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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

Civil Action No. 1:11-cv-03139-JLK

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 MEMORANDUM IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION

________________________________________________________________________ Michael C. Soules, Colo. Bar No. 43474 [email protected] Andrew Nicewicz, Student Attorney [email protected] Boe Nicholson, Student Attorney [email protected]

Natural Resources Clinic University of Colorado Law School Wolf Law Building, UCB 404 Boulder, CO 80309-0404 (303) 492-5897

Counsel for Plaintiff Colorado Backcountry Hunters and Anglers Filed March 28, 2012

Case 1:11-cv-03139-JLK Document 26 Filed 03/28/12 USDC Colorado of 66

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TABLE OF CONTENTS

TABLE OF EXHIBITS…………………………………………………………………..iv INTRODUCTION………………………………………………………………………...1 BACKGROUND………………………………………………………………………….2

A. The San Juan National Forest………………………………………………2 B. The Rico-West Dolores Landscape………………………………………...3

1. The Bear Creek Trail Network……………………………………...5 2. The Calico Trail Network…………………………………………...6 3. Ryman Creek and Stoner Creek Trails……………………………...7

C. The 1983 and 1992 Forest Plans……………………………………………7 D. The 2009 Travel Management Plan……………………………………….11

E. The Forest Service’s Authorization of ORV Use on the 14 Rico-West Dolores Trails……………………………………………………………..13

ARGUMENT…………………………………………………………………………….16 I. CBHA WILL SUFFER IRREPARABLE HARM WITHOUT A PRELIMINARY

INJUNCTION……………………………………………………………………….18

A. ORV Use on the 14 Trails Will Harm CBHA’s Aesthetic, Safety, and Environmental Interests…………………………………………………...18

1. Noise and Aesthetic Interests………………………………………19

2. Recreational Interests and Safety…………………………………..20

3. Harm to Natural Resources………………………………………...22

a. Wildlife and Wildlife Habitat………………………………….23


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b. Vegetation and Soils…………………………………………...25

B. Without a Preliminary Injunction, CBHA’s Procedural Interests Will Be

Irreparably Harmed. ………………………………………………………28 1. The National Environmental Policy Act…………………………...28 2. Harm to CBHA’s Procedural Interests………………………….....30 II. THE IRREPARABLE HARM TO CBHA OUTWEIGHS ANY POTENTIAL HARM TO

DEFENDANTS. …………………………………………………………………….33 III. A PRELIMINARY INJUNCTION WOULD SERVE THE PUBLIC INTEREST.…………...36 IV. CBHA WILL LIKELY SUCCEED ON THE MERITS…………………………………38

A. The Forest Service Violated the 1992 Forest Plan by Authorizing ORV Use on the RWD Trails. ……………………………………………………….40

B. The Forest Service Violated NEPA by Authorizing ORV Use on the RWD

Trails Without an Environmental Analysis…… …………………………43

C. The Forest Service Violated NEPA by Failing to Consider Significant New Information Regarding the RWD Trails…………………………………..47

D. The Forest Service Violated Executive Order 11644 by Designating Trails

for Motorized Use Without Considering Impacts to Forest Resources.…..52

E. The Forest Service Violated Executive Order 11989 by Permitting ORV Use on the Calico Trail When it Recognized That ORVs Were Damaging the Trail……………………………………………………………………55

V. CBHA SHOULD NOT BE REQUIRED TO POST A BOND…………………………...58 CONCLUSION…………………………………………………………………………..59


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TABLE OF EXHIBITS

Exhibit 1 Amended Land and Resource Management Plan for the San Juan National

Forest; Rocky Mountain Region, USDA, Forest Service (Apr. 1992) (excerpts).

Complete document available at: http://www.fs.usda.gov/Internet/FSE_DOCUMENTS/fsbdev3_002174.pdf.

Exhibit 2 San Juan Public Lands; Draft Land Management Plan; Draft Environmental

Impact Statement (Dec. 2007) (excerpts). Complete document available at: http://ocs.fortlewis.edu/forestplan/DEIS/v1.asp

Exhibit 3 Final Supplemental Environmental Impact Statement for the Amendment of

the Land and Resource Management Plan; San Juan National Forest (1992) (excerpts).

Complete document available at: http://www.fs.usda.gov/Internet/FSE_DOCUMENTS/fsbdev3_001813.pdf

Exhibit 4 Alpine Tundra Habitat Assessment: San Juan National Forest (Nov. 2002).

Document available at: ftp://ftp2.fs.fed.us/incoming/r2/RO/FOIA/BiologicalDiversity-GreenwaldFOIA/SJNF/Final_Alpine_Tundra.pdf.

