EIS Required for National Forest Motorcycle Project

In May 2007, conservation groups and the U.S. Forest Service settled a lawsuit involving an enjoined motorcycle project in proposed Wilder­ness in Washington State. The settlement and final judgment leaves in place the federal court’s June 2006 published decision and permanent injunction that requires a full Environmental Impact Statement (EIS), not a mere EA, before construction of the full Mad River off-road vehicle (ORV) project [The Mountaineers v. U.S. Forest Service, 445 F. Supp. 2d 1235 (W.D. Wash. 2006)].

The litigated project is in a roadless area of the Wenatchee National Forest, and the court’s reasoning could be useful to activists and litigators in other National Forests (and BLM lands) throughout the U.S.

The lawsuit was brought by four conservation and recreation groups: The Mountaineers, North Cascades Conservation Council, Sierra Club and Washington Wilderness Coalition.

Background
The Mad River Trail is in the Entiat-Chelan roadless area, a proposed addition to the Glacier Peak Wilderness in the Cascade mountains of Wash­ington State. Glacier Peak Wilderness is the site of the first third of John McPhee’s book about Dave Brower, Encounters with the Archdruid. Most of the Mad River country is relatively gentle terrain, a subalpine pine-fir forest interspersed with meadows and lakes, ideal for family camping. Several of its trails are featured in the popular hiking guidebooks 100 Hikes in Washington’s Glacier Peak Region and 100 Classic Hikes in Washington by Ira Spring and Harvey Manning, published by The Mountaineers.

At present, off road vehicles cannot easily cross the Mad River at the Maverick Saddle ford in early June due to high water in most years. As a result, the area is more accessible to hikers who wade across the river, or climb across downed logs that may span it. The proposed Maverick Saddle Bridge would change this, and allow ORVs to cross the Mad River as soon as the snow melts, if not before. The proposed bridge would also create a hub in the network of ORV routes, causing an overall increase in ORV traf­fic throughout the Forest, with consequent impacts.

The Mad River Trail Project is the latest in a long line of small ORV projects that have together created the Wenatchee National Forest’s En­tiat-Mad River ORV route system, stretching from the Chiwawa River near Lake Wenatchee to the Entiat River and Lake Chelan. One of these projects was the subject of earlier litigation: a 1999 federal court ruling by U.S. District Judge Barbara J. Rothstein stopped construction of the adjacent Goose-Maverick off-road motorcycle project [North Cascades Conserva­tion Council v. U.S. Forest Service, 98 F. Supp. 2d 1193 (W.D. Wash. 1999)]. In that case, the court ruled that the Forest Service violated the National Environmental Policy Act (NEPA) by giving inadequate review to its mo­torcycle construction/expansion plans throughout the whole Entiat-Mad River system, including user conflicts and the impacts of off-road motor­cycles on wildlife.
Plaintiffs’ Claims in District Court

In the District Court in 2006, the conserva­tion groups argued that the Forest Service had violated NEPA in three ways. First, they said the Mad River EA failed to consider a reasonable range of alternatives, as NEPA requires. Sec­ond, they argued that the two 2004 EAs for the Mad River and Goose-Maverick projects were impermissibly segmented and failed to examine the cumulative environmental impacts that the projects would have on the whole Chiwawa-En­tiat-Mad River ORV route system. Finally, they argued that the agency did not properly consid­er the effects that ORVs have on wildlife across the greater trail system.

At the National ORV Collaboration Summit in April 2005 in San Diego, the Forest Service had described the Entiat-Chiwawa-Mad River off-road motorcycle system as “World Class.” In the lawsuit, plaintiffs asked “does NEPA allow the Forest Service to construct a ‘World Class single track motorcycle trail system’ within a proposed Wilderness, without preparing an EIS?” The court answered no, because an EIS is required.

District Court Decision
In June 2006, U.S. District Judge Ricardo S. Martinez issued a permanent injunction prohib­iting the Forest Service from constructing the Mad River project until they complete an EIS. The Forest Service violated NEPA by failing to thoroughly analyze the cumulative impacts of these interconnected projects. Although Judge Rothstein’s 1999 decision was no longer binding and thus was not “violated” by the agency, Judge Martinez said “the Forest Service failed to heed the warning” of the 1999 decision. He ruled that the Forest Service consideration of impacts on wildlife is “inadequate,” and that NEPA does not contemplate a “‘build-first, study later’ approach to resource management.” In other words, the precautionary principle is implicit in NEPA.

