Montana Wilderness Study Area Protections Affirmed

Introduction
In our Winter Solstice, 2010 issue of The Road RIPorter, here, we highlighted a ruling out of Montana District court that over-turned the Lewis and Clark National Forest’s travel management decision for the Little Belt, Castle, and the north half of the Crazy Mountains – Russell Country Sportsmen v. Forest Service. Less than a year later, we got some good news out of the 9th Circuit Court of Appeals that the lower court’s decision was over-turned and the travel plan, and its protections for Wilderness Study Areas (WSAs), would remain in place.

On December 1, 2011, we got more good news about WSAs from the 9th Circuit. In Montana Wilderness Association v. McAllister, ___ F.3d ___, slip op. 20573 (9th Cir. Dec. 1, 2011), the court ruled that the Gallatin travel plan had not adequately taken into account the impacts of increased motorized use and noise when making its decision about whether to continue allowing motorized and mechanized use in WSAs.

Russell Country Revisited
The 9th Circuit’s decision in Russell Country Sportsmen affirmed the Forest Service’s ability to manage lands protected by the Montana Wilderness Study Act in a manner that was more restrictive of motorized use than when the Act was passed in 1977.  The court found that the Montana Wilderness Study Act of 1977 (Study Act) imposes two requirements:

“First, the Service must administer study areas so as to maintain their wilderness character as it existed in 1977. Second, the Service must administer the areas so as to maintain their potential for designation as wilderness areas — i.e., as part of the National Wilderness Preservation System.” Russell Country Sportsmen v. United States Forest Service, ___ F.3d ___, No. 10-35623, slip op. 18851 at 18861 (9th Cir. Oct. 12, 2011). (emphasis added)
 

The Meaning of McAllister
It remains to be seen what constitutes a reduction in the “potential for designation as wilderness” and how that potential can be measured. However, the 9th Circuit’s other decision, McAllister, provided some clarification about what it means to “maintain wilderness character.” The court found that the Study Act:

“requires the Service to ensure that current users of a wilderness study area are able to enjoy the wilderness character of the area as it existed in 1977, pending a congressional decision on whether to designate the area as wilderness. In this case, the Service has not adequately explained how the 1977 wilderness character of the relevant study area, particularly the opportunities for solitude it offers, has been maintained despite an increase in the volume of motorized and mechanized recreation in the area.” (emphasis added)
 

The court’s opinion hinged on the Forest Service’s acknowledgement that motorized use in the area had greatly increased in volume since 1977. The Forest’s travel plan decision, which  reduced the acreage within the WSA that was open to motorized use, was not sufficient to address this increase in volume.

The court also relied upon the fact that the Gallatin failed to address the impacts on current users from that increase. Specifically,
 

“[t]he Service did not attempt to maintain the area’s 1977 wilderness character, including the relatively low motorized use volumes that existed at that time, for the enjoyment of current users.” McAllister at 20593. “An area’s ability to provide solitude depends on a current user’s perception of other users around him — not just on the physical characteristics of the land.” McAllister at 20587.
 

The court acknowledged that the Gallatin’s attempt to maintain wilderness character will likely be approximate and qualitative and that the lack of complete historical data on volume of recreational use would make these estimations difficult. But, the court determined that the Forest Service must still try, and “do the best it can with the data it has” and that it cannot “ignore the volume of use increase completely.” McAllister at 20592.

The decision expands upon this issue with regards to satisfying NEPA requirements to disclose to the public when data is unavailable or incomplete. See 40 C.F.R. § 1502.22. In attempting to meet the 1502.22 requirements, the Forest Service disclosed that historical data tracking changes in the volume of recreational use within the study area was not available.

However, the Forest Service went on to conclude that, because its Wilderness Attribute Rating System (WARS) did not use volume of recreational use to evaluate solitude, it did not have to do so in its travel management decision. Because the “historical volume of use data are relevant to the Study Act analysis, they are also relevant for purposes of NEPA analysis, and thus are “relevant to reasonably foreseeable significant adverse impacts” under § 1502.22.” See McAllister at 20595.

NEPA Ruling in Russell Country Sportsmen
In addition to its ruling on WSA management, the 9th Circuit also over-turned the Montana District Court judge’s National Environmental Policy Act (NEPA)  ruling, finding that the Forest Service’s decision was within the scope of its prior environmental analysis.

The lower court found that the Lewis and Clark had selected an alternative that was “qualitatively outside the spectrum of the alternatives discussed in the draft.” In reviewing this decision, the 9th Circuit disagreed. The Circuit court found, after conducting a thorough examination of the administrative record and the mileage of routes evaluated to be open vs. closed in the DEIS, that the lower court had ignored evidence in the record that was also presented by Defendants and Defendant-intervenors about the range of alternatives. Based on that  examination, the 9th Circuit determined that the route mileage approved in the final decision was covered by the range of mileages analyzed in the DEIS, and that, therefore, the range of alternatives was adequate. As such, no supplemental EIS was required.

Conclusion
Both of these decisions are great news for the preservation of wilderness-caliber lands, not just on the Lewis and Clark and Gallatin, where these battles were fought, but in designated wilderness study areas throughout Montana.

The Lewis and Clark will move forward with implementing its approved travel plan, which was deemed to be accurately protective of WSAs. The Gallatin has an interim winter management  plan in place that constrains snowmobile use in the Gallatin Range WSA to the Big Sky Snowmobile Trail and provides an open area for cross-country snowmobile
travel near Golden Trout Lakes and west of Windy Pass. It remains to be seen what a final plan will look like, but, after the December 1st court ruling, you can be sure it will take into account the experience of current users of the WSAs.