IN THE UNITED STATES DISTRICT COURTarchive.sharetrails.org/uploads/legal2/rwdolores... · Salazar,...

IN THE UNITED STATES DISTRICT COURTFOR THE DISTRICT OF COLORADO

Civil Action No. 1:11-cv-03139-MSK-KLM

BACKCOUNTRY HUNTERS AND ANGLERS, Colorado Chapter,

Petitioner,

v.

UNITED STATES FOREST SERVICE; MARK STILES, in his official capacity as Forest Supervisor for the San Juan National Forest; and THOMAS TIDWELL, in his official capacity as Chief of the United States Forest Service,

Respondents,

and

COLORADO OFF HIGHWAY VEHICLE COALITION, TRAILS PRESERVATION ALLIANCE, SAN JUAN TRAIL RIDERS, PUBLIC ACCESS PRESERVATION ASS’N, and THE BLUE RIBBON COALITION,

Respondent-Intervenors.________________________________________________________________________

PLAINTIFF’S REPLY BRIEF________________________________________________________________________

Michael C. Soules, Colo. Bar No. [email protected] Nicewicz, Student AttorneyBoe Nicholson, Student AttorneyGetches-Green Natural Resources and Environmental Law ClinicUniversity of Colorado Law SchoolWolf Law Building, UCB 404Boulder, CO 80309-0404(303) 492-5897

Joseph M. Feller, Ariz. Bar No. 330011College of LawArizona State University1100 S. McAllister StreetTempe, AZ 85287-7906(480) [email protected]

Counsel for Plaintiff Colorado Backcountry Hunters and Anglers

Filed August 31, 2012

Case 1:11-cv-03139-MSK Document 55 Filed 08/31/12 USDC Colorado of 34

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TABLE OF CONTENTS

TABLE OF EXHIBITS .................................................................................................................. ii

INTRODUCTION .......................................................................................................................... 1

ARGUMENT.................................................................................................................................. 2

I. THE JUNE 2010 ORDER UNLAWFULLY AUTHORIZED ORV USE ON THE 14 TRAILS............. 2

II. THE JUNE 2010 ORDER VIOLATES NFMA........................................................................... 9

III. THE FOREST SERVICE VIOLATED NEPA BY FAILING TO ANALYZE THE EFFECTS OF ORVUSE ON THE 14 TRAILS. ..................................................................................................... 16

IV. THE FOREST SERVICE VIOLATED NEPA BY FAILING TO CONSIDER SIGNIFICANT NEW INFORMATION. ................................................................................................................... 18

V. THE JUNE 2010 ORDER VIOLATES EXECUTIVE ORDER 11644 AND 36 C.F.R. § 212.55..... 22

VI. INJUNCTIVE RELIEF SHOULD NOT BE DELAYED. ............................................................... 24

VII. THIS COURT MAY PROPERLY CONSIDER PLAINTIFF’S EXHIBITS. ...................................... 26

CONCLUSION............................................................................................................................. 31

TABLE OF EXHIBITS

Exhibit 7 San Juan Public Lands; Draft Land Management Plan; Draft Environmental Impact Statement (Dec. 2007) (excerpt).

Complete document available at: http://ocs.fortlewis.edu/forestplan/DEIS/v1.asp


INTRODUCTION

In June 2010, the Forest Service issued an order that authorized off-road vehicle (“ORV”)

use on 14 trails within the Rico-West Dolores area of the San Juan National Forest. See AR Doc.

5018 (“June 2010 Order”). These 14 trails are located in areas of the Forest that have been

designated for “semi-primitive non-motorized recreation.” AR Doc. 1468 at 1676. Such areas

are “never open for motorized recreation activities except for specifically identified motorized

corridors.” Id. at 1677. Because the Forest Service authorized ORV use on trails that are not

“specifically identified motorized corridors,” the agency violated the National Forest

Management Act (“NFMA”) and its own Forest Plan when it issued the June 2010 Order.

Moreover, the Forest Service authorized ORV use on the 14 trails without making any effort to

analyze the environmental effects of such use, as required by the National Environmental Policy

Act (“NEPA”). Nor did the agency comply with Executive Order 11644 and 36 C.F.R. § 212.55.

In their opposition brief, Defendants largely ignore the arguments presented by Colorado

Backcountry Hunters and Anglers (“CBHA”). Instead, they stake their defense on a single,

flawed premise: that the June 2010 Order did not authorize ORV use on the 14 trails.

Defendants’ claim necessarily fails because the Order incorporates a map of the Rico-West

Dolores area that designates the 14 trails as “open to motorcycles.” AR Doc. 5018 at 5019.

Although Defendants try to distract the Court’s attention with post hoc litigation affidavits that

claim otherwise, Defendants cannot escape the plain language of this Order.

Defendants also point out that ORV use was occurring on the 14 trails prior to June 2010.

But that fact does not reduce the significance of the June 2010 Order. As CBHA explained in its

opening brief, the June 2010 Order represents the culmination of a series of unlawful activities


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that facilitated ORV use on the 14 trails. Dkt. No. 50 at 13-16 (hereinafter, “Opening Br.”). In

the years leading up to the June 2010 Order, the Forest Service informally green-lighted ORV

use on the 14 trails, and CBHA repeatedly urged the Forest Service to prohibit this motorized

use. Id. at 15. CBHA’s pleas were echoed by many others, including the Town of Rico, the

Rico Alpine Society, San Juan Citizens Alliance, and Dunton Hot Springs. See generally Dkt.

No. 53. Rather than enforce the law by prohibiting ORVs on the 14 trails, in June 2010 the

Forest Service did the opposite: the agency issued an order that officially authorized motorized

use on these trails. Because the June 2010 Order violated NFMA, NEPA, Executive Order

11644, and the Administrative Procedure Act (“APA”), this Court should vacate the Order and

enjoin the Forest Service’s continued authorization of ORV use on the 14 trails.

ARGUMENT

I. THE JUNE 2010 ORDER UNLAWFULLY AUTHORIZED ORV USE ON THE 14 TRAILS.

The plain language of the June 2010 Order authorizes ORV use on the 14 trails. As

CBHA has explained, the June 2010 Order both prohibited motorized cross-country travel and

authorized ORV use on the 14 trails. Opening Br. at 19 (citing AR Doc. 5018). Both parts of the

Order can only be understood by reference to the Order’s map, which identifies the cross-country

areas closed to motorized travel and designates each of the 14 trails as “Open to Motorcycles

Only, Yearlong.” AR Doc. 5018 at 5019. The express terms of the Order therefore authorize

ORV use on the 14 trails. And in issuing that Order, the Forest Service violated NEPA, NFMA,

and Executive Order 11644. See generally Opening Br. at 22-38.

In an effort to evade this Court’s review of the agency’s decision, Defendants argue that

the June 2010 Order doesn’t do what it says it does. According to Defendants, the June 2010


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Order only restricted cross-country travel, and did nothing to affect the status of the 14 trails.

Dkt. No. 52 at 1, 2, 6, 17, 18, 23, 29 (hereinafter, “USFS Opp.”); see also Dkt. No. 54 at 3

(hereinafter, “Intervenors’ Opp.”).1 In pressing this argument, Defendants ignore the text of the

Order itself. Instead, Defendants point to a handful of conclusory assertions that, they suggest,

trump the Order’s plain language.

First, Defendants cite a sentence from a decision letter that Forest Supervisor Stiles

issued at the time of the June 2010 Order. USFS Opp. at 1, 6, 17. This sentence states, without

elaboration, that “[n]o change in current road and trail designations (location or type of use)

occur [sic] under this decision.” AR Doc. 5013 at 5014. This bare assertion cannot override the

plain terms of the Order. As the Tenth Circuit has stated in a related context, “[w]here the plain

language of a regulation is clear, we cannot torture the language to reach the result the agency

wishes.” Via Christi Regional Medical Center v. Leavitt, 509 F.3d 1259, 1273 (10th Cir. 2006)

(citation, alterations, and quotation marks omitted); see also Southern Utah Wilderness Alliance

v. OSMRE, 620 F.3d 1227, 1237 (10th Cir. 2010) (“An order, if it is not ambiguous, must be

enforced according to its plain meaning.”). Here, where the language of the June 2010 Order is

clear, the plain meaning must control. The Supervisor’s conclusory assertion cannot trump the

plain meaning and effect of the June 2010 Order.

