Wild Wilderness; Winter Wildlands Alliance; Bend Backcountry Alliance, Plaintiffs-Appellants,
John Allen, Forest Supervisor of the Deschutes National Forest; United States Forest Service, a federal agency, Defendants-Appellees, and Oregon State Snowmobile Association; American Council of Snowmobile Associations; Ken Roadman; Elk Lake Resort, Intervenor-Defendants-Appellees.
and Submitted October 5, 2016 Portland, Oregon
from the United States District Court for the District of
Oregon, No. 6:13-cv-00523-TC Thomas M. Coffin, Magistrate
C. Buchele (argued), Earthrise Law Center, Portland, Oregon;
Lauren Marie Rule (argued), Advocates for the West, Portland,
Oregon; for Plaintiffs-Appellants.
Edward Martin (argued), Assistant United States Attorney;
Kelly A. Zusman, Appellate Chief; Billy J. Williams, United
States Attorney; United States Attorney's Office,
Portland, Oregon; for Defendants-Appellees.
A. Turcke (argued), Moore Smith Buxton & Turcke, Boise,
Idaho, for Intervenor-Defendants-Appellees.
Before: Sidney R. Thomas, Chief Judge, and Richard R. Clifton
and Jacqueline H. Nguyen, Circuit Judges.
panel affirmed the district court's summary judgment in
favor of the United States Forest Service in an action
brought by Wild Wilderness, a group representing
non-motorized recreationalists, challenging the Forest
Service's approval of the building of Kapka Sno-Park, a
parking lot primarily designed for motorized recreationalists
in the Deschutes National Forest in Oregon.
panel held that the case was not moot where Wild
Wilderness's complaint identified several remedies that
remained available despite Kapka Sno-Park's completion.
The panel also held that Wild Wilderness's claims did not
panel held that the Forest Service did not violate the
National Forest Management Act by approving the Kapka
Sno-Park. The panel held that Kapka Sno-Park was not
inconsistent with the Deschutes Forest Plan.
panel held that the Forest Service did not violate the
National Environmental Policy Act ("NEPA") by first
issuing a Draft Environmental Impact Statement but then
reversing course and issuing a Finding of No Significant
Impact and a final Environmental Assessment in its place. The
panel also rejected Wild Wilderness's other claims of
alleged Forest Service NEPA violations.
NGUYEN, CIRCUIT JUDGE
recreation has become increasingly popular in the Deschutes
National Forest in Central Oregon, exacerbating parking
shortages and on-snow user conflicts between motorized and
non-motorized recreationalists. In 2012, the National Forest
Service approved the building of Kapka Sno-Park, a parking
lot primarily designed for motorized recreationalists, and
issued an Environmental Assessment (EA) for the project. Wild
Wilderness, a group representing non-motorized users,
challenged approval of the project on the grounds that the
Forest Service had violated both the National Forest
Management Act (NFMA) and the National Environmental Policy
Act (NEPA). The district court granted summary judgment in
favor of the Forest Service. Reviewing de novo, Alliance
for the Wild Rockies v. Bradford, 856 F.3d 1238, 1242
(9th Cir. 2017), we affirm.
most popular winter activities in Deschutes National Forest
are snowmobiling and cross-country skiing. Cross-country
skiers and other recreationalists who prefer non-motorized
activities often dislike the noise and tracks left by
snowmobilers, and the Forest Service has recognized the
potential for conflicts between the two groups for many
years. These on-snow conflicts are concentrated in the area
surrounding Dutchman Flat and Tumalo Mountain, which due to
its high terrain and easy accessibility is ideal territory
for both snowmobilers and cross-country skiers. A lack of parking
has further fueled conflict between these groups of users.
Excluding Kapka, there are seven "sno-parks" within
the Cascade Lakes Highway area of Deschutes. Three are for
non-motorized use only, three are for both non-motorized and
motorized use, and one is for motorized use only.
Forest Service has long considered building additional
parking for winter recreationalists in this area. In 1996, it
considered expanding existing sno-parks but ultimately
decided not to, in part because of a desire to focus on
alleviating on-snow user conflicts. While expanding the
sno-parks could have alleviated conflicts over parking, more
parking would have meant more users, potentially resulting in
more on-snow conflicts. In 2004, the Forest Service banned
snowmobiles from approximately 1, 375 acres in the Dutchman
Flat and Tumalo Mountain area that were particularly popular
with skiers to reduce on-snow user conflicts. It also began
analyzing the possibility of building a new sno-park in the
area, near Kapka Butte.
2006, the Forest Service issued a scoping notice, which
proposed building Kapka Sno-Park primarily for motorized
users while closing the neighboring Dutchman Sno-Park and its
immediate surroundings to motorized use. The purpose and need
of the action, according to the notice, were to reduce
parking congestion and reduce user conflicts between the
different user groups by separating them. The notice also
stated that recent regulatory changes had gone into effect to
separate uses and were succeeding in reducing conflicts in
the Dutchman Flat and Tumalo Mountain areas.
emails in 2008, however, show that the Forest Service at some
point had decided to focus only on parking congestion near
Dutchman Flat in a smaller project instead of simultaneously
tackling the parking shortage and further attempting
to separate uses and thereby reduce user conflicts. The
Forest Service issued a new scoping notice in 2009 focused
only on the parking issue and a notice of intent to issue an
Environmental Impact Statement (EIS). The scoping notice
stated that the Forest Service "expect[ed] the analysis
to be documented in an environmental impact statement"
and that a draft would be available soon.
months after issuing the 2009 scoping notice, the Forest
Service released a Winter Recreation Sustainability Analysis.
The analysis discussed the increasing use of certain areas of
the forest for winter recreational activities, particularly
along the Cascade Lakes corridor. The higher demand led to
parking "bottlenecks" at some sno-parks due to
limited parking capacity. The analysis also noted that the
vast majority of the forest had little or no conflict issues,
but that the area around Kapka Butte had experienced some
on-snow conflicts, which could possibly be exacerbated if
additional parking capacity were added because it would
likely increase the number of motorized users in the area.
Forest Service issued a Draft EIS in April 2011. The Draft
EIS's "Purpose and Need" was twofold-to provide
additional parking capacity and to create trails for Nordic
skiers with dogs. Due to the narrow purpose and need, no
alternatives that would have limited motorized use in ...