APA. Under the APA,

a

court may set aside a final agency action if, after reviewing the
administrative

record,

the

agency's

action

is

found

to

be

"arbitrary, capricious, an abuse of discretion, or otherwise not in
accordance

with

Council v.

Nat'l Marine Fisheries Serv.,

Cir.

2005)

law."

A decision

5 U.S.C.

is

not

§

706(2) (A);

Natural

Res.

Def.

877

(9th

421 F.3d 872,

arbitrary or

capricious

if

the

federal agency explained its action by articulating a "rational
connection between the facts

found and the choice made." Motor

Vehicle Mfrs. Ass'n of U.S.,

Inc.

v.

State Farm Mut. Auto.

Ins.

Co., 463U.S. 29,43 (1983)(quotingBurlingtonTruckLinesv. U.S.,
371 U.S. 156, 168 (1962)); Nat'l Wildlife Fed'n v. U.S. Army Corps
of Eng'rs, 384 F.3d 1163, 1170 (9th Cir. 2004).
The

scope

of

judicial

review

under

the

"arbitrary

and

capricious" standard is narrow and the court is not to substitute
its judgment for that of the agency. Motor Vehicle Mfrs., 463 U.S.
at 43. However, although the standard of review is deferential, it
does

not

~elieve

the

court

Page 6 - OPINION AND ORDER

from

engaging

in

"a

substant~al

a

inquiry [, ]

thorough,

Ecosystems Council v.

U.S.

probing,

in-depth review." Native

Forest Serv.,

418 F. 3d 953,

9 60

(9th

Cir. 2005).
DISCUSSION
I.

Standing
As

a

threshold

matter,

the

Forest

Service

claims

that

plaintiff lacks standing to bring this suit. To establish standing
to bring a NEPA challenge to an agency action,
show

injury-in-fact,

Defenders

of

causation,

Wildlife,

and

504

a plaintiff must

redressability.

U.S.

555,

Lujan

560-61

v.

(1992).

"[E]nvironmental plaintiffs adequately allege injury in fact when
they aver that they use the affected area and are persons for whom
the aesthetic and recreational values of the area will be lessened
by the challenged activity." Sierra Club v.

U.S.

Fish & Wildlife

Serv., 235 F. Supp. 2d 1109, 1122 (D. Or. 2002) (internal quotations
and citation omitted). Thus, harm to the environment that "affects
the

recreational

or

even

the

mere

esthetic

interests

of

the

plaintiff" will suffice to establish a concrete and particularized
injury.

Summers

v.

Earth

Island

(2009) (citing Sierra Club v. Morton,

Inst.,

555

U.S.

405 U.S. 727, 734

488,

494

(1972)).

In addition to meeting the three-part constitutional standing
test,

a

plaintiff

must

also

meet

the

prudential

standing

requirement of showing that the injury claimed is within the "zone
of interests" meant to be protected by the statute. Sierra Club v.
U.S. Fish & Wildlife Serv., 235 F. Supp. 2d at 1122. At the summary
judgment stage,
Page 7

~

a plaintiff must set forth by affidavit or other

OPINION AND ORDER

evidence, specific facts to establish standing. Lujan, 504 U.S. at
561.

Plaintiff declares that over the past eight

years,

he has

visited both the eastern section and western section of the Project
area between twenty and twenty-five times each per year. Lindberg
Decl.
the

~~

4-5. Additionally, he has spent over one thousand hours in

Project · area

continue

as

visiting

a

the

visitor
area

and

in

volunteer,

the

future,

and

as

substitutes in the surrounding area. Lindberg Decl.

expects

there
~

are

to
no

6. Plaintiff

contends that the Project's proposed paved path through the DNF
will drastically increase recreational use in the area, undermining
the area's recreational quality,

degrading wildlife habitat,

causing a negative aesthetic impact.

Lindberg Decl.

~~

9,

and

19. A

plaintiff's repeated recreational use of the area, accompanied by
a credible assertion of desired future use,
environmental

degradation

of

the

area

can demonstrate that

is

injurious

to

the

plaintiff. Sierra Club v. U.S. Fish & Wildlife Serv., 235 F. Supp.
2d at 1122. The Court finds that plaintiff has established injury
in fact.
Once

injury

in

fact

is

established,

the

causation

and

redressiblity requirements are relaxed. Id. at 1123. Plaintiff has
met the causation element, because his alleged injury is traceable
to the challenged Project proposed by the Forest Service. Plaintiff
also establishes redressibility, because an order from this Court
requiring

the

plaintiff's

Forest

alleged

Service
injury.

Page 8 - OPINION AND ORDER

to

prepare

Finally,

an

EIS

plaintiff's

would

redress

injury

falls

within the zone of interests that NEPA was designed to protect. Id.
at 1122. Plaintiff has established standing to bring this action.
II.

NEPA Claims
Plaintiff brings NEPA challenges against the Forest Service

for failing to take a hard look at

(1)

the cumulative impacts to

elk and deer caused by the Project and other projects in the area;
(2)

the

cumulative

additional
preparation

NEPA
of

impacts

to

"significance
an

EIS

the

ODWSR

factors,"

according

to

corridor;

all

of

plaintiff.

and

which
Thus,

(3)

mandate

plaintiff

maintains that the Forest Service's decision to approve the Project
without conducting an EIS violated NEPA's procedural requirements
and was arbitrary and capricious under the APA.
NEPA is "a procedural statute that does not mandate particular
results, but simply provides the necessary process to ensure that
federal agencies take a hard look at the environmental consequences
of their actions." Sierra Club v.

Bosworth,

510 F. 3d 1016,

1018

(9th Cir. 2007) (citation and internal quotations omitted). Further,
NEPA requires all agencies to prepare an EIS foi any "major Federal
actions

significantly

environment." 42 U.S.C.
To

determine

significant

affecting

quality

of

the

federal

action

human

4332(2) (c).

