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Wilderness v. Allen

United States Court of Appeals, Ninth Circuit

September 8, 2017

Wild Wilderness; Winter Wildlands Alliance; Bend Backcountry Alliance, Plaintiffs-Appellants,
v.
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.

          Argued and Submitted October 5, 2016 Portland, Oregon

         Appeal from the United States District Court for the District of Oregon, No. 6:13-cv-00523-TC Thomas M. Coffin, Magistrate Judge, Presiding

          Thomas C. Buchele (argued), Earthrise Law Center, Portland, Oregon; Lauren Marie Rule (argued), Advocates for the West, Portland, Oregon; for Plaintiffs-Appellants.

          Sean 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.

          Paul 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.

         SUMMARY[*]

         Environmental Law

         The 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.

         The 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 lack redressability.

         The 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.

         The 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.

          OPINION

          NGUYEN, CIRCUIT JUDGE

         Winter 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.

         I.

         FACTUAL BACKGROUND

         The two 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.[1] 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.

         The 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.

         In 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.

         Internal 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.

         Eight 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.

         The 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 ...


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