Ten Lakes Snowmobile Club et al v. United States Forest Service et al

Brief/Memorandum in Support re Cross MOTION for Summary Judgment and in Response to re Plaintiffs' Motion for Summary Judgment

D. Mont.May 24, 2017

Timothy J. Preso Aurora R. Janke Earthjustice 313 East Main Street Bozeman, MT 59715 (406) 586-9699 | Phone (406) 586-9695 | Fax tpreso@earthjustice.org ajanke@earthjustice.org Attorneys for Defendant-Intervenors UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MONTANA MISSOULA DIVISION TEN LAKES SNOWMOBILE CLUB, et al., Plaintiffs, vs. U.S. FOREST SERVICE, et al., Defendants, and THE WILDERNESS SOCIETY, et al., Defendant-Intervenors. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Case No. CV 9:15-cv-00148-DLC DEFENDANT- INTERVENORS’ MEMORANDUM IN SUPPORT OF CROSS MOTION FOR SUMMARY JUDGMENT AND IN RESPONSE TO PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT Case 9:15-cv-00148-DLC Document 49 Filed 05/24/17 Page 1 of 42 i TABLE OF CONTENTS TABLE OF AUTHORITIES ................................................................................... iii INTRODUCTION ..................................................................................................... 1 BACKGROUND ....................................................................................................... 2 ARGUMENT ............................................................................................................. 3 I. PLAINTIFFS HAVE NOT ESTABLISHED STANDING ............................ 4 II. THE SERVICE LAWFULLY DESIGNATED RECOMMENDED WILDERNESS AREAS .................................................................................. 4 A. The Service’s Recommended Wilderness Designations Are Valid ...................................................................................................... 5 1. The Kootenai Forest’s wilderness recommendations were rationally justified ....................................................................... 5 2. The Kootenai Forest properly maintained existing management for the Ten Lakes area ......................................... 11 B. The Service Has Authority to Manage Recommended Wilderness Areas to Preserve their Wilderness Values ...................... 14 1. Managing National Forest lands to preserve wilderness values is lawful .......................................................................... 14 2. Recommended wilderness is not de facto wilderness ............... 16 C. The Service’s Travel Restrictions Are Based on Adequate Site- Specific Analysis ................................................................................. 18 D. The Service Considered an Adequate Range of Alternatives ............. 22 III. THE SERVICE’S WILD AND SCENIC RIVER ELIGIBILITY DETERMINATIONS ARE LAWFUL ......................................................... 25 A. The Kootenai Forest Was Not Required to Prepare a Supplemental EIS ................................................................................ 25 B. Plaintiffs’ Rivers Act Claim is Meritless ............................................ 29 Case 9:15-cv-00148-DLC Document 49 Filed 05/24/17 Page 2 of 42 ii IV. THE SERVICE PROPERLY COORDINATED WITH THE GLEN LAKE IRRIGATION DISTRICT ................................................................. 30 V. ANY REMEDY SHOULD NOT VACATE THE FOREST PLANS .......... 30 CONCLUSION ........................................................................................................ 31 Case 9:15-cv-00148-DLC Document 49 Filed 05/24/17 Page 3 of 42 iii TABLE OF AUTHORITIES FEDERAL CASES Memorandum and Order, Beaverhead Cty. Comm’rs v. U.S. Forest Serv., No. CV-10-68-BU-SEH (D. Mont. Jul. 22, 2013) ....................... 20, 22, 29 Bicycle Trails Council of Marin v. Babbitt, 82 F.3d 1445 (9th Cir. 1996) .............................................................................. 22 Cal. Cmtys. Against Toxics v. EPA, 688 F.3d 989 (9th Cir. 2012) .............................................................................. 31 California v. Block, 690 F.2d 753 (9th Cir. 1982) .............................................................................. 18 Ctr. for Biological Diversity v. Veneman, 394 F.3d 1108 (9th Cir. 2005) ............................................................................ 30 Friends of Yosemite Valley v. Kempthorne, 520 F.3d 1024 (9th Cir. 2008) ...................................................................... 24-25 Great Basin Res. Watch v. Bureau of Land Mgmt., 844 F.3d 1095 (9th Cir. 2016) .............................................................................. 5 Hells Canyon All. v. U.S. Forest Serv., 227 F.3d 1170 (9th Cir. 2000), as amended (Nov. 29, 2000) ............................... 3 Idaho Conservation League v. Bonneville Power Admin., 826 F.3d 1173 (9th Cir. 2016) ............................................................................ 14 Idaho Farm Bureau Fed’n v. Babbitt, 58 F.3d 1392 (9th Cir. 1995) .............................................................................. 30 Japanese Vill., LLC v. Fed. Transit Admin., 843 F.3d 445 (9th Cir. 2016) .............................................................................. 26 Kern Cty. Farm Bureau v. Allen, 450 F.3d 1072 (9th Cir. 2006) ...................................................................... 10, 11 Case 9:15-cv-00148-DLC Document 49 Filed 05/24/17 Page 4 of 42 iv Kootenai Tribe of Idaho v. Veneman, 313 F.3d 1094 (9th Cir. 2002), abrogated on other grounds by The Wilderness Soc’y v. U.S. Forest Serv., 630 F.3d 1173 (9th Cir. 2011) ....................................................................................................... 15, 23, 28 Cal. ex rel. Lockyer v. U.S. Dep’t of Agric., 575 F.3d 999 (9th Cir. 2009) .............................................................................. 23 Lujan v. Defs. of Wildlife, 504 U.S. 555 (1992) .............................................................................................. 4 McMichael v. U.S., 355 F.2d 283 (9th Cir. 1965) .............................................................................. 15 Mont. Wilderness Ass’n v. McAllister, 666 F.3d 549 (9th Cir. 2011) .............................................................................. 21 Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29 (1983) .............................................................................................. 13 Nw. Motorcycle Ass’n v. U.S. Dep’t of Agric., 18 F.3d 1468 (9th Cir. 1994) ................................................................................ 9 Or. Nat. Desert Ass’n v. Bureau of Land Mgmt., 625 F.3d 1092 (9th Cir. 2010) ...................................................................... 15-16 Russell Country Sportsman v. U.S. Forest Serv., 668 F.3d 1037 (9th Cir. 2011) ............................................................ 6, 12, 27, 28 Sierra Forest Legacy v. Sherman, 646 F.3d 1161 (9th Cir. 2011) .............................................................................. 3 WildEarth Guardians v. U.S. Forest Serv., 790 F.3d 920 (9th Cir. 2015) ........................................................................ 16, 20 The Wilderness Soc’y v. Bosworth, 118 F. Supp. 2d 1082 (D. Mont. 2000) ................................................................. 3 Wyoming v. U.S. Dep’t of Agric., 661 F.3d 1209 (10th Cir. 2011) .................................................................... 15, 17 Case 9:15-cv-00148-DLC Document 49 Filed 05/24/17 Page 5 of 42 v STATUTES AND LEGISLATIVE MATERIALS 5 U.S.C. § 706(2)(A) .................................................................................................. 3 16 U.S.C. §§ 472-82, 551 ........................................................................................ 14 §§ 528-31 .......................................................................................... 14-15 § 1131(c) ................................................................................................. 21 § 1132 ........................................................................................................ 6 § 1133 ...................................................................................................... 17 § 1136 ........................................................................................................ 6 § 1271 et seq. ................................................................................ 3, 26, 29 § 1273(b) ............................................................................... 26, 27, 29, 30 § 1276(d)(1) ...................................................................................... 25, 29 § 1600 et seq. ............................................................................................ 3 42 U.S.C. § 4321 et seq. ............................................................................................. 3 Montana Wilderness Study Act, Pub. L. No. 95-150, 91 Stat. 1243 (1977) ............................................................................................ 12 Scotchman Peaks Wilderness Act of 2016, S. 3531, 114th Cong. (2016) ............................................................................... 31 REGULATIONS AND ADMINISTRATIVE MATERIALS 36 C.F.R. § 212.55(b) .............................................................................................. 16 §§ 219.1-219.29 (1982) ............................................................................. 6 § 219.17(a) (1982) ..................................................................................... 6 § 219.7(c)(2)(v) (2012) ........................................................................... 16 § 219.50 (2012) ....................................................................................... 22 § 293.6 ..................................................................................................... 17 § 294.23 ................................................................................................... 17 § 294.29 ................................................................................................... 17 40 C.F.R. § 1502.9(c)(1) .......................................................................................... 27 Executive Order 11644, 37 Fed. Reg. 2877 (Feb. 9, 1972) ....................................................................... 16 Case 9:15-cv-00148-DLC Document 49 Filed 05/24/17 Page 6 of 42 vi RULES Fed. R. Civ. P. 56(a)................................................................................................... 3 OTHER AUTHORITIES Rick Bass, Why I Came West (2009) ........................................................................ 1 Case 9:15-cv-00148-DLC Document 49 Filed 05/24/17 Page 7 of 42 1 INTRODUCTION The Revised Forest Management Plans (“Forest Plans”) for the Kootenai National Forest (“Kootenai Forest”) and the Idaho Panhandle National Forests (“Panhandle Forest”) recommend just four percent and six percent, respectively, of these vast National Forests for protection as recommended wilderness—marginal changes from previous forest plans. These recommended wildernesses range from the Scotchman Peaks of northwest Montana through the remote Yaak River Valley and on westward to the Selkirk Mountains on Idaho’s border with Washington. As described by Montana writer Rick Bass, the remnant wildlands of this region constitute “the vital cornerstone for critical east-west migration of species and genes and populations mixing from the Glacier National Park-Bob Marshall ecosystem into the Selkirk Mountains of Idaho, the Colville National Forest of eastern Washington, and, ultimately, Washington’s Cascades.” Rick Bass, Why I Came West 6-7 (2009). To protect the wilderness character of these areas—including their opportunities for solitude and their primitive nature—and to ensure they are available for future wilderness designation by Congress, both Forest Plans prohibit motorized and mechanized travel in recommended wilderness. This prohibition applies to just 89,300 acres of the 2.2-million-acre Kootenai Forest, AR0101998, AR0102008, and 152,000 acres of the 2.5-million-acre Panhandle Forest, Case 9:15-cv-00148-DLC Document 49 Filed 05/24/17 Page 8 of 42 2 AR0101753, AR0101760. Even with these protections in place, the vast majority of the Kootenai and Panhandle Forests remain open to snowmobiling, including plentiful opportunities for remote and primitive motorized recreation in the backcountry. AR102010 (Kootenai) (providing more than 256,000 acres of motorized winter backcountry access); AR0101760, AR0101763 (Panhandle) (same for more than 680,000 acres). Nevertheless, Plaintiffs Ten Lakes Snowmobile Club, et al., challenge the recommended wilderness determinations in the U.S. Forest Service’s (the “Service”) Kootenai and Panhandle Forest Plans. Plaintiffs further challenge the Wild and Scenic Rivers Act eligibility determinations in the Kootenai Forest Plan, which designate 150 river-miles as eligible for inclusion in the National Wild and Scenic Rivers System, an increase of only 37.7 river miles from the previous forest plan. AR0101439-40. As explained below, Plaintiffs fail to establish any violations of law and this Court should reject their claims. BACKGROUND In accordance with Local Rule 56.1, The Wilderness Society, Headwaters Montana, Idaho Conservation League, Montana Wilderness Association, Panhandle Nordic Ski and Snowshoe Club, and Winter Wildlands Alliance (“The Wilderness Society”) have separately filed a Statement of Undisputed Facts and Statement of Disputed Facts. Case 9:15-cv-00148-DLC Document 49 Filed 05/24/17 Page 9 of 42 3 ARGUMENT This Court should grant The Wilderness Society’s motion for summary judgment because “there is no genuine dispute as to any material fact,” Fed. R. Civ. P. 56(a), and the Forest