Federal District Court Judge Dana Christensen issued an order on June 29 in favor of the U.S. Forest Service in its adoption of the Bitterroot National Forest Travel Plan in almost every respect. The exception was the agency’s handling of the issue of using “mechanized vehicles,” meaning bicycles, in the Sapphire and Blue Joint Wilderness Study Areas. This issue was remanded back to the Forest Service for further consideration and more public comment. The Travel Plan had been challenged in court by Bitterroot Ridge Runners Snowmobile Club, et al.
There are two Wilderness Study Areas (WSAs) located within the Bitterroot National Forest, the Sapphire and Blue Joint Wilderness Study Areas (“Study Areas”) and there are two Recommended Wilderness Areas (RWAs), the Selway-Bitterroot and Blue Joint RWAs.
The Blue Joint WSA contains approximately 65,860 acres, ranging from 4,900 to 8,600 feet in elevation, with roughly half of the area being relatively high mountainous terrain over 7,000 feet. The Sapphire WSA contains 117,030 acres, with over 72,000 acres being located on the adjacent Beaverhead-Deerlodge National Forest. The FEIS indicates that the Bitterroot portion of the Sapphire WSA consists of 44,116 “net acres.” The Sapphire WSA has elevations ranging from 5,000 to 9,000 feet, with about sixty percent of the area being over 7,000 feet in elevation.
Work on the Travel Plan began in the fall of 2006, after the implementation of the Travel Management Rule, which was formally adopted on November 9, 2005. A Draft Environmental Impact Statement (DEIS) was released in August of 2009. Following years of review including many public hearings, a Final Environmental Impact Statement was issued in April 2015. Ten issues raised during the objection period led to the issuance of a revised FEIS which was formally adopted on May 11, 2016.
The Travel Plan closed all RWAs to motorized and bicycle travel and none of the DEIS action alternatives allowed for motorized equipment or mechanical transport in RWAs. The Final decision reduced areas designated open for snowmobile use from 748,981 acres to 543,840 acres, and prohibited all motorized or mechanized transport, including bicycles, for both summer and winter uses, in Recommended Wilderness Areas. Before the adoption of the Forest Plans, over-snow motorized and mechanized use was permitted in the Sapphire and Blue Joint WSAs in 1977.
The Travel Plan restricts snowmobile access on 205,141 acres for winter use. Further, after receiving public comment on the DEIS, the Travel Plan prohibits bicycling throughout the two WSAs. Of particular interest to the Plaintiffs was the closure of backcountry bicycling on additional miles off trails in the WSAs.
Plaintiffs in the case alleged the agency violated the National Forest Management Act, the Wilderness Act, the Montana Wilderness Study Act, the National Environmental Policy Act, and the Administrative Procedures Act in its adoption of the Travel Plan. They sought injunctive relief from implementation of the plan.
Judge Christensen rejected the plaintiffs’ accusation that the process was “predetermined” by the agency’s “guidance,” as opposed to the site-specific analysis of impacts to wilderness character in the Bitterroot Forest.
After reviewing the record in the case, the Court found that there is no indication that the Forest Service made an “irreversible and irretrievable commitment” to close the Bitterroot RWAs prior to making its decision. The Court acknowledges that the record here does have more evidence that the regional guidance existed and that Forest Service personnel understood this guidance and attempted to be consistent with it when revising the forest plan. However, the Court does not agree with the plaintiffs that “key personnel undertook a mission to change RWA management, in which they unabashedly advocated for an outcome.”
“The record is replete with evidence that the Forest Service conducted a thorough NEPA analysis involving multiple public comment periods and the consideration of alternatives such as a limited quota permit system in RWAs. Thus, while Region 1 guidance is consistent with the final Bitterroot Travel Plan, the Forest Service took a ‘hard look’ at the environmental impacts of alternative motorized and mechanical transport use and determined that closure of the RWAs in the Bitterroot was most appropriate to maintain forest integrity,” states the Order.
Christensen also rejected the claim that the Forest Service made its decision without the required data and based its decision not on scientific analysis but on “social impacts which is not a rational basis for complete closure of the RWAs to motorized and bicycle use.”