§

whether

and trigger

the

the

the

proposed

EIS

requirement,

the

will

agency

be

first

prepares an EA. An EA is a "concise public document" that provides
an agency's analysis of the proposed action. 40 C.F.R.
The

EA

"shall

proposal,

of

include

brief

alternatives

Page 9 - OPINION AND ORDER

discussions

[to

the

of

proposed

the

§

1508.9(a).

need

for

the

action],

of

the

environmental impacts of the proposed action and alternatives, and
a listing of the agencies and persons consulted." Id.

§

1508.9(b).

An EA "need not be extensive." Grand Canyon Trust v. U.S. Bureau of
Reclamation,

623 F. Supp. 2d 1015, 1026 (D. Ariz. 2009).

To determine whether a proposed action may have "significant"
effects, the Council on Environmental Quality ("CEQ") requires the
agency to consider the "context" of the action and the "intensity"
of its impacts. 40 C.F.R.

§

ten factors are considered.

1508.27. When evaluating "intensity,"
Id.

1508.27(b) (1)-(10)

§

Here,

the

primary intensity factor is the effect of cumulatively significant
impacts,

which are "impact [ s]

on the environment which result []

from the incremental impact of the action when added to other past,
present,

and

Cumulative

reasonably

impacts

foreseeable

can

result

collectively significant actions
time." 40 C.F.R.
If

the

future

from

actions

individually

minor

taking place over a

but

period of

1508.7.

§

agency

concludes

there

is

no

significant

impact

associated with the proposed action, it may issue a Finding of No
Significant

Impact

"accompanied

by

a

convincing

statement

of

reasons to explain why a project's impacts are insignificant," in
lieu of preparing an EIS. Sierra Club v. Bosworth, 510 F.3d at 1018
(citation

and

internal

quotations

omitted);

See

40

C.F.R.

§

1508.13.
The court's role in this process is to determine whether the
agency

took

reviewing

the

requisite

whether

the

EA

Page 10 - OPINION AND ORDER

"hard

look"

contains

that

"a

NEPA

demands,

reasonably

by

thorough

discussion"

of

the

significant

aspects

of

the

probable

environmental consequences of the proposed action. See Nat'l Parks
& Conservation Ass'n v. Bureau of Land Mgmt.,

606 F.3d 1058, 1072

(9th Cir. 2010) (citation and internal quotations omitted).
A.

Cumulative Impacts to Elk and Deer

Plaintiff contends that the Forest Service failed to take a
"hard look" at the potentially significant cumulative impacts to
elk and deer caused by this Project and other projects and trails
in the same area of the DNF. Plaintiff also asserts that the Forest
Service was required to collect quantitative data on current and
future

recreational use levels in the Project area in order to

adequately assess cumulative impacts to elk and deer.
1.

Impacts from Past and Present Projects

Plaintiff

asserts

that

the

Forest

Service's

analysis

of

cumulative impacts to elk and deer was inadequate because it failed
to

consider the

extensive

impacts of this

trail

network

and

Project
other

in light of the

recreational

DNF' s

enhancement

projects. Plaintiff emphasizes that the Forest Service has approved
numerous trail and recreational enhancement projects in the same
area of the DNF as the Project. As a result,

plaintiff contends

that elk habitat within the Ryan Ranch KEA and deer habitat within
designated mule deer winter range

( "MA 7")

has been and will be

compromised due to high trail density within the DNF.
further

argues

that

the

Forest

Service

failed

to

Plaintiff

consider

the

cumulative effects of the Project combined with the hundreds of
miles of recreational trails in the area, the Cascade Lakes Welcome
Page 11 - OPINION AND ORDER

Station project, and the Phil's Trailhead Enhancement project.
The

Forest

Service

asserts

that

it

properly

assessed

the

cumulative impacts to elk and deer, including the impacts from past
and

present

projects

in

the

Project

area.

The

Forest

Service

defined the Project area to span across 20,277 acres of DNF lands,
encompassing far more

land than that occupied by the

Project's

trailhead and trails. AR 14783. To evaluate cumulative impacts to
elk and deer, the Forest Service expanded the analysis area beyond
the Project area to include the entire North Unit Diversion Darn
Watershed, because the Forest Plan directs elk and deer analyses at
larger scales. AR 14982. The Forest Service also developed a table
of past, present, and future actions that overlap with the Project
area. AR 14784-88. The table included the Cascade Lakes Highway,
the development of summer and winter trail systems,
Lakes

Welcome

Station

and

Parking

Lot,

Enhancement project, and other projects.

the
Id.

the Cascade

Phil's

Trailhead

Further, the Forest

Service contends that the existing condition of an area reflects
the aggregate impact of all prior human actions to that particular
area; thus, cumulative impacts to the Project area can be assessed
by using the current condition of the Project area as the baseline
or the "no action alternative." AR 14784, 14858.
The Court recognizes plaintiff's concern that the Project area
overlaps with 31% of the Ryan Ranch Key KEA, which is one of eleven
key elk habitat areas in the DNF. 2 AR 14751,
2

14856.

The Project

Rocky Mountain elk were chosen as a Management Indicator
Species for the DNF due to their socioeconomic importance to the
hunting community in central Oregon. The ODFW sets "management
Page 12 - OPINION AND ORDER

proposes 10.8 miles of new trail and obliteration of 1.34 miles of
trail

within

the

Ryan

Ranch

KEA,

increasing

the

overall

motorized trail density by 18%, from 1.49 mi/mi 2 to 1.77 mi/mi 2

non•

AR

14822, 14858. However, after review of the record, the Court finds
that the Forest Service's conclusion that the Project would cause
only slight cumulative impacts to elk and deer is supported by a
reasonably thorough discussion in the record, and its decision not
to prepare an EIS was not arbitrary and capricious.
In its analysis, the Forest Service discusses and cites to the
Terrestrial Wildlife Specialist Report, which determined that elk
move across sections of the Project area and "the additive effects
of a new trail combined with the paved road and other existing
trails may begin to alter elk movement." AR 15023. Nonetheless, the
Project's

effect

Furthermore,

on

elk

movement

would

be

"slight."

Id.

according to scientific studies cited by the Forest

Service, elk avoid roads at approximately 1/4 to 1/2 miles, or 1320
to 2640 feet.