Second, Defendants point to a pair of post hoc litigation affidavits from two Forest

Service employees. USFS Opp. at 6, 7. These declarations – which were generated after CBHA

1 Defendants misleadingly claim that CBHA “cherry-picked” the 14 trails at issue in this case. USFS Opp. at 7. In truth, these 14 trails represent all of the trails located in MA3A (non-motorized) areas within the Rico-West Dolores landscape that were designated for motorized use in the June 2010 Order.


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filed its motion for preliminary injunction – claim that the June 2010 Order did not authorize

motorized use on the 14 trails. Stiles Decl. ¶ 6 (Dkt. No. 34-2); Kill Decl. ¶ 5 (Dkt. No. 34-3).

But neither of these post hoc statements should be credited, and they certainly cannot override

the plain meaning of the June 2010 Order. As an initial matter, these statements are

impermissible legal conclusions that should not be admitted as evidence. See Dkt. No. 42 at 2-6.

Put simply, “interpretation of the law is a matter for the Court,” and these witnesses cannot “tell

the Court what the law is.” WildEarth Guardians v. Pub. Serv. Co. of Colorado, No. 09-cv-

01862-MEH-RBJ, 2012 WL 10300, at *3 (D. Colo. Jan. 3, 2012).2 And even if this testimony

were admissible, these statements are post hoc rationalizations that should be disregarded in

construing the June 2010 Order. See, e.g., Lewis v. Babbitt, 998 F.2d 880, 882 (10th Cir. 1993)

(“[R]eviewing courts may not rely on litigation affidavits that provide post hoc rationalizations

for the agency’s action.”); Olenhouse v. Commodity Credit Corp., 42 F.3d 1560, 1577-78 (10th

Cir. 1994) (rejecting attempted use of a post hoc litigation affidavit to support agency decision);

see also Colorado Environmental Coalition v. Salazar, No. 08-cv-01460-MSK-KLM, 2012 WL

2370067 at *19 (D. Colo. June 22, 2012) (giving little weight to “conclusory factual assertions”

in a post-decisional document). These witness statements merely repeat what Defendants argue

in their brief; they do not offer proof regarding the legal effect of the June 2010 Order. And

2 As explained in CBHA’s Motion to Strike Testimony (Dkt. No. 42), these witnesses’ assertions, that the June 2010 Order did not authorize ORV use on the 14 trails, are also inadmissible because they are essentially legal arguments masked as witness testimony. See Pacific Gas & Elec. Co. v. Lynch, 216 F. Supp. 2d 1016, 1027 (N.D. Cal. 2002) (granting motion to strike where the declaration “primarily contains legal argument rather than evidentiary matter”); City of Santa Clara v. U.S. Dept. of Interior, No. CV 02-0697 DT(FMOX), 2005 WL 2972987, at *2 (C.D. Cal. Oct. 31, 2005) (striking declaration that “parrots the legal arguments presented in the Plaintiffs’ brief”).


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again, even if these post hoc legal conclusions were considered, they still could not override the

plain language of the Order.3

Defendants also try to bolster their argument by claiming that these trails have long been

open to ORV use. USFS Opp. at 2, 7, 17, 18; see also Intervenors’ Opp. at 5. As evidence, they

cite to a series of “travel maps” dating back to the 1970s. USFS Opp. at 17, 18; see also Kill

Decl. ¶¶ 6-8; Stiles Decl. ¶¶ 10, 12. But although Defendants place great significance on them,

these maps do not aid Defendants’ argument. For one thing, Forest Service visitor maps and

travel maps, standing alone, do not have the force of law. See Montana Snowmobile Association

v. Wildes, 103 F. Supp. 2d 1239, 1242 (D. Mont. 2000). Defendants’ own witnesses have

admitted this. See Kill Decl. ¶ 6 (acknowledging that “historic travel maps are not NEPA

decisions themselves”); Stiles Decl. ¶ 11 (noting that “publication of trail visitor use maps is not

a decision that requires compliance with the National Environmental Policy Act”).

Defendants’ further point – that the Forest Service installed trail signs “as early as 2005,”

USFS Opp. at 17 – simply underscores what CBHA has long maintained: The June 2010 Order

was the culmination of a series of unlawful activities – such as the distribution of visitor maps

and installation of trail signs – that facilitated ORV use on the 14 trails. See, e.g., Opening Br. at

13-16. Though unlawful, these earlier, informal activities were not reviewable under the APA.

See Montana Wilderness Ass’n v. U.S. Forest Service, 314 F.3d 1146, 1149-50 (9th Cir. 2003)

3 Citing to their litigation affidavits, Defendants stress that the June 2010 Order “do[es] not mention any roads or trails by name, including the 14 trails named in Petitioner’s complaint.” USFS Opp. at 7. This is a red herring: the map accompanying the June 2010 Order expressly identifies each of the 14 trails by their commonly-used trail number. AR Doc. 5018 at 5019. The Forest Service frequently uses these trail numbers in maps, including the 2005 visitor map discussed in Mr. Stiles’s declaration. See AR Doc. 4872 (2005 map).


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(holding that trail maintenance and improvement work does not constitute a final agency action),

overruled on other grounds, 542 U.S. 917 (2004). And such informal activities cannot be

bootstrapped into an official authorization of motorized use.4

Defendants’ theory, that the June 2010 Order did “not make any change to road and trail

designations,” USFS Opp. at 6, is further belied by the agency’s own maps. The motorized

designations for all 14 trails in the June 2010 Order map are different than those shown in the

immediately preceding visitor map, which is dated 2005. To take but one example, whereas the

2005 map shows the Horse Creek trail (#626) as open to all motorized uses (including four-

wheelers), the map accompanying the June 2010 Order shows this trail as open only to

motorcycles. Compare AR Doc. 4872 with AR Doc. 5018 at 5019.5 Because the Forest

Service’s own maps show a change in status of the 14 trails between 2005 and 2010, Defendants’

theory must be rejected.

For similar reasons, Defendants’ statute of limitations argument is without merit. In

arguing that CBHA’s claims are time-barred, USFS Opp. at 17-18, Defendants point to a 1999

order that purportedly authorized motorized use on the 14 trails. See AR Doc. 4868. (Like the

June 2010 Order, this earlier order is inconsistent with the Forest Plan, and was apparently issued

4 CBHA’s opening brief explained why the June 2010 Order is a final agency action reviewable under the APA. See Opening Br. at 19-22. Defendants agree: they concede that the June 2010 Order “is a final agency action subject to review by this Court.” USFS Opp. at 17.5 Defendants omitted a portion of the 2005 visitor map from the administrative record. Among other things, the map is missing the tables that are necessary to understand the motorized designations shown on the map. (These tables are entitled “Area Table” and “Road and Trail Table.”) To assist the Court’s review of this issue, CBHA member Robert Marion supplied a comparison of the motorized designations shown on the 2005 map with those in the June 2010 Order. See Marion Decl. ¶ 42 (Dkt. No. 50-1). The motorized designations displayed in the 2005 map can also be checked by referring to the tables found in AR Doc. 4868 at 4870.


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without the required NEPA analysis.) According to Defendants, following the reversal of the

2009 Rico-West Dolores Travel Management Plan (“TMP”), management reverted to this 1999

order, for which, conveniently, the statute of limitations expired in 2005. USFS Opp. at 17.6 To

the extent this order authorized some form of motorized use, that is irrelevant because the order

has been superseded.