Plans do not violate the National Environmental Policy Act (“NEPA”), 42 U.S.C. § 4321 et seq., the National Forest Management Act (“NFMA”), 16 U.S.C. § 1600 et seq., or the Wild and Scenic Rivers Act (“Rivers Act”), 16 U.S.C. § 1271 et seq. This Court reviews Plaintiffs’ NEPA, NFMA, and Rivers Act challenges under the Administrative Procedure Act (“APA”), see e.g., Sierra Forest Legacy v. Sherman, 646 F.3d 1161, 1176 (9th Cir. 2011); Hells Canyon All. v. U.S. Forest Serv., 227 F.3d 1170, 1176 (9th Cir. 2000), as amended (Nov. 29, 2000), and may set aside the challenged plans only if they “are arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). “[T]he party challenging the agency action has the burden of showing there is not ‘a rational connection between the facts found and the choice made’ or that there was a clear error in judgment based on the relevant factors.” The Wilderness Soc’y v. Bosworth, 118 F. Supp. 2d 1082, 1088 (D. Mont. 2000). Plaintiffs fail to carry this burden. Case 9:15-cv-00148-DLC Document 49 Filed 05/24/17 Page 10 of 42 4 I. PLAINTIFFS HAVE NOT ESTABLISHED STANDING At the outset, Plaintiffs have failed to make the most basic showing of Article III standing to support their summary judgment motion. The party invoking federal jurisdiction must establish standing at the summary judgment stage. Lujan v. Defs. of Wildlife, 504 U.S. 555, 561 (1992). To establish standing, Plaintiffs must demonstrate through a sworn affidavit (1) an “injury in fact” that is “concrete and particularized” and “actual or imminent”; (2) “a causal connection between the injury and the conduct complained of”; and (3) that the injury is “likely” to be “redressed by a favorable decision.” Id. at 560-61 (quotations omitted). Here, Plaintiffs failed to provide any standing declarations associated with their challenges to the recommended wilderness designations or the wild and scenic river eligibility determinations. Accordingly, Plaintiffs have not established standing. II. THE SERVICE LAWFULLY DESIGNATED RECOMMENDED WILDERNESS AREAS Turning to the merits, Plaintiffs’ challenges to the Service’s designation and management of recommended wilderness in the final Forest Plans lack support. Case 9:15-cv-00148-DLC Document 49 Filed 05/24/17 Page 11 of 42 5 A. The Service’s Recommended Wilderness Designations Are Valid Plaintiffs first argue that the Kootenai Forest violated the APA and NEPA by arbitrarily designating recommended wilderness. To the contrary, both the record and governing law support these designations. 1. The Kootenai Forest’s wilderness recommendations were rationally justified The Kootenai Forest’s recommended wilderness designations include three areas that have been recommended wilderness since 1987 and one newly recommended area that has broad public support to be managed as recommended wilderness. Nevertheless, Plaintiffs contend that these recommended wilderness designations were irrational and not based on substantial evidence or proper procedures in violation of NFMA. Plaintiffs’ Memorandum in Support of Summary Judgment (“Pl. Br.”) 6-12 (ECF No. 37).1 Although, as Defendant- Intervenors commented, the wilderness evaluation process employed by the Kootenai Forest could have been more detailed with respect to areas excluded from recommended wilderness designation, see AR0060118 (MWA Comments), the 1 Although Plaintiffs refer to NEPA in support of their argument, see Pl. Br. 8-9, Plaintiffs’ Complaint alleged only a NFMA violation, see Compl. ¶¶ 164-72 (ECF No. 1). In any event, for the reasons stated above, the Kootenai Forest’s recommended wilderness designations are rational and supported by the record and thus comply with NEPA. See Great Basin Res. Watch v. Bureau of Land Mgmt., 844 F.3d 1095, 1102 (9th Cir. 2016) (no NEPA violation where decision does not rest “on inaccurate information or indefensible reasoning”). Case 9:15-cv-00148-DLC Document 49 Filed 05/24/17 Page 12 of 42 6 Kootenai Forest’s limited recommended wilderness designations were fully justified. Under NFMA’s forest-planning process, the Service must evaluate all roadless areas within a forest for consideration as recommended wilderness. 36 C.F.R. § 219.17(a) (1982).2 As Plaintiffs acknowledge, Pl. Br. 8, the Service has discretion in evaluating and designating recommended wilderness in a Forest Plan. See 16 U.S.C. §§ 1132, 1136 (directing the Secretary of Agriculture to submit to Congress “any recommendations [he] may care to make”); Russell Country Sportsman v. U.S. Forest Serv., 668 F.3d 1037, 1044 n.10 (9th Cir. 2011) (discussing Service’s discretion in forest planning). Here, the Kootenai Forest lawfully exercised this discretion and rationally evaluated and recommended areas for proposed wilderness. The Kootenai Forest used a two-part process to determine whether inventoried roadless areas were suitable for recommended wilderness. AR0043691, AR0043737. First, the Kootenai Forest analyzed and rated areas based on three criteria: (1) “capability,” which assesses whether an area has the “basic characteristics that make it suitable for wilderness recommendation;” (2) “availability,” which assesses “the value of and need for the wilderness resource compared to the value of and need for other resources,” and (3) “need,” which 2 See AR000036806-43 (1982 Planning Rule, 36 C.F.R. §§ 219.1-219.29). Case 9:15-cv-00148-DLC Document 49 Filed 05/24/17 Page 13 of 42 7 assesses “the degree to which the potential wilderness area would contribute to the overall national Wilderness Preservation System.” AR0043691 (Kootenai Final EIS) (citing Service Handbook, Ch. 70). Second, the Kootenai Forest determined the suitability of an area based on these three ratings along with additional considerations such as the “size and shape, and the ability to manage the area as wilderness,” and “comments from the public.” AR0043737. This analysis fully justified the Service’s designations of the Cabinet Mountains Additions,3 Roderick, Scotchman Peaks, and the Ten Lakes area as recommended wilderness in the Kootenai Forest Plan. With respect to the first stage of the recommended wilderness evaluation process, each of these areas received primarily high ratings on the capability, availability, and need assessments, indicating that they meet recommended wilderness criteria. AR0043737-40. At the second stage—addressing suitability—the Service identified additional considerations in support of designating these areas recommended wilderness. For example, Scotchman Peaks provides winter wildlife range and has public support for recommended wilderness. AR0043740; 3 The Cabinet Mountain Additions include portions of Cabinet Face East, Cabinet Face West, McKay Creek, Chippewa, and Rock Creek roadless areas. AR0043742-43. Most of these areas were designated recommended wilderness in the 1987 Forest Plan. Id. (Alternative A). However, the Service made boundary adjustments in the 2015 Forest Plan, AR0102008, and included McKay Creek based on its proximity to the Cabinet Mountains Wilderness and inclusion in prior wilderness legislation, despite its moderate ratings, AR0043743, AR0043780. Case 9:15-cv-00148-DLC Document 49 Filed 05/24/17 Page 14 of 42 8 AR0043792. This area was also included in recent proposed federal wilderness legislation and has been managed as recommended wilderness since 1987. AR0043792. Similarly, most of the Cabinet Additions were included in proposed federal wilderness legislation, AR0043755-58, AR0043780, sit adjacent to the Cabinet Mountains Wilderness, and provide habitat to underrepresented plant communities, AR0043755-58. The majority of this area was also previously designated recommended wilderness. AR012008. Roderick also has public support to be recommended wilderness and was included in proposed wilderness legislation. AR0043789.4 Plaintiffs nevertheless contend that the fact that three other areas (Buckhorn Ridge, Devil’s Gap, and Northwest Peaks) received high capability, availability, and need ratings but were not deemed suitable for recommended wilderness shows that the Kootenai Forest’s suitability determinations were irrational. Pl. Br. 9-10. Plaintiffs’ myopic focus on these ratings ignores distinguishing factors in the record that support each suitability determination, including size, shape, location, and recreational uses of the relevant areas. See AR0043738, 0043753-54 (Buckhorn Ridge); AR0043738, 0043762 (Devil’s Gap); AR0043739; AR0043783-84 (Northwest Peaks). As these distinctions demonstrate, Plaintiffs’ 4 As discussed infra, the Ten Lakes area is unique in that Congress designated it as a Montana Wilderness Study Area with direction to preserve its wilderness characteristics. See infra Part II.A.2. Case 9:15-cv-00148-DLC Document 49 Filed 05/24/17 Page 15 of 42 9 have not identified any areas that share the same characteristics but received different consideration from the Service. Because the Kootenai Forest’s recommended wilderness designations are rationally explained and supported in the record, the Court should reject Plaintiffs’ claim. See Nw. Motorcycle Ass’n v. U.S. Dep’t of Agric., 18 F.3d 1468, 1479 (9th Cir. 1994) (concluding Service had rational basis for excluding motorized use). Plaintiffs further contend that the suitability determinations for Roderick and Scotchman Peaks were arbitrary and unsupported based on inadequate analysis in the Service’s capability assessments. Pl. Br. 10-11. To the contrary, the record supports the capability assessments for Roderick and Scotchman Peaks. The Kootenai Forest evaluated capability by rating 47 criteria developed from the five capability characteristics outlined in the Service Handbook. AR0043691-95, AR008842-44 (Handbook Ch. 72). That analysis shows that, among other things, Roderick offers the “[f]eeling of being alone or remote from civilization,” “appears free of human disturbance,” provides home to threatened and endangered species, and has boundaries that promote the remoteness of the area. AR0043694-98, AR0043712-13. Similarly, the Scotchman Peaks analysis demonstrates that the area offers a feeling of being alone, has rugged terrain, and provides home to “a diverse community of native mammals, birds, and fish.” Id.; see also AR0043718 (noting that this analysis accounted for the capability evaluation performed by the Case 9:15-cv-00148-DLC Document 49 Filed 05/24/17 Page 16 of 42 10 Panhandle Forest on its portion of Scotchman Peaks). Based on this review, the Service reasonably determined that these areas possess the “basic characteristics that make [them] suitable for wilderness recommendation.” AR0043691. The reasonableness of this conclusion is bolstered by broad public support for each of these areas to be recommended as wilderness, the inclusion of both areas in legislation proposing permanent protection, and the preexisting recommended wilderness status of Scotchman Peaks. See supra p.7. Accordingly, the capability assessments for Roderick and Scotchman Peaks were not arbitrary. See Kern Cty. Farm Bureau v. Allen, 450 F.3d 1072, 1076 (9th Cir. 2006) (agency action not arbitrary “if a reasonable basis exists for its decision”) (quotations omitted). Plaintiffs also claim that the availability assessments underlying the recommended wilderness designations were flawed because the Kootenai Forest did not apply verbatim a list of review categories outlined in the Service Handbook. Pl. Br. 7-8. This claim is meritless. Contrary to Plaintiffs’ claim, the eight resource categories considered by the Kootenai Forest during the availability assessment encompass the nine criteria identified in the Service’s Handbook. Compare AR0043719, with AR0088948. For example, the Handbook requires consideration of water availability and use, AR0088948, and the EIS considered “[a]reas that are of high value for water yield,” AR0043719. The Handbook also requires consideration of recreation, including tourism, AR0088948, and the EIS Case 9:15-cv-00148-DLC Document 49 Filed 05/24/17 Page 17 of 42 11 considered whether the unique characteristics of an area supported public access and use “including winter sport sites,” AR0043719. Moreover, the availability assessments summarize “Other Resource Needs” such as recreation, wildlife management, vegetation restoration, mining claims, historic areas, and fire management, AR00437120-28—the same factors discussed in the Handbook, AR0088953-54. In short, the Service considered the resource issues identified by Plaintiffs. Further, as with the capability assessment, the fact that the recommended wilderness areas at issue have been proposed in federal wilderness legislation and most have been previously designated as recommended wilderness supports the Service’s determination that “the value and need” for these wilderness resources outweighs “the value and need for other resources.” AR0043691. In sum, the Service’s suitability determinations for areas designated recommended wilderness, including the underlying capability and availability assessments, were rational and should be upheld. See Kern Cty. Farm Bureau, 450 F.3d at 1076. 