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.
and Submitted February 7, 2019 Phoenix, Arizona
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.
R. Mellgren (argued), and Susan Jane Brown, Western
Environmental Law Center, Eugene, Oregon, for
Wilcox, WildEarth Guardians, Denver, Colorado, for
Plaintiff-Appellant WildEarth Guardians.
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.
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.
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.
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
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.
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.
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.
SMITH, CIRCUIT JUDGE.
(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.
AND PROCEDURAL BACKGROUND
The Kaibab National Forest
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.
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.
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.
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
The Travel Management Rule
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). 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
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).
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.
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).
The Williams Ranger District
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.
The Tusayan Ranger District
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 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."
The North Kaibab Ranger District
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.
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.
Districts' travel management plans-their motorized big
game retrieval provisions in particular-were administratively
appealed, and the Regional Forester upheld them.
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.
OF REVIEW AND JURISDICTION
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,