Whatever vitality this order may once have had, the order’s status was questionable after

the December 2009 Appeal Decision vacated the TMP. In the Appeal Decision, the Forest

Supervisor agreed that the TMP’s designation of motorized trails within MA3A “violates the

Forest Plan.” AR Doc. 4820 at 4821; AR Doc. 4825 at 4825. Given that the TMP was vacated,

at least in part, due to its inconsistency with the Forest Plan, it would make no sense to revive an

earlier decision that violated the Plan even more flagrantly. And in the wake of the Appeal

Decision, the Forest Service staff seemed to understand this. See AR Doc. 4845 at 4845

(expressing uncertainty about “what our baseline for motorized use is for the Rico-West Dolores

Travel Management Plan”).

Yet even if the 1999 order had survived the TMP process, that order was superseded by

the June 2010 Order, which both prohibited cross-country travel and authorized motorcycle use

on the 14 trails. AR Doc. 5018. As explained in CBHA’s opening brief, this Order is legally

6 Though it is common ground among Defendants that the June 2010 Order did not authorize ORV use on the 14 trails, Defendants do not seem to agree on when, exactly, ORV use was purportedly authorized. Ms. Kill states that the 14 trails were designated for motorized use “decades ago” – although she fails to identify any specific decision that did so. Kill Decl. ¶ 6. Defendants’ opposition brief, by contrast, claims that this authorization occurred through the 1999 order, and that even today “travel management is enforced pursuant to a 1999 Forest Order.” USFS Opp. at 17. Defendants’ apparent confusion is understandable, because – other than the trails identified in Appendix G of the Forest Plan – the Forest Service has never issued a NEPA-compliant decision to authorize motorized use on these trails.


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enforceable, both bestowing a right to ride ORVs on the 14 trails while prohibiting such use in

cross-country areas. Opening Br. at 20; see also AR Doc. 5018 at 5018 (establishing criminal

penalties for violations of the Order). Because the June 2010 Order established permissible

motorized uses throughout the Rico-West Dolores area, recreational travel within this landscape

is currently governed by the June 2010 Order – not the 1999 order. Defendants are thus wrong

in claiming otherwise. USFS Opp. at 6, 17. Were there any remaining doubt that the June 2010

Order superseded the 1999 order’s trail designations, that doubt would be erased by the fact that

all 14 trails have a different status under the June 2010 Order. For example, whereas the 1999

order purports to allow both four-wheeled ATVs and motorcycles on the Bear Creek trail (#607),

the June 2010 Order only permits motorcycles. Compare AR Docs. 4867, 4768 with AR Doc.

5018 at 5019. Thus, Defendants’ repeated claim that the June 2010 Order “does not make any

change to road and trail designations” is simply wrong. USFS Opp. at 6, 17.7 Because the June

2010 Order authorized motorcycle use on the 14 trails, and because CBHA filed well within the

six-year limitations period, 28 U.S.C. § 2401(a), Defendants’ statute of limitations argument is

meritless.

Neither the publication of travel maps, nor the issuance of orders unaccompanied by a

NEPA analysis, nor the posting of trail signs excused the Forest Service from complying with

NFMA, NEPA, and Executive Order 11644 in issuing the June 2010 Order. As the D.C. Circuit

7 Even if the June 2010 Order had simply reaffirmed the motorized trail designations of the 1999 order – it did not – that would not bar judicial review: “[T]o the extent that an agency’s action ‘necessarily raises’ the question of whether an earlier action was lawful, review of the earlier action for lawfulness is not time-barred.” Public Citizen v. Nuclear Regulatory Commission, 901 F.2d 147, 151-52 (D.C. Cir. 1990) (citation omitted). Because a decision reaffirming the 1999 order would “necessarily raise” the issue of whether the 1999 order complied with federal law, the statute of limitations would run from the date of the later-enacted decision.


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explained years ago, “a line must be drawn between according administrative interpretations

deference and the proposition that administrative agencies are entitled to violate the law if they

do it often enough.” Wilderness Soc’y v. Morton, 479 F.2d 842, 865 (D.C. Cir. 1973). This

Court should reject Defendants’ attempt to avoid judicial review of the motorized trail

designations made in the June 2010 Order.8

II. THE JUNE 2010 ORDER VIOLATES NFMA.

As CBHA explained in its opening brief, the 1992 Forest Plan prohibits ORV use on at

least 10 of the 14 trails at issue in this case. All 14 trails are wholly or partially located in MA3A

(non-motorized) areas. These areas are “never open for motorized recreation activities except for

specifically identified motorized corridors.” AR Doc. 1468 at 1677; see also AR Doc. 2041

(1992 Management Area Map). This management requirement was first established in the 1983

Forest Plan. In addition to establishing a general prohibition on ORV use within MA3A areas,

the 1983 Plan also specifically identified the motorized corridors that would remain open within

those areas. These motorized corridors were identified in Appendix G to the Forest Plan, which

was incorporated by reference into the 1992 Plan. See AR Doc. 1 at 451-52 (Appx. G); AR Doc.

1468 at 1531 (incorporating Appx. G). Only five of the 14 trails were identified as motorized

8 The ORV Groups’ argument that “the circumstances strongly militate against petitioner” is unfounded. Intervenors’ Opp. at 5-6. First, CBHA is not challenging an “ongoing management process” – this case is about the June 2010 Order, which CBHA and Defendants agree is a final agency action. Second, contrary to the ORV Groups’ suggestion, id. at 6, CBHA is not seeking to embroil this Court “in abstract policy disagreements,” Norton v. Southern Utah Wilderness Alliance, 542 U.S. 55, 66 (2004). CBHA is merely asking the Court to decide this case on its legal merits, not based on the wisdom or foolishness of the Defendants’ policies. Finally, there is nothing “awkward” about seeking to protect otherwise pristine and remote lands from continued damage resulting from the illegal authorization of ORV use on those lands.


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corridors in the 1983 Plan, and one of those trails (Calico) was shifted to non-motorized status in

1990. See Opening Br. at 23-24. Thus, 10 of the 14 trails are non-motorized under the 1992

Plan. Because the June 2010 Order nevertheless authorized ORV use on these trails, the Forest

Service violated NFMA. See generally Opening Br. at 22-26.

In their opposition brief, Defendants make several attempts to avoid the directives of the

1992 Forest Plan. First, they contend that the Forest Plan did not make any site-specific

decisions regarding the 14 trails. USFS Opp. at 19, 20. They further claim that “[t]he Forest

Service has never used Appendix G to identify motorized corridors.” Id. at 20 (citation omitted).

And Defendants suggest that motorized corridors are identified elsewhere and “shown on official

maps.” Id. These arguments are without merit.

Tellingly, Defendants have never been able to identify when the Forest Service made a

NEPA-compliant, site-specific decision to authorize ORV use on these trails. In fact, it was the

Forest Plan itself that made site-specific decisions regarding the 14 trails. The Forest Plan did so

in Appendix G. The purpose of this Appendix is evident from its title: “ROADS AND TRAILS TO

REMAIN OPEN TO THE PUBLIC FOR MOTORIZED USE WITHIN MANAGEMENT AREA 3A.” AR Doc. 1

at 451. Were there any doubt that this Appendix was intended to identify the motorized

corridors that remained within MA3A areas, its text erases that doubt: “Management Area 3A is

managed with emphasis on semi-primitive, non-motorized recreation opportunities. The

following roads and trails will remain open to the public for motorized use as access corridor

routes through the management area. These routes may be closed seasonally to prevent resource

damage.” Id. at 452 (emphasis added). The Appendix goes on to list – i.e., to identify – the


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motorized corridors that remain in MA3A under the Forest Plan.9 Read in conjunction with the

Forest Plan’s general prohibition on motorized use, id. at 205, Appendix G’s meaning is

unambiguous: this document “specifically identified” the motorized corridors that would remain

open in MA3A areas.10

Accordingly, Defendants’ contention, that the Forest Plan did not make site-specific

decisions regarding motorized status, USFS Opp. at 19-20, is incorrect. Although forest plans do

not always include site-specific decisions, there is no rule against it. Indeed, decisions regarding

permissible levels of motorized use are commonly made in forest plans. For example, in

Montana Snowmobile, the court found that a claim challenging a site-specific area closure was

time-barred because that closure decision had been made in a 14-year-old forest plan. 103 F.