3

AR 14856. Relying on this data, the Forest Service

purposefully placed Trail 1 and Trail 2 approximately 150 feet from
existing roads in order to reduce impacts to elk habitat and to
minimize human contact with elk. AR 14860, 15253. Trail 1 and Trail
objectives" for the eleven key elk habitat areas to provide
habitat conditions sufficient to sustain 1,500 summer elk and 340
wintering elk. AR 14856.
3

Early on in Project development, the Forest Service
identified "Potential impacts on Key Elk Habitat Area" as one of
two "Key Issues" that would be caused directly or indirectly by
implementing the proposed action. Thus, impact to elk habitat was
used to develop alternatives to the proposed action, prescribe
mitigation measures, and analyze or disclose environmental
effects. AR 14758-59.
Page 13 - OPINION AND ORDER

2 are also located in areas partially managed under the Forest Plan
for

Recreation." AR 14771. Likewise, Trails 3 and 4 will

~Intensive

be located in areas already experiencing high recreational use, and
the Project's Welcome Station trailhead and gravel parking lot will
be located in an area fully managed for

~Intensive

Recreation." Id.

In terms of the Project's impact on elk habitat, the wildlife
biologist

determined that

affected by the Project:
cover as

there

elk hiding
~[t]ree

cover will

not

likely be

removal will not reduce hiding

is none mapped in the

Project Area." AR 15023.

Moreover, the number of trees slated for removal is not projected
to convert thermal cover into an unsuitable condition for elk. AR
Id.

Additionally,

no new open roads will be added;

rather,

the

Forest Service expects to close roads in the Ryan Ranch KEA within
the next five years. AR 14748-49, 14860.
The Forest Service also considered the cumulative effects of
this Project and the West Bend Vegetation Management Project, which
proposes to thin, mow, and burn up to 292 acres of thermal cover in
the Ryan Ranch KEA. AR 14860. The Forest Service discussed that the
West Bend Project will reduce some elk habitat quality but will
also increase forage ability. AR 14759, 14860.
Finally, the Forest Service analyzed trend data for elk; elk
population is currently stable to increasing, and is expected to
remain stable across the DNF. AR 14858-60, 15021, 15025. Therefore,
elk are considered

~secure"

species within the DNF. AR 14841. Based

on the findings articulated above,

the Forest Service concluded

that

contribute

Project

implementation

Page 14 - OPINION AND ORDER

could

a

small

negative

effect to elk habitat, which is insignificant at the forest scale.
AR

14860.

The

Court

finds

that

convincing statement of reasons

the
to

Forest

Service provided

support its

a

conclusion that

there would be no significant cumulative impacts to elk.
Besides
includes

providing

6,604

acres

habitat
of

for

mule

elk,

deer

the

Project

habitat.

4

Area

The

also

Project's

cumulative impact analysis indicates that the non-motorized trail
density affecting deer in the Project area will increase from 3.21
mi/mi 2 to 3.50 mi/mi 2 , a 9% increase. AR 14862. The Forest Service
notes

that most of the

Project trails

are within 150 miles of

existing roads and thus will reduce fragmentation of deer habitat.
The Project's Welcome Station and parking lot are outside of mule
deer

range,

and any increase

in human presence

at

the Welcome

Station is not likely detectable because the existing area already
includes parking and substantial recreational use. Id. The Forest
Service also considered the cumulative effects of the West Bend
Vegetation Management Project on mule deer, which proposes to treat
800 to 1,500 acres of deer thermal cover. AR 14862-63.
The Forest Service also discussed the effect of road closures
due to the West Bend Project, which will improve habitat conditions
for mule deer by reducing road density and will offset some of the
impact from increased non-motorized trail use anticipated with the
Project. Overall, the Forest Service found that cumulative impacts
to

mule

deer

would

result

4

in

"a

minor

increase

in

habitat

Like elk, mule deer were chosen as a Terrestrial Management
Indicator Species due to their socioeconomic importance to the
hunting community in central Oregon. AR 14860.
P~ge

15 - OPINION AND ORDER

disturbance

(<1%

of

the

available

habitat)

and

would

be

insignificant at the forest scale." AR 14863.
The Court finds that the Forest Service took a hard look at
past

and

present

provided

a

conclusion

cumulative

reasonably
that

the

impacts

thorough

Project

will

to

both

elk

explanation
not

result

and

deer

supporting
in

and
its

significant

cumulative impacts.
2.

Impacts from Potential Future Projects

Plaintiff also argues that the Forest Service's cumulative
effects analysis for elk and deer did not consider the potentially
significant impacts from at least four other reasonably foreseeable
projects located in the Project area or on immediately adjacent
lands.

The

plaintiff

Forest
argues

effects analysis

Service
should

are too

contends

have

been

that

many

included

in

of

the

the

projects

cumulative

speculative and will be appropriately

vetted under NEPA if they come to fruition.

The Court addresses

each project below.
a.

Sunriver-to-Lava Lands Path

Plaintiff concedes that the Forest Service included the trail
milage of the Sunriver-to-Lava Lands paved path
Pro j e c t ' s

EA . 5

Pl. ' s

Reply

5

at

13 ;

AR

14 8 21.

(Phase 1)

in the

However ,

citing

Plaintiff accurately states that the Forest Service, Bend
and Sunriver residents, and other stakeholders have a long range
vision to ultimately construct a paved path that stretches from
Bend to Sunriver. In 2008, the Deschutes County Committee on
Recreation Assets recommended a paved route along Forest Service
Road 41 between Bend and Sunriver to enhance cycling and
recreation opportunities. AR 8823. In 2010, the Forest Service
undertook an initial feasibility study of various path
configurations that would connect Bend to Sunriver. Id. Phase 1
Page 16 - OPINION AND ORDER

Klamath-Siskiyou v. Bureau of Land Mgmt.,

387 F.3d 989

(9th Cir.

