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Montana Wilderness v. Kathleen Mcallister

December 1, 2011

MONTANA WILDERNESS ASSOCIATION; GREATER YELLOWSTONE COALITION; THE WILDERNESS SOCIETY, INC., PLAINTIFFS, AND CITIZENS FOR BALANCED USE; KENNETH ZAHN; BIG SKY SNOWRIDERS; GALLATIN VALLEY SNOWMOBILE ASSOCIATION, PLAINTIFFS-APPELLANTS,
v.
KATHLEEN MCALLISTER, REGIONAL FORESTER FOR REGION 1; REBECCA HEATH; UNITED STATES FOREST SERVICE, DEFENDANTS-COUNTER-DEFENDANTS- APPELLEES,
TREASURE STATE ALLIANCE; MONTANA TRAIL VEHICLE RIDERS ASSOCIATION; MONTANA SNOWMOBILE ASSOCIATION; UNITED FOUR-WHEEL-DRIVE ASSOCIATIONS; BLUE RIBBON COALITION, INC., DEFENDANT-INTERVENORS-APPELLEES. MONTANA WILDERNESS ASSOCIATION; GREATER YELLOWSTONE COALITION; THE WILDERNESS SOCIETY, INC.; CITIZENS FOR BALANCED USE; KENNETH ZAHN; BIG SKY SNOWRIDERS; GALLATIN VALLEY SNOWMOBILE ASSOCIATION, PLAINTIFFS-APPELLEES,
v.
KATHLEEN MCALLISTER, REGIONAL FORESTER FOR REGION 1; REBECCA
HEATH; UNITED STATES FOREST SERVICE, DEFENDANTS-COUNTER-DEFENDANTS- APPELLANTS, AND TREASURE STATE ALLIANCE; MONTANA TRAIL VEHICLE RIDERS ASSOCIATION; MONTANA SNOWMOBILE ASSOCIATION; UNITED FOUR-WHEEL-DRIVE ASSOCIATIONS; BLUE RIBBON COALITION, INC., DEFENDANT-INTERVENORS. MONTANA WILDERNESS ASSOCIATION; GREATER YELLOWSTONE COALITION; THE WILDERNESS SOCIETY, INC.; CITIZENS FOR BALANCED USE; KENNETH ZAHN; BIG SKY SNOWRIDERS; GALLATIN VALLEY SNOWMOBILE ASSOCIATION, PLAINTIFFS-APPELLEES,
v.
KATHLEEN MCALLISTER, REGIONAL FORESTER FOR REGION 1; REBECCA
HEATH; UNITED STATES FOREST SERVICE, DEFENDANTS-COUNTER-DEFENDANTS, AND TREASURE STATE ALLIANCE; MONTANA TRAIL VEHICLE RIDERS ASSOCIATION; MONTANA SNOWMOBILE ASSOCIATION; UNITED FOUR-WHEEL-DRIVE ASSOCIATIONS; BLUE RIBBON COALITION, INC., DEFENDANT-INTERVENORS-APPELLANTS.



Appeal from the United States District Court for the District of Montana Donald W. Molloy, District Judge, Presiding D.C. Nos. 9:07-cv-00039-DWM, 1:07-cv-00059-DWM

The opinion of the court was delivered by: Fisher, Circuit Judge:

FOR PUBLICATION

OPINION

D.C. No. 9:07-cv-00039-DWM

D.C. No. 9:07-cv-00039-DWM

Argued and Submitted June 7, 2011 Submission Withdrawn June 17, 2011

Resubmitted November 22, 2011 Portland, Oregon

Before: Raymond C. Fisher, Ronald M. Gould and Richard A. Paez, Circuit Judges.