Supp. 2d at 1242-44. Similarly, in Colorado Off-Highway Vehicle Coalition v. U.S. Forest

Service, this Court implicitly recognized that a forest plan amendment can involve site-specific

decisions regarding motorized use. See 505 F. Supp. 2d 808, 818 (D. Colo. 2007); see also 36

C.F.R. § 215.12(a) (recognizing that forest plans can contain project-level decisions); Forest

Guardians v. Forsgen, 478 F.3d 1149, 1156 (10th Cir. 2007) (same); Sierra Club v. Kimbell, 623

F.3d 549, 557-58 (8th Cir. 2010) (holding that plaintiffs had standing to challenge forest plan

because, inter alia, the plan “allows for up to 130 miles of additional snowmobile trails,” thereby

causing “immediate, concrete consequences for the recreational interests of specific visitors . . . .

9 Four of the 14 trails were identified as motorized corridors and were unaffected by the 1990Amendment: Bear Creek, Gold Run, Grindstone, and Little Bear.10 For this reason, Defendants’ claim that “[t]he Forest Service has never used Appendix G to identify motorized corridors” is contravened by the plain terms of the Forest Plan. USFS Opp. at 20.


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without regard to any future site-specific analysis or further study”). Here, the Forest Service

included site-specific decisions regarding motorized corridors in Appendix G to the Forest Plan.

Defendants nevertheless maintain that Appendix G is a mere “public information tool,”

rather than a binding part of the Forest Plan. Stiles Decl. ¶ 30; USFS Opp. at 20. Simply

because these management decisions were included in an Appendix does not make them any less

binding. Indeed, even documents that are otherwise advisory in nature become mandatory if

incorporated into the appendix of a forest plan. See, e.g., Ecology Center v. Castaneda, 574 F.3d

652, 660 (9th Cir. 2009). And Appendix G, which identified the motorized corridors that remain

open in MA3A, is not advisory. Nor can it be reasonably disputed that Appendix G was

incorporated into the Forest Plan. See AR Doc. 1 at 77; AR Doc. 1468 at 1531.11

In an effort to shore up their position, Defendants also urge this Court to give their

interpretation “great deference.” USFS Opp. at 19. But “[a]n agency’s position that is contrary

to the clear language of a Forest Plan is not entitled to deference.” Native Ecosystems Council v.

U.S. Forest Service, 418 F.3d 953, 962 (9th Cir. 2005); Earth Island Inst. v. U.S. Forest Service,

351 F.3d 1291, 1304 (9th Cir. 2003). As Defendants’ own authority makes clear, the Forest

Service may not “ignore the requirements of the Forest Plan.” Sierra Club v. Martin, 168 F.3d 1,

11 Ms. Kill tries to downplay the relevance of Appendix G by stating that “the management direction in the body of the Forest Plan does not point the reader to Appendix G as a prescription and this is underscored by the fact that there is no mention of Appendix G in the MA3A text.” Kill Decl. ¶ 10. Her argument is unpersuasive. First, the “Management Direction” sections of both the 1983 and 1992 Plan expressly reference Appendix G. See AR Doc. 1 at 77; AR Doc. 1468 at 1531. Second, Ms. Kill overlooks the fact that Appendix G and the MA3A discussion are directly cross-referenced: Appendix G references the MA3A section. AR Doc. 1 at 452.


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4 (11th Cir. 1999). Here, the terms of the Plan are clear: Appendix G is where the Forest Service

“specifically identified motorized corridors” within the otherwise non-motorized MA3A.12

Moreover, Defendants’ proffered interpretation would render Appendix G superfluous.

It is a well-established principle of statutory interpretation that meaning must be attributed to

“every clause and word of a statute rather than to emasculate an entire section.” Lamb v.

Thompson, 265 F.3d 1038, 1051 (10th Cir. 2001) (citations omitted). Similarly, all provisions of

regulations and other agency decisions must be given full effect. Time Warner Entertainment

Co. v. Everest Midwest Licensee, 381 F.3d 1039, 1050 (10th Cir. 2004). Because Defendants’

interpretation effectively writes Appendix G out of the Forest Plan, this Court should reject any

such reading of the Plan.

If the Court were to disregard Appendix G, as Defendants urge, that would only magnify

the extent of the Forest Service’s NFMA violation. Since the enactment of the 1992 Forest Plan

– which “‘stands alone’ as the direction for the Forest,” AR Doc. 1468 at 1473 – the Forest

12 Defendants try to further diminish Appendix G by noting that it is not referenced in the MA3A standards and guidelines, and that the Appendix was not republished in 1992. USFS Opp. at 20. These arguments are specious. First, although Appendix G was not reprinted, the 1992 Plan expressly incorporates this Appendix by reference. See AR Doc. 1468 at 1531. Second, as explained supra, Appendix G and the Forest Plan’s discussion of MA3A management requirements are cross-referenced.

Defendants’ further suggestion, that the Forest Plan’s management requirements are limited to the standards and guidelines, USFS Opp. at 3, 20, ignores the text of the Plan. The prohibition on motorized use “except for specifically identified motorized corridors” is found in the “general direction” for MA3A. AR Doc. 1468 at 1677. “General direction” statements are management requirements, id. at 1625, and these requirements are applied to “specific areas” within the National Forest. Id. at 1531. The mandatory character of the MA3A management direction is also confirmed elsewhere in the Plan. See, e.g., id. at 1530 (“All permits, contracts, and other instruments for occupancy and use of the National Forest System lands covered by this Plan mustbe consistent with the Management Requirements in both the Forest and Management Area Direction sections.”) (emphasis added).


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Service has never issued a NEPA-compliant site-specific decision that authorized ORV use on

the 14 trails. Thus, Defendants’ interpretation would necessarily mean that none of the trails had

been specifically identified as motorized corridors. In that circumstance, the scope of the NFMA

violation would encompass all 14 trails at issue in this case, rather than just 10.13

As CBHA explained in its opening brief, the Forest Service’s disregard of the 1992

Plan’s management requirements is especially surprising given that the agency recognized those

requirements when it vacated the Rico-West Dolores TMP. Opening Br. at 25. Although

Defendants accuse CBHA of misinterpreting the Appeal Decision, USFS Opp. at 22-23, it is

Defendants who misread this decision. As Defendants emphasize, the Appeal Decision includes

a summary statement that the environmental assessment and project record “do not provide

sufficient information” to support the decision below. AR Doc. 4825 at 4825. But the

Supervisor also concurred with the appeal reviewing officer’s “analysis as presented in the

recommendation letter.” Id. And one of the recommendation letter’s conclusions was that the

TMP should be reversed because “the designation of some trails within Management Area 3A . .

. as motorized violates the Forest Plan.” AR Doc. 4820 at 4821. Thus, notwithstanding

Defendants’ post hoc attempt to argue otherwise, in agreeing with the reviewing officer’s

analysis, the 2009 Appeal Decision concluded that designating certain motorized trails within

MA3A (non-motorized) areas violated the Forest Plan.

13 To the extent that Defendants rely on decades-old maps to cure their NFMA violation, their reliance is misplaced. Unlike the Forest Plan’s Management Area Map, travel maps do not have the force of law. Montana Snowmobile, 103 F. Supp. 2d at 1241. And maps that pre-date the 1992 Forest Plan are irrelevant because any management decision that might have been reflected in those maps was superseded by the 1992 Plan. See AR Doc. 1468 at 1473 (“[This plan] superseded the original Forest Plan and ‘stands alone’ as the direction for the Forest.”).