“Here, the Court finds that the Forest Service supported its conclusion to close RWAs in the Bitterroot to motorized and bicycle use with sufficient, reliable scientific factors. The Forest Service found that motorized and mechanized use sharply increased over the past 40 years and that prohibiting such uses would “protect the existing high value of the areas for providing primitive recreation experiences, and ensure the area retains its wilderness qualities.”
The Forest Service further recognized that there are direct and indirect consequences of allowing such uses to occur, and noted in the FEIS that while “some types of motorized and mechanical transport use do not appear to have lasting effects on the landscape, there may be impacts on the social and biotic environment that do not show as physical ‘scars’ on the land.”
The Forest Service assessed four alternatives for RWA management in relation to summer motorized/mechanical transport and winter motorized/mechanicaltransport. There are no open miles of trails in RWAs in the summer or winter in Alternative 1 and 4. Alternatives 2 and 3 provide 39.7 miles of motorized trails and 67.8 miles of mechanical trails, and 63.6 miles of motorized trails and 67.8 miles of mechanical transport, respectively, in the summer, and 73,809 acres and 74,097 acres, respectively, in the winter.
The Court found that the agency did the appropriate research and analyzed alternative approaches and concludes that the record proves the Forest Service took a “hard look” at long-term environmental harm in the Bitterroot, assessed the impact of motorized and bicycle use at a site-specific level to the best of its ability, and designated RWAs properly.
Christensen also rejected the claims that the Travel Plan illegally imposed wilderness management standards on the Sapphire and Blue Joint WSAs. The plaintiffs’ arguments were twofold – that the Forest Service improperly interpreted the governing MWSA law; and that there was no site-specific analysis to justify WSA closures and that the closures advanced impermissible goals.
Applying the same legal principles to this issue, the Court concluded that the Forest Service properly interpreted the MWSA guidelines for maintaining existing wilderness character in 1977.
“Because the Forest Service found that the current amount of motorized and mechanical users has far surpassed the 1977 levels, it appropriately created current wilderness designations beyond what existed in 1977. The Ninth Circuit found in Russell Country that nothing in the MWSA prohibits the Forest Service from enhancing the wilderness character of a wilderness study area,” wrote Christensen.
Secondly, the Court found that the Forest Service did not err in changing the management of the Sapphire and Blue Joint WSAs to restrict motorized and mechanical use in order to maintain the areas’ 1977 wilderness character.
“The Court finds here, that while the Forest Service did not have complete data relating to the recreational use of the Bitterroot Forest over time, it did the best it could with the data it had and did not ignore the possibility of allowing motorized and mechanical recreational use in WSAs. Thus, the Forest Service adequately grappled with the problem defined by the MWSA and appropriately limited use in WSAs to maintain wilderness character,” stated Christensen in his Order.
Thirdly, the Court found that the Forest Service did not advance impermissible goals by closing WSAs.
“Plaintiffs contend that the Forest Service decision to manage WSAs for “social and ecological characteristics” runs afoul of Congressional intent. Because the Forest Service has broad authority to manage and protect wilderness character, the Court gives deference to the Forest Service as to what factors – social, ecological, or otherwise – have the largest impact on its decision to close WSAs to all uses other than hiking and horseback,” he wrote.
Christensen also disagreed with the plaintiffs’ allegations that the Travel Plan decision was inconsistent with the Forest Plan.
The Court did not agree that the Forest Plan ‘commands’ continued current uses regardless of their impact on wilderness character. Instead, the Forest Service appropriately analyzed the current uses and determined that they would detract from wilderness character, as indicated by the Forest Plan directive.
Plaintiffs claimed the Forest Service did not examine the conflicts of “use,” but only the conflicts between “users;” and that the Forest Service improperly fixated on subjective user preferences and personal values in reaching its decision about which areas to designate for quiet-use recreation, rather than objective motor vehicle use. They also claimed that the designation of non-motorized areas is “entirely bereft of data or fact.”
The Court again disagreed, finding that the Forest Service conducted three rounds of National Visitor Use Monitoring Surveys (“NVUM”) that considered the conflicts between motor vehicle use and other non-motor recreational uses.
