IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
BRYSON CITY DIVISION
CIVIL CASE NO. 2:10cv15
SOUTHERN FOUR WHEEL DRIVE ASSOC., )
UNITED FOUR WHEEL DRIVE ASSOCIATIONS, )
THE BLUERIBBON COALITION, )
)
Plaintiffs, )
)
vs. )
)
UNITED STATES FOREST SERVICE, )
NANTAHALA NATIONAL FOREST, )
MARISUE HILLIARD, Forest Supervisor, )
)
Defendants. )
)
TROUT UNLIMITED, PUBLIC EMPLOYEES FOR )
ENVIRONMENTAL RESPONSIBILITY, )
WILD SOUTH, )
)
Intevenor-Defendants. )
)
MEMORANDUM OF DECISION AND ORDER
THIS MATTER is before the Court on the following matters:
1. The Plaintiffs’ Motion for Summary Judgment [Doc. 32];
2. The Defendants’ Motion for Summary Judgment [Doc. 38]; and
3. The Intevenor-Defendants’ Motion for Summary Judgment [Doc. 40].
Case 2:10-cv-00015-MR-DCK Document 47 Filed 09/19/12 Page 1 of 50
2
PROCEDURAL HISTORY
On May 18, 2010, the Plaintiffs brought this action pursuant to the
Administrative Procedures Act (APA), 5 U.S.C. §§551, et. seq., seeking
judicial review of a final agency action. [Doc. 1]. The Plaintiffs seek
declaratory judgment and injunctive relief requiring the Defendants to adhere
to the National Forest Management Act (NFMA), 16 U.S.C. §§1600, et. seq.,
the National Environmental Policy Act (NEPA), 42 U.S.C. §§4331, et. seq.,
and the APA in connection with the final agency decision of October 14, 2009
to prohibit and restrict recreational vehicular access to the Upper Tellico Off-
Highway Vehicle (OHV) System of the Nantahala National Forest (the Forest).
[Id.].
On June 17, 2010, the Intervenor-Defendants moved to intervene in the
action based on their status as nonprofit organizations dedicated to the
conservation of water quality, trout habitat and responsible management of
the National Forests, including Nantahala. [Doc. 12-1]. No opposition to that
motion was filed by either the Plaintiffs or the Defendants and the motion was
granted. [Doc. 16].
On December 6, 2010, the parties reported that a mediated settlement
conference had been unsuccessful. [Doc. 27]. As a result, the parties, who
Case 2:10-cv-00015-MR-DCK Document 47 Filed 09/19/12 Page 2 of 50
The parties filed portions of the Administrative Record as exhibits to their1
pleadings and submitted the entire record in camera. Only those portions cited within
this decision have been filed in the docket of the case.
3
concede the case should be resolved on the pleadings, were provided
deadlines within which to file motions and cross-motions for summary
judgment. [Doc. 29; Doc. 31; Doc. 33 at 2; Doc. 43 at 1]. The parties did,1
however, requested oral argument on those motions. [Doc. 44; Doc. 45]. Oral
argument having been held on August 23, 2012, the motions are ripe for
disposition.
STANDARDS OF REVIEW
NEPA is a statute which “sets forth a regulatory scheme for major
federal actions that may significantly affect the natural environment.” Webster
v. U.S. Dept. of Agriculture, 685 F.3d 411, 417 (4 Cir. 2012). NFMA governsth
the United States Forest Service’s regulation of the National Forest System.
16 U.S.C. §§1600, et. seq. NEPA requires the United States Forest Service
(Forest Service) to “consider the cumulative impact on the environment of
related federal actions.” Shenandoh Ecosystems Defense Group v. U.S.
Forest Service, 194 F.3d 1305 **3 (4 Cir. 1999). Claims which challengeth
federal agency action taken pursuant to NEPA are subject to judicial review
pursuant to the APA. Friends of Back Bay v. U.S. Army Corps of Engineers,
Case 2:10-cv-00015-MR-DCK Document 47 Filed 09/19/12 Page 3 of 50
4
681 F.3d 581, 586 (4 Cir. 2012). th
In reviewing an agency’s efforts to comply with the NEPA, [the
court’s] task is to ensure that [the agency] took a hard look at the
environmental consequences of the proposed action. ... A hard
look involves, at minimum, a thorough investigation into the
environmental impacts of [the] action and a candid
acknowledgment of the risks that those impacts entail. In
conducting this review, [the court] may not flyspeck [the] agency’s
environmental analysis, looking for any deficiency, no matter how
minor. Instead, [the court] must take a holistic view of what the
agency has done to assess environmental impact and examine all
of the various components of [the] agency’s environmental
analysis ... to determine, on the whole, whether the agency has
conducted the required hard look.
Moreover, because the [APA] governs [the] review of claims
brought under the NEPA, [the court] may set aside the agency’s
decision only if it is arbitrary, capricious, an abuse of discretion,
or otherwise not in accordance with law. This involves a
searching and careful, but ultimately narrow and highly deferential
inquiry. In the end, [i]f the agency has followed the proper
procedures and if there is a rational basis for its decision, [the
court may] not disturb its judgment.
Webster, 685 F.3d at 422-23 (internal citations and quotations omitted).
Because this case involves the review of agency action pursuant to the
APA, the Court’s review is confined to the administrative record on which the
agency’s decision was based. Tinicum Township., Pa. v. U.S. Dept. of
Transportation, 685 F.3d 288 (3 Cir. 2012) (citing 5 U.S.C. §706(2)(A)); Ohiord
Valley Environmental Coalition v. Aracoma Coal Co., 556 F.3d 177, 201 (4 th
Cir.), cert. denied U.S. , 131 S.Ct. 51, 177 L.Ed.2d 1141 (2010) (review
Case 2:10-cv-00015-MR-DCK Document 47 Filed 09/19/12 Page 4 of 50
5
of agency action is limited to the administrative record unless the issue is the
adequacy of an environmental impact statement or a determination that one
is unnecessary).
All of the parties have moved for summary judgment. “Under APA
section 706(2) review, the court does not employ the usual summary
judgment standard. This is because the court is not generally called upon to
resolve facts in reviewing agency action.” Center for Sierra Nevada
Conservation v. U.S. Forest Service, 832 F.Supp.2d 1138, 1148 (E.D.Cal.
2011) (citing Occidental Engineering Co. v. Immigration and Naturalization
Service, 753 F.2d 766, 769-70 (9 Cir. 1985) (other citations omitted);th
Syngenta Crop Protection, Inc. v. U.S.E.P.A., 2011 WL 3472635 **17
(M.D.N.C. 2011).
Under the APA, it is the role of the agency to resolve factual
issues to arrive at a decision that is supported by the
administrative record, whereas “the function of the district court is
to determine whether or not as a matter of law the evidence in the
administrative record permitted the agency to make the decision
it did.” Summary judgment thus serves as the mechanism for
deciding, as a matter of law, whether the agency action is
supported by the administrative record and otherwise consistent
with the APA standard of review.
University Medical Center, Inc. v. Sebelius, F.Supp.2d , 2012 WL
1309133 **7 (D.D.C. 2012) (quoting Occidental, 753 F.2d at 769-70).
Case 2:10-cv-00015-MR-DCK Document 47 Filed 09/19/12 Page 5 of 50
Unless otherwise noted, all facts are taken from the Administrative Record. 2
6
FACTS FROM THE ADMINISTRATIVE RECORD2
As previously noted, this case involves review of the Defendants’
decision to prohibit and restrict recreational vehicular access to the Upper
Tellico OHV System (the System, or the trail system) of the Forest. The
Plaintiff Southern Four Wheel Drive Association “is a nonprofit organization
formed in 1987 and dedicated to promoting four-wheel drive recreation,
responsible land usage, conservation and education.” [Doc. 1 at 2]. Its
members used the trail system before its closure. [Id. at 3].
The Plaintiff United Four Wheel Drive Associations consists of individual
members, clubs and associations sharing an interest in recreational off-road
activities, including the use of four wheel drive vehicles. [Id.]. Its members
also used the trail system before its closure. [Id.].