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Finally, Defendants try to bolster their flawed legal theory by claiming that if Appendix

G is given effect, that would lead to the unintended closure of certain roads. USFS Opp. at 21-

22. Defendants’ claims cannot withstand scrutiny. As a threshold matter, this case does not

involve a challenge to motorized use on roads. Indeed, the 14 trails are located primarily in

Inventoried Roadless Areas. Dkt. No. 1 ¶ 57; Dkt. No. 14 ¶ 57. Thus, even if Defendants’

factual representations were accurate, these roads would be unaffected should CBHA prevail in

this case.

More importantly, though, Defendants are wrong on the facts. Defendants’ brief focuses

on three roads that, they contend, could be affected if Appendix G is given effect: Forest Road

436 (Hillside Drive), Forest Road 535 (Dunton Road), and Highway 145. USFS Opp. at 21; see

also Ellis Decl. ¶ 6 (Dkt. No. 52-1). Defendants are mistaken about all three. First, though

Defendants claim otherwise, Forest Road 436 is listed in Appendix G. AR Doc. 1 at 452.

Second, Defendants fail to recognize that Forest Road 535 and Highway 135 are both Forest

Highways, which are jurisdictionally distinct from forest development roads like those listed in

Appendix G. A “Forest Highway” is defined as “a forest road under the jurisdiction of, and

maintained by, a public authority and open to public travel.” 23 U.S.C. § 101(a)(9) (emphasis

added); see also 23 C.F.R. § 660.103 (“Forest highway means a forest road under the jurisdiction

of, and maintained by, a public authority and open to public travel.”).14 There are seven Forest

Highways on the San Juan National Forest, including Highway 145 and Road 535. See Ex. 7 at

3.377. Given that these roads are Forest Highways, and thus needed to remain open to motorized

14 Lest there be any doubt, the phrase “public travel” means motorized travel. See 23 C.F.R. § 660.103 (“Open to public travel means . . . open to the general public for use with a standard passenger auto . . . .”).


16

travel, it is hardly surprising that they were not mentioned in Appendix G.15 In sum, giving

effect to Appendix G will not result in the “parade of horribles” imagined by Defendants. The

scenario proffered by Defendants is not credible.16

Under the Forest Plan, motorized recreation in MA3A areas is “never allowed except for

specifically identified motorized corridors.” AR Doc. 1468 at 1677. The Forest Plan identifies

those trails in Appendix G to the Plan. Because the June 2010 Order authorized ORV use on 10

trails that are non-motorized under the Forest Plan, and because the Forest Service made no

attempt to amend the Forest Plan in doing so, as required by 16 U.S.C. § 1604(f)(4) and 36

C.F.R. § 219.10, the June 2010 Order violated NFMA.

III. THE FOREST SERVICE VIOLATED NEPA BY FAILING TO ANALYZE THE EFFECTS OF ORV USE ON THE 14 TRAILS.

NEPA requires federal agencies to take a “hard look” at the likely environmental impacts

of their proposed actions. New Mexico ex rel. Richardson v. BLM, 565 F.3d 683, 704 (10th Cir.

2009). NEPA thus “unambiguously” requires the preparation of either an environmental impact

15 Indeed, the 1983 Forest Plan includes a separate appendix, Appendix C, that lists proposed road construction projects, and that list includes multiple projects for Road 535. AR Doc. 1 at 422.16 Citing yet another post hoc litigation declaration, Defendants claim that there are motorized roads and trails in other parts of the Forest that run through MA3A areas but are not listed in Appendix G. USFS Opp. at 22 n.13. Again, such attempts to distract this Court’s attention should be rejected. Motorized use in the Columbine and Pagosa districts is not at issue in this case. And Defendants have offered no background information on these corridors, any environmental analyses regarding ORV use on them, or the decision-making processes that led to their current designation. It is CBHA’s understanding that – unlike the 14 trails at issue here –the road and trails cited were all the subject of a NEPA-compliant, site-specific travel management planning process, and are reflected in the “motor vehicle use maps” required by the 2005 Travel Management Plan. Moreover, several of these roads are either listed in Appendix G (Road 667), located on private land (Road 602), or designated as a Forest Highway (Road 631). See AR Doc. 1 at 452; AR Doc. 2041; Ex. 7 at 3.377.


17

statement (“EIS”) or environmental assessment (“EA”) for all federal actions that have not been

categorically excluded. Anacostia Watershed Soc’y v. Babbitt, 871 F. Supp. 475, 482 (D.D.C.

1994). Accordingly, a decision to authorize motorized use within the San Juan National Forest

must not only be consistent with the Forest Plan, but is also subject to NEPA. Colorado

Environmental Coalition v. Dombeck, 185 F.3d 1162, 1168 (10th Cir. 1999).

Despite these mandates, in the June 2010 Order the Forest Service made no attempt to

analyze the environmental effects of its decision authorizing ORV use on the 14 trails. Opening

Br. at 28-30. Defendants implicitly admit that no such analysis was done. USFS Opp. at 23-24.

Instead, they assert, yet again, that the June 2010 Order did not authorize ORV use on the 14

trails. But as explained above in Part I, that is precisely what the Order accomplished.

Defendants also suggest that the Forest Service satisfied its NEPA obligations by

invoking a categorical exclusion (“CE”) for its decision to prohibit cross-country travel. USFS

Opp. at 23-24. To the extent Defendants seek to bootstrap that CE into demonstrating NEPA

compliance for the remainder of the June 2010 Order – the portion of the Order authorizing ORV

use on the 14 trails – that argument should be rejected. As CBHA has explained, the Forest

Service’s CE did not apply to the June 2010 Order’s authorization of ORV use on the 14 trails.

And Defendants do not contest that the CE focused solely on cross-country travel and did not

analyze the effects of ORV use on the 14 trails. See USFS Opp. at 6-7, 23-24. Moreover, even

if it had wanted to, the agency could not have invoked a CE here. Authorizing ORV use is not a

routine activity and is not classified as a CE in the Forest Service Handbook. See 36 C.F.R. §

220.6.


18

The Forest Service was required to prepare either an EA or EIS before it authorized ORV

use on the 14 trails. Because the Forest Service failed to perform any environmental analysis

before authorizing ORV use on the 14 trails, the June 2010 Order violates NEPA.

IV. THE FOREST SERVICE VIOLATED NEPA BY FAILING TO CONSIDER SIGNIFICANT NEW INFORMATION.

In its opening brief, CBHA explained that the Forest Service further violated NEPA by

authorizing ORV use on the 14 trails without considering significant new information available

to it at the time of its decision. See Opening Br. at 30-35. As the Supreme Court explained in

Marsh v. Oregon Natural Resources Defense Council, 490 U.S. 360, 374 (1989), NEPA requires

an agency to take a “hard look” at new information even after an EIS has been finalized, and the

agency must supplement its environmental analysis if the new information is significant and

“relevant to environmental concerns.” See 40 C.F.R. § 1502.9(c)(1)(ii). Regardless of whether a

supplemental EIS is ultimately prepared, the agency must always analyze the new information.

Marsh, 490 U.S. at 385; see also Trout Unlimited v. USDA, 320 F. Supp. 2d 1090, 1111 (D.

Colo. 2004).

Here, the Forest Service issued the June 2010 Order without adequately considering: (i)

information provided by CBHA’s members regarding ORV damage to the 14 trails, Marion

Decl. ¶¶ 54-60 (Dkt. No. 50-1); and (ii) similar information from the Colorado Division of

Wildlife. See AR Doc. 3074 at 3230-31; AR Doc. 3697 at 3856-59. Additionally, when

authorizing ORV use on the 14 trails in June 2010 Order, the Forest Service had a duty to re-

examine the 1992 Forest Plan in light of changed circumstances. See Seattle Audubon Soc’y v.