Opinion by Judge Fisher

OPINION

A coalition of environmental groups (Montana Wilderness Association, et al., hereinafter MWA) challenges the 2006 Gallatin National Forest Travel Management Plan prepared by the United States Forest Service, arguing that the travel plan violates the Montana Wilderness Study Act of 1977 (Study Act). We hold that the Study Act requires the Service to ensure that current users of a wilderness study area are able to enjoy the wilderness character of the area as it existed in 1977, pending a congressional decision on whether to designate the area as wilderness. In this case, the Service has not adequately explained how the 1977 wilderness character of the relevant study area, particularly the opportunities for solitude it offers, has been maintained despite an increase in the volume of motorized and mechanized recreation in the area. We therefore conclude that the Service's adoption of the travel plan was arbitrary and capricious, and accordingly affirm the district court's decision finding that the Service's actions violate the Administrative Procedure Act (APA).

STATUTORY BACKGROUND

We begin with a brief overview of the statutes that govern the land management decision challenged in this case.

The 1964 Wilderness Act established a National Wilderness Preservation System composed of congressionally designated wilderness areas. See Pub. L. No. 88-577, 78 Stat. 890 (1964); 16 U.S.C. § 1131(a). Under the Wilderness Act, "wilderness" is defined as "an area where the earth and its community of life are untrammeled by man, where man himself is a visitor who does not remain." 16 U.S.C. § 1131(c). The definition further specifies:

An area of wilderness . . . (1) generally appears to have been affected primarily by the forces of nature, with the imprint of man's work substantially unnoticeable; (2) has outstanding opportunities for solitude or a primitive and unconfined type of recreation; (3) has at least five thousand acres of land or is of sufficient size as to make practicable its preservation and use in an unimpaired condition; and (4) may also contain ecological, geological, or other features of scientific, educational, scenic, or historical value.

Id. Unlike national forests, which are generally managed to sustain a variety of uses, see id. § 1604(e), wilderness areas must be managed to preserve their "wilderness character," id. § 1133(b). Only certain recreational uses are appropriate in wilderness areas; motorized and mechanized activities are generally prohibited. See id. § 1133(b), (c).

In 1967, the Forest Service undertook a nationwide inventory of large roadless areas within the National Forest System, "select[ing] areas with the most merit for specific study as possible additions" to the National Wilderness Preservation System. S. Rep. No. 95-163, at 2 (1977). Congress became concerned, however, that in conducting this review the Service may have "unjustifiably rejected from wilderness consideration" several large tracts in Montana. H.R. Rep. No. 95-620, at 3 (1977). In response, Congress passed the Study Act, which identified nine wilderness study areas in Montana for renewed evaluation. See Pub. L. No. 95-150, § 2(a), 91 Stat. 1243 (1977). The Study Act directed the Secretary of Agriculture to review these study areas' "suitability for preservation as wilderness" and to advise Congress whether each study area should be designated as wilderness or removed from study area status. Id. § 2(a), (b). The Study Act also instructed that, pending congressional action on the Secretary's recommendations, the study areas "be administered . . . so as to maintain their presently existing wilderness character and potential for inclusion in the National Wilderness Preservation System." Id. § 3(a). The Secretary, acting through the Service, has long since made these recommendations. Congress, however, has not yet acted on them. Accordingly, until Congress either designates the study areas as wilderness areas or removes their Study Act protection, the Service must con- tinue to manage them to maintain their 1977 wilderness character and potential for wilderness designation.

FACTUAL AND PROCEDURAL BACKGROUND

The Hyalite-Porcupine-Buffalo Horn Wilderness Study Area, a 155,000-acre region within southwest Montana's Gal-latin National Forest, is managed under the Study Act. Until recently, the Service administered the entire Gallatin National Forest, including the study area, under a forest plan prepared in 1987.*fn1 Since the forest plan was prepared, however, recreation and travel uses of the Gallatin National Forest have evolved substantially. Motorized and mechanized recreational use has intensified: "[u]se of snowmobiles and ATVs has grown in popularity," for instance, and mountain bike activity has "exploded." Observations by Forest Service personnel further indicate that motorized and mechanized recreational use has increased in the study area in particular, not just in the Gallatin National Forest in general, although the Service does not possess "statistically sound" data fully ...


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