2004), plaintiff contends that the Forest Service must do more than
present total trail milage to meet NEPA requirements; rather, the
Forest Service must analyze the increased use that the Sunriver-toLava Land path will generate in conjunction with the increased use
generated by the Project's trails, in addition to the consequences
of disrupting big game migration.
The Forest Service clarifies that the Sunriver-to-Lava Lands
path was not included in the cumulative effects table in the EA
because it is not located within the 20,277-acre Project area; the
Sunriver-to-Lava Lands paved path is located on the opposite side
of the Deschutes River,
Regardless,

the

Forest

miles away from the Project.
Service maintains

that

it

AR 14 7 52.

analyzed

the

effects of the Sunriver-to-Lava Lands path in the elk and deer
analysis.
The Court finds that, unlike Klamath-Siskiyou, where defendant
did not

analyze

cumulative

effects,

here

the

Forest

Service's

conclusion that the Project will not cause significant cumulative
impacts to elk and deer is reasonably supported in the EA. Further,
its determination that the Lava Lands path did not need to be
included in the
capricious

due

cumulative
to

the

effects

path's

table

was

location outside

not

arbitrary or

of the

expanded

is an approved paved path that runs from Sunriver to the Lava
Lands Visitor Center. Phase 2 is the paved path proposed in this
Project that will run from the Bend-DNF boundary to the new
Welcome Station proposed in this Project. The location for Phase
3 has not been identified, but would connect Phase 1 and 2
together by constructing a paved path from Sunriver to this
Project's Welcome Station. AR 12553j 14771, 14816.
Page 17 - OPINION AND ORDER

Project area.

6

Moreover, the Forest Service included "the portion

of the Sunriver to Lava Lands Visitor Center paved path that has
not been constructed yet" in the total number of non-motorized
miles

of

trail

in

the

Ryan

Ranch

KEA.

The

Forest

Service's

discussion in the EA considered potential displacement of elk due
to

non-motorized

trails

and

found

no

significant

cumulative

impacts. AR 14821, 14858. The Forest Service properly analyzed the
Sunriver-to-Lava Lands path.
b.

Sunriver-to-Welcome Station Path

Next, plaintiff argues that the potential Sunriver-to-Welcome
Station paved path

(Phase 3)

is a "reasonably foreseeable future

action" under NEPA and should have been included in the Project's
cumulative

effects

analysis.

The

Forest

Servic~

argues

that

including this "speculative" path is premature, because the Forest
Service has not implemented a time frame or settled on a route for
this path.

Should such a project go forward in the future,

the

Forest Service maintains that it will be subject to NEPA analysis.
Plaintiff

cites

N.

Plains

as

support

for

requiring

the

inclusion of the Phase 3 path in this Project's EA. N. Plains Res.
Council, Inc. v. Surface Transp. Bd., 668 F.3d 1067, 1079 (9th Cir.
6

In the EA chapter discussing cumulative effects, the
Forest Service explains that in general, the analysis area would
be the Project area; however, "[i]f the resource being analyzed
necessitates extending the analysis area outside the project area
for an appropriate analysis, then the extent of the analysis area
is documented under each resource area below and in the
specialist reports located in the project record." AR 14783.
Because the Lava Lands path is located outside the general
Project area, it was not listed in the table plaintiff refers to;
however, this does not mean that it was not analyzed in the
expanded analysis area for elk and deer.
Page 18 - OPINION AND ORDER

2011).

In

N.

Plains,

the

court

held

that

the

agency

acted

arbitrarily and capriciously when it approved construction of a
three-phase rail line without considering future coal bed methane
(CBM)

well developments and other mining projects in the project

area, which would admittedly cause cumulative impacts, even though
the agency had "described a time frame and a reasonably foreseeable
development plan for CBM development in areas that overlap with the
[] railroad plans." Id.

(Surface Transportation Board had a Methane

EIS report with actual numbers of wells to be drilled in locations
overlapping

with

the

train's

rail

line) .

Conversely,

Forest Service has not identified a time frame

here

the

or identified a

route for the Phase 3 path, nor is it preparing to make a decision
regarding the Phase 3 path. Def.'s Resp. 27-28.
Additionally, the Forest Service has not listed the project in
its

Proposed

Actions,

the

NEPA

scoping

process

has

not

been

initiated, and no funding has been sought or secured for the Phase
3

path.

Def.' s

Resp.

26-27, 30;

AR

15093 7 •

The

Forest

Service

asserts that a future Sunriver-to-Bend path, which would result if
the Phase 3 path were constructed to connect Phase 1 and Phase 2,
will not escape meaningful NEPA review should the Phase 3 path be
pursued in the future.
The Court finds that the Phase 3 path is not a reasonably
foreseeable action requiring analysis in this Project's EA.
7

~

In plaintiff's May 8, 2014 objection letter addressed to
the DNF Reviewing Officer he writes, in reference to the Phase 3
path: "National Environmental Policy Act (NEPA) analysis has not
yet started, nor has funding apparently been secured, but the BFR
clearly intends to implement the project." AR 15093.
Page 19 - OPINION AND ORDER

Jones v. Nat'l Marine Fisheries Serv., 741 F.3d 989, 1000 (9th Cir.
2013) (agency did not fail to analyze the cumulative impacts of the
challenged mining project

despite plans

to widen the

scope

of

mining in the future because the future plans were speculative and
not reduced to specific proposals); Envtl. Prot. Info. Ctr. v. U.S.
Forest Serv., 451 F. 3d 1005, 1014-15 (9th Cir. 2006) (Forest Service
did not act arbitrarily and capriciously when it excluded from the
challenged project's cumulative effects analysis,

a timber sale

that was in the initial planning stages, where specifics of units,
size, and treatment prescription had not yet been identified) .
c.

Haul Road Trail

Plaintiff also contends that the Forest Service should have
included the Bend Park and Recreation District's ("BPRD") proposal
to pave its Haul Road trail in the Project's cumulative effects
analysis. The Haul Road trail extends to the DNF boundary and will
connect to the Project's Trail 1. Plaintiff maintains that the Haul
Road trail should have been included in the cumulative effects
analysis, because it will likely increase recreational use within
the Project area.
The Forest Service maintains that plaintiff is barred from
raising

the

Haul

Road

trail

claim

because

plaintiff

did

not

challenge the omission of the Haul Road trail prior to this case.
For example,

in his May 8, 2014 objection letter to the final EA

and draft DN/FONSI, plaintiff identified three recreation projects
that

he

potential

believed

the

cumulative

Forest
effects

Page 20 - OPtNION AND ORDER

Service
to

should

wildlife

and

have

analyzed

for

recreational

use

capacity; the Haul Road trail was not one of them. AR 15092-93. As
a result, the Forest Service contends that, because it never had
notice

or

a

chance

to

administrative process,

address

plaintiff's

concern

during

the

plaintiff is barred from litigating the

issue now.
Individuals and groups seeking to object to a Forest Service
project must "structure their participation so as to alert the
local agency officials making particular land management decisions
of their positions and contentions." 36 C.F.R.

