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Wildearth Guardians v. Provencio

United States Court of Appeals, Ninth Circuit

May 6, 2019

WildEarth Guardians; Grand Canyon Wildlands Council; Wildlands Network; Sierra Club, Plaintiffs-Appellants,
Heather Provencio, in her official capacity as Kaibab National Forest Supervisor; United States Forest Service, Defendants-Appellees, and State of Arizona, on behalf of Arizona Department of Game and Fish; Safari Club International, Intervenors-Defendants-Appellees.

          Argued and Submitted February 7, 2019 Phoenix, Arizona

          Appeal from the United States District Court for the District of Arizona D.C. No. 3:16-cv-08010-SMM Stephen M. McNamee, Senior District Judge, Presiding.

          John R. Mellgren (argued), and Susan Jane Brown, Western Environmental Law Center, Eugene, Oregon, for Plaintiffs-Appellants.

          Stuart Wilcox, WildEarth Guardians, Denver, Colorado, for Plaintiff-Appellant WildEarth Guardians.

          Mark R. Haag (argued), Allen M. Brabender, Attorneys, Environment & Natural Resources Division; Eric Grant, Deputy Assistant Attorney General, Jeffrey H. Wood, Acting Assistant Attorney General, United States Department of Justice, Washington, D.C.; M'Leah Woodard, Attorney Advisor, Albuquerque Field Office, Office of the General Counsel, United States Department of Agriculture, Albuquerque, New Mexico; for Defendants-Appellees.

          Dominic Draye (argued), John LeSueur, Assistant Attorney General, and Mark Brnovich, Attorney General, Arizona Attorney General's Office, Phoenix, Arizona, for Intervenor-Defendant-Appellee State of Arizona.

          Anna M. Seidman, Douglas S. Burdin, and Jeremy E. Clare, Safari Club International, Washington, D.C., for Intervenor-Defendant-Appellee Safari Club International.

          Before: MICHAEL DALY HAWKINS, MILAN D. SMITH, JR., and ANDREW D. HURWITZ, Circuit Judges.



         Environmental Law

         The panel affirmed the district court's summary judgment in favor of the United States Forest Service in an action by plaintiff environmental groups challenging travel management plans implemented by the Forest Service to permit limited motorized big game retrieval in three Ranger Districts of the Kaibab National Forest.

         The Travel Management Rule, promulgated by the U.S. Department of Agriculture for Forest Service lands, generally prohibits off-road, motorized travel, but permits the "limited" use of motor vehicles within a specified distance of "certain" forest roads for the purposes of camping or retrieval of downed big game animals. The panel rejected plaintiffs' contention that the Forest Service violated the Travel Management Rule by implementing plans that did not sufficiently limit motorized big game retrieval in the Ranger Districts. The panel concluded that the Forest Service did not violate the plain terms of the Travel Management Rule.

         Addressing plaintiffs' claims under the National Environmental Policy Act ("NEPA"), the panel held that the plaintiffs had standing to bring their NEPA claims because they were trying to protect the environment, which was within NEPA's zone of interests. The panel concluded that the environmental impacts discussed in the environmental assessments did not raise substantial concerns that necessitated the preparation of environmental impact statements. The panel held that there was no indication that the agency failed to satisfy NEPA's procedural requirements. The panel concluded that the Forest Service gave the requisite hard look and made determinations that were neither arbitrary nor capricious, and were consistent with the evidence before it; and accordingly, the Forest Service did not violate NEPA.

         The panel held that the Forest Service conducted the required prefield work, consulted with the appropriate entities, and reached a determination with the evidence before it, and satisfied its procedural obligations under the National Historic Preservation Act.


         The opinion filed March 13, 2019, and reported at 918 F.3d 620, is hereby withdrawn. A superseding opinion will be filed concurrently with this order.



         Plaintiffs-Appellants (Plaintiffs) are environmental advocacy groups that challenged travel management plans implemented by Defendant-Appellee United States Forest Service (the Forest Service) to permit limited motorized big game retrieval in three Ranger Districts of the Kaibab National Forest. The district court granted the Forest Service's motion for summary judgment, concluding that the Forest Service complied with the Travel Management Rule, the National Environmental Policy Act (NEPA), and the National Historic Preservation Act (NHPA). We affirm.


         I. Factual Background

         A. The Kaibab National Forest

         The Kaibab National Forest encompasses approximately 1.6 million acres of public land in northern Arizona, including Grand Canyon National Park. It is comprised of three noncontiguous Ranger Districts: the Williams Ranger District, the Tusayan Ranger District, and the North Kaibab Ranger District.

         The Williams Ranger District is the southernmost, covering 560, 305 acres approximately thirty-five miles west of Flagstaff and sixty miles south of Grand Canyon National Park. It includes the Kendrick Mountain Wilderness, which extends into Coconino National Forest and features a diverse array of vegetation including Douglas firs, white firs, ponderosa pines, and aspens. The Williams Ranger District also serves as a habitat for a number of endangered species, including the Mexican spotted owl, the California condor, and the black-footed ferret. It contains six areas where spotted owls are known to live and breed, and three spotted owl critical habitats overlap the District.

         The Tusayan Ranger District, located just south of Grand Canyon National Park's south rim, encompasses 331, 427 acres. It features varied terrain, from ponderosa pine forests to grasslands, and is home to a number of sensitive species, including bald eagles, goshawks, peregrine falcons, burrowing owls, bats, and voles.

         The North Kaibab Ranger District covers 655, 078 acres immediately north of Grand Canyon National Park. Like the Williams and Tusayan Ranger Districts, the North Kaibab Ranger District boasts diverse terrain and vegetation, as well as sensitive animal species. Two federally listed endangered species-the Mexican spotted owl and California condor- live in the District, which the U.S. Fish and Wildlife Service has designated as critical habitat for the spotted owl.