The Plaintiff The BlueRibbon Coalition, Inc. is a nonprofit corporation
whose members use off-road vehicles, horses and bicycles to access lands
managed by the Forest Service. [Id.]. Its members also used the Tellico trail
system before its closure. [Id.].
The Upper Tellico OHV System is located in Cherokee County, North
Carolina within the Forest. [AR 10643]. The headwaters of the Tellico River
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The NRCS is an agency of the United States Department of Agriculture. 3
Webster, 685 F.3d at 416 n.1.
7
are located in Cherokee County, North Carolina. The river flows from there
into Tennessee. It is on the watershed of the Tellico that the System is
located. [AR 10643]. In 1991, the North Carolina section of the Tellico River
was classified as wild trout waters by the North Carolina Wildlife Resources
Commission. [Id.]. The Tellico watershed receives more than 80 inches of
rain per year, with the rainiest months being from December through March.
[AR 10655]. The soils of the Tellico watershed have been classified by the
Natural Resources Conservation Service (NRCS) as a severe erosion hazard
and poorly suited for dirt roads. [AR 10669].3
At issue is the system of off-road trails based on old logging roads
constructed over fifty years ago by private logging companies and land
owners. [AR 404]. Eighty-five percent of these former logging roads and
trails are surfaced with bare soil and do not meet current standards. They
could not have been built had those standards been in place at the time of
their construction. [AR 10666, 10670, 10672].
In 1980, the Forest Service acquired the properties on which the System
is located. [AR 00740]. The Forest Service closed trails which were
environmentally unacceptable but maintained twelve numbered trails which
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8
were open to off-road vehicles. [AR 265, AR 10783]. On May 1, 1986, the
System was officially established by the Forest Service. [AR 10643]. The
System included high challenge areas which featured exposed boulders and
bedrock which were passable only by specialized four wheel rock crawlers.
[AR 10783]. The trails accessible to four wheel drive vehicles had been
poorly maintained and the rate of erosion increased as the usage of the trials
increased. [AR 10678]. Ironically, the greater the rate of erosion, the more
these roads were used because challenging trails became all the more
challenging and hence, more popular. [AR 10783]. In 1997, 1,472 off-road
vehicles per month used the System. [AR 265, 02814]. By 2006, 1,986
vehicles per month were using the System, but by the time of the initial
closure of the System in December 2007 that had decreased to 1,411
vehicles per month continued to use the System. [AR 2157-61, 02814].
The Forest Service did not conduct an initial environmental assessment
of the area when it first acquired the tract and trails in 1980. [AR 00787]. In
September 2004, the Service published the Upper Tellico Assessment and
Strategy in which it noted that monitoring the impact of the use of off-road
vehicles on water quality needed to commence. [AR 263-85]. It also noted
that a full-time administrator on the site was necessary, as well as certain
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9
improvements to the trails and crossings. [Id.].
Because of the evidence of increased erosion, the Forest Service
conducted its first comprehensive assessment of the System in 2005. [AR
402-44]. In a report published in September 2005, the Forest Service found:
[W]ithin the Upper Tellico River watershed[,] streams draining
areas with OHV trails have a higher concentration of suspended
sediment than those drainages without OHV trails.
...
Poor design and location, in combination with excessive use, has
resulted in deteriorated travelways to the point that regular
road/trail [Best Management Practices] are no longer adequate to
protect trails from erosion and stream channels from
sedimentation.
...
[O]verall trout densities within the Upper Tellico area are
measurably lower than streams of similar size, topography and
geology across the Forest.
[AR 417, 418, 435]. The Forest Service further noted that a “knowledge gap”
existed concerning the impact of the accelerated erosion on aquatic
communities within the System and the Forest in general. [AR 418-19].
In early 2007, the North Carolina Wildlife Resources Commission
(NCWRC) sought to close that knowledge gap by publishing its report titled
“A Summary of Wild Trout Population Monitoring in the Tellico River
Watershed, 1994-2006" (Report). [AR 739-61]. In the Report, NCWRC
documented that between 2003 and 2006, surveys at several locations within
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the System found no newly spawned or less than one year old trout. [AR 740,
743]. Samples conducted at higher elevations and further from the trails
showed better results than samples taken downstream from the trails. [AR
743-44]. The deposit of sediment both from natural environmental factors as
well as the System was noted to have had a detrimental impact on trout
reproduction with reproductive failures occurring in 50% of the Tellico River.
[AR 745]. The Report concluded that the “[i]ncreased reproductive failures at
the Tellico River sites heightens the risk of losing the trout populations from
those sections entirely.” [Id.]. NCWRC recommended that a study be
conducted to determine the effect of the environmental factors, both natural
and manmade, on the wild trout populations in the Tellico River Watershed.
[Id.]. The study, it recommended, should include “measurements of sediment
loading (sources, rates, and timing) and other water quality parameters.” [Id.].
Intervenor-Defendant Trout Unlimited met with the Forest Service on
June 21, 2007 concerning the NCWRC Report. [AR 773-75]. The
Administrative Record shows that the meeting was attended by members of
the Southern Environmental Law Center (SELC) which represented Trout
Unlimited and Public Employees for Environmental Responsibility. [AR 774,
788]. Although the meeting was congenial, the Intervenor-Defendants gave
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The record contains nothing showing that a suit was thereafter initiated. 4
The notes from the meeting contain a statement by the representative for Trout5
Unlimited that he had met with the Forest Service, was “pleased” with the proposals and
had filed the notice of intent to sue. [Id.]. It appears that the word “not” was omitted
from the notes; otherwise, the sentence would appear to be inconsistent.
11
the Forest Service Notice of Intent to Sue seven days later. [AR 776]. The4
Plaintiffs refer to this as a “private meeting.” [Doc. 33 at 4]. The
Administrative Record, however, does not show any request by the Plaintiffs
to participate in the meeting or to meet separately with Forest Service
representatives.
On August 24, 2007, the Forest Service conducted a meeting with
“stakeholders;” that is, organizations having an interest in the System and the
Tellico River Watershed. [AR 816]. Among the “stakeholders” attending the
meeting were Plaintiff Southern Four Wheel Drive Association and Intervenor-
Defendant Trout Unlimited. [Id.]. A major topic of discussion was the
possibility of seasonal or temporary closing of the trails. [AR 817]. During
that meeting, it was disclosed that Trout Unlimited had met with the Forest
Service, was not pleased with the outcome of that prior meeting and had filed
a Notice of Intent to Sue. [AR 819]. References in the notes from that5
meeting show that the Service had routinely met with the stakeholders. [AR
819].
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On September 13, 2007, Trails Unlimited, a subdivision of the Forest
Service, submitted its “Review of the existing Tellico OHV Trail System on the
Nantahala NF for Maintenance Practices, Realignment-Reconstruction and
their associated costs.” [AR 835, 844]. The purpose of the review was to
assess the condition of the area and costs associated with its continued
maintenance. [AR 835]. In the report it is repeatedly noted that the “costs do
not reflect environmental review.” [AR 835-44]. Despite these limiting
statements, the Plaintiffs contend that, in this report, Trails Unlimited
concluded that the main problem with the Tellico OHV System was a lack of
maintenance which could be remedied with appropriate work and budget.
[Doc. 33 at 6].
On September 17, 2007, the Forest Service elicited public comment on
a proposal to temporarily close three trails and to prohibit winter use of the
System. [AR 855]. The stated reason for the proposal was “to correct and/or
repair ongoing impacts to the aquatic resources caused by sediment entering
waters from the Tellico trail system.” [Id.]. The public was asked to make
comments on or before October 17, 2007. [AR 856].
On September 21, 2007, the Forest Service met with representatives of
Trout Unlimited and SELC. [AR 859]. The Plaintiffs refer to this as “another
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Indeed almost 1,255 pages in the Administrative Record deal with these6
initiatives and assessments. The Court has not required all such documents to be filed
in the record of this case.
13
private meeting.” [Doc. 33 at 7]. The Plaintiffs have not, however, pointed to
anything in the Administrative Record showing that they were denied access
to any such meetings with the Forest Service. In fact, the notes from this
meeting contain a recommendation that the Forest Service should meet with
all interested parties at the conclusion of the comment period. [AR 859].
