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Back Country Horsemen of America v. Johanns

March 29, 2006

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA BACK COUNTRY HORSEMEN OF AMERICA, PLAINTIFF,
v.
MIKE JOHANNS, IN HIS OFFICIAL CAPACITY AS SECRETARY OF THE UNITED STATES DEPARTMENT OF AGRICULTURE, THE UNITED STATES DEPARTMENT OF AGRICULTURE, DALE BOSWORTH, IN HIS OFFICIAL CAPACITY AS CHIEF OF THE UNITED STATES FOREST SERVICE; AND THE UNITED STATES FOREST SERVICE, DEFENDANTS.



The opinion of the court was delivered by: Ellen Segal Huvelle United States District Judge

MEMORANDUM OPINION

This case involves a challenge under the Administrative Procedure Act, 5 U.S.C. §§ 551 et seq., to a change in the way the United States Forest Service ("Forest Service" or "agency") classifies trails within the National Forest System. Plaintiff Back Country Horsemen of America ("BCHA") claims that the revision, which was implemented without formal public participation, violated Sections 6 and 14 of the National Forest Management Act ("NFMA"), Pub. L. No. 94-588, 90 Stat. 2949 (codified as amended at 16 U.S.C. §§ 1604, 1612), and the National Environmental Policy Act of 1969 ("NEPA"), 42 U.S.C. §§ 4321 et seq. Currently before the Court are the parties cross-motions for summary judgment. Because the Court finds that the Forest Service failed to provide for public notice and comment as required by 16 U.S.C. § 1612, but complied with NEPA, it will grant each party's motion for summary judgment in part and remand the case to the agency for further proceedings.

BACKGROUND

The Forest Service manages roughly 192 million acres of land within the National Forest System ("NFS"). 68 Fed. Reg. 33582 (June 4, 2003). Approximately 133,000 miles of NFS trails are maintained by the Forest Service and available for use by the public. 70 Fed. Reg. 68264 (Nov. 9, 2005). Before the revision at issue in this case, the Forest Service's Trail Classification System ("TCS") identified trails as Primary/Mainline, Secondary and Way. (AR 1326.) In addition, the Forest Service assigned one of three difficulty levels to each of its trails: most difficult, more difficult, and easiest. (AR 11.) The difficulty levels were defined generally in the Forest Service Manual ("FSM"). (AR 11.) In addition, the Forest Service Handbook ("FSH") sets out specific physical parameters for each difficulty level, including maximum pitch grade and length, clearing width and height, tread width and surface. (AR 63-65.) According to the agency, these two three-category classification systems did not correlate precisely with each other. (Fed. Def.'s Mem. in Opp. to Pl.'s Mot. for Summ. J. and Mem. in Supp. of its Cross-Motion for Summ. J. ("Def.'s Mot.") at 4.) That is, any trail class could, in theory, be rated any difficulty level.

Since the early 1990's the Forest Service has been working to improve its management of information related to the national trail system. (AR 1353.) In 1994, the Forest Service added a "trails module" to its national database ("Infra") to collect information regarding the condition of its trail inventory nationwide. (Def.'s Mot. at 4.) In 1997, the Forest Service implemented Meaningful Measures ("MM"), a spreadsheet designed to apply "business management principles to recreation [management]." (AR 696.) MM is a "project and site-level management system" (AR 697) that tracks the costs of maintaining agency facilities, including trails. (AR 1353.) Infra and MM were intended to compliment one another: "Data contained in [Infra] should speak primarily to the facilities on the ground for trails," while "[a]ny qualitative assessments or costing should . . . be done through Meaningful Measures." (AR 170.) The agency found, however, that information gathered through Infra and MM was not always readily integrated (AR 666-71, 695-96) , making it difficult to gather "consistent, uniform data on real property inventory, condition of facilities, program priorities, and budget needs." (AR 1353.)*fn1

To remedy this problem, in 1998 the Forest Service began developing a five class trail system to replace the existing way, secondary and mainline trail system. (AR 172-75.) The new trail class system was incorporated into MM in 1999 and served to "stratify the Trail System for various projects including INFRA inventory, Forest Planning Objectives, Visitor Information, and helping to establish coefficients for MM costing." (AR 1813.) In 2000, the agency formed the Trails Development Team ("TDT") to further refine the new trail class system. (AR 3.) The TDT introduced five "trail fundamentals" -- (1) trail class, (2) trail type, (3) managed use, (4) designed use and (5) design parameters -- "as cornerstones of Forest Service trail planning and management." (AR 83.) Integrated into Infra and MM, these concepts, while "not entirely new, . . . provide an updated and expanded means to consistently record and communicate the

The five class trail system, which remains in effect today, is as follows: Trail Class 1 -- Minimal/Undeveloped; Trail Class 2 -- Simple/Minor Development; Trail Class 3 -- Developed/Improved; Trail Class 4 -- Highly Developed; and Trail Class 5 -- Fully Developed. The new trail classes are assigned to existing trails according to the current physical characteristics of the trail. (AR 81.) Relevant physical characteristics include tread and traffic flow, obstacles, constructed features and trail elements, signs, and typical recreation environs and experience. (AR 87-88.) The trail class matrix also includes additional criteria specific to pack and saddle trails. (AR 89.) Designation of a trail class is made "by local managers at the trail-specific level." (AR 88.) Though the physical characteristics found in the trail class matrix (AR 87-92) "help[] guide the trail manager's decision-making process" (AR 81), local managers may take into account "Forest Plan direction and other considerations" when assigning a trail class. (AR 88.) Furthermore, the proper trail classification is intertwined with the managed and designed use of the trail under the Forest Plan.*fn2 (AR 81 ("There is a direct relationship between Trail Class and Managed Use . . . and one cannot be determined without consideration of the other.").) Local managers are instructed to "choose the [trail class] that most closely matches the managed objective of the trail." (AR 84, 128, 165; see also AR 1540.) Once a trail class has been assigned, consistent with the managed and designed uses of the trail, the design parameters which correlate to the assigned trail class provide trail managers with "technical specifications for trail construction and maintenance." (AR 86, 1552, 1699.) The new design parameters issued in 2004 replaced the prior technical specifications linked to difficulty level. (Def.'s Resp. to Pl.'s Statement of Material Facts ¶¶ 9, 23.) Thus, according to the agency, the new trail classification system provides a uniform, objective, and integrated system of information management to guide trail design, construction and maintenance based on the Forest Plan in place at the trail-specific level. (AR 130.)