Espy, 998 F.2d 699, 704 (9th Cir. 1993). And the agency had an obligation to consider the


19

cumulative impacts of its decision. See Opening Br. at 34-35. Because the Forest Service failed

to adequately consider this relevant new information, and because it failed to reassess the 1992

Plan in light of changed circumstances, the June 2010 Order violated NEPA.

In their opposition brief, Defendants fail to address many of CBHA’s arguments. They

ignore the information supplied by the Colorado Division of Wildlife, and they do not address

the Forest Service’s need to conduct a “timely review” of the 1992 Forest Plan and EIS. Nor do

they discuss the Forest Service’s obligation to consider the cumulative impacts of its decision

authorizing ORV use on 10 previously non-motorized trails together with the four that were

motorized under the 1992 Plan. Compare Opening Br. at 31-35 with USFS Opp. at 27-28. To

the extent Defendants had wished to challenge these arguments, they have waived their right to

do so. See United States v. Almaraz, 306 F.3d 1031, 1040-41 (10th Cir. 2002) (ruling that an

issue not raised in appellee’s response brief was waived); see also Femedeer v. Haun, 227 F.3d

1244, 1255 (10th Cir. 2000) (“[I]ssues adverted to in a perfunctory manner, unaccompanied by

some effort at developed argumentation, are deemed waived.”) (citation omitted).17

Instead, Defendants argue – incorrectly – that CBHA’s claim was improperly pleaded.

According to Defendants, this claim must be brought as a “failure to act” claim under 5 U.S.C. §

17 As noted above, Defendants’ brief does not discuss the information supplied by the Colorado Division of Wildlife. Because Defendants failed to brief this argument, it has been waived. Almaraz, 306 F.3d at 1040-41. The only mention of the Division of Wildlife information in any of Defendants’ materials is in the Stiles declaration, which states that the information contained in the Division of Wildlife letters was addressed in the Rico-West Dolores TMP process. See Stiles Decl. ¶ 25. But simply because new information is addressed in one decision does not mean it can be disregarded for a subsequent decision concerning the same issues. As the Supreme Court has noted, “[i]t would be incongruous . . . for the blinders to adverse environmental effects, once unequivocally removed, to be restored prior to the completion of agency action simply because the relevant proposal has received initial approval.” Marsh, 490 U.S. at 371.


20

706(1), rather than a claim challenging agency action under 5 U.S.C. § 706(2). USFS Opp. at

24-25. Defendants’ argument misconstrues CBHA’s claim. This is not a situation where the

agency was simply implementing an ongoing past decision, such that the failure to consider new

information represented a failure to act. Instead, the Forest Service failed to consider this new

information in the context of a new agency decision, namely, the June 2010 Order. It makes no

sense to plead this claim under 5 U.S.C. § 706(1), and CBHA therefore properly pleaded its

claims under § 706(2).18 Were there any doubt that violations like this fall under § 706(2), it was

erased by the Tenth Circuit’s decision in Colorado Environmental Coalition v. Dombeck. In that

case, the plaintiffs alleged that the Forest Service had made a decision without properly

considering relevant new information. 185 F.3d at 1177. In addressing this claim, the Tenth

Circuit applied the “arbitrary and capricious” standard of § 706(2) – not the failure to act

standard of § 706(1). See id. at 1167, 1177-78; see also Village of Los Ranchos De Albuquerque

v. Marsh, 956 F.2d 970, 972 (10th Cir. 1992). Defendants’ failure-to-plead argument should be

rejected.

Defendants also argue that the Forest Service satisfied its NEPA obligations concerning

the new information provided by CBHA’s members. Again, Defendants are incorrect.

Defendants support their argument by citing to a series of post hoc litigation declarations from

Forest Service employees. USFS Opp. at 27-28. These declarations discuss the agency’s

response to certain information provided by CBHA member Robert Marion. Wu Decl. ¶¶ 10-17

(Dkt. No. 34-5); Stiles Decl. ¶ 21; Bouton Decl. ¶¶ 8-10 (Dkt. No. 34-4). But these declarations

18 Defendants are similarly wrong in arguing that CBHA’s Executive Order 11644 claim should have been pleaded under 5 U.S.C. § 706(1). See USFS Opp. at 28.


21

focus on information provided after June 2010. And as explained above, this NEPA claim is

based on the agency’s failure to evaluate the new information that was before the agency at the

time of the June 2010 Order. The record shows that much of this new information was not

considered by the Forest Service. For example, at a meeting in October 2008, Mr. Marion

provided information to the Forest Service regarding damage to multiple trails, “and the fact that

steep portions of these trails cannot withstand ORV travel without suffering damage.” Marion

Decl. ¶ 58. Mr. Marion’s comments during the 2009 travel management planning process, as

well as his administrative appeal of the Travel Management Plan, provided additional

information regarding ORV-related damage on many of the trails. See, e.g., AR Doc. 3074 at

3184; AR Doc. 3686 at 3690-91; AR Doc. 4732 at 4733-34. The Forest Service failed to

consider this new information when issuing the June 2010 Order.

Likewise, Defendants’ conclusory assertion that there is “no significant new information

or circumstances . . . that would justify supplemental NEPA analysis” should not be credited.

USFS Opp. at 26. For one thing, because their brief fails to discuss the new information and

circumstances cited in CBHA’s opening brief, Defendants cannot establish that a supplemental

EIS wasn’t required. More importantly, though, the record demonstrates that the Forest Service

never took the “hard look” necessary to evaluate the new information’s significance. Without

taking that initial step, there is no way of knowing whether supplemental NEPA analysis was

required. An agency’s decision to forego supplemental NEPA analysis will be upheld “so long

as the record demonstrates the [agency] reviewed the proffered supplemental information,

evaluated the significance – or lack of significance – of the new information, and provided an

explanation for its decision not to supplement the existing analysis.” Colorado Environmental


22

Coalition v. Dombeck, 185 F.3d at 1178. The Forest Service did not follow these necessary

steps. Because the Forest Service neither considered this new information, nor conducted a

timely review of the 1992 Forest Plan and EIS, the agency violated NEPA.19

V. THE JUNE 2010 ORDER VIOLATES EXECUTIVE ORDER 11644 AND 36 C.F.R. § 212.55.

The Forest Service violated Executive Order 11644 and 36 C.F.R. § 212.55 when it

designated the 14 trails for motorized use without considering the effects of that use on forest

resources, wildlife, and other recreational users. See Opening Br. at 36-38. These provisions

place specific requirements on the Forest Service when it designates National Forest trails for

motorized use, as it did in the June 2010 Order. Specifically, the agency must consider, with the

objective of minimizing: (1) damage to soil, watershed, vegetation, and other forest resources;

(2) impacts on wildlife and wildlife habitats; and (3) conflicts between motorized use and other

recreational uses. 36 C.F.R. § 212.55(b); see also Executive Order 11644 § 1, 37 Fed. Reg. 2877

(Feb. 8, 1972); Idaho Conservation League v. Guzman, 766 F. Supp. 2d 1056, 1071-72 (D. Idaho

2011).

Defendants admit that Executive Order 11644 imposes an obligation to consider and

minimize these impacts when the Forest Service designates trails for motorized use. USFS Opp.

at 15, 29. And Defendants effectively concede that the Forest Service made no effort to apply

19 Defendants claim that some of the post-June 2010 information supplied by CBHA may ultimately be considered with the revision of the new TMP. USFS Opp. at 28. Yet even if the Forest Service considered all of the pre-June 2010 information in a future TMP process, that would not cure the NEPA violation associated with the June 2010 Order. See Portland Audubon Soc’y v. Babbitt, 998 F.2d 705, 709 (9th Cir. 1993) (agency’s assertion that it will address new information in future land management decisions does not remove the obligation to consider the new information before making its current decisions).