Representatives from Trout Unlimited and SELC stated they would arrange
a meeting which would include Southern Four Wheel Drive. [Id.].
The parties concede that the Administrative Record shows a “flurry of
agency internal activity” throughout the fall of 2007. [Doc. 33 at 7; Doc. 40-16
at 6; Doc. 39 at 13]. The Forest Service adopted a plan to monitor sediment
levels in the water, to measure sediment deposits in stream beds, and to
assess aquatic macroinvertebrates. [AR 2116, 2117, 2121]. The Forest
Service initiated and completed trail condition surveys which were conducted
by staff having experience in engineering, fisheries and hydrology. [AR 2041,
2051]. Every feature within the System was photographed and the movement
of sediment was measured. [AR 2043, 6175].
On December 18, 2007, the Forest Service issued the Forest
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The Forest Plan specifically directs the management of trails in such way as to7
“minimize adverse effects on riparian area resources.” [Doc. 39-2 at 3]. The Plan
dictates that streams be managed for “self-sustaining fish populations” and for “wild
trout.” [Id.]. It also requires that the Forest Service maintain trails in such a manner that
“no visible sediment reaches the stream channel[s].” [Id.].
14
Supervisor’s Orders for the Upper Tellico Off-Highway Vehicle Area. [AR
2141]. It was therein determined that Trails 7, 8, 9 and Lower Trail 2 should
be temporarily closed for a one year period and that the entire area should be
closed from January 1 through March 31 of 2008. [Id.]. In making this
determination, the Forest Supervisor cited the Forest Plan, noting that the use
of off-road vehicles was approved only “if such use does not adversely affect
other resources.” [Id. at 2142]. The temporary closures were necessary, she7
wrote, “to correct ongoing impacts to area waters and aquatic resources
caused by sediment from the Upper Tellico road and trail system.” [Id.]. The
Supervisor also cited three trail bridges on Trail 8 which were unsafe for off-
road vehicles, requiring their emergency closure. [Id.]. The closure was
implemented pursuant to the Forest Plan and 36 C.F.R. §261.50(b) which
authorized the Supervisor to “issue orders which close or restrict the use of
any National Forest System road or trail within the area over which [s]he has
jurisdiction.” [Id. at 2143]. Citing the United States Forest Service Handbook,
the Supervisor found that because the closures “[did] not individually or
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15
cumulatively have a significant effect on the quality of the human environment,
. . . [they] are categorically excluded from documentation in an Environmental
Assessment or Environmental Impact Statement,” [Id.] and further found that
“no extraordinary circumstances exist that warrant any further analysis and
documentation.” [Id.].
On May 22, 2008, a lawsuit was brought in this Court by some of the
same plaintiffs herein against the defendants herein challenging this interim
closure order. United Four Wheel Drive Association, et. al. v. United States
Forest Service, et. al., Civil Case No. 2:08cv11. On October 30, 2008, the
parties filed a Stipulation of Dismissal without prejudice “in light of the Forest
Service’s stated intention to complete a public planning process and
announce a new decision in the near future which will likely substantially
impact or change the interim orders referenced in the complaint[.]” Id. at Doc.
40.
While that lawsuit remained pending, on June 9, 2008, the Forest
Service again elicited public comment on a proposal to reduce the size of the
System from 39.5 miles to 24 miles, while implementing modifications and use
management techniques to reduce sediment discharge. [AR 2824]. Included
in the notice were the following directives: “The road and trail system cannot
Case 2:10-cv-00015-MR-DCK Document 47 Filed 09/19/12 Page 15 of 50
These comments are part of the Administrative Record but due to the volume8
thereof, they have not been filed in the record of this case.
Again, although the entire Predecisional Environmental Assessment is part of9
the Administrative Record, it has not been filed in the record of this case.
16
continue to contribute additional visible sediment to the Tellico River and its
Tributaries” and “The road and trail system cannot repeatedly incur excessive
maintenance and reconstruction cost.” [AR 2831]. It was noted that the
current management plan was not economically or environmentally viable.
[AR 2832]. The notice also advised that an Environmental Assessment was
being completed. [Id.].
A public meeting was held on June 28, 2008. [AR 2902]. Written
comments were received from the public, including Southern Four Wheel
Drive Association. [AR 2890, 2903-3083, 3137-3244, 4432-86]. Throughout8
the remainder of 2008, the Forest Service worked on an Environmental
Assessment.
The Forest Service issued a Predecisional Environmental Assessment
in February 2009. [AR 5483]. In the 209 page assessment, the Supervisor
discussed alternatives to closure but concluded that she could not
recommend keeping the System open for off-road recreational vehicle use.9
[AR 5700]. On February 27, 2009, the Forest Service again solicited public
comment with the Supervisor noting:
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There were actually two decision notices issued, one of which dealt with the10
conversion of Trail 1 into a paved forest road. The Plaintiffs do not attack that decision.
[Doc. 33 at 10 n.1]. It will therefore not be addressed further.
17
The EA [Environmental Assessment] shows that the Upper Tellico
OHV System has extensive damage and contributes
unacceptable levels of sediment into the Tellico River and its
tributaries. Sediment is leaving the OHV System from more than
2,000 locations along the trails. The Agency is in violation of
North Carolina state water quality standards because of the
conditions on Upper Tellico OHV System. ... While I understand
how important the Upper Tellico OHV System is to OHV users,
the impacts to water quality are so significant that I cannot
recommend keeping the System open at this time. After careful
consideration of the environmental effects of the alternatives as
presented in the EA, my preferred alternative is Alternative C,
which closes the OHV System. Alternative C would maintain over
10 miles of existing Forest system roads (currently also OHV
trails), open year-round or seasonally, to provide public access for
hunting, fishing and other recreation uses. Trail 1 ... would be
paved and kept open as a through route for highway-legal
vehicles.
[AR 5700].
An Interim Closure Order was issued on March 31, 2009 during the
public comment period. [AR 6300]. Approximately 3,700 pages of the
Administrative Record consist of the comments received in response thereto.
On October 14, 2009, the Forest Service issued its final Environmental
Assessment and Decision Notice. [AR 10614, 10630, 10639]. In the final10
Environmental Assessment, which is in excess of 250 pages, the Forest
Service considered alternatives to closing the System which had been
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18
proposed by off-road vehicle organizations, including one proposed by Trails
Unlimited. [AR 10659-61]. Based on the trail surveys and assessments
conducted by the Forest Service, all the alternatives proposed by
stakeholders and others were rejected as economically and geographically
unfeasible. [AR 10660-61]. The Forest Service made the following findings:
1. The Forest Plan standards for soil and water were being violated. [AR
10644].
2. The Service’s Best Management Practices were failing. [Id.].
3. Due to the heavy off-road use of the System, inadequate maintenance,
severe erosion and heavy rainfall, the Best Managements Practices
were not sustainable. [Id. at 10644-45].
4. North Carolina standards for turbidity in the Tellico River were being
violated. [Id. at 10645].
5. The reproduction of trout had been and continued to be negatively
impacted. [Id.].
6. The System violated the Forest Plan standards for trail density and level
of challenge. [Id. at 10646].
7. The System also was not in compliance with the Travel Management
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A comparison of the financial burdens of each alternative considered in the final11
Environmental Assessment was attached thereto. [AR 10864-68].
19
Rule and was not financially or environmentally sustainable. [Id.].11
The Forest Service determined to close the System to all OHV traffic,
except for 13.4 miles of trails which were to be converted to forest roads for
street-legal vehicles. [AR 10653]. The area would remain open for foot travel
once trails were rehabilitated. [Id.].
The Plaintiffs thereafter brought this action asserting that the Forest
Service failed to comply with the NFMA and the NEPA.
DISCUSSION
I. The Plaintiffs’ Motion for Summary Judgment.
The Plaintiffs present several assignments of error, asserting various
violations by the Forest Service in making its determination. Each of these is
addressed separately.