Exhibit 5 San Juan Public Lands; Draft Land Management Plan (Dec. 2007)

(excerpts). Complete document available at: http://ocs.fortlewis.edu/forestplan/DEIS/v2.asp

Exhibit 6 Declaration of Robert H. Marion In Support Of Plaintiff’s Motion For

Preliminary Injunction (Feb. 14, 2012). Marion Declaration Exhibits:

Exhibit A Wyle Laboratories Report (excerpt).


http://www.fs.usda.gov/Internet/FSE_DOCUMENTS/fsbdev3_002174.pdf


http://ocs.fortlewis.edu/forestplan/DEIS/v1.asp



ftp://ftp2.fs.fed.us/incoming/r2/RO/FOIA/BiologicalDiversity-GreenwaldFOIA/SJNF/Final_Alpine_Tundra.pdf

ftp://ftp2.fs.fed.us/incoming/r2/RO/FOIA/BiologicalDiversity-GreenwaldFOIA/SJNF/Final_Alpine_Tundra.pdf

http://ocs.fortlewis.edu/forestplan/DEIS/v2.asp

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Exhibit B Save Our Trails, Measuring Noise. This article is available

at: http://saveourtrails.ca/health/Measuring_noise.htm. Exhibit C Wildlands CPR, Off-Road Vehicle Impacts on Wildlife. This

article is available at: http://www.wildlandscpr.org/road-riporter/road-vehicle-impacts-wildlife.

Exhibit D Backcountry Hunters and Anglers, Cumulative and

Universal: ATV Impacts on the Landscape and Wildlife (2011). This article is available at: http://www.wildlandscpr.org/road-riporter/road-vehicle-impacts-wildlife

Exhibit E Letter from Bob & Nancy Marion to U.S. Forest Service (Jan.

6, 2008). Exhibit F E-mail from Bob Marion to U.S. Forest Service (Feb. 12,

2008). Exhibit G E-mail from Bob Marion to U.S. Forest Service (July 6,

2008). Exhibit H E-mail from Bob Marion to U.S. Forest Service (Aug. 17,

2008). Exhibit I Letter from Bob & Nancy Marion to U.S. Forest Service (July

7, 2009) (Comments on EA for Rico-West Dolores TMP). Exhibit J Administrative Appeal of Rico-West Dolores TMP (Nov. 3,

2009). Exhibit K Letter from CBHA to U.S. Forest Service (Apr. 27, 2011). Exhibit L Letter from U.S. Forest Service to CBHA (June 27, 2011). Exhibit M E-mail from Bob Marion to U.S. Forest Service (July 9,

2011).


http://saveourtrails.ca/health/Measuring_noise.htm

http://www.wildlandscpr.org/road-riporter/road-vehicle-impacts-wildlife




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Exhibit N Photographs by R. Marion re: ORV-related damage (July 7, 2011).

Exhibit O E-mail from Bob Marion to U.S. Forest Service (July 29,

2011). Exhibit P Photographs by R. Marion (July 15, 2011). Exhibit Q Letter from Bob Marion to U.S. Forest Service (Aug. 26,

2011). Exhibit R Photographic Slideshow of Calico Trail (Aug. 26, 2011). Exhibit S Letter from CBHA to U.S. Forest Service (Sept. 1, 2011). Exhibit T Wildlands CPR, Best Management Practices For Off-Road

Vehicle Use On Forestlands; A Guide for Designating and Managing Off-Road Vehicle Routes (Jan. 2008). Article available at:http://www.wildlandscpr.org/files/ORV_BMP_2008_0.pdf.

Exhibit U U.S. Forest Service, Region 2, San Juan National Forest

Visitor Use Monitoring Results (Mar. 24, 2009). Exhibit 7 Map of Rico-West Dolores Management Areas (2009). Exhibit 8 Letter from Colorado Division of Wildlife to U.S. Forest Service (Feb. 7,

2008). Exhibit 9 San Juan National Forest Land and Resource Management Plan (Sept.

1983) (excerpts). The complete document is available at: http://www.fs.usda.gov/Internet/FSE_DOCUMENTS/fsbdev3_002173.pdf.

Exhibit 10 Management Area Map; San Juan National Forest; Land and Resource

Management Plan (Apr. 1992). Exhibit 11 Letter from Colorado Division of Wildlife to U.S. Forest Service (June 5,

2009).


http://www.wildlandscpr.org/files/ORV_BMP_2008_0.pdf



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Exhibit 12 Decision Notice and Finding of No Significant Impact for the Rico-West

Dolores Travel Management Plan (Sept. 2009). Exhibit 13 U.S. Forest Service, Appeal Decision Reversing the RWD Travel

Management Plan (Dec. 14, 2009); Appeal Reviewing Office’s Recommendation Memorandum for Rico-West Dolores Appeals (Dec. 11, 2009).

Exhibit 14 Dolores Trail Crew, San Juan National Forest; 2004-2006 Accomplishment

Report. Exhibit 15 Dolores Trail Crew, San Juan National Forest; 2008 Accomplishment

Report. Exhibit 16 Declaration of Thomas Sykes In Support of Plaintiff’s Motion for

Preliminary Injunction (Jan. 13, 2012). Exhibit 17 U.S. Forest Service, San Juan National Forest; Order No. SJ-2010-08 (June

16, 2010). Exhibit 18 E-mail from Trout Unlimited to U.S. Forest Service (Nov. 4, 2008). Exhibit 19 San Juan National Forest; Roads, Water, and Wildlife.

This document is available at: http://www.fs.usda.gov/Internet/FSE_DOCUMENTS/stelprdb5285906.pdf.