23

the directives of Executive Order 11644 or 36 C.F.R. § 212.55(b) when issuing the June 2010

Order. Instead, Defendants baldly assert that the June 2010 Order did not authorize ORV use on

the 14 trails. USFS Opp. at 29. But as explained in Part I above, the June 2010 Order did

precisely that. Indeed, one need look no further than the map incorporated into that Order to see

that the Forest Service expressly designated the 14 trails for motorized use. AR Doc. 5018 at

5019. Because the Forest Service authorized motorized use on the 14 trails without considering

impacts to forest resources, wildlife, and other users, the Forest Service violated Executive Order

11644 and 36 C.F.R. § 212.55(b).20

Defendants’ effort to distinguish Idaho Conservation League is unpersuasive. See USFS

Opp. at 29-30. Idaho Conservation League held that, when designating trails for motorized use,

the Forest Service had a duty to consider, and attempt to minimize, impacts on forest resources.

766 F. Supp. 2d at 1071-72. Defendants’ brief largely ignores these holdings, and instead

focuses on the agency’s authority to close trails and areas under another executive order. USFS

Opp. at 29 (citing 766 F. Supp. 2d at 1062). CBHA’s claim, however, is based on Executive

11644 and 36 C.F.R. § 212.55(b).21 And where, as here, the Forest Service designates trails for

motorized use, it must consider the impacts of that use on forest resources. Idaho Conservation

League, 766 F. Supp. 2d at 1071-72.

20 Defendants’ suggestion that Executive Order 11644 is not judicially reviewable, USFS Opp. at 28 n.14, is without merit. The First Circuit concluded years ago that this Executive Order is enforceable, and courts have regularly enforced the Order’s directives. See, e.g., Conservation Law Foundation of New England v. Secretary of the Interior, 864 F.2d 954, 960 (1st Cir. 1989); Idaho Conservation League, 766 F. Supp. 2d at 1072. Moreover, even if the Executive Order itself were unenforceable, the Forest Service’s parallel regulation, 36 C.F.R. § 212.55(b), would still be judicially reviewable.21 As Defendants note, CBHA is no longer pursuing a claim based on Executive Order 11989.


24

Defendants try to further distinguish Idaho Conservation League by noting that the trails

in that case had been designated through a travel management planning process, rather than a

straightforward order like the June 2010 Order. But neither Executive Order 11644, nor 36

C.F.R. § 212.55(b), nor Idaho Conservation League are limited to the context of travel

management plans. Rather, the touchstone for whether these requirements apply is whether the

Forest Service is “designating . . . National Forest System trails . . . for motor vehicle use.” 36

C.F.R. § 212.55(a). In other words, these directives apply whenever the Forest Service

designates a trail for motorized use. See Executive Order 11644; 36 C.F.R. § 212.55(b); 766 F.

Supp. 2d at 1060-61, 1071-72. Because the June 2010 Order designated the 14 trails for

motorized use, AR Doc. 5018 at 5019, and because the Forest Service made no attempt to satisfy

Executive Order 11644 and 36 C.F.R. § 212.55(b), the agency violated these provisions.

VI. INJUNCTIVE RELIEF SHOULD NOT BE DELAYED.

In their opposition brief, Defendants urge the Court to postpone issuance of an injunction

and instead hold an additional round of briefing on the issue of remedy. USFS Opp. at 30. This

request is unreasonable.

As a threshold matter, Defendants’ request comes far too late: If Defendants had wanted

a bifurcated briefing schedule, they should have raised that issue back in March, when the parties

submitted their Joint Case Management Plan, or at the least during the Court’s May 24, 2012

hearing. Defendants instead agreed that the merits phase of this case could be resolved through a

single round of briefs. See Dkt. No. 17 at 7 (case management plan); Dkt. No. 45 at 2 (minute

order). Moreover, if Defendants had wanted to say more on the issue of injunctive relief,

nothing prevented them from including those arguments in their recently-filed opposition brief.


25

To the extent Defendants wished to make additional arguments about this issue, they have

waived their right to do so. See Almaraz, 306 F.3d at 1040-41.

Defendants’ request to “delay consideration of remedy” should be rejected for the

additional reason that it would unfairly prejudice CBHA. As explained in CBHA’s opening

brief, as well as in its preliminary injunction briefing, CBHA’s members are suffering irreparable

harm from the Forest Service’s continued authorization of ORV use on the 14 trails. Opening

Br. at 39-41; see also Dkt. No. 26 at 18-33; Dkt. No. 40 at 21-35; Marion Decl. ¶¶ 23-37, 45-53;

Sykes Decl. ¶¶ 5, 9-18 (Dkt. No. 50-2). These injuries, which continue from June through

October, Marion Decl. ¶ 28, are magnified during the fall hunting season, when ORV use

interferes with big game populations and often ruins the hunts of CBHA members. See, e.g., id.

¶¶ 29-37; Sykes Decl. ¶¶ 9, 11, 14, 20. The principal effect of Defendants’ delay request would

be to push a final decision until long after the fall hunting season, unnecessarily exposing

CBHA’s members to several more months of harm. This Court should not entertain a request

whose principal effect is to prejudice the opposing party.

Citing no evidence, and ignoring the arguments in CBHA’s opening brief, Defendants

further assert that CBHA does not meet the requirements for a permanent injunction. USFS

Opp. at 30-31. But as CBHA explained in its opening brief, CBHA and its members amply

satisfy the four-part test for an injunction. Opening Br. at 38-42; see also Colorado

Environmental Coalition v. Office of Legacy Management, 819 F. Supp. 2d 1193, 1223 (D. Colo.

2011) (citing Monsanto Co. v. Geertson Seed Farms, 130 S. Ct. 2743, 2756 (2010)). This Court

should therefore enjoin the continued authorization of ORV use on the 14 trails unless and until

the Forest Service complies with federal law.


26

VII. THIS COURT MAY PROPERLY CONSIDER PLAINTIFF’S EXHIBITS.

Defendants ask this Court to disregard the six exhibits attached to CBHA’s opening brief,

USFS Opp. at 31-34, but their supporting arguments are without merit. CBHA’s exhibits are

properly before the Court, and they should be considered in resolving this case.22

Defendants’ principal objection concerns the declarations submitted by CBHA members

Robert Marion and Thomas Sykes. See USFS Opp. at 32-33. For the first time in this litigation,

Defendants concede that CBHA’s witness declarations are permissible for purposes of

establishing standing and irreparable harm. Id. at 32 n.17. And yet they continue to insist that

these declarations should be disregarded.

Many of Defendants’ objections are puzzling. First, contrary to Defendants’ assertion,

USFS Opp. at 32, Section E of the Background is supported by numerous documents other than

CBHA’s witness declarations. See Opening Br. at 13-16. Some of these documents are already

in the administrative record, e.g., AR Doc. 3074 at 3230-31, and others were authored by Forest

Service officials, e.g., Exs. 4-6. To the extent CBHA cited these declarations within this section,

many of those allegations are not in serious dispute. For example, one of Defendants’ witnesses

noted that Mr. Marion’s observations regarding new trails “is consistent across the San Juan

National Forest.” Wu Decl. ¶ 4. These observations are further confirmed by documents in the

administrative record. See, e.g., AR Doc. 4935 at 4967-69, 4974, 4983. The same holds true for

22 In their attack on CBHA’s exhibits, Defendants incorrectly claim that these six exhibits were not previously addressed by Defendants’ earlier briefing in Docket No. 35. See USF Opp. at 31. In fact, three of these exhibits were expressly cited in CBHA’s Motion to Complete the Administrative Record. See Dkt. No. 30 at 14-18 (seeking to complete the record with, inter alia, Exs. 3, 5, and 6). Defendants opposed CBHA’s effort to the complete the administrative record with these documents, and moved to strike them from CBHA’s brief in support of Motion for Preliminary Injunction. See Dkt. No. 35 at 4-9, 12-14.