         B. The Travel Management Rule

         In 2005, the U.S. Department of Agriculture promulgated a Travel Management Rule to "provide[] for a system of National Forest System roads, National Forest System trails, and areas on National Forest System lands that are designated for motor vehicle use." 36 C.F.R. § 212.50(a).[1] As part of this system, "[d]esignated roads, trails, and areas [are] identified on a motor vehicle map," which also "specif[ies] the classes of vehicles" and "the times of year for which use is designated." Id. § 212.56. Motor vehicle use is prohibited on roads not so designated. Id. § 212.50(a). The regulations include a specific provision concerning the use of motor vehicles for dispersed camping and big game retrieval, which allows that

in designating routes, the responsible official may include in the designation the limited use of motor vehicles within a specified distance of certain forest roads or trails where motor vehicle use is allowed, and if appropriate within specified time periods, solely for the purposes of dispersed camping or retrieval of a downed big game animal by an individual who has legally taken that animal.

Id. § 212.51(b).

         The Forest Service's Southwestern Regional Office issued guidelines for implementation of the Travel Management Rule, including its motorized big game retrieval provision. The guidelines noted that "National Forests in the Southwestern Region provide hunting opportunities that are important to the public," and directed forests to identify designated routes for game retrieval "in close collaboration with the responsible State agency." They also suggested, pursuant to discussions with the Arizona Game and Fish Department, that motorized big game retrieval be allowed "up to three miles from a designated route" for bison and "up to one mile from a designated route" for elk and mule deer.

         The Forest Service crafted travel management plans for each of the three Ranger Districts in the Kaibab National Forest. It also prepared an Environmental Assessment (EA) for each plan to ascertain its environmental impact, but did not undertake a more rigorous Environmental Impact Statement (EIS).

         i. The Williams Ranger District

         In July 2010, the Forest Service released the EA for the Williams Ranger District's travel management plan, and subsequently issued a Decision Notice and Finding of No Significant Impact (DN/FONSI). The DN/FONSI generally "prohibit[s] motorized travel off of designated routes on the Williams Ranger District," but permits "the limited use of motor vehicles within one mile of all designated system roads (except where prohibited) to retrieve a legally hunted and tagged elk during all elk hunting seasons." It allows motorized big game retrieval of elk (but not bison) up to one mile off all designated open roads, so long as hunters make only "[o]ne trip that uses [the] most direct route and least ground disturbing." The designated open road system consists of 1, 114 miles of roadway, a reduction from previous motor vehicle activity, when 1, 460 miles of roads and 95 percent of the District were open to motor vehicle use. Several miles of the open roads pass through the spotted owl critical habitat.

         ii. The Tusayan Ranger District

         Previously, the Tusayan Ranger District contained more than 700 miles of roads open to motor vehicles, and a vast majority of the District was open to cross-country motor vehicle travel. The Forest Service's final DN/FONSI for the District[2] designated 566 miles of road open to motor vehicles. The decision permits "[l]egally harvested elk [to] be retrieved during all legal elk hunting seasons" by motor vehicles within one mile of designated roads. Motorized retrieval of bison is not permitted, and the DN/FONSI limits use of motor vehicles when "conditions are such that travel would cause damage to natural and/or cultural resources," and mandated that "[m]otorized vehicles would not be permitted to cross riparian areas, streams and rivers except at hardened crossings or crossings with existing culverts."

         iii. The North Kaibab Ranger District

         Prior to implementation of a new travel management plan, 1, 852 miles of road in the North Kaibab Ranger District were open to motor vehicle use, with 83 percent of the District open to cross-county travel. In September 2012, the Forest Service released an EA analyzing the District's new plan. Among other data, the EA noted that while "[c]ross-country motorized travel, whether to retrieve game or for other purposes, can adversely affect cultural resource sites if a vehicle is driven across a site," only thirty-eight bison and no elk were taken from the District in 2009.

         The Forest Service issued a DN/FONSI that designated 1, 476 miles of open roads for motorized travel, including an additional 16 miles of unauthorized, user-created roads. Motor vehicles can be used to retrieve elk or bison during hunting seasons, under certain limiting conditions. Notably, the plan prohibits motorized retrieval of mule deer; the data indicated that far more mule deer-1, 020-were harvested in the District in 2009 than bison or elk. The DN/FONSI also included guidance for monitoring and mitigation, as well as practices to limit the spread of invasive exotic weeds.

         II. Procedural Background

         The Districts' travel management plans-their motorized big game retrieval provisions in particular-were administratively appealed, and the Regional Forester upheld them.

         Plaintiffs then filed a complaint for declaratory and injunctive relief in the district court. They challenged the travel management plans for each of the three Ranger Districts, alleging violations of the Travel Management Rule, the Administrative Procedure Act (APA), NEPA, and the NHPA. After the parties filed and briefed cross-motions for summary judgment, the district court granted the Forest Service's motion and denied Plaintiffs' motion. It further denied the motions for summary judgment filed by Intervenors-Defendants-Appellees State of Arizona (the State) and Safari Club International (Safari Club) as moot. This timely appeal followed.


         We review de novo a district court's order granting or denying a motion for summary judgment. Churchill County v. Norton, 276 F.3d 1060, 1071 (9th Cir. 2001). Under the APA, agency action can be set aside if it is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2)(A); see also WildEarth Guardians v. Mont. Snowmobile Ass'n, 790 F.3d 920, 932 (9th Cir. 2015) (Travel Management Rule reviewed under the APA); San Carlos Apache Tribe v. United States, 417 F.3d 1091, ...

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