A. The Forest Service predetermined the outcome.
In this assignment of error, the Plaintiffs claim that the Forest Service
made a final determination to close the Tellico OHV System before conducting
the required environmental analysis through either an Environmental
Assessment (EA) or an Environmental Impact Statement (EIS). In making this
allegation the Plaitniffs argue that the December 18, 2007 Order temporarily
Case 2:10-cv-00015-MR-DCK Document 47 Filed 09/19/12 Page 19 of 50
It is undisputed that this is a reference to the December 18, 2007 Order.12
20
closing certain trails within the System for a one year period and seasonally
closing the entire System was in fact the final determination by the Forest
Service.
On May 22, 2008, the Plaintiffs herein brought a civil action against
these same Defendants in order to “challenge the Forest’s decision to prohibit
and restrict vehicular access along previously-open roads and trails through
the Forest Supervisor’s Orders and Decision Memo dated December 20,
2007[.]” United Four Wheel Drive Association, et. al. v. United States Forest12
Service, et. al., Civil Case No. 2:08cv11 at Doc. 1. The parties filed a
stipulation of dismissal on October 30, 2008, noting that the Forest Service
was continuing a planning process which would impact or change this interim
order. Id. at Doc. 40. By basing its dismissal on the acknowledgment that the
Forest Service’s work regarding the issue was on-going, the plaintiffs in that
action conceded that no final agency action had yet occurred. Having
acknowledged that their first lawsuit was premature, the Plaintiffs are now
estopped from asserting that the final decision had by then been made.
“Review under the APA is ...limited to “final agency action” for which there is
no other adequate remedy in a court.” Fund for Animals, Inc. v. U.S. Bureau
Case 2:10-cv-00015-MR-DCK Document 47 Filed 09/19/12 Page 20 of 50
21
of Land Management, 460 F.3d 13, 18 (D.C.Cir. 2006) (quoting 5 U.S.C.
§704) (emphasis in original). If no final agency action has occurred, the action
is not reviewable. Id. To the extent that the Plaintiffs’ claim is based on the
December 2007 interim decision, it must fail because that decision was a
non-final agency action.
Moreover, the December 2007 decision became moot when the final
agency action was issued in October 2009 because it was superseded by that
final decision. Id.; Theodore Roosevelt Conservation Partnership v. Salazar,
744 F.Supp.2d 151, 164-65 (D.D.C.), affirmed 661 F.3d 66 (D.C.Cir. 2011)
(dismissing NEPA claim based on decision that had been superseded and
thus ceased to have any effect). Thus, any claim based on the interim order
must be dismissed as moot.
The Plaintiffs also argue that the Forest Service predetermined the
outcome of the entire proceeding by implementing the temporary closure
before an EA was completed. In making this claim, however, the Plaintiffs
make no attempt to refute the Forest Supervisor’s conclusion in her December
18, 2007 Order that neither an EA nor an EIS was required. [AR 2143]. For
this reason alone, the claim must be rejected.
Moreover, in making this accusation, the Plaintiffs in essence ask this
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22
Court to look beyond the written agency decisions into the subjective
intentions of the Forest Service and the Supervisor. “Courts should not
conduct far-flung investigations into the subjective intent of an agency.”
National Audubon Society v. Department of Navy, 422 F.3d 174, 198 (4 Cir.th
2005). Nor should courts “probe into the subjective predispositions of agency
decisionmakers ... [because] the test for NEPA compliance is one of good
faith objectivity rather than subjective impartiality.” Id. (internal quotation and
citation omitted). To the extent that the Plaintiffs claim that the EA was
prepared in order to support a prior determination to close the System,
NEPA of course prohibits agencies from preparing an [EA] simply
to “justify ... decisions already made.” But the evidence [courts]
look to in determining whether this has taken place consists of the
environmental analysis itself. It does not include, as plaintiffs
suggest, the alleged subjective intent of the agency personnel
divined through selective quotations from [the administrative
record, such as the allegations of “private meetings”]. Where an
agency has merely engaged in post hoc rationalization, there will
be evidence of this in its failure to comprehensively investigate the
environmental impact of its actions and acknowledge their
consequences. This objective analysis is the full extent of [the]
inquiry[.]
Id. at 198-99.
Here, the temporary closing of the System did not eliminate reasonable
alternatives for the future. 40 C.F.R. §1506.1(a)(2). Indeed, the Forest
Service proposed alternative plans on June 9, 2008 when it elicited public
Case 2:10-cv-00015-MR-DCK Document 47 Filed 09/19/12 Page 22 of 50
23
comment on a proposal to reduce the size of the System. [AR 2824].
Furthermore, neither the 209 page Predecisional Environmental Assessment
nor the even longer final EA shows a “failure to comprehensively investigate
the environmental impact of [the agency’s] actions [or] acknowledge their
consequences.” National Audubon Society, 422 F.3d at 199.
Indeed, the Plaintiffs’ conduct is an implicit acknowledgment that the
administrative process continued appropriately. In response to the December
2007 temporary closure, the Plaintiffs initiated the May 2008 litigation. After
they received the June 2008 report, however, they determined to dismiss that
litigation. In the Stipulation of Dismissal filed in October 2008, the Plaintiffs
included an express acknowledgment of the Forest Service’s “intention to
complete a public planning process and to announce a new decision” which
they concluded “will likely substantially impact or change the interim order[.]”
[2:08cv11 at Doc. 40]. By this language, which the Plaintiffs were not required
to include in the dismissal, they acknowledged that the December 2007
closure was not final even though the decision had been temporarily
implemented. It likewise shows that the Forest Service did not “close first
then study,” as Plaintiffs assert. [Doc. 33 at 26]. By virtue of the October 2008
dismissal of their litigation, the Plaintiffs were obviously content that the
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24
administrative process was proceeding.
The Plaintiffs argue, nonetheless, that the outcome was predetermined
because the Forest Supervisor announced that her preferred alternative was
closure of the System. [Doc. 33 at 26]. In the Predecisional Environmental
Assessment, the Supervisor noted that she could not recommend keeping the
System open for OHV use. [AR 5700]. NEPA regulations, however, provide
that the agency “shall ... [i]dentify [its] preferred alternative.” 40 C.F.R.
§1502.14(e). Indeed, the agency is allowed to “have a preferred alternative
in mind when it conducts a NEPA analysis.” Forest Guardians v. United
States Fish and Wildlife Service, 611 F.3d 692, 712 (10 Cir. 2010). As such,th
this argument by the Plaintiffs is simply unsupported by the regulations.
For these reasons the Plaintiffs’ assignment of error asserting that the
Forest Service decision had been made prior to its undertaking the
appropriate environmental review must be rejected.
B. The Forest Service violated NEPA procedural requirements.
1. Improper Reliance on the Aquatic Insect Studies.
The Plaintiffs argue that in preparing its Environmental Assessment, the
Forest Service relied on insect studies that were never made publicly
available for comment and which were misinterpreted by the Forest Service.
Case 2:10-cv-00015-MR-DCK Document 47 Filed 09/19/12 Page 24 of 50
25
The studies at issue are a 2009 study conducted by Sheree Ferrell, a
graduate student at Western Carolina University, and a 2009 study conducted
by the North Carolina Department of Environment and Natural Resources
(NCDENR). [Doc. 43 at 19]. According to the Plaintiffs, the failure to disclose
this reliance violated NEPA regulations.
Plaintiffs’ argument must fail because 1) they apply the incorrect
regulatory standard, 2) the record does not support Plaintiffs’ argument and
3) the Forest Service did not rely on the studies Plaintiffs cite. Each of these
are addressed below.
In making this allegation, the Plaintiffs failed to note that the applicable
regulations are those pertaining to Environmental Assessments, not
Environmental Impact Statements.
NEPA’s public involvement requirements are not as well defined
when an agency prepares only an EA [Environmental
Assessment] and not an EIS [Environmental Impact Statement].
Compare 40 C.F.R. §1503.1, .4 (requiring agencies preparing an
EIS to make an initial draft available for public comment and to
consider “[d]evelop[ing] and evaluat[ing] alternatives not
previously given serious consideration” in response to comments),
with id. §1501.4(b) (requiring agencies to “involve ... the public,
to the extent practicable, in preparing [EAs]”)[.]
