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Wilderness v. Allen

United States District Court, D. Oregon

April 14, 2014

WILD WILDERNESS, an Oregon nonprofit corporation, et al., Plaintiffs,
v.
JOHN ALLEN, Forest Supervisor of the Deschutes National Forest, et al., Defendants

Page 1310

For Wild Wilderness, Plaintiff: Thomas Charles Buchele, Earthrise Law Center, Portland, OR.

For Winter Wildlands Alliance, Bend Backcountry Alliance, Plaintiffs: Lauren M. Rule, LEAD ATTORNEY, Advocates for the West, Portland, Or.

For John Allen, Forest Supervisor, United States Forest Service, Federal Agency, Defendants: Sean E. Martin, LEAD ATTORNEY, U.S. Attorney's Office, District of Oregon, Portland, OR; Brian M. Collins, U.S. Department of Justice, Environmental and Natural Resources of Division, Washington, DC.

For Oregon State Snowmobile Association, American Council of Snowmobile Associations, Intervenors: Paul A. Turcke, LEAD ATTORNEY, PRO HAC VICE, Moore Smith Buxton & Turcke, Chartered, Boise, ID; Susan E. Buxton, Moore Smith Buxton & Turckle, Boise, ID.

For Ken Roadman, Elk Lake Resort, Intervenors: Paul A. Turcke, Moore Smith Buxton & Turcke, Chartered, Boise, ID.

OPINION

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ORDER

THOMAS M. COFFIN, United States Magistrate Judge.

Plaintiffs bring this action pursuant to the Administrative Procedures Act, 5 U.S.C. § § 701 et seq. They seek to set aside a decision by the Forest Service to construct the Kapka Sno-park.

Presently before the court are plaintiffs' motion (#30) for summary judgment, the defendant-intervenor's[1] cross-motion (#35) for summary judgment, and defendants' cross-motion (#36) for summary judgment.

Excluding the Administrative Record (AR), declarations and exhibits, there are more than 215 pages of briefing on these motions. Plaintiffs make numerous arguments in support of multiple claims and counts, but ultimately the arguments are not persuasive and, for the reasons stated below, this action is dismissed.

Factual Background

" Sno-parks" provide parking for outdoor enthusiasts. The U.S. Forest Service made a decision to build the Kapka Sno-park

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along the Cascades Lake Highway area near Bend and Mount Bachelor in Central Oregon. This area is already used extensively by snowmobilers and backcountry skiers and snowshoers who currently use existing sno-parks. The Kapka Sno-park will not change the motorized and non-motorized allocation areas already established in the region.

The Kapka Sno-park involves the construction of a six-acre parking lot area, two vault toilets, information kiosks, and connector trails to an existing network of trails. AR 16721. The Kapka Butte area is open to snowmobile use, and Kapka Butte is encircled by existing marked snowmobile trails. EA 29, AR 15394 (showing snowmobile trails #45, # 5, and # 4 ringing the butte), AR 17468 (same), AR 16689 (noting that snowmobile use has occurred in the project area for years). Directly across the highway are large contiguous areas that are entirely closed to snowmobiles and open to off-trail skiing (the Swampy Lakes and Bend Watershed areas). See AR 15394; 16721.

In January 2009, the Forest Service published a notice of intent to publish an Environmental Impact Statement (" EIS" ) for the Kapka project. AR 10772. At that time, the proposal included tree-cutting in an Inventoried Roadless Area, a situation where the Forest Service's regulations provide that an EIS may be needed. See AR 12167, AR 12808, 36 C.F.R. § 220.5(a)(2), AR 9210. Many public comments to the Forest Service proposal focused on social conflict between motorized and non-motorized recreation users, particularly in the Dutchman Sno-park and Dutchman Flat areas. AR 9016-202; AR 16364.

In April 2011, the Forest Service published a Draft Environmental Impact Statement (" DEIS" ) for a slightly different version of the Kapka project than was ultimately adopted in September 2012. AR 13055-338. The Forest Service took public comments for 75 days. AR 16678. Plaintiffs and other interested parties submitted comments. See AR 14350-72, AR 14494-645. After reviewing the comments, the Forest Service determined on September 14, 2012 that a Final EIS was not needed, because it did not believe the project had significant environmental effects requiring a final EIS. AR 16824. The Forest Service announced that it would proceed with its National Environmental Policy Act (NEPA) review using an Environmental Assessment (" EA" ) instead. AR 16824.