2. The Kootenai Forest properly maintained existing management for the Ten Lakes area Plaintiffs also contend that the decision to designate 26,000 acres of the Ten Lakes area as recommended wilderness was an unlawful change in course from the draft record of decision, despite the fact that the Ten Lakes area has been recommended wilderness since 1985. Pl. Br. 11. Contrary to Plaintiffs’ argument, Case 9:15-cv-00148-DLC Document 49 Filed 05/24/17 Page 18 of 42 12 the Kootenai Forest provided a rational explanation for its decision to maintain the longstanding Ten Lakes wilderness recommendation. Plaintiffs’ claim of an unlawful reversal ignores Congress’s mandate to maintain the wilderness characteristics of this area. In 1977, Congress passed the Montana Wilderness Study Act (“MWSA”), Pub. L. No. 95-150, 91 Stat. 1243 (1977), which set aside 34,000 acres of the Ten Lakes area for protection as a Wilderness Study Area, AR0102008-09. The MWSA requires the Kootenai Forest to manage the Ten Lakes Wilderness Study Area to maintain both its wilderness character as it existed in 1977 and its potential for inclusion in the wilderness system. Russell Country Sportsmen, 668 F.3d at 1042. In 1985, the Service designated 26,000 acres of this 34,000-acre area as recommended wilderness through the Ten Lakes MWSA Final Report and Proposal. AR0102008-09.5 Despite the MWSA’s mandate, the Service’s recent forest planning process for the Kootenai Forest initially proposed to remove the recommended wilderness designation from the Ten Lakes area, citing diminished opportunities for solitude and high value for over-snow motorized opportunities. AR042876 (Draft Record of Decision). In response, several Defendant-Intervenor organizations objected 5 The 1987 Forest Plan also recommended an additional 6,800 acres in the Ten Lakes area for wilderness. AR0021527. These acres are adjacent to the Ten Lakes Wilderness Study Area, AR0043795, but were not carried forward in the challenged Forest Plan, see id.; AR0102009. Case 9:15-cv-00148-DLC Document 49 Filed 05/24/17 Page 19 of 42 13 that this reasoning was unlawful because it relied on degradation of wilderness character in the Ten Lakes area through increased snowmobile use to justify removing the recommended wilderness designation, yet such degradation violates the Forest Service’s obligation to maintain the area’s wilderness character as it existed in 1977. AR0097234-39 (MWA Objections). Responding to these concerns, the Final Plan “defer[red] making any changes regarding recommended wilderness in the Ten Lakes” area until travel management planning is completed. AR0102008-09.6 In other words, the Forest Plan took no action regarding the Ten Lakes recommended wilderness encompassed within the Wilderness Study Area and instead carried forward preexisting management direction. AR0102009; AR0101858; AR0101861-62; AR0214534. Contrary to Plaintiffs’ claim, this was a rational decision consistent with federal law and existing management of the area; indeed, it would have been irrational and unlawful for the Kootenai Forest to eliminate the Ten Lakes recommended wilderness based on factors that violate the Montana Wilderness Study Act. See Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983) (agency acts arbitrarily and capriciously if it relies on factors Congress did not intend it to consider). 6 The Kootenai Forest is conducting travel management planning for the Ten Lakes area pursuant to a 2007 settlement agreement with the Montana Wilderness Association. AR0102008-09; AR0043397-98. Case 9:15-cv-00148-DLC Document 49 Filed 05/24/17 Page 20 of 42 14 Moreover, to the extent Plaintiffs’ claim alleges a NEPA violation, it too is meritless. Because the Final Plan preserves the environmental status quo for the Ten Lakes recommended wilderness area, NEPA required no analysis for this decision. See Idaho Conservation League v. Bonneville Power Admin., 826 F.3d 1173, 1175 (9th Cir. 2016) (“[W]here a proposed federal action would not change the status quo, an EIS is not necessary.”) (quotations omitted). In sum, Plaintiffs’ challenge to the recommended wilderness designations fails. B. The Service Has Authority to Manage Recommended Wilderness Areas to Preserve their Wilderness Values Plaintiffs also contend that the Kootenai and Panhandle Forests are illegally managing recommended wilderness areas as “the functional equivalent of Wilderness in the absence of Congressional designation” by excluding motorized and mechanized uses. Pl. Br. 12-13. However, these areas are not managed as de facto wilderness but in conformance with the Service’s authority and obligation to manage these areas to preserve their wilderness characteristics. 1. Managing National Forest lands to preserve wilderness values is lawful As an initial matter, the Service has longstanding authority to manage National Forest lands, including recommended wilderness areas, to protect them from development. This authority derives from the Service’s 1897 Organic Act, 16 U.S.C. §§ 472-82, 551, and the Multiple-Use Sustained-Yield Act (MUSYA), Case 9:15-cv-00148-DLC Document 49 Filed 05/24/17 Page 21 of 42 15 16 U.S.C. §§ 528-31 (1960). These statutes grant the Service “broad discretion to regulate the national forests, including for conservation purposes,” an authority not limited by the Wilderness Act or the National Forest Management Act. Wyoming v. U.S. Dep’t of Agric., 661 F.3d 1209, 1234-35 & n. 20, 1270-71 (10th Cir. 2011) (“Any argument that the Wilderness Act impliedly repealed the Forest Service’s general authority to regulate NFS lands for conservation purposes … must fail.”). Indeed, the Ninth Circuit has recognized that this broad authority allows the Service to restrict motorized use on National Forest lands to preserve primitive, wilderness, and wild areas, see McMichael v. U.S., 355 F.2d 283, 284-86 (9th Cir. 1965) (rejecting challenge to Service regulations prohibiting motorized vehicles in primitive areas), and more broadly to enact administrative measures to protect roadless areas, see Kootenai Tribe of Idaho v. Veneman, 313 F.3d 1094, 1117 n.20 (9th Cir. 2002), abrogated on other grounds by The Wilderness Soc’y v. U.S. Forest Serv., 630 F.3d 1173 (9th Cir. 2011); cf. Or. Nat. Desert Ass’n v. Bureau of Land Mgmt., 625 F.3d 1092, 1114 (9th Cir. 2010) (multiple use and sustainable yield mandate allows BLM “ample discretion for management of lands with Case 9:15-cv-00148-DLC Document 49 Filed 05/24/17 Page 22 of 42 16 wilderness values” including restricting motorized use). That same authority justifies the Service’s decision to restrict motorized and mechanized use here.7 2. Recommended wilderness is not de facto wilderness Moreover, even assuming that the Service lacked this authority—which it does not—Plaintiffs’ claim fails because the Forest Plans do not designate or attempt to designate wilderness. Instead, the Forest Plans impose administrative management restrictions to preserve wilderness characteristics of recommended wilderness, which, unlike congressionally designated wilderness areas, can be altered by future agency planning. See 36 C.F.R. § 219.7(c)(2)(v) (2012) (requiring evaluation of recommended wilderness areas in future forest planning); AR0102008 (Kootenai) (stating that recommended wilderness designations are “a preliminary administrative recommendation” subject to further review and modification); AR0101762 (Panhandle) (same). 7 Indeed, under Executive Order 11644, 37 Fed. Reg. 2877 (Feb. 9, 1972), and the Service’s 2005 Travel Management Rule, 36 C.F.R. § 212.55(b), the Service may not allow motorized use, including snowmobile use, on any lands, including recommended wilderness and other primitive backcountry areas, unless it has considered and minimized impacts to forest resources, wildlife, and other recreational uses in “each area it designated” for motorized use. WildEarth Guardians v. U.S. Forest Serv., 790 F.3d 920, 930-32 (9th Cir. 2015) (emphasis in original). Case 9:15-cv-00148-DLC Document 49 Filed 05/24/17 Page 23 of 42 17 Plaintiffs nevertheless equate prohibitions on motorized and mechanized travel with creation of de facto wilderness. But federally designated wilderness has distinct management restrictions that are not applicable to recommended wilderness on the Kootenai or Panhandle Forests. For example, the Wilderness Act prohibits the use of any motorized equipment in wilderness areas, 16 U.S.C. § 1133(c), (d)(3); 36 C.F.R. § 293.6, but the Forest Plans continue to allow hand- held motorized equipment, including chainsaws, for administrative use in recommended wilderness, AR0101860 (Kootenai); AR0101608 (Panhandle). The Forest Plans also allow cutting of trees for hazard-tree mitigation in recommended wilderness, AR0101860 (Kootenai); AR010608 (Panhandle), but cutting trees for nonwilderness purposes is prohibited in designated wilderness, 36 C.F.R. § 293.6. On the Panhandle Forest, some areas of recommended wilderness are subject to regulation under the Idaho Roadless Rule, see AR0101605, which allows limited road construction, see 36 C.F.R. §§ 294.23, 294.29. In contrast, permanent and temporary road construction is prohibited in wilderness areas, Wyoming, 661 F.3d at 1231 (citing 16 U.S.C. §1133(c); 36 C.F.R. § 293.6). Thus, the recommended wilderness areas on the Kootenai and Panhandle Forests are not de facto wilderness. Id. at 1233 (holding that Roadless Rule did not create de facto wilderness). Case 9:15-cv-00148-DLC Document 49 Filed 05/24/17 Page 24 of 42 18 C. The Service’s Travel Restrictions Are Based on Adequate Site- Specific Analysis Citing no law, Plaintiffs next argue that the Service failed to perform an adequate site-specific analysis supporting its decision to prohibit over-snow and mechanized use in recommended wilderness areas on the Kootenai and Panhandle Forests. Pl. Br. 14-20. As an initial matter, Plaintiffs’ claim fails because they have not identified a statutory basis to support it. See id.; see also Compl. ¶¶ 180– 85 (alleging NFMA violation but citing no statutory basis). To the extent Plaintiffs attempt to raise a NEPA claim on this issue, that claim fails. Under NEPA, the key question is whether the EIS demonstrates that the Service took a “hard look” at the environmental consequences of its decision. California v. Block, 690 F.2d 753, 761 (9th Cir. 1982). Consistent with NEPA’s purpose of environmental protection, the requisite level of analysis for agency decisions that preserve and protect the environment need not be as probing as for decisions that degrade the environment. See id. (rejecting argument that, where an EIS is legally insufficient to support nonwilderness designations, it must also be legally insufficient to support wilderness designations). In particular, even where a “more intensive review” of recommended wilderness designations is needed to ensure that areas were not improperly excluded from designation, this same level of review is not required for a decision that included areas in recommended wilderness designations. Id. Plaintiffs ignore this standard in wrongly urging that Case 9:15-cv-00148-DLC Document 49 Filed 05/24/17 Page 25 of 42 19 the Service failed to take a “hard look” at the impacts of excluding snowmobile and mechanized use from recommended wilderness. In any event, Plaintiffs’ argument defies the record. The Final EIS for each forest adequately assessed the impacts to wildlife and recreation opportunities from restricting over-snow motorized and mechanized uses in recommended wilderness. On the Kootenai, the Final EIS considered the effects of over-snow motorized use on grizzly bears, AR0043184-86, bighorn sheep, AR0043203-04, and big game, AR0043259-60, and generally discussed the impacts of recreation activities on wildlife, AR0043296-99, including the impacts to wolves from human access and roads, AR0043234-35. The discussion of recommended wilderness addressed motorized use, including snowmobiling, and mechanized use, AR0043398-03, which were addressed in more detail in the discussion of roadless areas, AR0043385-94, including the increases in these uses since the 1987 Forest Plan, AR0043383-84. The Final EIS also detailed environmental consequences of travel management, including prohibition on over-snow and mechanized use in recommended wilderness, and impacts on recreation opportunities in these areas. AR0043349–62; see also AR0043970-71, AR0044003, AR0043946. On the Panhandle, the Final EIS discussed the effects of motorized over- snow access on lynx, AR0041664-65, grizzly bears, AR0041692, woodland caribou, AR0041709-15, wolves, AR0041767-69, and big game, AR0041789-94, Case 9:15-cv-00148-DLC Document 49 Filed 05/24/17 Page 26 of 42 20 AR0041822-24, and discussed recreation impacts on wolverines, AR0041720-21. Similarly, the Panhandle Final EIS also discussed increases in recreation over time, AR0041880-81, AR0041899, impacts to motorized, over-snow, and mechanized uses in recommended wilderness, AR0041919-20, and the environmental consequences of travel management, including prohibitions on over-snow and mechanized use in recommended wilderness, and impacts on recreation opportunities, AR0041870-75, AR0041864. These analyses satisfy NEPA. See WildEarth Guardians, 790 F.3d at 928-29 (Service properly considered impacts of snowmobile use on non-motorized recreation); Memorandum and Order, Beaverhead Cty. Comm’rs v. U.S. Forest Serv., No. CV-10-68-BU-SEH, at 29-33 (D. Mont. Jul. 22, 2013) (holding Service “sufficiently analyzed” effects of excluding motorized uses in recommended wilderness) (attached). Plaintiffs’ claim that the Service did not comply with the Objections Reviewing Officer’s instruction to summarize this environmental analysis in the record also fails. Pl. Br. 14-15. Contrary to Plaintiffs’ argument, the Service responded to this instruction by summarizing the environmental analysis supporting its decision to eliminate motorized and mechanized use in recommended wilderness in the final records of decision and related record documents. See AR0102009-10, AR0102017-20; AR0102043 (Kootenai); AR0101763, AR0101770-74, AR0101798-99 (Panhandle). Case 9:15-cv-00148-DLC Document 49 Filed 05/24/17 Page 27 of 42 21 In the end, Plaintiffs’ argument amounts to a disagreement with the Service’s conclusion that motorized use in recommended wilderness diminishes wilderness values and impacts potential for formal wilderness designation. Pl. Br. 15–19; see AR0102009-10 (Kootenai); AR0101763-64 (Panhandle). However, wilderness characteristics are more than just physical; other wilderness characteristics, such as opportunities for