Sierra Trail Dogs Motorcycle & Recreation Club v. U.S. Forest Serv.

470 F.Supp.3d 1186

SIERRA TRAIL DOGS MOTORCYCLE AND RECREATION CLUB, et al., Plaintiffs,

v.U.S. FOREST SERVICE, et al., Defendants.

Case No. 3:18-cv-00594-MMD-CLB

United States District Court, D. Nevada.

Signed July 6, 2020

John C. Boyden, Erickson Thorpe & Swainston, Ltd., Reno, NV, Paul A. Turcke, Pro Hac Vice, MSBT Law, Chtd., Boise, ID, for Plaintiffs.

Shaun M. Pettigrew, U.S. Department of Justice Environment and Natural Resources, Seattle, WA, for Defendants.

ORDER

MIRANDA M. DU, CHIEF UNITED STATES DISTRICT JUDGE

I. SUMMARY

Plaintiffs¹ challenge the U.S. Forest Service's decision to modify the standard governing off-highway vehicles ("OHVs") in the Humboldt-Toiyabe National Forest—one of many provisions adopted to protect the sage-grouse from extinction—as a "significant" change requiring supplementation of environmental review within the framework of the National Environmental Policy Act, 42 U.S.C. § 4331, et seq. ("NEPA"). Before the Court are three cross motions for summary judgment: (1) Plaintiffs’ motion for summary judgment (ECF No. 31); (2) Defendants’² cross motion for summary judgment (ECF No. 37); and (3) Intervenor-Defendants’³ cross motion for summary judgment (ECF No. 40).⁴ Because the Court finds that Federal Defendants were not required to prepare a supplemental environmental impact statement ("SEIS") before issuing the final record of decision ("ROD") containing restrictions on OHV events Plaintiffs challenge here—and as further explained below—the Court will deny Plaintiffs’ motion, grant Federal Defendants and Intervenor-Defendants’ cross motions, and direct the entry of judgment in Federal Defendants’ and Intervenor-Defendants’ favor.

II. BACKGROUND

The following facts are undisputed and primarily derived from the administrative record ("AR"). Plaintiff Sierra Trail Dogs hosts an event every year called the Mystery 250. (ECF No. 1 at 11.) The Mystery 250 is a group trail ride or ‘enduro,’ where participants spend two days riding their motorcycles through the desert on an annually-changing route created by Sierra Trail Dogs. Historically, the Mystery 250 was held in mid-June. (Id. at 12.) However, because of the ROD, Sierra Trail Dogs had to move the Mystery 250 to mid-July, and are now more limited in terms of the routes it can choose for the event. (Id. ) "To address the associated adverse impacts to Plaintiffs’ recreational and aesthetic, procedural, and environmental interests caused by the [ROD], Plaintiffs filed this action." (ECF No. 31 at 13.)

The ROD is the product of a years-long administrative process to amend the forest management plan ("the Forest Plan") for the Humboldt-Toiyabe National Forest to protect the greater sage-grouse bi-state distinct population segment (Centrocercus urophasianus). (Id. at 7, 7-13; AR 36031.) Sage-grouse rely on sagebrush for survival, and use different aspects of sagebrush habitats for different purposes. See Oregon Nat. Desert Ass'n v. Jewell , 840 F.3d 562, 565-66 (9th Cir. 2016). "For instance, at leks, ‘open areas surrounded by sagebrush,’ male sage grouse strut and compete for female mates, displaying their elaborate plumage." Id. at 566 (citation omitted). The Forest Plan has many components, but Plaintiffs only challenge the restrictions the Plan imposes on organized OHV events like the Mystery 250 (the "OHV Standard"). (ECF Nos. 1, 40 at 8.) The Court will therefore only provide a brief summary of the Forest Plan preparation process applicable to the OHV Standard here.

On November 30, 2012, Federal Defendants⁵ published notice of their intent to prepare an environmental impact statement and elicit public comment on an amended forest management plan for the Humboldt-Toiyabe National Forest to better protect the bi-state sage-grouse. (ECF No. 31 at 9; AR 2036-2038.) On August 23, 2013, Federal Defendants released a draft environmental impact statement ("DEIS"). (ECF No. 31 at 10; AR 22659.) The DEIS presented two alternatives pertinent to the OHV Standard: the ‘no action’ alternative, which would not place any additional restrictions on OHV events, and the ‘proposed action,’ which contemplated some restrictions on when and where OHV events could take place. (ECF No. 31 at 10; AR 22684-22685.) The public was then allowed to comment on the DEIS. (ECF No. 31 at 10.)