Exhibit 20 CBHA and Trout Unlimited, Comments on the Rico-West Dolores Travel

Management Plan Environmental Assessment (June 17, 2009). Exhibit 21 U.S. Forest Service; Rico-West Dolores SPNM Recreation Setting and

Motorized Trails (Sept. 2, 2009). Exhibit 22 Decision Notice re: Cross-Country Travel in the Rico Area (June 16, 2010). Exhibit 23 E-mail from Forest Supervisor Stiles to S. Johnson (Feb. 26, 2010).


http://www.fs.usda.gov/Internet/FSE_DOCUMENTS/stelprdb5285906.pdf

http://www.fs.usda.gov/Internet/FSE_DOCUMENTS/stelprdb5285906.pdf

INTRODUCTION

Plaintiff, the Colorado Chapter of Backcountry Hunters and Anglers (“CBHA”),

respectfully moves for a preliminary injunction to enjoin the Defendant United States

Forest Service from authorizing the use of motorized off-road vehicles (“ORVs”) on

more than 80 miles of non-motorized trails within the San Juan National Forest. An

injunction is necessary to prevent the irreparable harm that CBHA will suffer if ORV use

is allowed on these trails while this action is pending. And an injunction is warranted

because CBHA will likely prevail on its claims under the National Environmental Policy

Act (“NEPA”), National Forest Management Act (“NFMA”), and Executive Orders

11644 and 11989.

In June 2010, the Forest Service unlawfully authorized ORV use on 14 trails

within non-motorized areas of the National Forest. Because the Forest Service’s decision

violates federal law, and threatens irreparable harm to CBHA’s members, CBHA

requests an injunction directing the Forest Service to prohibit ORV use on the following

14 trails:

• Bear Creek (Trail No. 607) • Burnett Creek (Trail No. 641) • Calico (Trail No. 208) • Eagle Peak/Upper Stoner (Trail No. 629) • East Fall Creek (Trail No. 646) • Gold Run (Trail No. 618) • Grindstone (Trail No. 608) • Horse Creek (Trail No. 626) • Johnny Bull (Trail No. 639) • Little Bear Creek (Trail No. 609)


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• Priest Gulch (Trail No. 645) • Ryman Creek (Trail No. 735) • Stoner Creek (Trail No. 625) • Wildcat (Trail No. 207)

BACKGROUND

A. The San Juan National Forest

The San Juan National Forest, which stretches across 1.9 million acres in

Southwest Colorado, is widely recognized for its wildlife habitat, vulnerable ecosystems,

and recreational opportunities.

The Forest serves as a major reserve for wildlife. Species emblematic of the

Colorado Rocky Mountains, such as mule deer, elk, bighorn sheep, mountain lions, and

black bears, make the Forest their home. Amended Land and Resource Management

Plan for the San Juan National Forest at II-1 (April 1992) (Ex. 1). The Forest also

provides important habitat for numerous Forest Service-designated sensitive species,

including marten, river otter, bighorn sheep, bald eagle, Colorado River cutthroat trout,

and the Canada lynx, a federally threatened species. Ex. 2 at 3.62, 3.158, 3.160-.162; see

also Ex. 3 at II-70. The Forest is an important recreational destination as well, providing

opportunities for hiking, mountain biking, hunting, fishing, alpine and nordic skiing,

ORV riding, horseback riding, and camping. Ex. 1 at II-6.

The Forest contains mesas, deep canyons, rolling foothills, and rugged mountain

slopes. Ex. 1 at II-1. Not surprisingly given its diverse topography, the Forest crosses


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four major climatic and vegetative zones, including subalpine forest and alpine tundra.

Id.

The alpine tundra of the San Juan National Forest is a particularly important

biological resource. As the Forest Service has noted, “[t]here is tremendous diversity of

species and vegetation communities within the alpine type.” Ex. 4 at 2. Not only do

“some species depend upon alpine habitat for breeding or life-cycle requirements,” but

this ecosystem also provides “the only known habitat for the Uncompahgre fritillary

butterfly,” a federally endangered species. Ex. 2 at 3.146; see also 56 Fed. Reg. 28712

(June 24, 1991) (listing butterfly as endangered). The alpine tundra is also “very fragile.”

Ex. 4 at 5. The tundra can be easily damaged “to a point that it may take hundreds of

years to heal and return to what originally existed.” Id.

B. The Rico-West Dolores Landscape

The 14 trails at issue in this case are located in the Rico-West Dolores (“RWD”)

area of the San Juan National Forest. The RWD area is rugged, with elevations ranging

from 7500 feet to two peaks exceeding 14,000 feet within the Lizard Head Wilderness

Area. Complaint for Declaratory and Injunctive Relief and Petition for Review of

Agency Action ( “Pet.”) ¶ 57 (Dkt. No. 1); U.S. Forest Service Response to Petitioner’s

Complaint (“USFS Resp.”) ¶ 57 (Dkt. No. 14). This landscape contains seven

Inventoried Roadless Areas, which make up approximately 50% of the RWD area’s total

acreage. Pet. ¶ 57; USFS Resp. ¶ 57.


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The roadless areas of the RWD landscape provide habitat for a range of wildlife

species. Pet. ¶ 58; USFS Resp. ¶ 58; see also Ex. 5 at 217. This remote landscape has

many other unique attributes, including pristine vistas, streams harboring native cutthroat

trout, and large, healthy meadows. Declaration of Robert H. Marion ¶ 7 (attached as Ex.

