A Lesson to be Learned from Russell Country Sportsmen v. U.S. Forest Service

Introduction

A recent decision from the Federal District Court for the District of Montana serves as a  cautionary tale for how the National Environmental Policy Act (NEPA) and other statutes designed to protect our public lands can actually be used to undermine that protection. In Russell Country Sportsmen v. U.S. Forest Service, 2010 LEXIS 22211 (D. Mont. Mar. 10, 2010), the court determined that the Forest Service violated NEPA by selecting an alternative that was not adequately analyzed in the draft NEPA document. The decision also found that the Forest Service exceeded its authority under the Montana Wilderness Study Act (MWSA) when it selected an alternative that was more restrictive than what was contemplated at the time that act was signed into law. While it is possible that the MWSA issue was wrongly decided, as will be discussed below, the NEPA issue may stand, which, at a minimum illustrates the need for careful analysis and disclosure to the public before a decision is made.

Background

A 1986 Forest Plan divided the Lewis and Clark National Forest into management zones, each with  its own goals and standards. The management zone at issue in Russell Country Sportsmen includes the Little Belt, Castle, and the north half of the Crazy Mountains. That 1986 Forest Plan opened the forest to vehicle travel except for roads, trails, or areas specifically restricted.

In addition to the Forest Plan, the Forest Service (FS) developed a Travel Management Plan (TMP) to analyze and direct activities within specific areas of the forest. In 2000, the agency initiated the TMP revision process by conducting outreach, and five years later, published a notice of intent in the Federal Register and compiled a list of “significant issues.” In 2006 a Draft Environmental Impact Statement (DEIS) was distributed to agencies, organizations, and individuals; it presented seven alternatives, four for summer and three for winter recreation. The agency received a total of 1,783 comments to the DEIS. They did not identify a preferred alternative, nor did they make one available for public comment.

In October 2007, the Forest Service issued a Record of Decision (ROD), adopting a TMP for the area that affected 1,050,110 acres, or about 53% of the entire forest. The ROD and Final Environmental Impact Statement (FEIS) were released; however, the final alternative selected was not one of those presented in the DEIS. Instead, based on public comments concerned about the impacts from the project, the Forest Supervisor constructed an alternative that combined nd modified some of the alternatives presented in the DEIS. Changes included an overall reduction in motorized routes, additional trail closures, a shortened snowmobile season, and removal of the 300-foot off-road-travel rule in favor of a “vehicle plus trailer length” restriction.

With the passage of the Montana Wilderness Study Act in 1977, the Middle Fork Judith was designated a Wilderness Study Area. This area is included in the Little Belt, Castle, and North Half Crazy Mountains management zone and was therefore included in the 2007 Travel Plan. Before 2007, the Middle Fork Judith had 112 miles of roads comprised of 54 miles of highway vehicle roads and 58 miles of ATV/trail bike routes. The FEIS designated thirty-eight miles of routes for motor vehicles, of which 20 miles are for highway vehicles and 18 are for ATV/trail bike routes.

Procedural History

The Plaintiffs Russell Country Sportsmen challenged the decision in the United States District Court of Montana, and the Montana Wilderness Association (MWA) intervened as a Defendant. In March 2010 the Court granted summary judgment for the Plaintiffs finding violations of both NEPA and the MWSA, and in July entered a final judgment on the remedy. MWA and the FS have since appealed both decisions to the Ninth Circuit Court of Appeals and briefing is currently underway.

NEPA Ruling

The court held that the FS failed to consider or supplement reasonable and viable alternatives in the DEIS, as required by NEPA. Under NEPA, federal agencies must identify alternatives to their proposed actions in an EIS. An adequate EIS must consider all reasonable alternatives and provide detailed information on their impacts, but is not expected to consider every possible alternative. If an “agency makes substantial changes in the proposed action that are relevant to environmental concerns,” a supplemental EIS is required. 40 C.F.R. § 1502.9(c)(1)(i) (2009).