Greater Yellowstone Coalition v. Flowers, 359 F.3d 1257, 1279 (10 Cir.th
2004) (italics in original; bold emphasis added); Delaware Dept. of Natural
Case 2:10-cv-00015-MR-DCK Document 47 Filed 09/19/12 Page 25 of 50
The Ferrell study was apparently published between the preparation of the first13
and second Environmental Assessment.
26
Resources and Environmental Control v. U.S. Army Corps. of Engineers, 685
F.3d 259, 272 (3 Cir. 2012). rd
In determining whether the Forest Service involved the public “to the
extent practicable,” the Court considers that in the Predecisional
Environmental Assessment issued in February 2009, it included a paragraph
titled “Aquatic Insect Community.” [AR 05554]. The Forest Service there
noted that the “aquatic insect community within the Upper Tellico River
watershed has been monitored since May 2007 by Western Carolina
University. Preliminary results have been inconclusive (Ferrell unpublished
data). In general, species diversity among all sites has been similar.” [Id.].
On February 27, 2009, the Forest Service invited public comment. [AR 5700].
This alone shows that public involvement had been invited with regard to this
issue.
In the Final Environmental Assessment, the Service repeated this
finding.
The aquatic insect community within the Upper Tellico River
watershed has been monitored since May 2007 by Western
Carolina University. In general, species diversity among all sites
was similar for macroinvertebrates (Ferrell 2009). Ferrell (2009)13
also found a positive correlation of percent silt/clay particles and
Case 2:10-cv-00015-MR-DCK Document 47 Filed 09/19/12 Page 26 of 50
The Court has not considered an affidavit submitted by the Plaintiffs in support14
of their Motion for Summary Judgment in which Robert Kelley has opined to the
contrary. [Doc. 35]. This document is not part of the Administrative Record and is
therefore excluded. Tinicum Township, Pa., 685 F.3d 288 (citing 5 U.S.C. §706(2)(A));
Ohio Valley Environmental Coalition, 556 F.3d at 201.
27
small invertebrates (meiofauna). These results suggest that the
sedimentation from the OHV activities has altered the aquatic
invertebrates community at the smaller scale but the effects are
reduced for the larger size invertebrates. A benthological survey
was conducted by the NCDENR in 2009 within the Upper Tellico
OHV Area. These surveys resulted in an excellent
bioclassification for all streams surveyed (NCDENR 2009).
[AR 10714]. Moreover, the Forest Service concluded that “aquatic insects are
generally poor indicators of ecosystem stress due to sedimentation,” citing the
NCDENR. [Id.]. Contrary to the Plaintiffs’ claim, this language shows that14
the Forest Service did not place heavy reliance on a reduction in the aquatic
insect community to support its decision to close the System.
Notwithstanding these findings in the EA, the Plaintiffs argue that the
Forest Service improperly relied on aquatic insect studies which did not
support its conclusions. The Plaintiffs cite six occasions when the Forest
Service referred to insect populations in response to written comments
submitted during the public response period. In each response, however, the
Forest Service noted that despite the “excellent” bioclassification of insects,
those portions of streams adjacent to the System contained more silt and
Case 2:10-cv-00015-MR-DCK Document 47 Filed 09/19/12 Page 27 of 50
The Plaintiffs have attached to their motion a Notice of Violations of the15
Sedimentation Pollution Control Act dated March 29, 2011. [Doc. 34-2]. This
document, stemming from a March 2011 incident, is not part of the Administrative
Record. Even though documents that are not part of an administrative record may in
limited circumstances be considered in determining whether the decision not to prepare
an EIS was proper, Ohio Valley Environmental Coalition, 556 F.3d at 201, this
document was not in existence at the time the Forest Service made its decision, and
therefore could not have formed a basis for its decision to issue an EA rather than an
EIS. For this reason, it will not be considered.
28
sediment regardless of the impact on insects. [AR 10438, 10491, 10509,
10514, 10545, 10549]. More importantly, these references do not manifest
any reliance on insect community populations. Rather, this finding relates to
increased silt. This argument by the Plaintiffs is simply unsupported by the
record.
2. Issuance of an EA rather than an EIS.
The next assignment of procedural error relates to the Forest Service’s
decision to issue an Environmental Assessment (EA) rather than an
Environmental Impact Statement (EIS). An EIS is required when there is a
proposal for major federal action which will significantly affect the quality of the
environment. Save Our Cumberland Mountains v. Kempthorne, 453 F.3d15
334, 338 (6 Cir. 2006). When it is not clear whether an EIS is required,th
regulations direct the agency to prepare an EA. Id. (citing 40 C.F.R.
§1501.4(b). An EA is a public document which a Federal agency must
prepare in order to provide sufficient evidence and analysis to determine
Case 2:10-cv-00015-MR-DCK Document 47 Filed 09/19/12 Page 28 of 50
29
whether an EIS or a finding of no significant impact (FONSI) is warranted. Id.
(citing 40 C.F.R. §1508.9). It should aid an agency in complying with NEPA
when an EIS is unnecessary. Id. It should include discussions of the need for
the agency action, alternatives, the environmental impacts of each and a
listing of the agencies and individuals consulted. Id. “If after preparing an
[EA] the agency determines that the project will have no significant
environmental consequences, it need not issue an [EIS] and instead may
issue a finding of no significant impact[.]” Id.
In this case, after preparing the EA, the Forest Service concluded that
closing the System would not significantly impact the environment and,
indeed, would halt significant negative impacts on the environment. It thus
issued a finding of no significant impact.
In deciding, on the basis of the assessment, whether the
proposed action is one affecting the quality of the environment
“significantly,” the agency must look at both the “context” of the
action and its “intensity.” 40 C.F.R. §1508.27 (a) and (b).
“Intensity,” §1508.27(b) explains, means “the severity of impact.”
This choice of adjectives is significant, we think; one speaks of the
severity of adverse impacts, not beneficial impacts. If the agency
reasonably concludes, on the basis of the [EA], that the project
will have no significant adverse environmental consequences, an
[EIS] is not required. In such event, the agency must publish a
finding of no significant impact.
Friends of Fiery Gizzard v. Farmers Home Administration, 61 F.3d 501, 504-
Case 2:10-cv-00015-MR-DCK Document 47 Filed 09/19/12 Page 29 of 50
30
05 (6 Cir. 1995) (emphasis in original; internal quotation and citationth
omitted).” NEPA does not require that the agency find absolutely no adverse
consequences in order to avoid the preparation of an EIS. Id. It merely
requires that the agency find there will be no significant adverse impacts. Id.
The Plaintiffs argue that the preparation of an EIS is required any time
agency action will have a consequence on the public’s use of a public
resource. Imposing such a requirement on agencies would, however, render
the regulation meaningless. Virtually every EA or EIS is related to use of the
public lands or their resources advocated by a private party applicant or the
agency. Sierra Club v. Lujan, 949 F.2d 362, 370 (10 Cir. 1991). Thus theth
position Plaintiffs advocate would require an EIS in all cases. See also,
Heartwood, Inc. v. U.S. Forest Service, 380 F.3d 428, 434 (8 Cir. 2004)th
(noting much of the EA addressed public concerns and finding EIS not
required).
Here, the Supervisor for the Forest Service noted that, considering the
context (§1508.27(a)) and intensity (§1508.27(b)) of impacts, closing the
System would not have a significant effect on the quality of the human
environment and, thus, an EIS need not be prepared. [AR 10626].
Specifically, in considering context, she considered the significance of the
Case 2:10-cv-00015-MR-DCK Document 47 Filed 09/19/12 Page 30 of 50
31
action on society as a whole, the affected region, the affected interests and
the locality. §1508.27(a). The Supervisor noted that the closing was limited
to the local area and there were other off-road opportunities close by. [Id.].
The economic effects were solely local, although the social impact might be
more regional. [Id.].
Concerning intensity, the Supervisor considered the severity of impact.