6); see also Pet. ¶ 59; USFS Resp. ¶ 59.

Because of its rugged topography, many parts of the RWD landscape are only

accessible by trail. Approximately 300 miles of trails cross the RWD area. Marion Decl.

¶ 9. These trails are popular with outdoor recreationalists, and are heavily used by

hunters. Id. Due to the heavy snowfall this area receives, most of these trails are

effectively closed during winter. See id.

The natural resources of the RWD area, and quiet forest users’ enjoyment of them,

are imperiled by the Forest Service’s decision to authorize ORV use on 14 trails within

the RWD landscape. The 14 trails at issue in this case include two major trail networks,

the Calico and Bear Creek networks, as well as two other trails, Ryman Creek and Stoner

Creek. See Ex. 7 (map displaying trails within the RWD area).1 These trails lie primarily

in the roadless areas of the RWD landscape. Pet. ¶ 65; USFS Resp. ¶ 65.

1 This map, which was included with the 2009 travel management plan for the RWD area, is attached to this Memorandum because it shows the location of the 14 trails more easily than other maps of the RWD area. As explained below at 12-13, the motorized trail designations shown on this map were vacated by the Forest Supervisor. Thus, this map is for illustrative purposes only.


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1. The Bear Creek Trail Network

The Bear Creek trail network consists of the 14-mile Bear Creek trail, which forms

the backbone of the network, and four feeder trails: Gold Run, Grindstone, Grindstone

Loop, and Little Bear.2 This network lies in the heart of the pristine Bear Creek

watershed, which originates at over 13,000 feet and runs 18 miles to the Dolores River.

See Pet. ¶ 68; USFS Resp. ¶ 68; Marion Decl. ¶ 13.

Bear Creek valley contains large, beautiful meadows, beaver dams, excellent

riparian habitat, and red sandstone cliffs. Marion Decl. ¶ 14; Pet. ¶ 69; USFS Resp. ¶ 69.

This watershed, which adjoins the proposed Hermosa Wilderness Area, provides wildlife

habitat and a roadless connection between two adjacent watersheds. Pet. ¶ 57; USFS

Resp. ¶ 57. The Colorado Division of Wildlife3 has recognized this area’s ecological

importance and warned of the threat that ORVs pose to these resources. The Division

described Bear Creek as “a highly desirable backcountry area,” noting that it “is a large

and important drainage for big game and cutthroat trout.” Ex. 8 at 4. The Division also

stated that great efforts have been made “to alleviate and reverse wildlife habitat

degradation and establish a productive cutthroat fishery in the upper portion of Bear

2 Consistent with its non-motorized classification under the Forest’s land management plan, ORVs are currently prohibited on Grindstone Loop. See Marion Decl. ¶ 12; USFS Resp. ¶ 66. This trail is not at issue in this case. 3 In July 2011, the Colorado Division of Wildlife merged with Colorado State Parks to form a new state agency called Colorado Parks and Wildlife. Because the documents cited in this Memorandum predate the merger, CBHA refers to the agency by its pre-merger name.


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Creek,” and warned that “[e]stablishing a high use, off-highway vehicle route through the

area . . . may jeopardize that work.” Id.

2. The Calico Trail Network

The Calico network includes the 19-mile Calico trail and seven feeder trails:

Burnett Creek, Eagle Peak/Upper Stoner, East Fall Creek, Horse Creek, Johnny Bull,

Priest Gulch, and Wildcat. The Calico trail traverses many types of habitat, and more

than 10 miles of the trail are largely above treeline. Pet. ¶ 71; USFS Resp. ¶ 71. Six of

the seven feeder trails connect with the Calico above treeline, passing through excellent

wildlife habitat as they climb in elevation. Marion Decl. ¶ 19.

The section of the Calico trail above treeline is a special place: it has views that

extend for many miles, contains bowls with excellent forage for wildlife, and features

expansive fields of wildflowers. Marion Decl. ¶ 18; Pet. ¶ 72; USFS Resp. ¶ 72.

Unfortunately, the effects of motorized use are magnified within this landscape: sound

travels great distances (harming both wildlife and quiet forest users), vegetation recovers

slowly, and habitat fragmentation problems are more acute. Marion Decl. ¶ 18; see also

Ex. 4 at 6 (noting that in alpine tundra areas, recovery from ORV-related damage “may

take decades or even centuries just to get started”).

The Colorado Division of Wildlife has recognized the threat that ORVs pose to the

Calico trail and surrounding habitat. The Division observed that Calico “is a steep trail

above timberline,” and suggested that motorized use on this trail “erodes easily damaged


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soils and delicate vegetation. . . . Motorized vehicle use on this trail also inhibits wildlife

use of this important habitat by increasing fragmentation. The trail bisects important elk

habitat, e.g., calving, nursery and summering area.” Ex. 8 at 3.

3. Ryman Creek and Stoner Creek Trails

The Ryman Creek trail lies in a watershed important to the wildlife of the RWD

area. As the Colorado Division of Wildlife has noted, this area supports elk calving

grounds, “provides important mule deer fawning areas and habitat,” and is used by black

bears, mountain lions, and “a variety of small mammals and birds.” Ex. 8 at 4. The

creek itself supports a population of native cutthroat trout. Marion Decl. ¶ 21.