The June 2006 injunction decision found that this “controversial” project, “the latest in a long line of small projects,” would “result in the continued increase of motorized traffic throughout ... the Mad River system.” The mo­torcycle route system in the Mad River country grew piece-by-piece for 30 years, and the court agreed: “The proper reference point for a cu­mulative impacts inquiry is the entire ORV trail system.” There were many interconnected sys­tem components the Forest Service didn’t even mention in its NEPA work, let alone analyze.

On the other NEPA count (adequacy of the EA’s range of alternatives), the judge ruled in favor of the Forest Service.

Settlement Details
In the settlement, the Forest Service agreed not to appeal the District Court decision, to refrain from constructing the parts of the project that are still enjoined, and to pay the plaintiffs’ attorneys’ fees at 82 percent of the inflation-ad­justed statutory maximum rate.

The settlement also states: “The Forest Ser­vice will develop an adequate range of alterna­tives in the [ORV] Travel Management Planning process to address seasons of use and trail closures to motorized uses,” and that “all trails in the Chiwawa and Mad River areas will be analyzed.” The current ORV Travel Management process is the long-delayed implementation of the Nixon-Carter Executive Orders on ORVs.

In the settlement, based on recommenda­tions of Forest Service fish biologists, plaintiffs agreed to modify the injunction to allow parts of the Mad River project designed to protect the bull trout, a threatened species protected by the Endangered Species Act. This would reduce sedimentation by moving the trail out of the riv­erbed or further from it, while keeping in place the injunction against the overtly ORV-facilitat­ing parts of the project such as cinderblocks embedded in the trail and the proposed Maver­ick Saddle bridge.

Coalition Builds Track Record
Since 1992, this coalition of conservation and recreation groups has prevailed in five consecutive lawsuits regarding off-road motorcycle recreation on public lands in Washington State. In the other four lawsuits the coalition has also included American Hiking Society, The Cascadians, Columbia Gorge Audubon Society, Emergency Trails Committee, Gifford Pinchot Task Force, Issaquah Alps Trails Club, Kittitas Audubon Society, Northwest Ecosystem Alliance (now known as Conservation Northwest), The Ptarmigans, Washington Trails Association, The Wilderness Society and Willapa Hills Audubon Society. The coalition has been represented by attorney Karl Forsgaard since 1992, Andrew Salter since 1999, and other attorneys. Besides The Mountaineers v. USFS and NCCC v. USFS, the coalition’s other ORV cases are:

Northwest Motorcycle Association v. USDA, 18 F.3d 1468 (9th Cir. 1994), upholding exclusion of ORVs from Pyramid Mountain and North Fork Entiat area of proposed addition to Glacier Peak Wilderness in Wenatchee National Forest; judicial guidance on use conflict caused by ORVs;

Washington Trails Association v. U.S. Forest Service, 935 F. Supp. 1117 (W.D. Wash. 1996), enjoining ORV construction project on Juniper Ridge and Langille Ridge in proposed Dark Divide Wilderness in Gifford Pinchot National Forest, based on NEPA; and

Northwest Motorcycle Association v. State of Washington, 127 Wash.App. 408, 110 P.3d 1196 (2005), upholding constitutionality of recreation grant program (NOVA) funded by State gas tax and administered by the State’s Interagency Committee for Outdoor Recreation (IAC).

The Washington State coalition has also campaigned for legislative reform, including a Fuel Use Study that led to statutory re-allocation of rec­reation funding, increasing the percentage to nonmotorized recreation and decreasing the percentage to motorized recreation. See Road-RIPorter, Vol. 9, #2 (Summer Solstice 2004). Coalition members also serve as govern­ment-appointed representatives in numerous federal and State administra­tive processes.

— Karl Forsgaard is a Staff Attorney at the Washington Forest Law Center, a public interest environmental law firm in Seattle. He can be reached at 206-223-4088 ext 7 or kforsgaard@wflc.org or karlforsgaard@comcast.net.