§1508.27(b). Section1508.27(b)(1) provides that impacts may be both
beneficial and adverse. Thus, “a significant effect may exist even if the
Federal agency believes that on balance the effect will be beneficial.” 40
C.F.R. §1508.27(b)(1). Here, after considering each of the factors related to
intensity, the Supervisor concluded that closing the System would not have
any significant adverse impact. In so doing, the Supervisor found closing the
System would not affect public health or safety and would not affect the
unique geographic characteristics of the area, considering historic and cultural
resources, wetlands, floodplains and wilderness areas. [AR at 10627]. She
also noted that the area was eligible for designation in the Wild and Scenic
River systems. [Id.]. The Supervisor noted some controversy surrounding the
decision to close the System and referred to the discussions of that topic.
[Id.]. The impact of closing the System, she noted, would not involve unique
Case 2:10-cv-00015-MR-DCK Document 47 Filed 09/19/12 Page 31 of 50
32
or unknown risks, since closing roads and trails are common practices. [Id.].
Because the decision to close the System was based on the unique
characteristics of this area, the Supervisor noted it would not establish
precedent for future closings. [Id.]. Further, the cumulative significant impacts
were discussed by the Supervisor who found that while no endangered
species or wildlife would be negatively impacted, the same might be positively
improved. [Id. at 10627-28]. Finally, no federal, state or local environmental
laws would be infringed; in fact, to the contrary, water quality would be
improved. [Id.].
Here, the fifteen page Decision Notice and Finding of No Significant
Impacts repeatedly cited to specific portions of the 253 page EA. [AR 10614-
29]. The Forest Service considered both context and each of the ten factors
related to intensity. Umpqua Watersheds v. United States, 725 F.Supp.2d
1232, 1241 (D.Or. 2010). Since none of those ten factors were present, it was
not necessary for the Forest Service to prepare an EIS. Id. Plaintiffs argued
at the hearing on this matter that the findings regarding the ten factors was
simply “a catalog of conclusions rather than a statement of analysis.” The
record, however, thoroughly supports the Forest Service’s conclusions as to
each of those factors. Moreover, the Forest Service gives more than two
Case 2:10-cv-00015-MR-DCK Document 47 Filed 09/19/12 Page 32 of 50
33
pages of explanation in the EA as to how these findings are supported by the
record. [AR10626-28]. This Court therefore finds those conclusions to be
reasonable and not arbitrary or capricious. Id.; Western Watersheds Project
v. Bureau of Land Management, 552 F.Supp.2d 1113, 1126 (D.Nev. 2008).
“An agency’s decisions are entitled to a presumption of regularity.” Citizens
to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 415, 91 S.Ct. 814, 28
L.Ed.2d 136 (1971), overruled on other grounds Califano v. Sanders, 430 U.S.
99, 105, 97 S.Ct. 980, 51 L.Ed.2d 192 (1977). “In the absence of clear
evidence to the contrary, the doctrine presumes that public officers have
properly discharged their official duties.” Butler v. Principi, 244 F.3d 1337,
1340 (Fed.Cir. 2001). This Court’s role “is simply to ensure that the agency
has adequately considered and disclosed the environmental impact of its
actions and that its decision is not arbitrary or capricious.” Northwest Bypass
Group v. U.S. Army Corps of Engineers, 470 F.Supp.2d 30, 61 (D.N.H. 2007)
(quoting Coalition on Sensible Transportation, Inc v. Dole, 826 F.2d 60, 66
(D.C. Cir. 1987). In issuing the FONSI in this case, the Forest Service
considered and discussed the relevant environmental concerns, identified and
took a “hard look” at the problems and convincingly explained why its finding
was made. Id. It did not act arbitrarily or capriciously. Id.
Case 2:10-cv-00015-MR-DCK Document 47 Filed 09/19/12 Page 33 of 50
34
3. Procedures for Amending the Forest Plan.
The Plaintiffs next argue that the Forest Service violated NEPA
procedures in amending the Forest Plan. As part of its decision to close the
System, the Forest Service amended the Forest Plan to remove the Tellico
OHV System from the list of recreational off-road areas in the Forest. [AR
10653-54]. This, the Plaintiffs argue, violated NEPA which calls for an EIS
and detailed amendment proceedings before implementing an amendment to
the Forest Plan.
The correct procedure for amending a Forest Plan depends on the
scope of the amendment. Lands Council v. Martin, 529 F.3d 1219, 1227 (9 th
Cir. 2008). If the amendment is significant, more detailed amendment
proceedings are required. Id. The regulations, however, “leave to the
discretion of the Forest Service the question of whether any given amendment
is significant.” Id. (internal quotation and citation omitted). In making that
determination, the Forest Supervisor should consider the four factors listed in
the Forest Service Handbook: timing, location and size; goals; objectives and
outputs. Id. Mere disagreement with the Supervisor’s conclusion is not
sufficient grounds to interfere with her discretion. Id.
The Plaintiffs argue that the Supervisor here only considered two of the
Case 2:10-cv-00015-MR-DCK Document 47 Filed 09/19/12 Page 34 of 50
35
four factors prescribed in the Forest Service Handbook. They do not,
however, identify which factors they contend were considered and which were
not. The Supervisor actually made the following findings and conclusions in
the Decision Notice and Finding of No Significant Impact concerning the
adoption of Alternative C which would close the System and thus require
amendment of the Forest Plan:
I have determined this amendment is not a significant amendment
under the ... NFMA implementing regulations ... Forest Service
Manual 1926.51 - Changes to the Land Management Plan that
are Not Significant and FSM 1926.52 - Changes to the Land
Management Plan that are Significant. Based on these planning
requirements, I have determine that:
! This amendment will not significantly alter levels of
goods and services projected by the forest plan; nor
will it prevent the opportunity to achieve those outputs
in later years. Recreation opportunities will continue
to be available in the area although the nature of
those opportunities will change. The availability of
other goods and services will not change.
! This amendment will not affect a large portion of the
planning area during the planning period. The
affected area represents about 1.3% of the Nantahala
National Forest.
[AR 10628].
The second finding specifically addresses the size and location of the
area effected by the amendment, and the timing of the action. The first finding
Case 2:10-cv-00015-MR-DCK Document 47 Filed 09/19/12 Page 35 of 50
36
expressly addresses the outputs, and addresses the goals and objectives
related to goods, services and recreation opportunities. Lands Council, 529
F.3d at 1227. How the Plaintiffs contend these findings fail to address all four
factors is not clearly articulated. Having properly determined that the
amendment was not significant, no further procedures were required. Id. The
Plaintiffs’ argument on this point is not supported by the record.
For the reasons set forth above, the Court concludes that the Forest
Service did not violate the procedural requirements of NEPA. Therefore these
assignments of error are overruled.
C. The Forest Service acted arbitrarily and capriciously.
The Plaintiffs’ final challenge is that the Forest Service’s closure of the
System was arbitrary and capricious because it was based on a legally
erroneous conclusion.
1. Violations of Water Quality Standards.
According to the Plaintiffs, the decision to close the System was based
on the erroneous conclusion that the Forest was violating North Carolina
water quality standards.
[B]ecause the Administrative Procedure Act ... governs [this]
review of claims brought under the NEPA, [the Court] may set
aside the agency’s action only if it is arbitrary, capricious, an
abuse of discretion or otherwise not in accordance with law. This
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37
involves a searching and careful, but ultimately narrow and highly
deferential, inquiry. In the end, if the agency has followed the
proper procedures and if there is a rational basis for its decision,
[this Court] will not disturb its judgment.
Webster, 685 F.3d at 422.
Under the APA, the arbitrary and capricious standard is extremely
narrow and this Court may not substitute its judgment for that of the agency.
U.S. Postal Service v. Gregory, 534 U.S. 1, 6, 122 S.Ct. 431, 151 L.Ed.2d 323
(2001); Inova Alexandria Hospital v. Shalala, 244 F.3d 342, 350 (4 Cir.th
2001). This standard has been equated to the “substantial evidence test.” 5
U.S.C. §706(2); Hodges v. Abraham, 300 F.3d 432, 449 n.17 (4 Cir.), cert.th
denied, 537 U.S. 1105, 123 S.Ct. 871, 154 L.Ed.2d 775 (2003); AllCare
Home Health, Inc. v. Shalala, 278 F.3d 1087, 1089 (10 Cir. 2001).th
Substantial evidence is “such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.” Platone v. U.S. Dept. of Labor,
548 F.3d 322, 326 (4 Cir.), cert. denied U.S. , 130 S.Ct. 622, 175th
L.Ed.2d 478 (2009) (internal quotation and citation omitted).