A supplement is required if the changes “present a seriously different picture of the environmental impact of the proposed project.” Keys Citizens Coalition, Inc. v. U.S. Army Corps of Engineers, 374 F.Supp.2d 1116 (S.D. Fla. 2005). But reducing motorized routes from 1,397 miles to 1,366 miles arguably does not present a “seriously different picture” of the impact. Instead, it could be seen as a “logical outgrowth” of the analysis completed in the DEIS and appropriate measures taken to reduce the impacts from the project. See Half Moon Bay Fishermans’ Marketing Ass’n v. Carlucci, 857 F.2d 505 (9th Cir.1988).

When the FS changed restrictions on motorized access from the draft EIS to the final, the changes were probably not substantial enough to require a supplement. The modifications were made in response to extensive public comment, and reducing or mitigating impacts raised by public comment does not require a supplement. See Half Moon Bay.

So why did the judge rule that a supplemental EIS was required? While the FS probably did not make “substantial changes” to the DEIS when they selected an alternative not found within it, the Court found that they selected an alternative that was “qualitatively outside the spectrum of the alternatives discussed in the draft.” The opinion appears to ignore certain facts presented by the defendants and defendant-interveners to show that the decision was within the scope of alternatives and embrace the facts as described by the plaintiffs. However, in none of the cases cited by the defendants and defendant-intervenors did the agency modifications result in a final alternative that was more restrictive than any of the draft alternatives. This makes it possible that the Ninth Circuit will agree with Judge Haddon on the NEPA issue.

It remains to be seen how the Ninth Circuit will rule on this conundrum, but in the meantime activists should advocate for a wide range of alternatives and encourage the FS, if it decides that the alternatives were not protective enough, to issue a supplemental EIS before making its final decision so that NEPA cannot be used to obstruct an overall good result.

MWSA Decision

Regardless of what the Ninth Circuit concludes regarding the FS’ compliance with NEPA, Judge Haddon’s interpretation of the Montana Wilderness Study Act (MWSA) is troubling and counter to the MWSA. The Court held that the FS violated the MWSA by restricting motorized use within the Middle Fork Judith WSA below the amount thought to have existed in 1977. Because the MWSA requires a managing agency to maintain the wilderness character that existed in 1977 and there was motorized use within the Middle Fork Judith prior to 1977, the FS’s attempt at “enhancement or creation of wilderness character in the Middle Fork WSA” exceeded its authority under MWSA.

The MWSA provides that WSA’s “designated by this Act shall, until Congress determines otherwise, be administered by the Secretary of Agriculture so as to maintain their presently existing wilderness character and potential for inclusion in the National Wilderness Preservation System.” Pub. L. No. 95-150, 91 Stat. 1243 (1977). While the FS was directed to maintain the wilderness character, the MWSA did not prevent the FS from allowing motorized use within the WSA, unless it as designated as formal Wilderness. Montana Wilderness Assoc. v. U.S. Forest Serv., 146 F. Supp 2d. 1118, 1122 (D. Mont. 2001). The MWSA also did not prevent the FS from reducing motorized use within the WSA. It is within the discretion of the FS to determine what the appropriate use for the WSA is, so long as the levels of motorized use do not exceed the 1977 levels and the wilderness character is maintained. Despite this, Judge Haddon turns the MWSA on its head in ruling that the MWSA prevents the FS from restricting motorized use within a WSA. The result is an interpretation of the MWSA that says the FS cannot provide for less motorized access in WSAs.

Conclusion

While there is potential that the FS should have provided a supplement to its DEIS, it seems well within its discretion to restrict motorized use in the Middle Fork Judith WSA. The District Court appears wrong when it determined that the MWSA prevents the FS from reducing the amount of motorized use in a WSA to a level less than what existed in 1977. The Ninth Circuit should overturn the District Court on the MWSA issue, but, depending on how the Ninth Circuit interprets the facts of the case (are they a “logical outgrowth” or “outside the spectrum” of alternatives), could affirm on the NEPA issue requiring the FS to develop a supplement before they can implement their TMP.

— Dave Whisenand is a second year law student at the University of Montana. He was Wildlands CPR’s excellent legal intern during the summer of 2010.