solitude, share equal importance. Mont. Wilderness Ass’n v. McAllister, 666 F.3d 549, 556 (9th Cir. 2011) (“The Service’s focus on physical characteristics alone, without regard to the opportunities for solitude currently available, fails to capture this important aspect of wilderness character.”); see also 16 U.S.C. §1131(c) (defining wilderness). In excluding motorized and mechanized uses, the Service properly considered opportunities for solitude and other wilderness values—as well as the impact of those nonconforming uses on the potential for recommended wilderness to be formally designated as wilderness. Indeed, certain roadless areas with established motorized and mechanized uses were excluded from recommended wilderness designation—a first step towards permanent protection—precisely because such nonconforming uses existed. See e.g., AR0098034 (plaintiff organization objection that Whitefish Divide should “allow a maximum of both summer and winter recreation opportunities”); AR0102018-19 (excluding Whitefish Divide from recommended wilderness due to ongoing travel management planning) Case 9:15-cv-00148-DLC Document 49 Filed 05/24/17 Page 28 of 42 22 (Kootenai); AR0101762 (excluding the Upper Pack River from recommended wilderness “to maintain opportunities for mountain biking and winter motorized recreation”). Plaintiffs’ disagreement offers no basis to reverse the Service’s reasoned decision. See Bicycle Trails Council of Marin v. Babbitt, 82 F.3d 1445, 1460 (9th Cir. 1996) (rejecting challenge to trail plan that merely disagreed with agency conclusion). Given the ample record justification for the Service’s decisions, Plaintiffs’ focus on what they call the “Region 1 guidance” is also misplaced. Pl. Br. 18-19. “Because the record demonstrates that the Forest Service carefully considered and evaluated the potential environmental impacts,” Plaintiffs’ allegations about this guidance are meritless and do not undermine the adequacy of the Service’s analysis. See Memorandum and Order, Beaverhead Cty. Comm’rs, No. CV-10-68- BU-SEH, at 18-23 (rejecting argument that meeting notes showed Service decided to ban motorized use in recommended wilderness before preparing EIS). 8 D. The Service Considered an Adequate Range of Alternatives Plaintiffs claim that the Service failed to consider an adequate alternative allowing “historical”—i.e., motorized and mechanized—uses in recommended 8 Because the objections review process is promulgated under NFMA, see 36 C.F.R. § 219.50 (2012), compliance with that process does not necessarily comply with NEPA. Accordingly, throughout this brief, The Wilderness Society supports its NEPA arguments with the Draft and Final EISs and not subsequently produced documents. Case 9:15-cv-00148-DLC Document 49 Filed 05/24/17 Page 29 of 42 23 wilderness areas. Pl. Br. 20. This claim turns NEPA on its head by arguing for a statutory mandate requiring the Service to examine additional recommended wilderness management alternatives that are inconsistent with wilderness values. Such a subversion of NEPA is inconsistent with its role as “our basic national charter for protection of the environment.” Cal. ex rel. Lockyer v. U.S. Dep’t of Agric., 575 F.3d 999, 1012 (9th Cir. 2009) (quotations omitted). As the Ninth Circuit explained in the context of the National Forest Roadless Area Conservation Rule, given that the challenged decision was entirely consistent with the policy objectives of NEPA, as well as with the Service’s own mission, it would turn NEPA on its head to interpret the statute to require that the Forest Service conduct in-depth analysis of environmentally damaging alternatives that are inconsistent with the Service’s conservation policy objectives. Kootenai Tribe, 313 F.3d at 1122 (footnotes omitted). Similarly, here the Service’s decision to restrict uses that degrade wilderness values is entirely consistent with its policy objectives in recommending areas as wilderness. See AR0102008-10 (Kootenai); AR010762-63 (Panhandle). Because Plaintiffs challenge an action that “conserve[s] and protect[s] the natural environment, rather than [harms] it,” NEPA’s alternatives requirement should be interpreted “less stringently.” Kootenai Tribe, 313 at 1120. For this reason alone, Plaintiffs’ argument fails. Case 9:15-cv-00148-DLC Document 49 Filed 05/24/17 Page 30 of 42 24 Even under the ordinary alternatives standard, however, Plaintiffs’ argument is meritless. The Service properly considered an alternative that would have allowed continuation of “historic uses” in recommended wilderness. The no-action alternative would have maintained preexisting management of recommended wilderness under the 1987 Forest Plan as amended, which allowed some motorized and mechanized activity in recommended wilderness. AR0042948; AR0042951- 52; AR0043398 (Kootenai Final EIS); AR41443; AR0041447; AR0041858-59; AR0041871 (Panhandle Final EIS); Fed. Def. SOF ¶¶ 31-34 (ECF No. 47). Contrary to Plaintiffs’ claim, the direction to prohibit motorized and mechanized use in recommended wilderness did not apply to the no-action alternative. AR0043297 (“Alternative A will retain the existing amount of recommended wilderness and non-motorized areas”); AR0043352; AR0043131 (stating that existing management prohibits over-snow motorized use on approximately 258,000 acres); AR0043352 (same under no-action alternative); id. (discussing application of legal order in context of action alternatives); AR0043387 (describing management under no action alternative) (Kootenai); AR0041767 (“Alternative A will retain the existing amount of recommended wilderness and non-motorized areas”); AR0041871 (stating that the prohibitions to over-snow vehicle use will apply only to Alternatives B, C, and D) (Panhandle). Accordingly, the Service considered a reasonable range of alternatives “sufficient to permit a Case 9:15-cv-00148-DLC Document 49 Filed 05/24/17 Page 31 of 42 25 reasoned choice.” Friends of Yosemite Valley v. Kempthorne, 520 F.3d 1024, 1038 (9th Cir. 2008) (quotations omitted). III. THE SERVICE’S WILD AND SCENIC RIVER ELIGIBILITY DETERMINATIONS ARE LAWFUL A. The Kootenai Forest Was Not Required to Prepare a Supplemental EIS Plaintiffs’ main challenge to the Rivers Act eligibility determinations is that the Kootenai Forest’s designation of the Vinal Creek System, the West Fork Yaak River, Ross Creek, Callahan Creek, and two additional segments to the Bull River as eligible for inclusion in the Wild and Scenic Rivers System violated NEPA because the Service did not prepare a supplemental EIS before making these designations in the Final Record of Decision. Pl. Br. 5. Contrary to Plaintiffs’ claim, none of these eligibility determinations required supplemental NEPA review.9 The Rivers Act directs the Service to “consider and discuss” potential national wild, scenic, and recreational rivers in developing a forest plan. 16 U.S.C. §1276(d)(1). To facilitate this review, the Service evaluates rivers eligible for inclusion in the Wild and Scenic River System during forest planning. AR0214959 (Handbook). A river is eligible for inclusion if the river is free 9 Plaintiffs’ brief mistakenly refers to the Kootenai Forest’s “suitability determinations,” Pl. Br. 5, but the forest planning process conducted only eligibility review, AR0043823. Case 9:15-cv-00148-DLC Document 49 Filed 05/24/17 Page 32 of 42 26 flowing and “possess[es] outstandingly remarkable scenic, recreational, geologic, fish and wildlife, historic, cultural, or other similar values.” 16 U.S.C. §§ 1271, 1273(b). Here, the Kootenai Forest identified 150 river-miles that satisfied this definition, an increase of just 37 miles from the prior forest plan. AR0102007 (Kootenai Decision). Plaintiffs’ claim that a supplemental EIS is warranted with respect to the eligibility determinations for segments of the Vinal Creek System, the West Fork Yaak River and two additional segments of the Bull River fails because these rivers were deemed eligible throughout the Service’s environmental review process and in the final decision. Compare AR0039697–98 (Draft EIS), with AR0043410- 11 (Final EIS); AR0101464-66 (Errata); AR0102007 (Final Record of Decision). Accordingly, as to these segments, no change occurred between final EIS and final decision to warrant supplemental review. With respect to post-EIS additions of Ross Creek and Callahan Creek, Plaintiffs have not shown that these eligibility determinations represent a substantial change requiring a supplemental EIS. See Pl. Br. 5-6. Although Plaintiffs fault the Kootenai Forest for changes between the Final EIS and the Final Record of Decision, the law governing when a supplemental EIS is required for changes between a draft and final EIS is applicable. See Japanese Vill., LLC v. Fed. Transit Admin., 843 F.3d 445, 471 (9th Cir. 2016) (applying supplemental Case 9:15-cv-00148-DLC Document 49 Filed 05/24/17 Page 33 of 42 27 EIS regulations and case law to changes made after issuance of final EIS). NEPA requires that an agency supplement a draft EIS if the agency makes “substantial changes in the proposed action that are relevant to environmental concerns[.]” 40 C.F.R. § 1502.9(c)(1). Only when the final action “departs substantially from the alternatives described in the draft EIS” is a supplemental EIS required. Russell Country Sportsmen, 668 F.3d at 1045. Changes that are a “minor variation of one of the alternatives discussed in the draft EIS” and “qualitatively within the spectrum of alternatives that were discussed in the draft [EIS]” are not substantial changes requiring supplemental review. Id. (emphasis in original) (quotations omitted) (adopting Council on Environmental Quality’s guidance for applying 40 C.F.R. § 1502.9(c)(1)(i)). No substantial departure occurred here. The inclusion of Ross Creek and Callahan Creek constitutes a minor variation that is qualitatively within the alternatives discussed in the Final EIS. As an initial matter, where a “modified alternative only lessens environmental impacts[,]” it “tend[s] to show that the new alternative is a minor variation of one of the alternatives discussed in the draft EIS.” Id. at 1048 (quotations omitted). That is precisely what occurred here—the eligibility determinations ensure that Ross and Callahan Creeks will be managed to preserve their outstandingly remarkable values and free-flowing nature, rather than degraded. See 16 U.S.C. § 1273(b); AR0102007 (Kootenai Decision). Case 9:15-cv-00148-DLC Document 49 Filed 05/24/17 Page 34 of 42 28 Moreover, as explained in the FEIS, even without the eligibility determinations, the majority of Ross Creek and all of Callahan Creek would still be subject to management direction similar to, and in some cases more protective than, the eligible wild and scenic river management framework due to their inclusion in other management areas. AR0042962-63 (Final EIS) (noting that, under the draft Forest Plan, Callahan Creek would be subject to special area management and Ross Creek would be subject to recommended wilderness, special area, and research natural area management); AR0101858-60 (recommended wilderness management direction); AR0101863-67 (eligible wild and scenic river management direction); AR0101867-72 (special area management direction); AR0101872-74 (research natural area management direction). Accordingly, the eligibility determinations did not meaningfully change the management of these areas and, to the extent they did, the eligibility determinations only increased environmental protections for Ross Creek and Callahan Creek. Because these eligibility determinations constitute a minor change that increases environmental protections, a supplemental EIS was not required. See Russell Country Sportsmen, 668 F.3d at 1047-49 (supplemental EIS not required for minor change that is not a primary aspect of plan, where modification did not have environmental impacts not already considered); see also Kootenai Tribe, 313 F.3d at 1118 (supplemental EIS not required for addition of 4.2 million acres of inventoried roadless areas); Case 9:15-cv-00148-DLC Document 49 Filed 05/24/17 Page 35 of 42 29 Memorandum and Order, Beaverhead Cty. Comm’rs, No. CV-10-68-BU-SEH, at 28 (supplemental EIS not required for “minor addition” of 21,000 acres of recommended wilderness that was qualitatively and quantitatively similar to other areas analyzed in draft EIS). B. Plaintiffs’ Rivers Act Claim is Meritless Plaintiffs also assert that the eligibility determinations in the Kootenai Forest Plan violated the Rivers Act itself. Pl. Br. 3-4. But these determinations are consistent with Congress’s mandate that “[e]very wild, scenic or recreational river in its free-flowing condition, or upon restoration to this condition, shall be considered eligible for inclusion in the national wild and scenic river system[.]” 16 U.S.C. § 1273(b) (emphases added). Under this mandate, the Kootenai Forest was required to designate rivers as eligible if they are free flowing and possess at least one outstandingly remarkable value. Id. §§ 1271, 1273(b), 1276(d)(1). Here, the record demonstrates that both Ross Creek and Callahan Creek are free flowing and possess outstandingly remarkable values and were thus properly designated as eligible. See AR0042962-63, AR0044013-14 (Kootenai Final EIS), AR0101496, Case 9:15-cv-00148-DLC Document 49 Filed 05/24/17 Page 36 of 42 30 AR0101499, AR0101458 (Final EIS Errata). Accordingly, Plaintiffs’ claim lacks merit.10 IV. THE SERVICE PROPERLY COORDINATED WITH THE GLEN LAKE IRRIGATION DISTRICT The Wilderness Society adopts the arguments raised by the Federal Defendants in opposition to Plaintiffs’ argument concerning coordination with the Glen Lake Irrigation District. Fed. Br. 26-30 (ECF No. 46). V. ANY REMEDY SHOULD NOT VACATE THE FOREST PLANS If the Court determines that a remedy is necessary for any of Plaintiffs’ claims—which it is not—The Wilderness Society requests that this Court order remand without vacatur of the Forest Plans. Remand without vacatur is appropriate as a matter of equity to preserve the protections for recommended wilderness and eligible wild and scenic rivers provided in the Forest Plans. See Idaho Farm Bureau Fed’n v. Babbitt, 58 F.3d 1392, 1405 (9th Cir. 1995) (remanding without vacatur decision that protected endangered species). 