Case Background
The suit challenged several related actions concerning off-road vehicle management in the Eldorado National Forest. [Center for Sierra Nevada Conservation, et al. v. John Berry, et al., No. Civ. S-02-325 LKK/JFM (E.D. CA 2005).] Located in the heart of the Sierra Nevada mountain range in central California, the Eldorado contains more than 786,000 acres of forestlands with extremely diverse topography, soils, vegetation, and habitats. The forest provides habitat for numerous endangered, threatened, and sensitive wildlife species, and includes portions of the Pacific deer herd critical winter range. The forest is also a popular area for a wide range of recreational uses. Used by motorized recreationists year-round, the forest contains hundreds of miles of roads and routes open to motorized use. A variety of non-motorized activities compete with motorized use, including hiking, horseback riding, mountain bike riding, hunting, and fishing.
In 1989, the Forest Service adopted the Eldorado Forest Plan, which reversed management direction to limit motorized travel to designated routes and areas. According to the plan, only those routes designated in a forest-wide off-road vehicle plan would be open to motorized use. The agency did, in 1990, create such an off-road vehicle plan, but it simply incorporated existing routes, roads, and tracks that had been used by off-road vehicles. Moreover, the Forest Service did not conduct a separate NEPA analysis for the ORV Plan, but rather “tiered” the plan to the Forest Plan’s EIS. The Forest Service Chief, responding to numerous Forest Plan appeals, subsequently directed the Eldorado to conduct an environmental analysis of the motorized routes designated in the 1990 ORV Plan by May 1997, but the agency never complied.
Over the years, the Center for Sierra Nevada Conservation and others spent countless hours urging the Forest Service to satisfy its NEPA obligations, and otherwise advocated for responsible management of off-road vehicles. During this time, the organizations documented extensive damage throughout the forest resulting from motorized use of the user-created, unanalyzed routes.
Summary of the Court’s Rulings
In 2002 Plaintiffs filed suit against the Forest Service for its mismanagement of motorized use throughout the Eldorado National Forest. In early 2005, the District Court for the Eastern District of California issued an order resolving the Plaintiffs’ legal claims. The Court ruled in Plaintiffs’ favor on several claims, including that the Service violated NEPA by:
- Failing to conduct any environmental analysis under NEPA before adopting the 1990 ORV Plan;
- Limiting the geographical scope of the cumulative impacts analysis in the Rock Creek Recreational Trails Plan Environmental Impact Statement (“Rock Creek EIS”) to the Rock Creek area;
- Failing to adequately describe or discuss “other activities” that might contribute to the Rock Creek EIS’ analysis of cumulative impacts to the Pacific deer herd; and
- Failing to mention or analyze at all in the Rock Creek EIS the cumulative impacts that grazing allotments in the Eldorado National Forest might have on the Pacific deer herd.
As relief for these legal violations, the Court ruled that the 1990 ORV Plan be withdrawn and that by December 31, 2007, the Forest Service issue an EIS and record of decision on a new off-road vehicle plan that complies with all applicable laws and regulations. In the interim, the Court ruled that all private party motorized use be restricted to system motorized roads and routes. The Court also ordered the Forest Service to supplement its EIS for the Rock Creek Area ORV Plan in accordance with the Court’s earlier ruling on the merits.
Challenge to Forest-wide ORV Plan
Plaintiffs’ central challenge in the lawsuit concerned the Forest’s 1990 ORV Plan, which authorized motorized use on designated routes throughout the forest. Plaintiffs claimed that the Forest Service violated NEPA by failing to conduct a forest-wide environmental review of that plan. The Court agreed with the conservation groups that the agency had illegally adopted and implemented the Plan by failing to conduct a separate forest-wide analysis of the Plan’s environmental impacts.
The Court rejected the agency’s claim that it should be permitted to satisfy its NEPA obligations by doing “priority” reviews on an area-by-area basis, rather than conducting a forest-wide analysis. Out of 16 off-road vehicle areas within the forest, the only area-wide plan the agency had actually completed since the ORV Plan went into effect was the Rock Creek ORV Plan, which plaintiffs also successfully challenged in the lawsuit.
The Court ruled that because the creation and implementation of the ORV Plan was clearly a major federal action, and because “tiering” to the Forest Plan EIS without also conducting a project-level EIS was not proper under the law, the Plan violated NEPA. The Court further reasoned that because the agency itself chose to create and implement a forest-wide off-road vehicle plan, the Forest Service was required to examine the environmental impacts of each and every route on a forest-wide basis.
Related Rulings
The Court also agreed with Plaintiffs that the Forest Service conducted a deficient cumulative effects analysis for the Rock Creek ORV Plan, as summarized above.
Unfortunately, the Court did not agree with Plaintiffs that the Rock Creek ORV Plan failed to designate routes in accordance with the “minimization criteria” contained in federal regulations and Executive Orders 11644 and 11989. Plaintiffs had argued that the government’s own analysis contained alternatives that admittedly minimized impacts to a greater degree than the alternative chosen, while still providing motorized recreational opportunities, and that its failure to select such alternatives was a failure to comply with the minimization criteria. But the Court concluded that while minimizing environmental damage from off-road vehicles was a mandatory duty, the government had a great deal of discretion to decide how to accomplish this.
Claims by Intervenors Representing Motorized Interests
Lastly, the Court rejected a claim made by off-road vehicle riders’ organizations that the Forest Service, in adopting the Rock Creek Plan, had evaluated an unreasonably narrow range of alternatives by failing to consider an alternative with a motorized route density greater than that established by the Forest Service. The Court questioned whether the intervenors (whose plain purpose was to seek plans that have a more significant impact on the environment) should be allowed to sue under NEPA (whose purpose is to preserve and protect the environment), and in the end determined that that the agency did all it was required to do under the law.
Significance of the Case
The case represents a victory for organizations that have been working tirelessly to rein in mismanagement of off-road vehicles on the Eldorado National Forest. One of the most significant aspects of the case is that the judge required that all user-created routes be closed unless and until they are analyzed under NEPA to determine whether or not they can be added to the system. The Forest Service has recently published a notice of intent to prepare an EIS for the motorized route designation process, and the Plaintiffs will fully participate in this public process. The case stands for the proposition that motorized route designation requires an analysis of the environmental impacts associated with the motorized routes. The case also suggests that off-roaders are on shaky ground when they attempt to use environmental laws to expand destructive motorized use.
— Ronni Flannery is an attorney in Missoula, Montana handling a wide range of public interest issues, with a concentration on environmental law. Ronni, and Keith Wagner of the law office of J. Williams Yeates (Sacramento), represented the Center for Sierra Nevada Conservation and its partners.