27

references discussing damage to trails and wildlife. See, e.g., AR Doc. 3074 at 3230-31

(discussing environmental harms resulting from ORV use on many of the 14 trails). Moreover,

the references to the Sykes and Marion declarations in this section provide background

information, and Defendants have offered no authority suggesting that such information is

improper. See also Copar Pumice Co., Inc. v. Tidwell, 603 F.3d 780, 791 n.3 (10th Cir. 2010)

(explaining that, although judicial review of agency action is generally limited to the

administrative record, a court may consider relevant background information).

Defendants also accuse CBHA of relying on the Marion declaration to show that the

June 2010 Order is a final agency action. USFS Opp. at 32. Here again, Defendants’ argument

is puzzling, because elsewhere in their brief Defendants concede that the June 2010 Order is, in

fact, a final agency action subject to judicial review. Id. at 17. Moreover, the information that

Defendants find objectionable is nothing more than Mr. Marion’s simple observation that the

map included in the June 2010 Order does not show non-motorized trails. Opening Br. at 19 n. 9

(citing Marion Decl. ¶ 44). This observation is not in dispute, nor is it necessary to establish that

the June 2010 Order is a final agency action.

As for CBHA’s reliance on the Marion declaration to support part of its significant new

information claim, Opening Br. at 31, there is nothing improper about these citations. Indeed,

because Defendants did not consider the information submitted by CBHA and failed to include

some of this information in the record, Mr. Marion’s declaration is needed to identify some of

the new information that the Forest Service failed to consider. See, e.g., Inland Empire Public

Lands Council v. U.S. Forest Service, 88 F.3d 754, 760 (9th Cir. 1996) (courts sometimes

“look[] outside the record to determine what matters the agency should have considered but did


28

not”) (citation omitted). In any event, CBHA’s claim does not turn on whether the Court

considers this evidence. As shown supra at 18-19, the administrative record contains plenty of

other information that the Forest Service failed to consider when issuing the June 2010 Order.

So even if the Court declines to consider these portions of Mr. Marion’s declaration, the Forest

Service’s NEPA violation would stand.

Defendants’ further argument, that the Marion and Sykes declarations should be

disregarded because CBHA failed to “provide [its] input during the decision-making process,”

USFS Opp. at 13, is disingenuous. CBHA and its members have repeatedly raised concerns

about the Forest Service’s unlawful activities allowing ORV use on the 14 trails and the effects

they have had on CBHA and others. Indeed, Mr. Marion’s declaration – the very document

Defendants wish this Court to disregard – provides ample evidence that CBHA made numerous

attempts to notify the agency about these very issues. See Marion Decl. ¶¶ 54-60. Moreover, in

this case there was no formal decision-making process in which CBHA could have participated.

The Forest Service simply authorized ORV use on the 14 trails without following the procedures

required by NEPA. The declarations by Mr. Marion and Mr. Sykes are properly before this

Court.

Defendants also claim that the declarations by Mr. Marion and Mr. Sykes seek to create a

“battle of experts” that should not be permitted in the context of APA review. But CBHA’s

declarants testified regarding the irreparable harm they have personally suffered and believe to

be occurring as a result of ORV use on the 14 trails. This is necessary for CBHA’s injunction

request, Opening Br. at 39-40, and Defendants admit that such testimony is permissible to

establish irreparable harm. USFS Opp. at 32 n.17. Moreover, the authority that Defendants cite


29

in support of their argument actually supports the inclusion of extra-record declarations. In

Environmental Defense v. U.S. Army Corps of Engineers, the court considered an extra-record

declaration submitted by plaintiffs. 515 F. Supp. 2d 69, 80, 83 (D.D.C. 2007). Although the

court deferred to the agency’s experts on the specific issue cited by Defendants, id. at 82, the fact

remains that the court did not simply disregard this testimony.23

Finally, in addition to the Marion and Sykes declarations, Defendants ask this Court to

disregard the other exhibits attached to CBHA’s opening brief. Defendants conclusorily assert

that these materials were not considered by the Forest Service. USFS Opp. at 33. But CBHA

has already explained in prior briefing that these documents were considered by the Forest

Service when it issued the June 2010 Order. Dkt. No. 30 at 9-20; Dkt. No. 41 at 6-13. To the

extent the Court entertains Defendants’ argument, CBHA relies on these arguments from its

earlier briefs.

Defendants also question this Court’s ability to take judicial notice of the four exhibits

authored by the Forest Service. USFS Opp. at 33-34 (challenging Exs. 3, 4, 5, and 6). Their

attempt to distinguish CBHA’s authorities is unpersuasive. For example, although Defendants

try to draw a distinction between the 2007 Draft EIS and the “information presented in final

form” at issue in Richardson, nothing in the Tenth Circuit’s decision supports this distinction.

23 Defendants correctly note that the Marion and Sykes declarations “include post-decision information,” but wrongly claim that this post-June 2010 information is being used as a rationalization to challenge the Forest Service’s decision. USFS Opp. at 33. Defendants’ failure to cite a single sentence from CBHA’s declarations in support of their argument is telling: the post-decisional information contained in these declarations establishes standing and irreparable harm, and refutes the “delay” argument Defendants previously advanced. See Dkt. No. 34 at 25-27. It is Defendants, not CBHA, who have attempted to use declarations to provide a post hoc rationalization for their litigating position. See supra at Parts I and II.


30

See Richardson, 565 F.3d at 702 n.22 (taking judicial notice of federal website material and

minutes from meetings of a state agency). Indeed, it is hard to see how a set of minutes is more

reliable than a carefully-drafted, agency-reviewed document like the 2007 Draft EIS. And courts

frequently “take judicial notice of factual information found on the world wide web,” much less

a document authored by a federal agency. O’Toole v. Northrop Grumman Corp., 499 F.3d 1218,

1225 (10th Cir. 2007). In any event, the test is not whether a document is in “final form”; a

document can be judicially noticed whenever it “is not subject to reasonable factual dispute and

is capable of determination using sources whose accuracy cannot reasonably be questioned.”

Richardson, 565 F.3d at 702 n.22. Here, CBHA has attached four documents authored by the

Forest Service whose accuracy Defendants do not dispute. This Court may take judicial notice

of them.


31

CONCLUSION

For the foregoing reasons, as well as the reasons set forth in CBHA’s opening brief, this

Court should declare that the June 2010 Order’s authorization of ORV use on the 14 trails was

unlawful, and enjoin the Forest Service from continuing to authorize ORV use on these trails

until the agency has complied with federal law.

Dated: August 31, 2012 Respectfully submitted,

s/ Michael C. SoulesMichael C. Soules, Colo. Bar No. [email protected] Nicewicz, Student [email protected] Nicholson, Student [email protected] Natural Resources and Environmental Law ClinicUniversity of Colorado Law SchoolWolf Law Building, UCB 404Boulder, CO 80309-0404(303) 492-5897

Joseph M. Feller, Ariz. Bar No. 330011College of LawArizona State University1100 S. McAllister StreetTempe, AZ 85287-7906(480) [email protected]

Counsel for Plaintiff Colorado Backcountry Hunters and Anglers


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CERTIFICATE OF SERVICE

I hereby certify that on August 31, 2012, I electronically transmitted the attached

document to the Clerk’s Office using the CM/ECF System for filing and transmittal of a Notice

of Electronic Filing to the following counsel of record in this matter:

Attorneys for Respondents:

Jason A. Hill: [email protected] Alison Garner: [email protected]

Attorney for Respondent-Intervenors:

Paul A. Turcke: [email protected]

Attorneys for Proposed Amici:

Geoffrey Brent Hickcox: [email protected] B. Johnson: [email protected]

s/ Michael C. Soules___________________Michael C. Soules


IN THE UNITED STATES DISTRICT COURTarchive.sharetrails.org/uploads/legal2/rwdolores... · Salazar,...

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