§

218.14. The Court

agrees with the Forest Service that plaintiff has waived his right
to object to the Haul Road trail at this stage of review because he
did not notify the Forest Service that he believed the Haul Road
trail

should

be

included

administrative process.
752,

764-65

8

in

this

Project's

EA

during

the

Dep't of Transp. v. Pub. Citizen, 541 U.S.

(2004) (respondents forfeited an objection to the EA

that was not raised during the notice and comment period) (citing
Vt. Yankee Nuclear Power Corp. v. Natural Res. Def. Council, Inc.,
435 U.S.

519,

553

(1978)); N.

Idaho Cmty. Action Network v. U.S.

Dep't of Transp., 545 F.3d 1147, 1157 (9th Cir. 2008).
d.
Fourth,

Pedestrian Bridge Proposal

plaintiff asserts

that BPRD' s

proposal to build a

pedestrian footbridge is a reasonably foreseeable action that the
Forest Service should have included in this Project's cumulative
8

Nonetheless, the Forest Service did account for the
cumulative effects of the BPRD's plan to pave the Haul Road trail
as a "baseline" environmental condition in the no action
alternative and all other alternatives in this Project's EA. AR
14802, 14807.
Page 21 - OPINION AND ORDER

effects analysis.

The potential bridge would cross the Deschutes

River connecting the Deschutes River Trail to trails in the DNF,
but

the

bridge

location

has

not been selected.

AR 15093 9 •

Forest Service contends it was not arbitrary and capricious
declining to include the BPRD's proposal for a pedestrian
its cumulative effects analysis because it is not a

brid~e

The
in
in

reasonably

foreseeable future action.
First, the City of Bend has not yet decided if it is going to
pursue

the bridge project.

AR 15217.

Second,

the

State

Scenic

Waterway Designation prohibits bridges on private lands in the area
the BPRD has proposed to locate the bridge, and this prohibition
may also apply to federal lands. AR 15216. Third, should the BPRD
make it over the nscenic Waterway Designation" hurdle, the Forest
Service maintains that a Forest Plan and CMP amendment would likely
be required,

and the BPRD would need to apply for a Supplemental

Use Permit (nSUP") prompting NEPA analysis.
The Court agrees that the BPRD pedestrian bridge proposal is
not a reasonably foreseeable action that must be included in the
Project's

cumulative

effects

analysis,

given

that

the

Forest

Service is not pursuing the bridge or actively preparing to decide
on

one

or

more

alternative

9

means

of

accomplishing

the

bridge

Plaintiff's objection letter cites to the BPRD's website
for the potential bridge project, which indicates that a specific
location for the bridge has not been determined and there is a
likelihood that federal environmental processes will be required
to proceed. The website reads: n .
. should a new bridge
location be selected, determined to be feasible, and pass all the
required larid use approvals, a construction date could still be 6
to 8 years out. 11
Page 22 - OPINION AND ORDER

proposal.

See

36

C.F.R.

220.4(a) (1)

The

bridge

project

is

speculative, and the Forest Service did not violate NEPA by failing
to consider it in its EA.
In

sum,

a

court

must

be

"'at

its

most

deferential'

when

reviewing scientific judgments and technical analyses within the
agency's expertise."

N.

Plains,

668 F.3d at 1075

(quoting Balt.

Gas & Elc. Co. v. Natural Res. Def. Council, Inc., 462 U.S. 87, 103
(1983).

In

other

words,

this

Court

is

not

to

substitute

its

judgment for that of the agency. N. Plains, 668 F.3d at 1075. After
review of the comprehensive record in this case, the Court cannot
find that "the record plainly demonstrates that [the agency] made
a clear error in judgment." Id.
omitted).
reasons,
the

( citation and internal quotations

The Forest Service provided a convincing statement of
discussed above,

existing

and

explaining why the combined impacts of

projected

trail

network

will

produce

no

significant cumulative impacts to eik and deer.
3.

Quantitative Data on Recreational Use

Plaintiff contends that the Forest Service failed to quantify
current recreational use levels and future estimated use levels,
which

he

asserts

are

necessary

to

analyze

whether

use

of

the

Project's trails and other trails in the existing DNF trail network
may cumulatively cause significant impacts to elk and deer.
The

Forest

Service

responds

that

the

EA

and

Terrestrial

Wildlife Specialist Report adequately assess cumulative impacts
from

recreational

effects

of

a

use

in

potential

Page 23 - OPINION AND ORDER

the

Project

increase

in

area,

combined

recreational

with
use

the
from

implementation of the Project. Early on in the NEPA process,

the

Forest Service determined that miles of trail within the Ryan Ranch
KEA was the best metric to evaluate the potential effects to elk
from increased recreational use and used this metric to develop the
action alternatives for the Project.
Plaintiff correctly asserts that the Project would increase
non-motorized trail density within the Ryan Ranch KEA and therefore
likely increase recreational use within the area. The Project area
overlaps

with

31%

of

the

Ryan Ranch KEA and would

cause

non-

motorized trail density in that 31% section to increase by 18%. AR
14751, 14822, 14858. Notably,

the Forest Plan does not specify a

maximum or limit to non-motorized trail density in the Ryan Ranch
KEA. AR 14759.
Nonetheless,

plaintiff

that

the

Forest

Service

include quantified recreational use numbers

required to
cumulative

effects

Council v.

U.S.

1999).

argues

In N.

analysis,

Forest

Cascades,

Serv.,

citing
98

F.