Christensen found that Plaintiffs’ second argument also fails “because the entire reasoning behind the Travel Management Rule was to revisit the management of motor vehicle use on National Forest System lands. The best way to measure ‘conflicts’ between motor and non-motorized use is to evaluate the public’s preferences and personal values when recreating in the Bitterroot.”
Christensen found the third claim that the Record has no data or fact to support the designation of non-motorized areas is contradicted by the Record itself.
The last claim to be addressed in the Order was the claim that the Travel Plan arbitrarily designates vehicle type restrictions, focusing on snowmobiles and bicycles.
Plaintiffs asserted that the Forest Service impermissibly made snowmobile designations by focusing on areas rather than individual routes, and that the Record must reflect at least rational determinations based on an articulable analysis, in sum, disagreeing with the closure of 205,141 acres of snowmobile use in the Bitterroot.
Christensen was not persuaded. He noted that the plaintiffs did not cite any supporting authority other than Motor Vehicle Manufacturers Association, which merely discusses the arbitrary and capricious standard under NEPA.
“Plaintiffs essentially rehash here the same arguments made in relation to the RWAs and WSAs…There is ample analysis and data in the Record to support the Forest Service’s decision to close certain parts of the Bitterroot to over-snow vehicle use,” wrote Christensen.
Overall, the ROD reduces the designated areas for snowmobile use from 748,981 acres to 543,840 acres on the 1.6 million acre Bitterroot Forest. A majority of this acreage is due to closure of RWAs and WSAs. The remaining approximately 60,000 acres are closed to over-snow vehicles to protect ecological processes, wildlife, soil and water resources, and provide a more primitive recreation experience. The rules allow the agency to designate “areas” for over-snow vehicle use on National Forest System lands.
In his analysis of the bicycle issue, Christensen acknowledged that the Record gives little discussion in the DEIS and FEIS as to the physical impact of bicycle use in the Sapphire and Blue Joint WSAs.
However, the Court defers to the Forest Service’s rationale that the social impacts, including the feeling of being in an undeveloped setting, are sufficient to support its decision to close RWAs and WSAs to bicycle transport.
“Thus, given that bicycle use was not occurring in 1977 but has grown exponentially since then, it was not arbitrary and capricious for the Forest Service to prohibit bicycles in areas that may be suitable for designation as wilderness,” states the Order. The Court also found that the increase in WSA closure to bicycles in the ROD does not require a supplemental NEPA analysis.
“Similar to the Court’s finding in Ten Lakes, however, the issue here lies with the issuance of the Record of Decision without an objection response period in regards to total closure of 110 miles of WSA trails to bicyclists. The FEIS explains that Alternative 1 would allow 47.6 miles of mechanical transport use/mountain bike travel. The DEIS did not mention the addition of 62.4 miles closed to bicycle use in the WSAs. Public comment was allowed after the DEIS was issued, but the Forest Service did not provide any objection response period in regards to the FEIS or ROD. This was in error.
“Consequently, the Court finds that the Forest Service abused its discretion by including the extra miles of WSA bicycle use closure without providing public comment. The Court remands this specific portion of the Final ROD to the Forest Service, and grants Plaintiffs motion for summary judgment on this claim,” states the Order.
“Here, because the Court concludes that the Forest Service’s decision to close additional miles of mechanized transport trails in WSAs without public comment was arbitrary and capricious, the Court remands the Bitterroot Forest Plan with instructions to: (1) conduct an objection response period with respect to these additional miles of trails in the Sapphire and Blue Joint WSAs; (2) take the objections into consideration; and (3) either modify the FEIS and Final ROD accordingly, or show that the eligibility of the total 110 miles of mechanized use closures in WSAs is permissible under the Administrative Procedures Act. In all other respects, the Court finds that the Bitterroot Forest Plan does not violate the NEPA, NFMA, or MWSA. With the exception of the narrow remand ordered above, the Court finds that the Plaintiff has failed to establish that the challenged actions of the Forest Service were arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law,” the Order concludes.