The Stoner Creek trail also runs through an ecologically important area.

According to the Division of Wildlife, this “area is highly valuable to wildlife,

particularly elk and valued by sportsmen as an area free of motorized vehicles.” Ex. 8 at

3.

C. The 1983 and 1992 Forest Plans

The National Forest Management Act (“NFMA”), the statutory framework that

governs the management of national forests, directs the Forest Service to prepare

management plans for all lands under Forest Service control. 16 U.S.C. § 1604. These

plans are often called “land and resource management plans” or “forest plans.” Once

enacted, a forest plan governs the permissible uses within a national forest. Site-specific

decisions must be consistent with the forest plan. 16 U.S.C. § 1604(i).


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In 1983, the Forest Service issued the first forest plan for the San Juan National

Forest (“1983 Forest Plan” or “1983 Plan”). The 1983 Plan, which was accompanied by

an environmental impact statement (“EIS”), “establishe[d] the long-term direction for

managing the San Juan National Forest.” San Juan National Forest Land and Resource

Management Plan at I-1 (Sept. 1983) (Ex. 9).

Similar to a municipal zoning map, a forest plan divides a national forest into

different “management areas” based on the type of activities allowed in that part of the

forest. The 1983 Plan established 20 different management area classifications for the

San Juan National Forest. Each management area was subject to a Management Area

Direction, which “contains management requirements specific to individual areas

with[in] the Forest.” Ex. 9 at III-1. Under the 1983 Plan, uses within these management

areas “must be consistent with the management requirements listed in the . . .

Management Area Direction.” Id. at I-1. To the extent the Forest Service wished to

change the Plan’s management requirements, those changes “may not be made without

amending or revising the Forest Plan.” Ex. 9 at III-10; see also 36 C.F.R. § 219.10

(where a site-specific decision is not consistent with a forest plan, the agency must either

modify the decision or amend the plan).

Two of the Plan’s management area classifications are particularly relevant to this

case: Management Areas 2A and 3A. Management Area 2A (“MA2A”) is designated for

“semi-primitive motorized recreation.” Ex. 9 at III-105. This Area’s “[m]anagement


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emphasis is for semi-primitive motorized recreation opportunities such as snowmobiling,

four-wheel driving, and motorcycling both on and off roads and trails.” Id. Consistent

with that management emphasis, the management requirements for MA2A allow

motorized uses. Id. at III-107.

Management Area 3A (“MA3A”), by contrast, is designed for “semi-primitive

non-motorized recreation.” Id. at III-130. The management emphasis for MA3A areas

calls for “semi-primitive non-motorized recreation in both roaded and unroaded areas”

such as “hiking, horseback riding, hunting, cross-country skiing, etc.” Id. Consistent

with that emphasis, the 1983 Plan places strict limits on motorized use within MA3A

areas:

Specific land areas or travel routes may be opened seasonally and with specific authorization to accomplish resource management activities. The area is never open for motorized recreation activities except for specifically identified motorized corridors through the area.

Id. at III-131 (emphasis added). Thus, the 1983 Plan only allows motorized use in

MA3A areas for certain resource management activities, or where a motorized corridor

(such as a trail or road) has been specifically identified.

The only motorized corridors that were “specifically identified” in the 1983 Plan

are listed in Appendix G of that Plan. Of the 14 trails at issue in this case, five of them

were identified as motorized corridors in Appendix G: Bear Creek, Calico, Gold Run,

Grindstone, and Little Bear. Ex. 9 at G-2. Each of these trails was located, at least


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partially, in MA3A areas. But because the 1983 Plan “specifically identified” these trails

as motorized corridors, they were open to ORV use under the 1983 Plan.

In 1990, the Forest Service issued an amendment (“Amendment 11”) to the 1983

Plan that changed several management area designations within the National Forest.

Specifically, Amendment 11 changed the Landslip Mountain/Calico Peak area—through

which the Calico trail runs—from MA2A (motorized) to MA3A (non-motorized) because

the “[t]opography is too steep, and soils too erosive, for motorized recreation.” Ex. 1 at

J-96. When the Forest Service designated this area as MA3A, the agency did not

specifically identify the Calico trail as a motorized corridor. Cf. Ex. 9 at III-131

(requiring motorized trails in MA3A areas to be “specifically identified”). Amendment

11 also moved portions of the following trails into MA3A without specifically identifying

motorized corridors: Burnett Creek, Eagle Peak, East Fall Creek, Horse Creek, Johnny

Bull, Priest Gulch, and Wildcat. See Ex. 1 at J-95 to J-105.

In April 1992, the Forest Service issued an Amended Land and Resource

Management Plan for the San Juan National Forest (the “1992 Forest Plan” or “1992

Plan”). See generally Ex. 1. Like the 1983 Plan, the 1992 Plan was accompanied by an

EIS. See Ex. 3. The Preface to the 1992 Plan states that this Plan “superseded the

original Forest Plan and ‘stands alone’ as the direction for the Forest.” Ex. 1 at Preface-

1. The 1992 Plan also incorporated all prior amendments to the 1983 Plan, including

Amendment 11. Id.