N.
Supp.

Cascades
2d 1193

is

in its

Conservation
(W.D.

Wash.

the court found that the Forest Service

failed to properly consider the negative effects of increased motor
vehicle use on wildlife outside of the "narrowly defined" project
area. N. Cascades, 98 F. Supp. 2d at 1201. The court noted that the
challenged project had not been analyzed in the context of the
entire off-road vehicle trail system to which three trail projects,
including the challenged project, were tied. Id.
However, here the Forest Service analyzed a Project area that
was much broader than the Project's trails in order to capture the
Page 24 - OPINION AND ORDER

impacts of the connecting trail network. The Forest Service also
explained that it does not have quantitative data on the number of
recreational

users

in

the

Project

area;

thus,

miles

of

non-

motorized trail within the Ryan Ranch KEA was selected as the best
measurement for evaluating the effects of increased recreation to
elk.

AR 14 72 6-2 7,

Project

noted

14821,

that

it

15217.

is

The wildlife biologist for the

difficult

increased human visitation or

to

quantify

the

recreation on elk;

effect

of

non-motorized

trail mileage was used as a measurement instead. AR 14824, 1498384. In his own email to the Forest Service, plaintiff noted that a
scientific study found no measurable effect of recreation on mule
deer population. AR 10075. Similarly, other Project comments agreed
that non-motorized trails have "low to zero impact upon wildlife."
AR 12714.
"The

court

defers

to

agency

expertise

on

questions

of

methodology unless the agency has completely failed to address some
factor,
decision

consideration of which was essential to a truly informed
whether

statement."

N.

or

not

Cascades,

to

prepare

98 F.

Supp.

an

environmental

2d at 1202

impact

(citing Inland

Empire Pub. Lands Council v. Schultz, 992 F.2d 977, 981 (9th Cir.
1993)). The Court finds that the Forest Service did not violate
NEPA by failing to obtain or project quantitative measurements of
current or future recreational use levels within the Project area.
B.

Cumulative Impacts to UDWSR Corridor

Plaintiff also contends that the Forest Service failed to take
a

"hard

look"

at

the

cumulatively

Page 25 - OPINION AND ORDER

significant

impacts

to

the

quality and capacity of recreational use within the UDWSR corridor
caused

by

the

Project

and

other

related

projects.

Plaintiff

believes the numerous recreational projects in the area will bring
tens of thousands of new users to the Ryan Ranch KEA and UDWSR
corridor.

AR 15093.

Plaintiff contends that the _Forest

Service

should have analyzed whether the Project's components, which will
link to the Deschutes River Trail system, comply with the UDWSR's
Management Plan R-1 standard that sets the non-commercial annual
use capacity at 44,000. AR 5168.
The Forest Service asserts that it did appropriately analyze
the cumulative effects of recreational use, because the 20,277 acre
Project

area

included

"miles

of

the

Deschutes

River

corridor,

including the Meadow, Lava Island, Big Eddy, Aspen, Dillon Falls,
and Slough recreation sites in the river corridor." Def.'s Resp. at
34; AR 14746. The Forest Service also emphasizes that none of the
Project

components,

including

the

trailhead,

paved

path,

and

mountain bike trails, are located in any riparian areas, AR 14753,
14 8 8 4;

in fact,

the closest a

Project trail

ever comes to the

Deschutes River is one-half mile. AR 14929. Importantly, the Forest
Service maintains

that

the

UDWSR Management

Plan

R-1

Standard

applies only to site designation and development within the UDWSR
corridor,

and not to pass-through use of the corridor resulting

from developments in other areas of the DNF. AR 14901. Furthermore,
the Forest Service contends that R-1 does not mandate recreationist
counts within the UDWSR corridor; such monitoring is contingent on
funding availability. AR 5206, 5214. The Forest
Page 26 - OPINION AND ORDER

S~rvice

maintains

that impacts of increased recreational use were accounted for; even
with the "no action alternative," recreational use was determined
to increase as Bend's population increases. AR 4793.
This Court finds that the Forest Service adequately assessed
the

cumulative

corridor.

effects

of

recreational

First and foremost,

including

"[t]rail

entirely outside

of

all of

and

trailhead

the

Upper

use

the

within

Project's

construction

Deschutes

the

UDWSR

components,

[are]

located

Wild and Scenic River

corridor." AR 15263, 14750, 14753-54, 14883. The Court emphasizes
that the Project area used for the impact analysis is much broader
than

the

Project's

components.

AR

trailhead,

14 7 54,

152 63.

The

paved

path,

Forest

and

Service

dirt

trail

expanded

the

analysis area in order to "encompass all the trail systems proposed
trails could provide connections to. The larger analysis area was
established to facilitate recreation and wildlife analysis." AR
14 7 50.

Thus,

while 1, 8 4 4 acres of the Project area are located

within the UDWSR corridor, none of the Project's components will be
located within the UDWSR corridor. AR 14749.
Granted,
path,

the

Project's new trailhead,

ADA-accessible paved

and mountain bike trails could bring new recreationists to

the DNF, who may then use trails within the UDWSR corridor; but the
Forest

Service

analyzed

this

impact:

"The

increase

in

parking

capacity and availability of new recreation opportunities may lead
to an increase in use and encounters,

however,

the connectivity

among the trail systems and the mileage of trail available would
provide a trail system that is able to accommodate existing use and
Page 27 - OPINION AND ORDER

growth." AR 14815. In fact, the Forest Service and members of the
public suggest that the Project's trails will reduce congestion on
the heavily used Deschutes River Trail,

located in the UDWSR, by

creating alternative routes for recreationists. AR 12713-14, 12747,
14808, 14926-27.
th~t

In sum, the Forest Service made a rational conclusion

the

DNF trail system and Project components will accommodate growth and
not cause significant cumulative impacts to the UDWSR corridor.
Furthermore, the Court agrees that the R-1's non-commercial annual
use

capacity

limit

is

intended

for

development

within

in

the

corridor, and does not apply to pass-through visitor use within the
corridor as a result from other trails located outside of the UDWSR
corridor.

The Forest Service was not arbitrary or capricious in

reaching its conclusion that the cumulative impacts from increased
recreational use are not significant.
C.