10 The Wilderness Society disagrees with Federal Defendants’ assertion that this claim is not ripe for review because the challenged determinations do not trigger any protections. Fed. Br. 8-11 (ECF No. 46). Eligibility determinations trigger the statutory requirement that rivers be “administered” to maintain their eligibility. See 16 U.S.C. § 1273(b) (requiring eligible rivers to be “classified, designated and administered” as wild, scenic, or recreational); see also Ctr. for Biological Diversity v. Veneman, 394 F.3d 1108, 1113-15 (9th Cir. 2005) (discussing discrete agency actions that may be required as a result of eligibility determinations); AR0101863 (Kootenai Plan) (managing eligible rivers “to protect the free-flowing nature of these rivers, and outstandingly remarkable … values”). Case 9:15-cv-00148-DLC Document 49 Filed 05/24/17 Page 37 of 42 31 “Whether agency action should be vacated depends on how serious the agency’s errors are ‘and the disruptive consequences of an interim change that may itself be changed.’” Cal. Cmtys. Against Toxics v. EPA, 688 F.3d 989, 992 (9th Cir. 2012) (citations omitted). None of the errors alleged by Plaintiff, even if valid (which they are not), are severe enough to warrant vacatur. An interim change that reinstates the 1987 Forest Plans would reverse nearly 15 years of effort involved in the forest planning process, including considerable public effort to protect recommended wilderness areas and ensure wild and scenic river eligibility. Moreover, as discussed above, vacatur would diminish the wilderness characteristics of recommended wilderness and threaten opportunities for these areas to receive permanent protection.11 CONCLUSION For the foregoing reasons, Defendant-Intervenors The Wilderness Society, Headwaters Montana, Idaho Conservation League, Montana Wilderness Association, Panhandle Nordic Ski and Snowshoe Club, and Winter Wildlands Alliance respectfully request that this Court grant their motion for summary judgment and deny Plaintiffs’ motion for summary judgment. 11 See, e.g., Scotchman Peaks Wilderness Act of 2016, S. 3531, 114th Cong. (2016) (referred to Committee). Case 9:15-cv-00148-DLC Document 49 Filed 05/24/17 Page 38 of 42 32 Respectfully submitted this 24th day of May, 2017. /s/ Aurora R. Janke Timothy J. Preso Aurora R. Janke Earthjustice 313 East Main Street Bozeman, MT 59715 (406) 586-9699 Fax: (406) 586-9695 tpreso@earthjustice.org ajanke@earthjustice.org Attorneys for Defendant-Intervenors Case 9:15-cv-00148-DLC Document 49 Filed 05/24/17 Page 39 of 42 EXHIBIT INDEX Memorandum and Order, Beaverhead Cty. Comm’rs v. U.S. Forest Serv., No. CV- 10-68-BU-SEH (D. Mont. Jul. 22, 2013). Case 9:15-cv-00148-DLC Document 49 Filed 05/24/17 Page 40 of 42 CERTIFICATE OF COMPLIANCE I hereby certify that this Memorandum in Support of Defendant-Intervenors Motion for Summary Judgment contains 6,492 words excluding the caption, certificates of service and compliance, table of contents and authorities, and exhibit list in compliance with this Court’s Order (ECF No. 44) and Local Rule 7.1(d)(2)(A). DATED: May 24, 2017. /s/ Aurora R. Janke Aurora R. Janke Case 9:15-cv-00148-DLC Document 49 Filed 05/24/17 Page 41 of 42 CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing was today served via the Court’s CM/ECF system on all counsel of record. /s/ Aurora R. Janke Aurora R. Janke Case 9:15-cv-00148-DLC Document 49 Filed 05/24/17 Page 42 of 42 Exhibit Case 9:15-cv-00148-DLC Document 49-1 Filed 05/24/17 Page 1 of 35 FILED JUL 22 2013 Cieri<. u.s. 0Istr1ct Court Dtsttid Of Montana Helena IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MONTANA BUTTE DIVISION BEAVERHEAD COUNTY COMMISSIONERS-TOM RICE and MIKE McGINLEY, et at., Plaintiffs, vs. UNITED STATES FOREST SERVICE; LESLIE WELDON, in her official capacity as Region 1 Regional Forester; DA VE MEYER, in his official capacity as Beaverhead-Deerlodge National Forest Supervisor, Defendants, GREATER YELLOWSTONE COALITION and MONTANA WILDERNESS ASSOCIATION, Defendant-Intervenors. CV 1O-68-BU-SEH MEMORANDUM AND ORDER Case 2:10-cv-00068-SEH Document 73 Filed 07/22/13 Page 1 of 34Case 9:15-cv-0 148-DLC Document 49-1 Filed 05/ 4/17 Page 2 of 35 ------------------------ INTRODUCTION This suit challenges the United States Forest Service's Final Revised Land and Resource Management Plan ("Revised Forest Plan") for Montana's largest national forest-the Beaverhead-Deerlodge National Forest {"the Forest"}--which covers 3.35 million acres and stretches over eight counties in southwestern Montana. Record of Decision for the Final Environmental Impact Statement and Revised Land and Resource Management Plan ("2009 ROD"), 11-01, 4. Plaintiffs allege the Forest Service violated the National Environmental Policy Act ("NEPA"), 42 U.S.c. § 4321 et seq., and the Wild and Scenic Rivers Act ("WSRA"), 16 U.S.c. §§ 1271-1287, in promulgating the Revised Forest Plan. Declaratory and injunctive relief under the Administrative Procedure Act (HAPA"), 5 U.S.C. §§ 701-706 are sought. Plaintiffs are the Beaverhead County Commissioners Tom Rice and Mike McGinley along with a coalition of individuals and organizations with interests in the Forest. Defendants include the United States Forest Service, Leslie Weldon in her official capacity as Regional Forester, and Dave Meyer in his official capacity as Beaverhead-Deerlodge National Forest Supervisor. The Greater Yellowstone Coalition and the Montana Wilderness Association (collectively "Defendant Intervenors") have appeared as intervenors. All parties have filed motions for -2 Case 2:10-cv-00068-SEH Document 73 Filed 07/22/13 Page 2 of 34Case 9:15-cv-0 148-DLC Document 49-1 Filed 05/ 4/17 Page 3 of 35 summary judgment. FACTUAL BACKGROUND In 2002, the Forest Service began a process of revising the forest plans for the Beaverhead National Forest and the Deerlodge National Forest, whose original forest plans dated back to 1986 and 1987, respectively. 1 Land and Resource Management Plan: Corrected Final Environmental Impact Statement ("Final EIS"), Al-40, 1. A seven-year revision process followed, culminating with the release the Revised Forest Plan in 2009. The revision process included four comment periods and prompted considerable attention from the public. Publication of the Draft Environmental Impact Statement ("Draft EIS") prompted 11,188 comments during a 120-day comment period. 2009 ROD, 2. Although not required, the Forest Service, due to "intense public interest," offered a 75-day comment period following the publication of the Final EIS, which led to 32,536 additional comments. [d. Eight revision topics were considered during the revision process. [d. at 7. Plaintiffs take issue with Revision Topic # 4: Recreation and Travel Management and Revision Topic # 8: Recommended Wilderness. As to Recreation and Travel I The two forests were administratively consolidated into the Beaverhead-Deerlodge National Forest in 1996. Final EIS, 1. -3 Case 2:10-cv-00068-SEH Document 73 Filed 07/22/13 Page 3 of 34Case 9:15-cv-0 148-DLC Document 49-1 Filed 05/ 4/17 Page 4 of 35 Management, need for revision was identified due to the substantial increase in motorized recreation whose "unmanaged expansion ... has resulted in resource damage, wildlife impacts, and competition and conflict between user groups." Id. at 13. The Revised Forest Plan permits motorized recreation on 55 percent of the Forest during the summer and 60 percent during the winter, id. at 15, while the original plans permitted motorized uses on 71 percent of the Forest during the summer and 84 percent during the winter, Final EIS, 39. As for Recommended Wilderness, 36 C.F.R. § 219.17 required the Forest Service to evaluate roadless areas for wilderness potential during the revision process. 2009 ROD, 19. It identified 322,000 acres for designation as Recommended Wilderness. Id. at 29. Motorized uses and mountain biking are prohibited in the Recommended Wilderness Areas. Id. at 21. Plaintiffs' main contention revolves around the above revisions, which have led to a reduction in recreational opportunities for motorized uses on 1,516,855 acres of the Forest during the summer and 1,336,628 acres during the winter. Record of Decision Enacting Forest Plan Travel Management Direction for Certain Areas of the Beaverhead-Deerlodge National Forest ("2010 ROD"), Jl-Ol, 3. Plaintiffs assert the Forest Service violated NEPA by: (1) failing to adequately include Beaverhead County as a "cooperating agency" during the -4 Case 2:10-cv-00068-SEH Document 73 Filed 07/22/13 Page 4 of 34Case 9:15-cv-0 148-DLC Document 49-1 Filed 05/ 4/17 Page 5 of 35 development of the Revised Forest Plan; (2) by failing to conduct an Environmental Impact Statement ("EIS") before changing the management of the Recommended Wilderness Areas from motorized to non-motorized; (3) by failing to conduct a supplemental EIS; and (4) by failing to conduct site-specific analysis prior to banning motorized uses from the Recommended Wilderness Areas. Plaintiffs also allege that the Forest Service violated the WSRA by failing to reassess the eligibility of Deadman Creek as a "wild" river. (Pl.'s Compl., Document No.1 at n 1-2.) Defendants defend their actions on the merits and contend that Plaintiffs lack standing for each of their claims. They insist that all duties to Beaverhead County as a cooperating agency were fulfilled and that the Forest Service conducted a comprehensive EIS that required neither supplementation nor site specific analysis. Finally, Defendants maintain that no authority required the Forest Service to reassess the eligibility of Deadman Creek under the WSRA. Defendant-Intervenors echo the majority of Defendants' contentions, while adding that Plaintiffs' claims are both time-barred and fail to challenge a final agency action. Defendant-Intervenors also argue that recreational opportunities are not impacts on the environment, and thus, no analysis of the environmental impacts of excluding motorized uses from the Recommended Wilderness Areas -5 Case 2:10-cv-00068-SEH Document 73 Filed 07/22/13 Page 5 of 34Case 9:15-cv-0 148-DLC Document 49-1 Filed 05/ 4/17 Page 6 of 35 was required. SU~ARYJUDGMENTSTANDARD Summary judgment is appropriate "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). Because this case involves review of an administrative record, summary judgment may be granted to either party based upon the Court's review of the record. See Karuk Tribe ofCal. v. U.S. Forest Serv., 681 F.3d 1006,1017 (9th Cir. 2012) (en banc). ANALYSIS A. Standing Plaintiffs' standing with respect to each of their claims is challenged. Plaintiffs counter with declarations submitted by Kerry White, a member of several Plaintiff organizations, and Beaverhead County Commissioner Mike McGinley. Both allege injuries suffered on behalf of their respective organizations. The Court must undertake two distinct inquiries to determine whether Plaintiffs have established standing. See Nuclear Info. and Resource Servo V. Nuclear Regulatory Commn., 457 F.3d 941,949 (9th Cir. 2006). First, Plaintiffs must satisfy Article Ill's case or controversy requirement. Id. If Article III ·6· Case 2:10-cv-00068-SEH Document 73 Filed 07/22/13 Page 6 of 34Case 9:15-cv-0 148-DLC Document 49-1 Filed 05/ 4/17 Page 7 of 35 standing is established, Plaintiffs must then establish prudential standing to bring this action under the APA. Id. at 950. i. Article III Standing Standing is "an essential and unchanging part of the case-or-controversy requirement of Article III." Lujan v. Defenders ofWildlife, 504 U.S. 555, 560 (1992). The party invoking federal jurisdiction has the burden of demonstrating standing. Id. at 561. Standing under Article III requires a plaintiff to demonstrate: (1) it has suffered an "injury in fact" that is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) the injury is fairly traceable to the challenged action of the defendant; and (3) it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision. Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 180-81 (2000). Standing analysis for purposes of Article III is not "fundamentally changed" because the injury asserted here is procedural as opposed to substantive. City ofSausalito v. O'Neill, 386 F.3d 1186, 1197 (9th Cir. 2004). Plaintiffs may satisfactorily plead a procedural injury by alleging: "(1) the [Forest Service] violated certain procedural rules; (2) these rules protect [Plaintiffs'] concrete interests; and (3) it is reasonably probable that the challenged action will threaten their concrete interests." Citizens for Better Forestry v. U.S. Dept. ofAgric., 341 F.3d 961, 969-70 (9th Cir. 2003). They must also allege that -7 Case 2:10-cv-00068-SEH Document 73 Filed 07/22/13 Page 7 of 34Case 9:15-cv-0 148-DLC Document 49-1 Filed 05/ 4/17 Page 8 of 35 their "concrete interests" have been threatened by the agency's failure to comply with procedural requirements. City ofSausalito, 386 F.3d at 1197. Such a "cognizable procedural injury exists when a plaintiff alleges that a proper EIS has not been prepared under the National Environmental Policy Act when the plaintiff also alleges a 'concrete' interest-such as an aesthetic or recreational interest-that is threatened by the proposed action." Id. The "concrete interest" test requires a '''geographic nexus' between the individual asserting the claim and the location suffering an environmental impact." Cantrell v. City ofLong Beach, 241 F.3d 674,679 (9th Cir. 2001). "Where the recreational use of a particular area has been extensive and in close proximity to the plaintiff," the Ninth Circuit has held, "that an affiant's expressed intention to continue using the land is sufficiently concrete to underwrite an injury-in-fact." Wilderness Socy. v. Rey, 622 F.3d 1251, 1256 (9th Cir. 2010). However, a vague desire to return to an area without concrete plans or a specification of when to return does not support a rmding of actual or imminent injury. Summers v. Earth Is. Inst., 555 U.S. 488, 496 (2009). In addition to an injury-in-fact, Plaintiffs must also demonstrate causation and redressability. But "[0]nce a plaintiff has established an injury in fact under NEPA, the causation and redressability requirements are relaxed." Cantrell,241 -8 Case 2:10-cv-00068-SEH Document 73 Filed 07/22/13 Page 8 of 34Case 9:15-cv-0 148-DLC Document 49-1 Filed 05/ 4/17 Page 9 of 35 -------------------- F.3d at 682. In addition, NEPA cases only require "reasonable probability" to establish causation. Kootenai Tribe ofIdaho v. Veneman, 313 F.3d 1094, 1113 (9th Cir. 2002) (abrogated on other grounds by Wilderness Socy. v. Us. Forest Serv., 630F.3d 1173 (9th Cir. 2011». Kerry White, as a representative member of several Plaintiff organizations, established standing by his declaration, stating that (1) the reduction in acreage available for motorized uses in the Forest caused him to lose aesthetic and recreational opportunities in the Forest, (2) that he intends to continue using the land, and (3) that the Revised Forest Plan has caused his interests to be irreparably harmed. (Dec!. of Kerry White, Document No. 53-1, 1-4.) The requirements to establish standing under Article III are fulfilled. Mike McGinley, however, has failed to demonstrate standing on behalf of Beaverhead County by his assertions that its residents have suffered injuries to their recreational and aesthetic interests. As a representative of Beaverhead County, McGinley may not "simply assert the particularized injuries to the 'concrete interests' of its citizens on their behalf." City ofSausalito, 386 F.3d at 1197. Instead, in order for Beaverhead County to bring such an action, it "must articulate an interest apart from the interests of particular private parties, i.e., the [County] must be more than a nominal party. [It] must express a quasi-sovereign -9 Case 2:10-cv-00068-SEH Document 73 Filed 07/22/13 Page 9 of 34Case 9:15-cv-0 148-DLC Document 49-1 il 5/ 4/ 7 10 of 35 interest." Alfred L. Snapp & Son, Inc. v. Puerto Rico, 458 U.S. 592, 607 (1982). Further, it could maintain this action "to protect its own 'proprietary interests' that might be 'congruent' with those of its citizens." City ofSausalito, 386 F.3d at 1197 (quoting Colorado River Indian Tribes v. Town ofParker, 776 F.2d 846, 848 (9th Cir. 1985». Such "proprietary interests" are "as varied as a municipality's responsibilities, powers, and assets." Id. To make such a showing, Beaverhead County would have to "allege[] an injury to a sufficiently substantial segment of its population, articulate[] an interest apart from the interests of particular private parties, and express!] a quasi-sovereign interest." Washington v. Chimei Innolux Corp., 659 F.3d 842, 847 (9th Cir. 2011) (citing Alfred L. Snapp & Son, Inc., 458 U.S. at 607). The critical question, therefore, is whether Beaverhead County has demonstrated a quasi-sovereign interest apart from the interests of private parties. City ofSausalito identified several proprietary interests that establish injury-in fact for municipal entities, including management, public safety, economic, aesthetic, and natural resource harms. 386 F.3d at 1198-99. Here, McGinley's affidavit focuses predominantly on the recreational and aesthetic interests of Beaverhead County's citizens. In this respect, Beaverhead County is attempting to assert the interests of its citizens under the doctrine of parens patriae. See -10 Case 2:10-cv-00068-SEH Document 73 Filed 07/22/13 Page 10 of 34Case 9:15-cv-0 148-DLC Document 49-1 Filed 05/ 4/17 Page 11 of 35 Colorado River Indian Tribes, 776 F.2d at 848 ("political subdivisions ... cannot sue parens patriae because their power is derivative and not sovereign"). McGinley's affidavit alleges in pertinent part that Beaverhead County's economics are based on multiple use of the resource values of the entire county, and as such, Beaverhead County has a tremendous interest in the Beaverhead at Deerlodge Revised Forest Plan. Beaverhead County residents, including myself, regularly visit the [Forest] in pursuit of our own personal and aesthetic recreational interests. I intend to continue to pursue recreational activities in the [Forest] for the foreseeable future. Beaverhead County was also granted cooperating agency status by the Forest Service. The Forest Service, however, failed to properly consult or give any meaningful delegation of duties during the revised forest planning process to Beaverhead County, including formulation of a preferred alternative in the FEIS. Beaverhead County has been irreparably harmed by the Forest Service's failure to involve and seriously consider the special expertise of Beaverhead County, a cooperating agency. Our Complaint in this case generally describes Beaverhead County and its intent to continue motorized and non-motorized access to the extent authorized by the Forest Service. There are numerous routes, areas, and uses, including access to areas recommended for wilderness that I and other Plaintiffs have used and enjoyed that are now off limits pursuant to the [Revised Forest Plan]. Motorized travel in these areas is no longer authorized as a result of the [Revised Forest Plan J. Beaverhead County residents, including myself, have therefore lost the ability to visit some of these areas, which has adversely impacted our recreational and aesthetic interests in the forest. As long as the Forest Service continues to close portions of the [Forest] that were historically available for motorized recreation, my recreational -11 Case 2:10-cv-00068-SEH Document 73 Filed 07/22/13 Page 11 of 34Case 9:15-cv-0 148-DLC Document 49-1 Filed 05/ 4/17 Page 2 of 35 and aesthetic interests in the forest will be irreparably harmed. The restrictions in the [Revised Forest Plan] have also precluded our ability to gain access to or use many historical areas of the forest. (Decl. of Mike McGinley, Document No. 53-1,7-10.) City ofSausalito presents an array of interests that underscore the fundamental issue with respect to the parens patriae doctrine: that a state or political subdivision-such as Beaverhead County here-must establish a separate interest apart from its citizens in order to establish standing. See Alfred L. Snapp & Son, Inc., 458 U.S. at 607. McGinley's declaration fails to fulfill that charge here as it focuses primarily on the recreational and aesthetic interests of Beaverhead County's citizens in the Forest,2 A separate proprietary, quasi- sovereign interest on behalf of Beaverhead County is not articulated. Although McGinley avers an injury based upon the Forest Service's alleged failure to adequately include Beaverhead County during the revision process, he has failed to allege with sufficient specificity and detail, injuries suffered by Beaverhead 2 While McGinley does state that Beaverhead COWlty'S economics are based upon "multiple use of the resource values of the entire COWlty," economic injuries alone are insufficient to establish standing. See W. Radio Servs. Co., Inc. v. Espy, 79 F.3d 896, 902-03 (9th Cir. 1996) ("NEPA's purpose 'is to protect the environment, not the economic interests of those adversely affected by agency decisions. Therefore a plaintiff who asserts purely economic injuries does not have standing to challenge an agency action Wlder NEPA."') (quoting Nevada Land Action Assn. v, US, Forest Serv, , 8 F.3d 713, 716 (9th CiT. 1993) (emphasis omitted». McGinley fuiled to even allege an injury to Beaverhead COWlty'S economics. Rather, he alleged only that Beaverhead COWlty'S economics "are based on multiple use of the resource values of the entire COWlty" and that it has "a tremendous interest" in the Revised Forest Plan. ·12· Case 2:10-cv-00068-SEH Document 73 Filed 07/22/13 Page 12 of 34Case 9:15-cv-0 148-DLC Document 49-1 Filed 05/ 4/17 Page 13 of 35 County as a result of the Forest Service's actions.3 McGinley's declaration fails to demonstrate an injury-in-fact suffered on behalf of Beaverhead County. Plaintiffs, therefore, have failed to establish Article III standing for their first NEP A claim, which alleges that the Forest Service violated NEPA by failing to adequately include Beaverhead County as a cooperating agency. No other evidence submitted by Plaintiffs supports their standing. As such, that claim is dismissed for lack of subject matter jurisdiction. ii. Prudential Standing Plaintiffs' remaining claims fall under the AP A. Consequentially, they must demonstrate prudential standing in addition to Article III standing. See Citizens/or Better Forestry, 341 F.3d at 976. They must establish that there has been a final agency action adversely affecting them and that they suffer from an injury that falls within their zone of interests as a result. Id. The zone of interests protected by NEP A is environmental. See Ashley Creek Phosphate Co. v. Norton, 420 F.3d 934, 940 (9th Cir. 2005). Here, publication of both the 2009 and 2010 RODs and the Final EIS 3 Although the Supreme Court held that the Stale ofMassachusetts had standing to pursue claims parens patriae in Massachusetts v. EPA, 549 U.S. 497, 519 (2007) because of its "well founded desire to preserve its sovereign territory" and because it owns "a great deal of the territory alleged to be affected," a similar conclusion in this case is not warranted as McGinley's declaration is devoid of any identifiable claim of concrete injury beyond that of the aesthetic and recreational variety. Those claims belong not to Beaverhead County but to private parties. -13 Case 2:10-cv-00068-SEH Document 73 Filed 07/22/13 Page 13 of 34Case 9:15-cv-0 148-DLC Document 49-1 Filed 05/ 4/17 Page 14 of 35 qualify as a fmal agency action. An agency action is final when: "First, the action ... mark[sJ the consununation of the agency's decisionmaking process-it must not be of a merely tentative or interlocutory nature. And second, the action ... [isJ one by which rights or obligations have been determined, or from which legal consequences will flow." Bennett v. Spear, 520 U.S. 154, 177-78 (1997) (internal quotation marks and citations omitted). Both elements are met in this case. Further, the procedural injuries identified in White's declaration clearly establish that the Forest Service's actions adversely affected him and his constituents. Such procedural injury falls within the zone of interests protected by NEP A. See Lujan v. Nat!. Wildlife Fedn., 497 U.S. 871, 886 (1990) ('''recreational use and aesthetic enjoyment' are among the sorts of interests [NEPAJ [was] specifically designed to protect") (emphasis omitted). 111. Organizational Standing An organization has standing to bring a claim on behalf of its members when (1) its members would have standing to bring a claim in their own right, (2) the interests at stake are germane to the organization's purpose, and (3) when neither the claim nor the relief requested require the participation of the individual members. Friends of the Earth, 528 U.S. at 18I. The Court has determined that Kerry White has standing to sue in his own -14 Case 2:10-cv-00068-SEH Document 73 Filed 07/22/13 Page 14 of 34Case 9:15-cv-0 148-DLC Document 49-1 Filed 05/ 4/17 Page 15 of 35 right as would members of the organizations he represents. Furthermore, the interests he professes are at stake here are germane to the interests of those organizations, i.e., protecting recreational and aesthetic interests in the Forest. Finally, as this case exclusively involves the judicial review of an administrative record, the individual participation of members of Plaintiffs' groups is unnecessary. Plaintiffs have established organizational standing. IV. Additional Standing Requirements Plaintiffs must "demonstrate standing for each claim [they] seek to press." DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 352 (2006). Additionally, at the summary judgment stage, a plaintiff cannot "rest on such mere allegations, but must set forth by affidavit or other evidence specific facts, which for purposes of the summary judgment motion will be taken to be true." Defenders of Wildlife, 504 U.S. at 561 (internal quotation marks and citation omitted). Plaintiffs here have failed to establish standing for their claim that the Forest Service violated the WSRA as the Revised Forest Plan relates to Deadman Creek. They have submitted no evidence that establishes standing for any individual plaintiff. That claim is, therefore, dismissed. The White declaration, however, is sufficient to confer standing to Plaintiffs for the remaining NEPA claims. See Bd. ofNat. Resources v. Brown, 992 F.2d 937, 942 (9th Cir. 1993) -15 Case 2:10-cv-00068-SEH Document 73 Filed 07/22/13 Page 15 of 34Case 9:15-cv-0 148-DLC Document 49-1 Filed 05/ 4/17 Page 16 of 35 (the Court may reach the merits of the claims where at least one plaintiff has demonstrated standing). B. NEP A Claims 1. APA Standard of Review NEPA compliance is reviewed under the APA. Westlands Water Dist. v. U.S. Dept. ofInt., 376 F.3d 853, 865 (9th Cir. 2004). An agency's decision may only 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). The Court must evaluate whether the agency's decision was based "on a consideration of the relevant factors and whether there has been a clear error of judgment." Marsh v. Oregon Nat. Resource Council, 490 U.S. 360, 378 (1989) (internal quotation marks omitted). The inquiry must be "searching and careful, but the ultimate standard of review is a narrow one." Id. (internal quotation marks omitted). An agency's decision is arbitrary and capricious if the agency has relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise. Motor Veh. Mfrs. Assn. of U.S., Inc. v. State Farm Mut. Automobile Ins. Co., 463 U.S. 29, 43 (1983). Conversely, the agency's action is valid if a reasonable basis -16 Case 2:10-cv-00068-SEH Document 73 Filed 07/22/13 Page 16 of 34Case 9:15-cv-0 148-DLC Document 49-1 Filed 05/ 4/17 Page 17 of 35 exists for its decision. See Kern Co. Fann Bureau v. Allen, 450 F.3d 1072, 1076 (9th Cir. 2006). Such a basis exists if the agency "considered the relevant factors and articulated a rational connection between the facts and the choices made." Arrington v. Daniels, 516 F.3d 1106, 1112 (9th Cir. 2008). Even if the agency decision is "ofless than ideal clarity," the Court may uphold the agency's decision so long as its "path may reasonably be discerned." Motor Vehicle Mfrs. Assn., 463 U.S. at 44. In doing so, however, the Court may not "infer an agency's reasoning from mere silence ...." Pac. Coast Fedn. ofFishennan Assns. v. u.s. Bureau of Reclamation, 426 F.3d 1082, 1091 (9th Cir. 2005). 