On September 20, 2012, the Forest Service issued an EA that provided a detailed analysis of three action alternatives and a " no-action" alternative for Kapka. AR 16362-713. Two of the alternatives would create a larger non-motorized area near Dutchman Sno-park. AR 16366. The EA also briefly discussed seven (7) alternatives that it considered but eliminated from detailed study. AR 16405-09. These alternatives including creating a large non-motorized recreation area at Tumalo Mountain. AR 16406-08. In a 37-page appendix to the EA, the Forest Service responded to the public comments that it received on the DEIS. AR 16678-713. The Forest Service noted that a proposal to close Tumalo Mountain to motorized use would require a large scale assessment through a separate NEPA process. AR 16702.

On September 20, 2012, the Forest Service also issued a Decision Notice and Finding of No Significant Impact (" Decision" or " FONSI" ) for Kapka. AR 16714-43. The Decision approves construction of the new sno-park, which will provide 70 parking slots for larger vehicles and vehicles towing trailers, two vault toilets, and information kiosks. AR 16721. Construction

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of the parking area will disturb about 6 acres of ground. In the Decision, the Forest Service scaled back the size of the parking area by more than 25% from the original proposed alternative. AR 16721 (square footage of final authorized area); AR 16432 (square footage of original proposed alternative).

The Decision also authorizes a 0.2 mile snowmobile connector trail from the new parking lot to an existing trail, and a 0.6 mile Nordic connector trail to link the new lot to the Nordic non-motorized trail system on the other side of Cascade Lakes Highway. AR 16722. The new park serves existing winter recreation trails and areas and does not change the existing motorized/non-motorized allocation. AR 16722, AR 16705 (response to comments). Based on design capacity, the Kapka Sno-park could allow for an increase in motorized use on a " peak-use" day of approximately 182 snowmobiles. AR 16435.

In the Kapka EA, the Forest Service acknowledged that " social conflict" among recreational users is a " key issue," and addressed that issue in detail. AR 16462-88. As the Forest Service discussed in the EA and Decision, the agency believes that Kapka will reduce the overall congestion and conflict in the Dutchman Sno-park and Dutchman Flat areas. AR 16730. It will provide new parking capacity that will alleviate the well documented parking congestion at Dutchman. See AR 16727, AR 13734-43 (photos of Dutchman Sno-park congestion), AR 16448-50, AR 16473-75. Due to Kapka, snowmobilers who want to access Tumalo Mountain and the high country may now bypass the Dutchman area completely via the existing snowmobile trail # 6. AR 16730, AR 15394 (2011 winter recreation map). The Forest Service believes that the new park " will become the most in-demand sno-park among motorized users on the [Deschutes] for most of the winter season." AR 16728. The higher-elevation park would have a longer use season than other lower-elevation parks, easy access from the highway, and direct connections to existing trails. AR 12807. The new park will alleviate problems with illegal parking along the Cascade Lakes Highway. AR 16729.

Discussion

Plaintiffs contend the Forest Service's decision to build the Kapka Sno-park should be set aside. More specifically, plaintiffs argue that " by relying on an assessment" that they contend " ignored the key issue of increased user conflicts caused by the construction of the new sno-park, the Forest Service did not adequately consider the impacts of the project in violation of NEPA." Furthermore, plaintiffs contend that " by issuing the decision to build the Kapka Sno-park without minimizing such conflicts, the Forest Service was not acting consistently with its Forest Plan or travel management regulations, in violation of the National Forest Management Act [NFMA] and the 2005 Travel Management Rule." Id.

I. NFMA and the Travel Management Regulations

Off-road vehicle use on public land has been an issue for more than forty years. In 1972, President Nixon issued Executive Order (E.O.) 11644 requiring federal agencies to " establish policies and provide for procedures that will ensure that the use of off-road vehicles on public lands will be controlled and directed so as to protect the resources of those lands, to promote the safety of all users of those lands, and to minimize conflicts among the various uses of those lands." E.O. 11644, Sec. 1 (AR 00001). The definition of " off-road vehicle" in the E.O. included motorized vehicles capable of traveling over snow or ice. E.O. 11644, Sec.2(3) (AR 00001).

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The E.O. called for the Forest Service and other agencies to issue regulations that provide for designation of areas and trails on public lands that are open to off-road vehicle use, and areas that are closed to off-road vehicles, for all public lands. E.O. 11644, Sec. 3 (AR 00002). The designations must be based on protecting resources, promoting safety of all users of public lands, and minimizing conflicts with other recreational uses of those lands. Id. Criteria for designating lands as open or closed to off-road vehicles included minimizing damage to soil, watershed, vegetation, or other resources; minimizing harassment of wildlife or significant disruption of wildlife habitats; and minimizing conflicts between off-road vehicle use and other recreational uses of the same or neighboring public lands. Id.