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Although several MA3A (non-motorized) areas expanded in size under the 1992

Plan, the rules governing motorized use in MA3A areas remained the same as those in the

1983 Plan. Thus, like its predecessor, the 1992 Plan prohibited all “motorized recreation

activities” within MA3A “except for specifically identified motorized corridors through

the area.” Id. at III-131.

Under the 1992 Plan, each of the 14 trails at issue in this case are wholly or

partially located in areas designated as MA3A.4 Moreover, although the 1992 Plan

briefly references Appendix G (which was not reprinted), id. at III-2, the Plan does not

otherwise discuss motorized corridors within MA3A areas.5

D. The 2009 Travel Management Plan

In 2005, the Forest Service issued a new, nationwide travel management rule that

was intended to improve management of ORVs in national forests. The travel

management rule directed the Forest Service to create travel management plans

(“TMPs”) that designate routes, vehicle types, and seasons of use for motorized travel on

national forest roads, trails, and in other areas. See 36 C.F.R. §§ 212.50(a), 212.51(a). 4 The locations of different management areas within the Forest are set forth in the Management Area Map, which is an official part of the 1992 Plan. See Ex. 10 (copy of 1992 Management Area Map); Ex. 1 at I-1. These management areas are also shown in the map attached as Exhibit 7. 5 There are four trails, specifically, that were listed in Appendix G to the 1983 Forest Plan and were not affected by Amendment 11: Bear Creek, Gold Run, Grindstone, and Little Bear. Although CBHA does not concede that these four trails remain motorized under the Forest Plan, the NFMA argument in this Motion (Part IV.A) focuses on the other 10 trails at issue in this case. Regardless of the status of these four trails at the time of the 1992 Plan, the Forest Service’s authorization of ORV use on these trails in June 2010 was unlawful under NEPA and Executive Order 11644. See infra Parts IV.B-.D.


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Once completed, these TMPs would identify motorized trails and areas in different parts

of the forest.

In April 2009, the Forest Service issued a draft TMP for the Rico-West Dolores

area of the San Juan National Forest. A number of stakeholders, including the Colorado

Division of Wildlife and CBHA, raised concerns about the draft TMP. See, e.g., Ex. 11

at 2-4; Marion Decl. ¶¶ 42-52. Despite these concerns, in September 2009 the Forest

Service issued a final TMP that authorized motorized use on a number of trails within

MA3A areas, including the Calico, Bear Creek, Little Bear, Eagle Peak/Upper Stoner,

and Johnny Bull trails. See Ex. 12 at 10. The final TMP was administratively appealed

by six separate groups of appellants, including CBHA. In December 2009, Forest

Supervisor Mark Stiles reversed the TMP. See generally Ex. 13 (Dec. 14, 2009 Appeal

Decision). Because the TMP has been vacated, the 1992 Plan remains the legally binding

plan for motorized use on the 14 trails that are the subject of this action.

In rejecting the TMP, Supervisor Stiles followed the recommendation of the

Appeal Reviewing Officer (“ARO”) who reviewed the issues raised by the six appellant

groups. See 36 C.F.R. § 215.19 (describing the role of the ARO in the administrative

appeals process). The ARO recommended reversing the TMP because, among other

things, designating trails in MA3A areas “as motorized violates the Forest Plan.” Ex. 13,

Dec. 11, 2009 Recommendation Memorandum at 2. The ARO also recommended

reversal of the TMP because the trail use designations in the Bear Creek watershed were


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“arbitrary,” and because the “[m]otorized trail designations failed to minimize or mitigate

impacts of motorized use on wildlife and forest resources, as required by travel

management planning rules.” Id. at 4, 5. Mr. Stiles adopted the ARO’s analysis on each

of these points. Ex. 13, Appeal Decision at 2.

E. The Forest Service’s Authorization of ORV Use on the 14 Rico-West Dolores Trails

In recent years, the Forest Service has taken a series of steps to facilitate and

encourage ORV use (primarily motorcycles) on the 14 trails at issue in this case. For

example, the Forest Service installed a series of trail signs indicating that motorcycles

were allowed on these trails. Marion Decl. ¶ 38 (explaining that he has seen trail signs

permitting ORV use on 13 of the 14 trails); Ex. 14 at 4-13 (showing the installation of

trail signs that permitted ORVs on the Calico, Priest Gulch, Burnett Creek, Wildcat, East

Fall Creek, Bear Creek, and Gold Run trails). The Forest Service has also performed trail

reconstruction and maintenance to address damage caused by ORVs and to enable further

ORV use. Marion Decl. ¶ 39; see also Ex. 15 at 5-7, 12, 20 (explaining the need to

perform trail work due to erosion, deep ruts, and trail widening and braiding). And the

Forest Service has distributed visitor maps which purported to allow ORVs on the 14

trails. See Marion Decl. ¶ 49.

The Forest Service’s efforts to encourage ORVs on these 14 trails has coincided

with a dramatic increase in ORV use. CBHA member Thomas Sykes, for example, states

that “[o]ver the past decade I have witnessed a huge explosion in the popularity of


14

backcountry ORV use.” Declaration of Thomas Sykes ¶ 6 (attached as Ex. 16); see also

Marion Decl. ¶ 40 (noting a large increase in ORV use on the Calico, Bear Creek, and

other RWD trails). These observations are mirrored by those of supporters of ORV use

on the 14 trails. A representative of Intervenor-Defendant San Juan Trail Riders

observed that “[t]he Dolores District is gaining widespread notoriety for these

opportunities across the Southwest and this availability is bringing in greater amounts of

use each year.” Ex. 14, Appendix B, cmt. 8; see also id., cmt. 5.