2. NEPA Standard of Review 'The goal of NEPA is two-fold: (1) to ensure thatthe agency will have detailed information on significant environmental impacts when it makes decisions; and (2) to guarantee that this information will be available to a large audience." Neighbors ofCuddy Mountain v. Alexander, 303 F.3d 1059, 1063 (9th Cir. 2002). Further, NEPA "does not mandate particular results, but simply prescribes the necessary process" that an agency must follow in issuing an EIS. Robertson v. Methow Valley Citizens Council, 490 U.S. 332,350 (1989). The Court must, therefore, determine whether the agency took a "hard look" at the environmental consequences of the proposed action. Bering Strait Citizens for -17 Case 2:10-cv-00068-SEH Document 73 Filed 07/22/13 Page 17 of 34Case 9:15-cv-0 148-DLC Document 49-1 Filed 05/ 4/17 Page 18 of 35 Responsible Resource Dev. v. U.S. Anny Corps ofEngrs., 524 F.3d 938, 947 (9th Cir. 2008). That inquiry requires the Court to determine whether the agency considered all foreseeable direct and indirect environmental consequences of its action. See Idaho Sporting Cong., Inc. v. Rittenhouse, 305 F.3d 957, 973 (9th Cir. 2002). To do so, the Court employs a "rule of reason" that "does not materially differ from an 'arbitrary and capricious' review" in evaluating the adequacy of an EIS. Neighbors ofCuddy Mountain, 303 F.3d at 1071. Although the Court must defer to an agency action that is "fully informed and well-considered," it is not required to "rubber stamp a clear error of judgment." Anderson v. Evans, 371 F.3d 475 (9th Cir. 2002) (interual quotation marks omitted). Plaintiffs have established standing for three of their NEPA claims regarding the sufficiency of the Revised Forest Plan. Each is addressed below. 3. The Forest Service adequately evaluated the environmental impacts of banning motorized uses from the Recommended Wilderness Areas. Plaintiffs allege that the Forest Service violated NEP A by failing to conduct an analysis before banning motorized uses from the Recommended Wilderness Areas. They contend that the Forest Service made the decision to exclude motorized uses from the Recommended Wilderness Areas as far back as 2004, and because the alleged decision occurred prior to the development of a range of -18 Case 2:10-cv-00068-SEH Document 73 Filed 07/22/13 Page 18 of 34Case 9:15-cv-0 148-DLC Document 49-1 Filed 05/ 4/17 Page 19 of 35 alternatives, the Forest Service was ill-infonned as to the potential consequences ofits decision. (Pl.'s Memo. in Support of Cross-Mot. for SJ., Document No. 36 at 14-15, (June 8, 2012». Plaintiffs have identified notes from a meeting of the Interdisciplinary Team-which helped craft the alternatives-{)n February 24, 2004, which stated: "Decision: Recommended wilderness areas will be managed as non-motorized." Leadership Team Notes: February 24, 25, and 26, 2004, B1 06, 2. In essence, Plaintiffs argue that this proposal represented a predetermined, uninfonned decision to ban motorized uses from the Recommended Wilderness Areas. Notwithstanding the comprehensive NEPA analysis that followed, Plaintiffs argue that the Forest Service should have conducted a separate NEPA analysis that analyzed the environmental effects of banning motorized uses. NEPA requires an agency to prepare an EIS for all "major Federal actions significantly affecting the quality of the human environment." 42 U.S.C. § 4332(2)(C). "Human environment" means "the natural and physical environment and the relationship of people with that environment." 40 C.F.R. § 1508.14. To evaluate the effects of proposed actions, agencies are required to prepare detailed statements on environmental impacts, adverse environmental effects that cannot be avoided, and alternatives to the proposed action. § 4332(2)(C)(i)-(iii). Adverse environmental effects include ecological effects "on natural resources and -19 Case 2:10-cv-00068-SEH Document 73 Filed 07/22/13 Page 19 of 34Case 9:15-cv-0 148-DLC Document 49-1 Filed 05/ 4/17 Page 20 of 35 on the components, structures, and functioning of affected ecosystems" as well as those implicating "aesthetic, historic, cultural, economic, social, or health" considerations of a proposed action. 40 c.F.R. § 1508.8(b). Contrary to Plaintiffs' claims, the record here demonstrates that the Forest Service conducted an extensive NEPA analysis that considered and evaluated the environmental impacts of banning motorized uses in the Recommended Wilderness Areas. To do so, it evaluated six alternatives during the revision process. Alternative 1, the "no-action Alternative," would have maintained prior wilderness allocations (about 174,000 acres), in which motorized uses would have continued to be pennitted. The Forest Service specifically addressed the environmental effects of wintertime motorized uses in the Forest, stating: ''The existing Forest Plans, represented by Alternative 1, did not anticipate the growth demand for winter recreation which developed over the last fifteen years. As a result, they show little consideration for or concern about winter recreation except at downhill Ski Areas." Draft EIS, 256. The Final EIS goes on to explain: "All action alternatives result in reductions to areas available for motorized use and increased areas for non-motorized uses .... Areas being proposed as recommended wilderness will increase the protection of backcountry recreation with solitude, challenge and a natural appearing setting." Final EIS, 367. -20 Case 2:10-cv-00068-SEH Document 73 Filed 07/22/13 Page 20 of 34Case 9:15-cv-0 148-DLC Document 49-1 Filed 05/ 4/17 Page 21 of 35 The environmental effects of motorized uses are further examined in the Final EIS: [T]he presence of motorized recreation may diminish the undeveloped character in several ways. Physical impacts to vegetation and soils result from a variety oftrail uses, including motorized vehicles .... full sized vehicles and ATVs lead to the establishment of two track routes, suggestive of roads and a more developed setting. Increased visitation is a consequence of easier vehicle vehicle access, which causes more frequent encounters, thus reducing the sense of remoteness and opportunities for solitude. Engine noise detracts from natural setting and increased trail use requires more management. Bridges, culverts, turnpikes, and signs are improvements, which may reduce undeveloped character. Motorized vehicles also transport weed seed. Vehicles driven through populations of invasive plants often pick up seeds in the radiator grill, under carriage, tire treads, etc. and transport these seeds to previously uninfested areas. Id at 288-89 (citation omitted). With respect to snowmobiles specifically, the Final EIS states: Although the long term physical impacts of over snow motorized use may be difficult to quantify, snowmobiles do cause short term physical and social impacts. Tracks in snow fields and high mark play areas may be widespread and affect natural appearance and sense of solitude. Snow machines are often audible over great distances, affecting solitude and secure wildlife habitat. Id. at 289. Given the impacts caused by snowmobiles, the Forest Service rejected a "No Snowmobile Restriction Alternative" explaining that such a plan would "adversely impact resources by not protecting big game winter range and sensitive -21 Case 2:10-cv-00068-SEH Document 73 Filed 07/22/13 Page 21 of 34Case 9:15-cv-0 148-DLC Document 49-1 Filed 05/ 4/17 Page 22 of 35 wildlife habitats .... and would not provide wildlife security and could adversely impact [threatened, endangered, candidate, and sensitive] species. It would also not provide any quiet recreation opportunities." Id. at 33. The Forest Service clearly considered the environmental impacts ofbanning motorized uses from the Recommended Wilderness Areas. That decision complies with NEPA's requirements and falls within both NEPA's policy objectives and the Forest Service's policy regarding Recommended Wilderness Areas. NEPA's overall objective is "first and foremost to protect the natural environment" Kootenai Tribe ofIdaho, 313 F.3d at 1123; see also 42 U.S.c. § 4331 (setting out NEPA's policy objectives). Furthermore: "Fundamental to the [Forest Service's] responsibility for recommended wilderness is protection and preservation of wilderness character until designated by Congress as wilderness or released from wilderness consideration." Final EIS, 288. NEPA does not require the Forest Service to evaluate alternatives inconsistent with its basic policy objectives. Kootenai Tribe ofIdaho, 313 F.3d at 1121. The Forest Service fulfilled its obligations under NEPA in banning motorized uses from the Recommended Wilderness Areas. Its six alternatives represented a full range of well-developed options with varying degrees of Recommended Wilderness allocation. It ultimately selected Alternative 6, which -22 Case 2:10-cv-00068-SEH Document 73 Filed 07/22/13 Page 22 of 34Case 9:15-cv-0 148-DLC Document 49-1 Filed 05/ 4/17 Page 3 of 35 identified 322,000 acres of Recommended Wilderness Area and which permitted motorized uses on 55 percent of the Forest during the summer and 60 percent during the winter. Plaintiffs' claim here fails because the record demonstrates that the Forest Service carefully considered and evaluated the potential environmental impacts of managing the Recommended Wilderness Areas as non-motorized. It did so in comprehensive fashion and in compliance with NEPA's requirements. 4. The Forest Service did not violate NEPA by failing to conduct a supplemental EIS. Here, Plaintiffs claim the Forest Service erred by failing to conduct a supplemental EIS before adding approximately 21,000 acres to the Recommended Wilderness Area-including addition of Stony Mountain and additional acreage on Snowcrest Mountain-neither of which were analyzed in the Draft EIS. Plaintiffs allege that these additions constituted a substantial change to th€ Draft EIS, were relevant to environmental concerns, and were qualitatively different from the impacts studied in the Draft EIS. A supplemental EIS is required if: "(i) the agency makes substantial changes in the proposed action that are relevant to environmental concerns; or (ii) there are significant new circumstances or information relevant to environmental concerns and bearing on the proposed action or its impacts." 40 C.F.R. § -23 Case 2:10-cv-00068-SEH Document 73 Filed 07/22/13 Page 23 of 34Case 9:15-cv-0 148-DLC Document 49-1 Filed 05/ 4/17 Page 24 of 35 1502.9( c)( 1 Xi)-(ii). An agency may, however, modify action proposed in a draft EIS based upon the public's response. Id. at § 1503.4(a). "[T]he decision whether to prepare a supplemental EIS is similar to the decision whether to prepare an EIS in the first instance: If there remains 'major Federal actio[n], to occur, and if the new information is sufficient to show that the remaining action will 'affec[t] the quality of the human environment' in a significant manner or to a significant extent not already considered, a supplemental EIS must be prepared." Marsh, 490 U.S. at 374 (quoting § 4332(2)(C)). As such, an agency has flexibility to modify alternatives considered in a draft EIS, Cal. v. Block, 690 F.2d 753, 771 (9th Cir. 1982), and is only required to conduct a supplemental EIS if it substantially departs from the alternatives in the draft EIS, Russell Country Sportsmen v. u.s. Forest Serv., 668 F.3d 1037, 1045 (9th Cir. 2011). The Council on Environmental Quality ("CEQ") has published guidance on when a supplemental EIS is required. The Ninth Circuit has adopted its guidance as a framework for analyzing § 1502.9(c)(\). See Russell Country Sportsmen, 668 F.3d at 1045 (adopting CEQ's Forty Most Asked Questions Concerning CEQ's National Environmental Policy Act Regulations [hereinafter "Forty Questions"], 46 Fed. Reg. 18026 (March 23,1981)). CEQ's guidance maintains that a supplemental EIS "is not required when two requirements are satisfied: (l) the -24 Case 2:10-cv-00068-SEH Document 73 Filed 07/22/13 Page 24 of 34Case 9:15-cv-0 148-DLC Document 49-1 Filed 05/ 4/17 Page 25 of 35 new alternative is a 'minor variation of one of the alternatives discussed in the draft EIS,' and (2) the new alternative is 'qualitatively within the spectrum of alternatives that were discussed in the draft [EIS].'" Id. (quoting Forty Questions, 46 Fed. Reg. at 18035) (emphasis in original). A supplemental EIS, therefore, "is not required for every change; it is not uncommon for changes to be made in a Final EIS after receipt of comments on a DEIS and further concurrent study." Kootenai