It is undisputed that the Forest Service did not provide for any formal public participation in the creation of the new trail classification system. (Def.'s Answer ¶ 21.) The Forest Service's failure to do so lies at the heart of BCHA's complaint. BCHA alleges that the agency violated provisions of NFMA that require an agency to solicit and consider public comment in certain circumstances and failed to comply with NEPA. (Pl.'s Mot for Summ. J. ("Pl.'s Mot.") at 6-7.) At issue for the Court is whether any of the statutory preconditions mandating formal notice and comment under NFMA were triggered by the Forest Service's development and implementation of a new trail classification system and whether the implementation of the new trail classification system imposed any obligations on the agency under NEPA.

ANALYSIS

I. Standard of Review

Because neither NFMA nor NEPA creates a private right of action, see Town of Stratford, Conn. v. F.A.A., 285 F.3d 84, 88 (D.C. Cir. 2002); 16 U.S.C. §§ 5401-5409, BCHA relies on the Administrative Procedure Act ("APA"), 5 U.S.C. §§ 551 et seq., to bring its claim. Even though the motions currently pending before the Court are styled as Motions for Summary Judgment, when the Court considers a challenge to agency action the proper standard of review is that found at 5 U.S.C. § 706 rather than Rule 56 of the Federal Rules of Civil Procedure. See Defenders of Wildlife v. Babbitt, 130 F. Supp.2d 121, 124 (D.D.C. 2001). Therefore, the Court will uphold the agency's action unless it finds it to be "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2)(A). In making that determination, the Court "is not empowered to substitute its judgment for that of the agency." Citizens to Pres. Overton Park v. Volpe, 401 U.S. 402, 416 (1971). Nevertheless, the Court must consider "whether the agency acted within the scope of its legal authority, whether the agency has explained its decision, whether the facts on which the agency purports to have relied have some basis in the record, and whether the agency considered the relevant factors." Fund for Animals v. Babbitt, 903 F. Supp. 96, 105 (D.D.C. 1995).

II. Ripeness

As a preliminary matter, the agency contends that BCHA's claims are not yet ripefor review. The ripeness requirement serves "to prevent the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements over administrative policies, and also to protect the agencies from judicial interference until an administrative decision has been formalized and its effects felt in a concrete way by the challenging parties." Abbott Labs. v. Gardner, 387 U.S. 136, 148-49 (1967). In support the agency cites Ohio Forestry Ass'n v. Sierra Club, 523 U.S. 726 (1998), in which the Supreme Court reviewed a challenge to a Land and Resource Management Plan ("Plan") for Wayne National Forest in Ohio. The Supreme Court enunciated a three part test for determining "whether an agency's decision is, or is not, ripe for judicial review," Ohio Forestry, 523 U.S. at 733: "(1) whether delayed review would cause hardship to the plaintiffs; (2) whether judicial intervention would inappropriately interfere with further administrative action; and (3) whether the courts would benefit from further factual development of the issues presented."Id. Plaintiffs in Ohio Forestry alleged that the Plan erroneously "favor[ed] logging and clearcutting" in violation of NFMA. Id. at 731. The Supreme Court, however, found the claims in Ohio Forestry to be premature because the Plan did not itself authorize logging or clearcuttingwithin Wayne National Forest. Rather, before the agency could issue a logging permit, it had to engage in a series of stepsthat included conducting an environmental analysis pursuant to NEPA and providing notice and opportunity to comment to those affected by the proposed logging. Id. at 730, 734. For this reason, the Court found the possibility that the agency's policy would undergo "further consideration . . . before . . . implement[ation] is not theoretical, but real." Id. at 735.

Ohio Forestry differs from the instant case in several meaningful respects. First, Ohio Forestry involved a challenge to the substance of a land and resource management plan, which, it is significant to note, was developed subject to notice and comment proceedings. See 16 U.S.C. ยง 1604(d). Here plaintiff mounts a procedural challenge to the agency's failure to engage in notice and comment. If plaintiff's opportunity to comment has been improperly denied, then delaying review will impose a substantial hardship by failing to vindicate plaintiff's procedural right. Second, in Ohio Forestry, several intermediate procedural steps, including ones involving public comment, remained for the agency to take before the substantive harm alleged by plaintiffs could become concrete. Thus, opportunity remained for plaintiffs to remedy the perceived harm at the administrative level prior to implementation. In contrast, the agency in this case is implementing the new trail classification system and accompanying design parameters. Even if plaintiff can contest a specific trail classification, it will have no further opportunity to participate in the formulation of the design parameters themselves. Third, because plaintiffs in Ohio Forestry were mounting a substantive challenge to the Plan, further factual development would be of assistance to the Court in ascertaining the scope of ...


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