In an effort to protect the Rico-West Dolores landscape and the 14 trails, CBHA, a

non-profit organization of hunters and anglers dedicated to conserving public lands and

their resources, Marion Decl. ¶¶ 2, 4, has repeatedly urged the Forest Service to prohibit

motorized use on these trails. For example, CBHA member Robert Marion—a

designated “Forest Watchman” for the San Juan National Forest—has (a) sent letters and

e-mails to the Forest Service explaining that these trails are non-motorized under the

1992 Forest Plan, and that any effort to authorize ORV use must be accompanied by a

NEPA analysis; (b) reported instances of trail damage resulting from ORVs; and (c) met

with Forest Service officials to explain the legal and environmental problems associated

with the agency’s actions. See generally id. ¶¶ 42-52 & Exs. E-J.

CBHA’s efforts fell on deaf ears. Rather than prohibiting ORV use on the 14

trails, the Forest Service did the opposite: in June 2010, the agency codified its on-the-

ground practices in an order that officially authorized motorized use. Specifically, the


15

Forest Supervisor issued an administrative order regarding ORV use within the Rico-

West Dolores area. See Order No. SJ-2010-08 (June 16, 2010) (Ex. 17) (hereinafter

“June 2010 Order”).

The stated intent of the June 2010 Order was to prohibit motorized travel in cross-

country areas, i.e., the areas between roads and trails. Id. However, the June 2010 Order

also expressly permitted “the operation of vehicles on motorized trails” as specified on

the accompanying “Closure Map.” Id. Because the Closure Map shows all 14 trails as

open to motorcycles, id. at 2, the June 2010 Order formally authorized ORV use on these

trails. By its terms, this Order will remain in effect until December 31, 2015, unless it is

subsequently rescinded. Id. at 1.

In issuing this Order, the Forest Service prepared neither an EIS nor an

environmental assessment (“EA”) analyzing the effects of its decision to authorize ORV

use on the 14 trails. Cf. 40 C.F.R. § 1501.4 (requiring preparation of an EIS or EA for

federal agency actions with possible environmental effects). Moreover, although the

June 2010 Order designated these 14 trails for motorized use, the Forest Service made no

attempt to adhere to the requirements of Executive Order 11644 and 36 C.F.R. §

212.55(b). These regulations require the Forest Service, when designating motorized

trails, to consider and attempt to minimize: “(1) Damage to soil, watershed, vegetation,

and other forest resources; (2) Harassment of wildlife and significant disruption of

wildlife habitats; [and] (3) Conflicts between motor vehicle use and existing or proposed


16

recreational uses of National Forest System lands or neighboring Federal lands.” 36

C.F.R. § 212.55(b).

Following issuance of the June 2010 Order, CBHA continued its efforts to protect

the 14 trails and surrounding resources. On April 27, 2011, CBHA submitted a detailed

letter to the Forest Service that identified some of the agency’s legal violations, discussed

the damage occurring as a result of ORV use, and urged the Forest Service to prohibit

motorized use on these 14 trails. Marion Decl. ¶ 55 & Ex. K. In a response dated June

27, 2011, the Forest Service refused to close these trails. Id. ¶ 55 & Ex. L.

On September 1, 2011, CBHA’s counsel sent a final demand letter to the Forest

Service, seeking to reach a resolution without the need for litigation. Marion Decl. ¶ 60

& Ex. S. In October 2011, CBHA met with Forest Service officials to explore the

possibility of settlement. Marion Decl. ¶ 61. Unfortunately, the Forest Service refused to

consider the immediate closure of any of the 14 trails at issue in this case. Id. Now, to

prevent harm to the ecosystems of the Rico-West Dolores landscape, and to avoid

irreparable injury to its members, CBHA brings this motion for preliminary injunction.

ARGUMENT

To obtain a preliminary injunction, the moving party must establish: “(1) a

likelihood of success on the merits; (2) a likelihood that the movant will suffer irreparable

harm in the absence of preliminary relief; (3) that the balance of equities tips in the

movant’s favor; and (4) that the injunction is in the public interest.” Roda Drilling Co. v.


17

Siegal, 552 F.3d 1203, 1208 (10th Cir. 2009) (citing Winters v. Nat. Res. Def. Council,

555 U.S. 7 (2008)). Because the relief that CBHA seeks—an order directing the Forest

Service to prohibit ORVs on the 14 trails while this case is pending—qualifies as a

mandatory injunction, CBHA “must make a strong showing both with regard to the

likelihood of success on the merits and with regard to the balance of harms.” O Centro

Espirita Beneficiente Uniao Do Vegetal v. Ashcroft, 389 F.3d 973, 976 (10th Cir. 2004)

(en banc). CBHA satisfies the four-part test. Because “the ‘exigencies of the case

require extraordinary interim relief,’” this Court should issue a preliminary injunction.

Roda, 552 F.3d at 1209 (citation omitted).