Tribe ofIdaho, 313 F.3d at 1118 (emphasis in original). As noted above, the main dispute here is over approximately 21,000 acres that comprise Stony Mountain and a portion of Snowcrest Mountain. The Forest Service concedes that these areas were not analyzed in the Draft EIS.4 The question, therefore, is whether their additions to the Recommended Wilderness Areas qualify as a substantial departure from the Draft EIS. The Court finds that they do not. Plaintiffs' claim fails as a result. Compared with the 322,000 acres allocated for Recommended Wilderness Areas in the Final EIS, the 21,000 acres in dispute comprise only a small portion (approximately 6.5 percent) ofthe overall acreage allocated for Recommended Wilderness. And, while Stony Mountain was not recommended for wilderness 4 Of the approximately 21,000 acres, 15,883 acres made up Stony Mountain while 5,125 acres represented the increase in acreage on Snowcrest Mountain compared to the acres analyzed in the Draft EIS alternatives. FEIS Wilderness, Wilderness Study Area, and Recommended Wilderness Summary, F3-17. -25 Case 2:10-cv-00068-SEH Document 73 Filed 07/22/13 Page 25 of 34Case 9:15-cv-0 148-DLC Document 49-1 Filed 05/ 4/17 Page 26 of 35 designation in any ofthe alternatives analyzed in the Draft EIS,' the area was analyzed for wilderness potential in the Draft EIS. Draft EIS, AI-24, App. C, 466-72. The record also demonstrates that its physical and environmental characteristics are qualitatively within the spectrum of the alternatives considered in the Draft EIS.6 In addition, the Final EIS analyzed Stony Mountain for its wilderness suitability, concluding that the area is "natural appearing and scenic integrity is high," that it "offers solitude and primitive recreation," that it is a roadless area that "may contribute undisturbed habitat for wide-ranging wildlife species and native fish," and that a "[ w]ilderness recommendation for Stony Mountain has support from the public and the adjacent National Forest managers." Final EIS, App. C, 150-51. Finally, although Stony Mountain was accorded a "moderate rating" for wilderness suitability, it was "only a point away from a high capability rating ...." Final EIS, 286. Snowcrest Mountain was also analyzed for Recommended Wilderness designation in the Draft EIS. Draft EIS, App. C, 217-24. Alternatives 3 and 5 recommended 86,500 acres and 86,900 acres for Wilderness in the Snowcrest Mountain area, respectively. Final EIS, 284. The 2009 ROD designated 92,000 S See Recommended Wilderness Area Acres by Alternative: 11/19/2004, E5-01. 6 Compare Draft EIS, App. C, 466-72 with id at 54-165. -26 Case 2:10-cv-00068-SEH Document 73 Filed 07/22/13 Page 26 of 34Case 9:15-cv-0 148-DLC Document 49-1 Filed 05/ 4/17 Page 27 of 35 acres for Recommended Wilderness. 2009 ROD, 22. These additions to Snowcrest Mountain are quantitatively minor and qualitatively within the spectrum of the alternatives given that the Draft EIS analyzed Snowcrest Mountain for its suitability for Recommended Wilderness designation. The CEQ's Forty Questions presents an example directly on point regarding these additions: For example, a commentor on a draft EIS to designate a wilderness area within a National Forest might reasonably identify a specific tract ofthe forest, and urge that it be considered for designation. If the draft EIS considered designation of a range of alternative tracts which encompassed forest area ofsimilar quality and quantity, no supplemental EIS would have to be prepared. The agency could fulfill its obligation by addressing that specific alternative in the final EIS. Forty Questions, 46 Fed. Reg. at 18035. The Forest Service fulfilled that obligation here. Final ErS, App. C, 143-46 (Snowcrest); id. at 150-53 (Stony Mountain). Plaintiffs' rely extensively on New Mexico ex reI. Richardson v, BLM, 565 F.3d 683 (10th Cir. 2009). That case, however, is clearly distinguishable. There, the Tenth Circuit required the BLM to conduct a supplemental EIS on an issue that "went to the heart of the proposed action and posed new and previously unconsidered environmental consequences." Russell Country Sportsmen, 668 F.3d at 1049 (distinguishing New Mexico ex ret, Richardson). Here, the Forest -27 Case 2:10-cv-00068-SEH Document 73 Filed 07/22/13 Page 27 of 34Case 9:15-cv-0 148-DLC Document 49-1 Filed 05/ 4/17 Page 28 of 35 Service's decision to add additional acreage to the Recommended Wilderness Area posed no new consequences not already considered in the Draft EIS. See Marsh, 490 U.S. at 374 (supplemental EIS only required if new information shows that remaining action will affect human environment in a significant manner or to a significant degree "not already considered"). Although Plaintiffs argue the additions of Stony Mountain and additional acreage to Snowcrest Mountain presented substantial questions because the effect ofeliminating motorized recreation in those areas had not been analyzed, those same environmental questions and consequences had been analyzed previously during the development of the alternatives as motorized recreation was eliminated throughout the Recommended Wilderness Areas. Plaintiffs' claims here fail for at least four reasons. First, the addition of 21,000 acres to the Recommended Wilderness Area was, overall, a minor addition. Second, the Forest Service analyzed the environmental impacts of designating similar areas as Recommended Wilderness. Third, the additions of Stony Mountain and additional acreage to Snowcrest Mountain are qualitatively and quantitatively similar to other areas analyzed in the Draft EIS. Fourth, the Forest Service fulfilled its obligation with regards to Stony Mountain by addressing its suitability for Recommended Wilderness designation in the Final EIS. -28 Case 2:10-cv-00068-SEH Document 73 Filed 07/22/13 Page 28 of 34Case 9:15-cv-0 148-DLC Document 49-1 Filed 05/ 4/17 Page 29 of 35 5. The Forest Service did not violate NEPA by failing to conduct site-specific analysis. Plaintiffs next argue that the Forest Service violated NEPA by failing to conduct site-specific analysis of the wilderness areas it closed to motorized uses. In many respects, Plaintiffs' claims here echo those made regarding the decision to ban motorized uses from the Recommended Wilderness Area. They ring equally hollow. Plaintiffs point to a portion of the 2009 ROD in which the Forest Service stated that the Revised Forest Plan did not make "site specific decisions such as closing individual motorized routes in areas Recommended for Wilderness" and that the Forest Supervisor would issue a second Record of Decision "based on the analysis in the Revised FEIS, making site-specific decisions based on the Revised Forest Plan." Plaintiffs argue from that reference that the Forest Service attempted to skirt its obligation to analyze the effects of closing the Recommended Wilderness Areas to motorized uses. In doing so they rely heavily on Kern v. BLM, 284 FJd 1062 (9th Cir. 2002). As discussed infra, that reliance is misplaced. An EIS must contain a "reasonably thorough" discussion of an action's environmental consequences. Nat!. Parks & Conserv. Assn. v. BLM, 606 FJd 1058,1072 (9th Cir. 2009). It must also provide a "full and fair discussion of ·29· Case 2:10-cv-00068-SEH Document 73 Filed 07/22/13 Page 29 of 34Case 9:15-cv-0 148-DLC Document 49-1 Filed 05/ 4/17 Page 30 of 35 significant environmental impacts ...." 40 C.F.R. § 1502.1. Moreover, "[t]he detail that NEP A requires in an EIS depends upon the nature and scope of the proposed action." Block, 690 F.2d at 761. The Court must make a "pragmatic judgment whether the ElS's form, content and preparation foster both informed decision-making and informed public participation." Id. Finally, "[a]gencies have 'discretion to determine the physical scope used for measuring environmental impacts' so long as they do not act arbitrarily and their' choice of analysis scale .. . represent[s] a reasoned decision. '" WildWestInst. v. Bull, 547 F.3d 1162, 1173 (9th Cir. 2008) (quoting Idaho Sporting Cong., Inc., 305 F.3d at 973). The main issue here is whether the Forest Service sufficiently analyzed the effects of excluding motorized uses from the Recommended Wilderness Areas without analyzing each of those areas at the site-specific level. It is clear that it did so. The environmental effects of such a proscription are well documented in the 2009 ROD and the Final EIS. As stated supra, the Forest Service identified eight revision topics early in the revision process. Those topics include "Recreation and Travel Management" and "Recommended Wilderness" and "represent[ed] a systematic framework for discussing the Revised Forest Plan." 2009 ROD, 8. The 2009 ROD itself states: Motorized recreation, partiCUlarly the use of ATV s and over-snow vehicles, has increased substantially since the 1986 and 1987 Plans were -30 Case 2:10-cv-00068-SEH Document 73 Filed 07/22/13 Page 30 of 34Case 9:15-cv-0 148-DLC Document 49-1 Filed 05/ 4/17 Page 31 of 35 approved. Advancing technology has also expanded use into new terrain. For much of [the Forest], this use has evolved over time with little management intervention. The unmanaged expansion ofmotorized use has resulted in resource damage, wildlife impacts, and competition and conflict between user groups. Current Plans do not proved adequate direction concerning the management of recreation opportunities in [the Forest]. Clear and specific direction is needed to manage recreation setting and travel patterns in order to provide a balanced and diverse range of opportunities across the Forest. ld. at 13. It also noted with respect to Recommended Wilderness that "[t]he management of recommended wilderness is intended by national policy to protect wilderness potential and wilderness values." ld. at 20 (citation omitted). According to the Forest Service, excluding motorized uses from the Recommended Wilderness Area "provides a balance of opportunities in response to the broad range of public values." ld. at 21. Each of the 12 landscapes7 that comprise the Forest including: Big Hole, Boulder River, Clark Fork-Flints, Elkhorn, Gravelly, Jefferson River, Lima Tendoy, Madison, Pioneer, Tobacco Roots, Upper Clark Fork, and Upper Rock 7 The Forest Service defines a landscape as a large area ofland (as much as 1,000,000 acres) that represents either a mountain range or a whole watershed basin. These areas reflect logical blocks of land that people relate to by name-large blocks of land where people, wildlife, water and natural processes move with some predictability. Landscapes in Montana tend to be isolated mountain ranges and the valley bottoms around them. Big Hole Landscape Analysis 2001, L2-01, 1-1. -31 Case 2:10-cv-00068-SEH Document 73 Filed 07/22/13 Page 31 of 34Case 9:15-cv-0 148-DLC Document 49-1 Filed 05/ 4/17 Page 32 of 35 Creek were examined during the revision process. All are further broken down into management areas. The environmental effects of each of the six alternatives for all 12 landscapes as they applied to recreation and travel management were analyzed. Final EIS, 342-402. Such analysis included the effects on motorized recreation in both summer and winter, specific locations within each landscape that would be affected, rationales for the goals of each alternative, and how changes would affect particular users, including snowmobilers. Id. Any argument that sufficient examination ofthese effects was not conducted is simply not supported by the record. As noted, Plaintiffs' reliance on Kern is misplaced. There, the Ninth Circuit required the BLM to go back and analyze the effects of a tree root fungus that had not previously been analyzed during the BLM's programmatic analysis. 284 F.3d at 1072-73. However, as the Forest Service points out, its statement regarding the need for site-specific decisions referred only to the administrative closing of the recommended wilderness areas and not to additional environmental analysis that would take place at a later time. Plaintiffs neither identifY environmental impacts not considered nor "provide scientific evidence that more detailed analysis would have been preferential ... or that it would have resulted in more 'detailed information regarding significant environmental impacts.'" Wildland CPR, Inc. v. -32 Case 2:10-cv-00068-SEH Document 73 Filed 07/22/13 Page 32 of 34Case 9:15-cv-0 148-DLC Document 49-1 Filed 05/ 4/17 Page 33 of 35 us. Forest Serv., 872 F. Supp. 2d 1064,1078 (D. Mont. 2012) (quoting Robertson, 490 U.S. at 349) (Judge Molloy rejecting arguments that the Forest Service violated NEP A by failing to conduct site-specific analysis with regards to the same Revised Forest Plan). Simply put, there is no evidence that suggests the Forest Service evaded NEP A process. The decision to ban motorized uses in the Recommended Wilderness Areas was not only in line with both NEPA's and the Forest Service's policy objectives, it was also thoroughly evaluated during the revision process. Given the foregoing, Plaintiffs' fmal NEPA claim fails. CONCLUSION Plaintiffs' first and fifth claims are dismissed for lack of subject matter jurisdiction. Plaintiffs' second, third, and fourth claims are denied on the merits. ORDER ORDERED: l. Plaintiffs' Motion for Summary JudgmentS is DENIED. 2. Defendant-Intervenor's Cross-Motion for Summary Judgment9 is GRANTED. 8 Document No. 35. 9 Document No. 42. -33 Case 2:10-cv-00068-SEH Document 73 Filed 07/22/13 Page 33 of 34Case 9:15-cv-0 148-DLC Document 49-1 Filed 05/ 4/17 Page 4 of 35 3. Defendants' Cross-Motion for Summary Judgment lO is GRANTED. 4. The Clerk Ofd shall enter judgment accordingly. DATED this ~ day of July, 2013. nited States District Judge 10 Document No. 45. -34 Case 2:10-cv-00068-SEH Document 73 Filed 07/22/13 Page 34 of 34Case 9:15-cv-0 148-DLC Document 49-1 Filed 05/ 4/17 Page 35 of 35