In July 2014, Federal Defendants published a revised draft environmental impact statement ("RDEIS"), which presented three alternatives: the ‘no action’ alternative ("alternative A"); the ‘proposed action,’ which would place some restrictions on where and when OHV events could take place ("alternative B"); and the ‘conservation alternative,’ which would not allow any OHV events at any time ("alternative C"). (Id. at 11; AR 30285-30286.) The proposed alternative B specifically included the following OHV Standard: "[b]etween March 1 and May 15, off-highway vehicle events that pass within a 0.25 mile of an active lek shall only take place during daylight hours after 10 am." (ECF No. 31 at 11.) The public was then allowed to comment on the RDEIS. (Id. )

In February 2015, Federal Defendants simultaneously released their draft record of decision ("Draft ROD") and their final environmental impact statement ("FEIS"). (Id. ) The OHV Standard included in the FEIS as the proposed action was more restrictive of OHV events than the OHV Standard included in the DEIS and RDEIS, providing, "[b]etween March 1 and May 15, off-highway vehicle events that pass within 3 miles of an active lek shall only take place during daylight hours after 10 a.m." (Id. ) The FEIS was not subject to public comment. (Id. at 12.) However, the public could object to the Draft ROD. (Id. ) While Plaintiffs did not submit any objections, Federal Defendants received seven objections. (Id. ) In an effort to resolve these objections, Federal Defendants proposed further modifying the OHV Standard to read: "[b]etween March 1 and June 30, off highway vehicle events that pass within 4 miles of an active or pending lek shall not be authorized." (Id. at 12-13.) Plaintiff the Blue Ribbon Commission attended a teleconference that included discussion of this proposed modification of the OHV Standard, and then sent a letter attempting to object to it. (Id. at 13.)

But Federal Defendants nonetheless proceeded with incorporating the OHV Standard proposed in response to the objections to the Draft ROD in the Final ROD, signed by Defendant Dunkelberger on May 16, 2016. (Id. ; AR 36029-36091.) The OHV Standard in the Final ROD provides: "[b]etween March 1 and June 30, off-highway vehicle events that pass within 4 miles of an active or pending lek shall not be authorized. Critical disturbance periods may shift 2 weeks back or forward in atypically dry or wet years based on observations of breeding/nesting." (ECF No. 31 at 13.) As noted, the restrictions contained in this OHV Standard caused Plaintiff Sierra Trail Dogs to move the Mystery 250 to mid-July. (Id. )

Plaintiffs created a helpful summary table to illustrate the changes Federal Defendants made as the Forest Plan went through the procedural steps described above:

 DEIS6 RDEIS7 FEIS8 RFEIS9 Final ROD10
  Season          unspecified     3/1-5/15         3/1-5/15          3/1-5/15          3/1-6/30
  Time            unspecified     before 10 am     before 10 am      before 10 am      all day
  Lek Buffer      unspecified     0.25 mile        3 miles           3 miles           4 miles
  Buffer Area     unspecified     0.20 sq.mile     28.27 sq.mile     28.27 sq.mile     50.27 sq.mile

(ECF No. 44 at 12 (highlighting added, footnotes omitted).) Plaintiffs’ challenge, in gist, centers on the highlighted changes in the table above. Between the FEIS and the Final ROD, Federal Defendants extended the season when OHV events are restricted by six weeks, expanded the time restriction such that no OHV events may take place during that season (instead of allowing them after 10 a.m.), and expanded the lek buffer radius from 3 to 4 miles (which, as Plaintiffs illustrate in the table, increases the buffer area around each lek). According to Plaintiffs, "[t]hese changes create significant hardships and adverse impacts of both practical and legal consequence, in large part because of the significantly drier and hotter conditions in July compared to June, resulting in health and safety risks, increased fire danger, and other potential resource impacts or complications." (ECF No. 1 at 15.)

Plaintiffs allege Federal Defendants violated NEPA because the magnitude of these changes required Federal Defendants to prepare a SEIS instead of moving directly to the Final ROD. (ECF No. 31 at 23-26; see also ECF No. 1 at 14.) In their Complaint, Plaintiffs also include three other claims: violation of the National Forest Management Act, 16 U.S.C. § 1600, et seq. ("NFMA") (id. at 2, 12-13); a claim involving special use permits that incorporates Plaintiffs’ other claims for violations of NFMA and NEPA (id. at 15-16); and violation of the Administrative Procedure Act, 5 U.S.C. § 551, et seq. ("APA") (id. at 2, 16).

However, the parties all agree that this case rises or falls on the Court's resolution of the pending cross motions for summary judgment. (ECF Nos. 27 at 2, 31 at 7, 37 at 14 n.4, 40 at 30.) Thus, the Court's legal analysis farther below focuses on the parties’ case-dispositive NEPA arguments raised in these motions.

III. LEGAL STANDARD

"The purpose of summary judgment is to avoid unnecessary trials when there is no dispute as to the facts before the court." Nw. Motorcycle Ass'n v. U.S. Dep't of Agric. , 18 F.3d 1468, 1471 (9th Cir. 1994). Where, as here, review of an agency action is sought not based upon a "specific authorization in the substantive statute, but only under the general review provisions of the APA," Lujan v. Nat'l Wildlife Fed'n , 497 U.S. 871, 882, 110 S.Ct. 3177, 111 L.Ed.2d 695 (1990), the Court does not determine whether there are disputed issues of material fact as it would in a typical...