The Forest Service issued travel management regulations to implement E.O. 11644. 36 C.F.R. Part 212. The regulations require that, when designating trails and areas for off-road motorized vehicle use, the agency's objective is to minimize damage to resources, harassment of wildlife, and " conflicts between motor vehicle use and existing or proposed recreational uses of National Forest System lands or neighboring Federal lands," and it must consider " compatibility of motor vehicle use with existing conditions in population areas, taking into account sound, emissions, and other factors." 36 C.F.R. § § 212.55(a)-(b), 212.81(c).

Furthermore, the Forest Service is required under NFMA to ensure that all agency actions are consistent with the governing Land and Resource Management Plan, here the Deschutes Forest Plan. 16 U.S.C. § 1604(i); Native Ecosystems Council, 418 F.3d 953, 961 (9th Cir. 2005). The Deschutes Forest Plan has objectives and requirements related to motorized recreation to satisfy the requirements of E.O. 11644 and the travel management regulations. Specifically, the Deschutes Forest Plan contains a Forest-wide Standard and Guideline for winter recreation that states:

Where conflicts arise between motorized and non-motorized user groups the following sequence of steps will generally be taken:
1. Trails will be designated to encourage the intended user and discourage others. Inviting trail systems will be provided for both user groups.
2. Intensify educational and indirect management efforts to resolve conflict.
3. Restrict motorized use of Nordic trails.
4. Close the area where conflict is occurring to motorized use.

AR 01421. The Forest Plan also sets forth " Recreation Opportunity Spectrum" (ROS) categories that guide winter recreation management in semi-primitive non-motorized, semi-primitive motorized, roaded-natural settings. AR 01531.

Plaintiffs argue the Forest Service has failed to comply with its legal requirements under the travel management regulations and its own Forest Plan by designating a new sno-park and trail open to motorized use without considering how to promote public safety and minimize conflicts between motorized and non-motorized user groups on National Forest lands, or closing areas to motorized use where conflicts are already occurring.

However, defendants persuasively argue that the Forest Service's travel management regulations at 36 C.F.R. Part 212 are not applicable to the Kapka project. The Kapka project is not a designation or roads, trails, or areas for motorized use and does not alter the existing motorized/non-motorized allocations for winter

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recreation. See AR 16621 (EA discussion of travel management regulations, noting that " [n]o new restrictions or prohibitions under this subpart are proposed in the Kapka Sno-park project." )[2]. Kapka is not a " designation" of a " system" of roads, trails, or areas for motor vehicle use. See 36 C.F.R. § 212.50(a) (stating the purpose of the travel management regulations). Instead, designations under the travel management regulations occur when an entire Ranger District or similar unit establishes a network of roads, trails, or areas, and then prohibits motorized travel outside these designations. See id.; 36 C.F.R. § § 212.51, 261.13. In publishing the final travel management regulations, the Forest Service stated that its field officers have " flexibility to designate routes and areas" either " for an entire administrative unit or for a single Ranger District." 70 Fed. Reg. 68264, 68279 (Nov. 9, 2005).

Here, the administrative record shows that the Deschutes has not yet undertaken the requisite large-scale NEPA assessment to designate a system of winter recreation roads, trails, and areas under the regulations. AR 16686 (response to public comments); AR 17530 (response to administrative appeal). Under the Forest Service's Federal Register explanation of the final travel management regulations, this establishes that Kapka is simply not a designation under the regulations. " Until designations for a unit or District are complete and a motor vehicle use map identifying those designations is published, existing travel management policies, restrictions, and orders remain in effect." 70 Fed. Reg. at 68270.

Rather than comprising a broad designation of a system of snowmobile roads, trails, or areas, Kapka is only the construction of a six-acre parking lot within an area that has long been open to snowmobile recreation. And Kapka does change any existing motorized/non-motorized use or recreation allocations. AR 16727. Kapka " serves existing winter recreation trails and areas and does not change Forest Plan Management Allocations or managed recreation uses within the area." Id. There is no new " system" of motorized trails; Kapka will instead construct a single 0.2 mile connector from the parking lot to an existing motorized trail. AR 16723. Nor does the Kapka decision prohibit snowmobile use off of any supposed " designation" of a " system." This further clarifies that Kapka is not a designation under the travel management regulations. 36 C.F.R. § 261.13. As the Forest Service stated in publishing the final travel management regulations, " The final rule's prohibition on motor vehicle use off the designated system (§ 261.13) goes into effect on an administrative unit or Ranger District once that unit or District has designated those NFS roads, NFS trails, and areas on NFS lands that are open to motor vehicle use and published a motor vehicle use map identifying those roads, trails, and areas (§ 212.56)." 70 Fed. Reg. at 68270.

The case law cited in Plaintiffs' Reply further illustrates that designations subject to the travel management regulations are those that occur over large management units on public lands, and involve corresponding closures to motorized travel. See p. 10 of Plaintiffs' Reply (#39). ...


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