Additional NEPA Significance Factors

Plaintiff
factors,

maintains

that

three

other

NEPA

"significance"

when considered collectively or in combination with the

cumulative impacts of the Project,

require the preparation of an

EIS. First, plaintiff asserts that intensity factor number three,
"unique

characteristics

1508.27 (b) ( 3),
recreational

is

use

of

the

geographic

implicated because the
within

Scenic River corridor,

a

congressionally

the UDWSR,

area,"

Project

40
will

desig_nated

C.F.R.

§.

increase
Wild

and

and the ecologically critical

Ryan Ranch KEA. The Forest Service asserts that the UDWSR corridor
is not implicated because no Project components are located within
Page 28 - OPINION AND ORDER

the corridor, and the Forest Service determined that the Project
would relieve congestion on the trails that exist within the UDWSR.
The Forest Service further asserts that it analyzed the Project's
impact to elk in the Ryan Ranch KEA and concluded that the small
negative impact on elk habitat was not significant. For the reasons
articulated above, the Court finds that intensity factor three does
not mandate preparation of an EIS.
Second, plaintiff alleges that intensity factor number five,
"the degree to which the possible effects on the human environment
are highly uncertain or involve unique or unknown risks," id.
1508.27 (b) (5),
quantified

is

implicated because

information

on

current

the

Forest

recreational

Service
use

§

lacks

levels

and

estimated future use levels, in addition to detailed information on
the efficacy of its proposed mitigation efforts. For the reasons
articulated

above,

namely

that

the

Forest

Service

properly

accounted for effects of increased recreational use and the fact
that the Project's components are outside of the UDWSR corridor,
the Court finds intensity factor number five not present.
Third,

plaintiff alleges that intensity factor number ten,

"whether the action threatens a violation of Federal,
local

law

or

environment,"

requirements
id.

§

imposed

1508.27(b) (10),

for
is

the

protection

State or
of

the

implicated because

the

Project violates NFMA. The Forest Service argues that the Project
is consistent with the Forest Plan and therefore does not violate
NFMA.

For the reasons se.t forth below,

violation as alleged by plaintiff;
Page 29 - OPINION AND ORDER

the Court finds no NFJVIA

therefore,

this significance

factor does not weigh in favor of an EIS.
Based on the reasons set forth above, the Court finds that the
Forest Service adequately analyzed the Project's cumulative impacts
to

elk

and

affecting

deer

the

in

light

Project

of

area,

past
and

and

the

present

Forest

projects

Service

also

properly

addressed the four projects that plaintiff maintains should have
been included in this Project's EA.

Furthermore,

relying on its

agency expertise, the Forest Service determined that non-motorized
trail milage could be used to analyze the cumulative impacts of
non-motorized

recreational

quantitative

recreational

use
use

to

elk

data

and

that

deer,

was

rather

non-existent

than
and

funding dependent. Finally, no other NEPA significance factors are
implicated in this case that would mandate preparation of an EIS.
In

sum,

the

Forest

between the facts

Service

articulated

a

rational

connection

found and its conclusion that no significant

cumulative impacts will occur to elk and deer as a result of this
Project, in light of the existing trail network and other projects
in the Project area.

Therefore,

the Court finds that the Forest

Service's decision to issue a DN and FONSI in lieu of preparing an
EIS

was

not

arbitrary,

capricious,

an abuse of discretion,

or

otherwise not in accordance with law.
III. NFMA Claims
Plaintiff brings NFMA challenges against-the Forest Service
for:

( 1)

standard

failing to comply with the DNF Forest Plan management
that

instructs

the

Forest

Service

not

to

develop

facilities that will encourage public use during the winter;
Page 30 - OPINION AND ORDER

and

( 2)

failing

Plan's

to

comply with

provision

the

ODWSR Comprehensive Management
annual

designating

capacity

limits

for

recreational use.
The

NFMA

both

establishes

procedural

substantive

and

requirements for the management of National Forest System lands. 16
O.S.C.

§§

1600 et seq.

Onder the NFMA,

the Forest Service must

develop and maintain a Land and Resource Management Plan consisting
of broad,
management
manage

long-term objectives for each Forest System Onit.
plan

contains

forest

resources

substantive
by

requirements

balancing

environmental and economic factors.

the

The

designed

consideration

to
of

Native Ecosystems Council v.

Weldon, 697 F.3d 1043, 1056 (9th Cir. 2012). The NFMA requires that
site-specific projects be
plan. Id.; 16 U.S.C.

§

consistent with the

governing forest

1604(i). Alleged violations of the NFMA are

reviewed under the "arbitrary and capricious" standard of review,
according Forest Service management decisions a high degree of
deference. 5 O.S.C.
A.

§

706(2) (A).

Forest Plan Requirements

In this case, the DNF lands at issue are managed by the Forest
Service pursuant to the Deschutes National Forest Land and Resource
Management

Plan

("Forest

Plan")

as

amended

by

the

ODWSR

Comprehensive Management Plan ("CMP"). When developing the Forest
Plan,

the Forest Service worked with ODFW to develop management

objectives

for

elk within

the

DNF.

Several measures

were

also

developed for recreation management within the Ryan Ranch KEA.
Plaintiff contends that the Forest Service violated the NFMA
Page 31 - OPINION AND ORDER

by failing to comply with Forest Plan management standard WL-45 for
the Ryan Ranch KEA which reads: "Facilities will not be developed
nor activities promoted which would encourage public use during the
winter." AR 12 97.
facilities,

Plaintiff argues

that developing the

Project

i.e. the trailhead, parking lot, and new trails that

will connect to existing trail systems,

"encourages" public use

during winter simply because they will be available for use.
The Forest Service maintains that Forest Plan measure WL-45
must be balanced with other management measures governing the Ryan
Ranch KEA. Other competing measures include: "Public use will be
encouraged on travel

routes which will minimize conflicts with

elk"; and "Public use will not be restricted within the Deschutes
Wild and Scenic River during the calving season
31) ".

AR 1297.