Federal agencies, like the Forest Service, are required by the Clean
Water Act to comply with state water quality standards. 33 U.S.C. §1323(a).
The streams located within the System and affected by the trails therein are
designated as Class C Trout Waters. [AR 10643, 10645]. North Carolina
Case 2:10-cv-00015-MR-DCK Document 47 Filed 09/19/12 Page 37 of 50
38
water quality standards require that turbidity in trout waters may not exceed
10 Nephelometric Turbidity Units (NTUs). 15A N.C.Admin.Code
§02B.0211(3)(k). [Doc. 40-1 at 21]. Where turbidity exceeds that level
because of natural background conditions, the existing level of turbidity may
not be increased. Id.
The Plaintiffs assert that there are insufficient findings in the EA to
support the conclusion that this standard was violated. Particularly, the
Plaintiffs assert that there are no findings as to the turbidity level under natural
background conditions. The Forest Service counters by pointing to the
following findings in the EA:
Turbidity measurements from the Tellico River have been
recorded up to 370 NTUs at the state line during storm events.
...
During a run-off event occurring on March 4, 2008, the 10 NTU
state standard was exceeded in virtually all surveyed streams.
...
Surveys conducted during 2007 and 2008 assessed trail
conditions and sediment delivery from the OHV System. These
surveys have identified elevated levels of erosion and sediment
delivery to stream channels in the watershed as a result of failed
BMPs. Therefore, the turbidity standard is not being met in the
upper Tellico River watershed.
...
Streams in the upper Tellico River watershed during 1999-2008
show higher turbidity ... values where trails occupy the drainage.
[AR 10645, 10682-83].
Case 2:10-cv-00015-MR-DCK Document 47 Filed 09/19/12 Page 38 of 50
39
The Plaintiffs argue that these findings only show that the Forest Service
measured turbidity levels during storm or run-off events, and not under natural
background conditions. Therefore, the Plaintiffs conclude, no violation has
been demonstrated. [Doc. 33 at 32]. The Forest Service, on the other hand,
argues that run-off events are simply the product of naturally occurring storms
and showers, and as such are precisely the sort of natural conditions
contemplated in the regulation.
This question hinges on the proper interpretation of the regulation. The
issue before this Court, however, if very different. The Court is presented with
two different interpretations of the meaning of “turbidity levels which exceed
10 NTUs due to natural background conditions.” It is not a question for this
Court to determine which interpretation is correct. The only question before
this Court is whether the interpretation of the Forest Service is arbitrary or
capricious. “Our highest deference is owed to the Forest Service’s technical
analyses and judgments within its area of expertise[.]” League of Wilderness
Defenders Blue Mountains Biodiversity Project v. Allen, 615 F.3d 1122, 1131
(9 Cir. 2010). Thus, the agency’s scientific conclusion that a comparison ofth
turbidity levels during storm events shows a violation of state law is entitled
to deference. Klamath Siskiyou Wildlands Center v. Grantham, 424 F. App’x.
Case 2:10-cv-00015-MR-DCK Document 47 Filed 09/19/12 Page 39 of 50
40
635, 637 (9 Cir. 2011). The interpretation of the Forest Service is a logicalth
construction of the regulation and the Plaintiffs have not shown that such an
interpretation is contrary to case law or inconsistent with the agency’s
regulations or other law. Native Ecosystems Council v. U.S. Forest Service,
418 F.3d 953, 960 (9 Cir. 2005).th
Thus, taking the Forest Service’s reasonable interpretation of the
regulation, the findings in the EA are sufficient to show a violation of the
turbidity standard. Since the Forest Service found the natural background
turbidity to exceed 10 NTUs, the Forest Service must further show that the
trails increase the turbidity. The Forest Service explained, however, that
turbidity levels measured during storm events in undisturbed areas (areas in
which no off-road vehicles are used) are lower than those measured during
storm events within the System (where such vehicles are used) is evidence
that state law is violated within the System due to increased sediment. The
evidence in the Administrative Record supports this conclusion.
For these reasons, the determination by the Forest Service to close the
trails based on the violation of the turbidity standard was not arbitrary or
capricious.
Case 2:10-cv-00015-MR-DCK Document 47 Filed 09/19/12 Page 40 of 50
The Plaintiffs do not attack the validity or legality of the Forest Plan.16
41
2. Application of the No Visible Sediment Standard.
The Plaintiffs next argue that “the Forest relied on an erroneous ‘no
visible sediment’ standard to justify total closure of the System.” [Doc. 33 at
33]. The standard, they claim, applies only to a streamside management
zone which would encompass only about one mile of trail within the System.
[Id.]. Applying this standard to close the entire System, they argue, was
therefore arbitrary and capricious.
The Forest Plan, however, states that visible sediment must be
prevented from reaching perennial and intermittent stream channels. [AR16
10644]. The Plan does not limit the application of this prohibition to
streamside management zones. [Id.]. Field surveys conducted in 2007 and
2008 identified 2,003 sources of visible sediment along the 39 mile trail
system. [Id.]. “Management of national forest lands must be consistent with
the governing forest plan.” Greater Yellowstone Coalition, Inc. v. Servheen,
665 F.3d 1015, 1031 (9 Cir. 2011) (citing 16 U.S.C. 1604(i)) (other internalth
quotation and citation omitted). Compliance with the Forest Plan, therefore,
is clearly not arbitrary or capricious. Id.; Alliance for the Wild Rockies v.
Tidwell, 385 F. App’x. 732 (9 Cir. 2010). This Court, moreover, “defer[s] toth
Case 2:10-cv-00015-MR-DCK Document 47 Filed 09/19/12 Page 41 of 50
42
the Forest Service’s reasonable interpretation of the Forest Plan’s
requirements.” Id. (citing Ecology Center v. Castaneda, 574 F.3d 652, 661
(9 Cir. 2009)); San Bernardino Valley Audubon Society v. F.E.R.C., 242 F.th
App’x. 462, 4465 (9 Cir. 2007). Because the Forest Service reasonablyth
interpreted the Forest Plan requirements, its conduct was neither arbitrary nor
capricious.
The Plaintiffs also argue that the Forest Service should have amended
the Forest Plan to delete the requirement that no visible sediment reach
perennial and intermittent stream channels. The Forest Service, however, is
obligated to comply with North Carolina state law, which requires the Forest
Service to avoid visible sediment in streamside management zones. 15A
N.C.Admin.Code 4B.0113; N.C. Gen. Stat. §113A-57 (the North Carolina
Sedimentation Pollution Control Act or SPCA). As applied to Trout Waters,
state law requires the Forest Service to maintain a buffer between eroding
off-road vehicle trails and streams, with that buffer being 25 feet wide “or of
sufficient width to confine visible siltation within ... 25% of the buffer zone
nearest the land-disturbing activity, whichever is greater.” N.C. Gen. Stat.
113A-57(a). The Forest Service documented visible sediment leaving off-road
vehicle trails and entering streams.
Case 2:10-cv-00015-MR-DCK Document 47 Filed 09/19/12 Page 42 of 50
The Forest Service documented BMP failures, first noting that the trails and17
roads do not comply with current state and Forest Service standards. [AR 10674].
“Applying BMPs that are designed for constructing and maintaining trails to today’s
standards are not sufficient to correct for the deteriorated conditions identified by
conditions surveys of the Upper Tellico OHV System.” [Id.]. Among the factors that
limited the ability of BMPs to be effective were the fact that the soil in the System was
sensitive to erosion, a high degree of precipitation, “trails not within a design standard,”
“a high level of use, year round use, modified vehicle types,” and “long term severe
erosion that transcends our ability to employ standard BMPs.” [AR 10675].
43
As previously noted, the Clean Water Act requires each state to develop
and implement water quality standards to protect and enhance the quality of
water within the state. 33 U.S.C. §1313. That same Act requires all federal
agencies to comply with those state requirements. 33 U.S.C. §1323.
