Ninth Circuit Rejects Enviro Challenge to Forest Service’s Motorized Big Game Retrieval Plan

By John M. Simpson.

On May 6, 2019, the U.S. Court of Appeals for the Ninth Circuit rejected environmental groups’ challenges  to travel management plans issued by the U.S. Forest Service (Service) pursuant to the Service’s Travel Management Rule in three Ranger Districts in the Kaibab National Forest:  the Williams, Tusayan and North Kaibab Ranger Districts.  WildEarth Guardians, et al. v. Provencio, No. 17-17373 (9th Cir. May 6, 2019).  The court of appeals concluded that the Service’s actions were not contrary to the Travel Management Rule and complied with the National Environmental Policy Act (NEPA) and the National Historic Preservation Act (NHPA). 

Pursuant to the Travel Management Rule, the Service specifies a road system in national forest areas together with restrictions on the types of vehicles that can be used and the manner in which those vehicles can be used.  In the three Ranger Districts at issue, the Service crafted travel management plans outlining the extent to which motorized traffic off of designated routes could be employed for camping and for retrieval of certain types of legally hunted and tagged big game.  The plaintiffs — several environmental groups — challenged the Service’s actions because the affected roads were in areas that allegedly contained protected species.  The Ninth Circuit affirmed the district court’s grant of summary judgment in favor of the Service.

The appellate court found that the Service’s plans did not violate the Travel Management Rule because the new restrictions were a limited use of motorized vehicles on a defined set of roads and did not contravene the plain terms of the Rule.

As to plaintiffs’ NEPA claims, the court of appeals upheld the Service’s decision to issue an Environmental Assessment as opposed to an Environmental Impact Statement (EIS).  An EIS was not required because the Service rationally concluded that the environmental effects were not sufficiently significant to require preparation of an EIS:

In reaching its conclusions that none of the impacts cited by Plaintiffs were sufficiently significant to require the preparation of EISs, the Forest Service did not “rel[y] on factors Congress did not intend it to consider, ‘entirely fail[] to consider an important aspect of the problem,’ or offer[] an explanation ‘that runs counter to the evidence before the agency or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.’” …  Instead, the evidence in the record indicates that, although the EAs acknowledged that motorized big game retrieval might have negative impacts on the environment, the Forest Service’s determination that these impacts would not be significant evinced “a rational connection between the facts found and the conclusions made.” …  Therefore, its conclusions were not arbitrary and capricious, and the Forest Service did not violate NEPA by declining to prepare EISs based on the plans’ environmental impacts.

Slip op. at 28 (citations omitted).

The court also rejected the plaintiffs’ assertion that the Service’s actions contravened the NHPA:

The NHPA—and NEPA—“create obligations that are chiefly procedural in nature.”  …  Even if cultural resources might be harmed as a result of motorized big game retrieval, that fact alone does not indicate that the Forest Service violated the NHPA. The Forest Service conducted the required prefield work, consulted with the appropriate entities, and reached a determination consistent with the evidence before it—in short, satisfied its procedural obligations.

Slip op. at 42 (citations omitted).


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