The

Forest Service further

(May 1 to July

asserts

that

it

has

consciously placed Project trails in locations to minimize impacts
to elk and will also take mitigation steps to discourage public use
of trails during winter.
Where a forest plan management directive is susceptible to
more than one meaning,

the

Forest

Service's

interpretation and

implementation of its own forest plan is accorded deference unless
the

interpretation

Project v. U.S.

is

plainly

Forest Serv.,

erroneous.

Siskiyou

565 F.3d 545, 555

Reg' 1

Educ.

(9th Cir. 2009);

Forest Guardians v. U.S. Forest Serv., 329 F.3d 1089, 1097-99 (9th
Cir.

2003) (Forest

Service's

interpretation

of

forest

plan

was

neither plainly erroneous nor inconsistent with the regulation and
thus

was

entitled to

substantial deference);

Page 32 - OPINION AND ORDER

Native Ecosystems

Council v. Weldon,
U.S.

697 F.3d at 1056; Native Ecosystems Council v.

Forest Serv.,

deference

to

418 F.3d at 960

their

interpretation

("[a]gencies are entitled to
of

their

own

regulations,

including Forest Plans").
Even if the Project indirectly encourages winter use in the
Ryan Ranch KEA, Trail 1 and Trail 2 are within 150 feet of Cascade
Lakes Highway and Forest Service Road 41,

which are year-round,

high-use roads leading to and from Mt. Bachelor Ski Resort. Based
on data cited in the Terrestrial Wildlife Specialist Report,
avoid roads at 1/4 to 1/2 miles; thus,
near Trail 1 or 2.

elk

elk would not be expected

Furthermore, the record shows that the Forest

Service will undertake mitigation measures,

including installing

interpretive signs at the Project's Welcome Station trailhead that
discourage winter use of trails. 10 Additionally, the Cascade Lakes
Welcome Station parking lot, which has routes connecting to Trail
1, will be gated during the winter months. AR 15230.

The Forest

Service also noted that trails within the Ryan Ranch KEA are not
maintained for winter use. AR 14860.

10

Plaintiff maintains that the Forest Service must support
the assertion that interpretive signs are effective mitigation
measures. The wildlife biologist evaluating the Project
recommended installing interpretive materials to increase
awareness of big game habitat needs in winter, which will help
reduce winter use, and indicated that such winter conservation
messages should be placed at the new Welcome Station trailhead.
AR 14984, 15023. Plaintiff's challenge is not well taken given
that he expressly wrote in his March 3, 2013 scoping comments to
the Forest Service: "I request that no interpretive signs,
kiosks, or other information be included in this project.
Instead, I request that all available funds be allocated to
trails and parking, which 'directly enhance the recreation
experience of our residents and visitors.'" AR 12701.
Page 33 - OPINION AND ORDER

The Forest Service is tasked with managing the DNF according
to

the

principles

of multiple

use

and

sustained

yield,

which

require the balancing of many competing uses for the land. See 16

u.s.c.

528-531;

§§

Service

is

16 U.S.C.

§

deference

entitled

Furthermore,

1604(e)

its

to

the Forest

interpretation

of

"encouraging" winter use, and it· intends to take steps to comply
with WL-45
months.

in order to avoid disturbance of elk during winter

The

Court

finds

that

the

Forest

Service

did

not

act

arbitrarily or capriciously in a plainly erroneous manner in its
interpretation of Forest Plan management standard WL-45.
B.

Capacity Limitations in the UDWSR Corridor

Plaintiff also contends that the Project violates NFMA because
it does not comply with the annual non-commercial use capacity
standards

set

forth

in

the

UDWSR CMP.

Specifically,

plaintiff

alleges that the Forest Service has not implemented the monitoring
program

referenced

in

the

UDWSR

CMP

to

obtain

numerical

non-

commercial use data, and therefore the Forest Service cannot have
reasonably

determined

that

the

Project

commercial use levels to exceed the

will

not

cause

non-

44,000 annual use capacity

limit in River Segment 4. Additionally, plaintiff maintains that
the Forest Service failed to present data supporting the conclusion
that

the

Project's

new

trails

will

relieve

congestion

on

the

Deschutes River Trail.
As explain~d above, the Forest Service maintains that the noncommercial annual use capacity standard set forth in the UDWSR CMP
is

inapplicable

to

the

Project,

Page 34 - OPINION AND ORDER

because

the

Project

will

not

designate or develop any sites within the UDWSR corridor. AR 1488384, 14903. The Forest Service emphasizes that plaintiff's argument
rests

on his

own interpretation that

capacity standard applies

the UDWSR CMP annual

to developments

use

outside of the UDWSR

corridor or to developments that may cause recreationists to flow
into the UDWSR corridor.
The Court finds that the Forest Service reasonably interpreted
the UDWSR CMP' s

annual use

capacity standard to

apply to

designation and development within the UDWSR corridor.
5167-68,

site

AR 5136,

15225. Although the Project area boundary overlaps with

some of the UDWSR corridor, none of the Project's actual components
are located within the UDWSR.

In fact,

the Project's trailhead,

parking lot, and much of Trail 1 and 2 are located in areas managed
for "Intensive Recreation," and Trail 3 and 4 are located even
farther away from the UDWSR corridor. AR 14771. Additionally, the
Forest

Service

articulated

that

the

information

it

evaluated,

including letters received during the comment process, support its
determination that the Project will likely reduce congestion on the
Deschutes River Trail, located within the UDWSR corridor. AR 1480811, 14926-27,

12713-14, 12747, 12758. The Court finds the Forest

Service was not arbitrary or capricious in determining that the
non-commercial annual use capacity limit is not

invoked by the

Project.
CONCLUSION

For

the

reasons

summary judgment

(doc.

set
13)

Page 35 - OPINION AND ORDER

forth

above,

is DENIED,

plaintiff's
and the

motion

for

Forest Service's

cross motion for summary judgment (doc. 16) is GRANTED. This case
is dismissed. The parties' request for oral argument is denied as
unnecessary.
IT IS SO ORDERED.
Dated this

·~A~

;,

~~~of

September, 2015.

Ann Aiken
United States District Judge

Page 36 - OPINION AND ORDER