Because the Forest Service could not implement and maintain Best
Management Practices (BMPs) which would meet the cited state law
requirement, closure of the System was not arbitrary and capricious.17
Colorado Wild, Heartwood v. U.S. Forest Service, 435 F.3d 1204 (10 Cir.th
2006).
3. Supervisor’s Reference to Protecting the Trout Population.
Lastly, the Plaintiffs claim the Forest Service tailored the decision to
close the System to the Supervisor’s subjective belief that she needed to do
whatever was possible to protect the trout population. [Doc. 33 at 34]. In so
doing, they argue she failed to consider the System for multiple use. [Id.].
This claim is based on language contained within the Decision Notice
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issued by the Forest Service and signed by its Supervisor. [AR 10614-10629].
The Supervisor announced the decision to close the System, identified and
discussed the various alternatives to closure, considered mitigation measures,
explained the need to comply with the Forest Plan and state law, and provided
the rationale for the decision. [Id.]. The Supervisor noted that BMPs could not
improve the situation and, indeed, could not be implemented due to the age
of the System. [AR 10618-19]. She cited violations of North Carolina water
quality standards as well as the Forest Plan’s “first priority” to protect the
habitat of wild streams, which within the area of the System contain brook
trout. [AR 10619]. The increased production of sediment, it was noted, had
negatively impacted brook trout spawning and would continue to do so. [Id.].
Included in the Rationale was the Supervisor’s statement that
I have an obligation as a land manager to do all I can do to reduce
the human induced sedimentation from Trails 2 through 12 and
lessen this environmental stressor to the aquatic resources. This
will help ensure meeting water quality standards and support
long-term persistence of brook trout within the watershed.
[AR 10625].
Based on this statement, the Plaintiffs argue that the decision to close
the System was arbitrary and capricious. As previously noted, however, the
decision to comply with the Forest Plan and state law water quality standards
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was not arbitrary or capricious. Colorado Wild, 435 F.3d at 1217. The
Supervisor’s statement merely announced her obligation to follow both the
Forest Plan and state law. The role of this Court does not include divining the
“alleged subjective intent of agency personnel.” National Audubon Society,
422 F.3d at 199. The test for NEPA compliance “is one of good faith
objectivity rather than subjective impartiality.” Id. at 198 (internal quotation
and citation omitted). “This objective analysis is the full extent of [the Court’s]
inquiry, and [it will] therefore express no opinion as to the [Supervisor’s]
motivations here.” Id. at 199.
For the reasons stated, the Court finds and concludes that the Forest
Service was not arbitrary and capricious in its decision to close the System.
Therefore, this assignment of error must be overruled, and the Court
concludes that the Defendants are entitled to judgment as a matter of law.
II. The Defendants’ Motion for Summary Judgment.
The Defendants cross-moved for summary judgment. Most of the
arguments made in their motion are actually responses to the Plaintiffs’
claims, [Doc. 39 at 21-23; 24-35], which are addressed above.
The Defendants raised one claim in support of summary judgment which
was not previously considered. Citing 36 C.F.R. §212.55, the Defendants
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The Forest Service even included the financial analysis Alternative A, which18
was to take no action at all, even though this alternative would have allowed the
violations cited above to continue.
46
argue that the Travel Management Rule required the Forest Service to close
trails which are causing considerable adverse effects and which cannot be
maintained in a financially and environmentally sustainable manner. That
regulation requires the Forest Service to consider the availability of resources
for the maintenance and administration of National Forest trails and roads as
well as the effects of those roads on soil, watershed, vegetation, wildlife and
wildlife habitats. 36 C.R.F. §212.55. Included within the EA is a financial
analysis of the comparable financial costs of each alternative to final closure.18
[AR 10864-68]. Alternative C, final closure, presented the most financially
feasible option. In light of the violations found by the Forest Service, and the
fact that the option of closure of the System was the most financially
advantageous, the Travel Management Plan supported the closure. The
Plaintiffs did not respond to this portion of the Defendants’ motion. The Court
concludes that the Defendants are entitled to judgment as a matter of law on
this ground as well.
III. The Intervenor-Defendants’ Motion for Summary Judgment.
The Intervenor-Defendants also moved for summary judgment, making
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47
arguments which have been considered in the context of resolving the
Plaintiffs’ motion. For the reasons previously stated, the Intervenor-
Defendants and the Defendants are entitled to judgment as a matter of law on
each of those issues.
The Intervenor-Defendants also raised a claim that the closure orders
were required by another provision of the Travel Management Rule, 36 C.F.R.
§212.52. That regulation provides in pertinent part:
If the responsible official determines that motor vehicle use on a
National Forest System road or National Forest System trail or in
an area on National Forest System lands is directly causing or will
directly cause considerable adverse effects on ... soil, vegetation,
wildlife, wildlife habitat, or cultural resources associated with that
road, trail or area, the responsible official shall immediately close
that road, trail or area to motor vehicle use until the official
determines that such adverse effects have been mitigated or
eliminated and that measures have been implemented to prevent
future recurrence.
36 C.F.R. §212.52(b)(2) (emphasis added).
Based on the studies and surveys conducted during 2007, the
Supervisor concluded that the December 2007 interim closure was warranted
due to the amount of sediment reaching streams and the severe erosion
within the System. [AR 2141-45]. Contained within both the Predecisional
Environmental Assessment and the EA are numerous citations to scientific
data showing that the use of off-road vehicles within the System was causing
Case 2:10-cv-00015-MR-DCK Document 47 Filed 09/19/12 Page 47 of 50
Other than this portion of the Plaintiffs’ reply on the predetermination issue, the19
Plaintiffs have not responded at all to the arguments pertaining to the Travel
Management Rule.
48
and would continue to cause considerable adverse effects on soil, trout, the
Tellico River and the areas within the System. [AR 5509-11, 5514-19, 5521-
22, 10645-46, 10673, 10683-86, 10685-89, 10712, 11673, 2027]. Those
effects included the erosion of 75,000 tons of soil, visible sediment reaching
the river and streams, high turbidity, and decreased trout reproduction. [Id.].
The Forest Service had “the discretion to immediately close certain trails,
even if those trails are otherwise designated as appropriate for motorized use
in a travel plan, provided that the motorized use is causing ‘considerable
adverse effects.’” Idaho Conservation League v. Guzman, 766 F.Supp.2d
1056, 1062 (D.Idaho 2011). “Only the Forest Service can decide when to
exercise this discretion.” Id.
In reply to the Defendants’ position that the decision was not
predetermined, the Plaintiffs stated that the Travel Management Rule did not19
provide an excuse for the closures because the Defendants failed to show
considerable adverse effects. [Doc. 41 at 5]. The EA, however, contains
substantial findings regarding these adverse effects, as set forth above. For
this reason, as well as for the other reasons set out herein, the Defendants
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and Intervenor-Defendants are entitled to judgment as a matter of law.
VI. Conclusion.
The Court finds that the Forest Service “took a hard look at the
environmental consequences of the proposed action.” Webster, 685 F.3d at
422. Both the Predecisional EA and the final EA show that a thorough
investigation was conducted into the environmental impacts of closure as
compared to the continued maintenance of the System. Id. If the Court were
to accept the Plaintiffs’ positions, it would amount to “flyspeck[ing]” of the
Forest Service’s “environmental analysis, looking for any deficiency, no matter
how minor.” Id.
The decision of the Forest Service was not arbitrary, capricious, or an
abuse of discretion, and it was in accordance with the law. Id. at 423. Having
conducted “a searching and careful, but ultimately narrow and highly
deferential inquiry,” the Court concludes that the Forest Service followed the
proper procedures and that there is a rational basis for its decision. Id. The
decision of the agency will therefore not be disturbed. Id.
ORDER
IT IS, THEREFORE, ORDERED as follows:
1. The Plaintiffs’ Motion for Summary Judgment [Doc. 32] is hereby
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DENIED.
2. The Defendants’ Motion for Summary Judgment [Doc. 38] is hereby
GRANTED.
3. The Intevenor-Defendants’ Motion for Summary Judgment [Doc. 40] is
hereby GRANTED.
Judgment is entered simultaneously herewith.
Signed: September 18, 2012
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