I. CBHA WILL SUFFER IRREPARABLE HARM WITHOUT A PRELIMINARY INJUNCTION.

A plaintiff satisfies the irreparable harm requirement “by demonstrating a

significant risk that he or she will experience harm that cannot be compensated after the

fact by monetary damages.” Roda, 553 F.3d at 1210 (citing Greater Yellowstone Coal. v.

Flowers, 321 F.3d 1250, 1258 (10th Cir. 2003)). Irreparable harm is “[p]erhaps the

single most important prerequisite for the issuance of a preliminary injunction.” Flowers,

321 F.3d at 1260 (quoting Federal Practice and Procedure § 2948.1). In this case, CBHA

and its members will be irreparably harmed in several respects if an injunction is not

issued.

The relief that CBHA seeks is narrow. CBHA requests an order directing the

Forest Service to prohibit ORV use on the 14 Rico-West Dolores (“RWD”) trails pending


18

a final decision on the merits. The substantive harm CBHA would suffer without an

injunction will occur between early summer and late fall, when the 14 trails are open to

ORVs and other users. See Marion Decl. ¶ 35. Thus, CBHA will suffer irreparable harm

unless it can obtain a preliminary injunction, or a favorable decision on the merits, by

early June 2012. Because the merits of this case will not be resolved within that

timeframe, this Motion is necessary to prevent irreparable harm to CBHA and its

members.

A. ORV Use on the 14 Trails Will Harm CBHA’s Aesthetic, Safety, and Environmental Interests.

Unless restrained by a preliminary injunction, the Forest Service’s continued

authorization of ORV use on the 14 trails will irreparably harm CBHA and its members.

CBHA consists of sportsmen and women who seek to conserve the public lands

and resources that support their hunting and angling traditions. Marion Decl. ¶ 2; Sykes

Decl. ¶ 3. CBHA works to conserve the “traditional backcountry values of solitude,

silence, personal challenge, physical fitness and adventure” from the threat of improper

motorized use on public lands. Marion Decl. ¶ 3. CBHA members use and enjoy the 14

RWD trails for a variety of recreational activities, including hunting, fishing, hiking,

camping, wildlife viewing, landscape photography, cross-country skiing, and enjoying

the solitude and aesthetic attributes of the RWD area. Marion Decl. ¶ 5; Sykes Decl. ¶ 5.

By allowing ORV use on the 14 trails, the Forest Service has harmed, and will continue

to harm, CBHA’s aesthetic, safety, and environmental interests.


19

1. Noise and Aesthetic Interests

CBHA’s members will be directly harmed by the sight and noise of ORVs within

this non-motorized area of the San Juan National Forest. As CBHA members have

explained, noise from ORV use adversely affects their “peaceful, quiet use” experiences,

and has forced them to cancel hikes they otherwise would have taken. Sykes Decl. ¶ 11;

Marion Decl. ¶¶ 24(2), 28. Likewise, the presence of ORVs on these 14 trails injures

CBHA’s aesthetic interests. As Forest Watchman Robert Marion explains:

I have been splashed with mud, enveloped in a dust cloud, and forced to stand on the side of a trail while over 10 motorcycles passed at high speed. . . . ORVs, especially those with 2-cycle engines, emit substantial pollutants into the air. When hiking on these trails, I am subjected to these obnoxious fumes when an ORV passes.

Marion Decl. ¶ 24.

These harms, standing alone, are sufficient to satisfy the irreparable harm

requirement. See San Luis Valley Ecosystem Council v. U.S. Fish & Wildlife Service, 657

F. Supp. 2d 1233, 1240 (D. Colo. 2009) (finding irreparable injury from noise and

impacts to aesthetic interests); Davis v. Mineta, 302 F.3d 1104, 1115-16 (10th Cir. 2002)

(finding irreparable harm requirement had been met because, inter alia, increased noise

and damage to an area’s aesthetic attributes “is irreparable in the sense that it cannot

adequately be remedied by non-equitable forms of relief”). CBHA has not only suffered

these harms in the past; these injuries will resume later this year without a preliminary

injunction. Indeed, once the snow melts and ORVs return to the 14 RWD trails—which


20

could occur as early as June 2012—CBHA’s members will yet again suffer irreparable

injury. See Marion Decl. ¶ 66. Because its members “will be affected by noise and []

their aesthetic interests will be affected,” 657 F. Supp. 2d at 1240, CBHA satisfies the

irreparable harm requirement.

2. Recreational Interests and Safety

The authorization of ORV use on the 14 trails also interferes with CBHA’s use of

the RWD area for backcountry hunting, angling, hiking, and other activities. CBHA

members regularly hunt along and near the 14 trails, and their hunting experiences are

frequently disrupted by ORVs. Marion Decl. ¶ 36; Sykes Decl. ¶¶ 11, 14 (discussing

ORVs’ negative effect on his hunting interests because ORVs impact elk populations).

Sometimes, ORVs directly interfere with CBHA members’ hunting by scaring away the

game: “On one hunt . . . a few years ago, I was regularly seeing elk (at long distances)

until two motorcycles rode a ridgeline trail through the area. I did not see another elk for

3 days.” Marion Decl. ¶ 24. ORVs also interfere with CBHA members’ pursuit of other

recreational activities, such as hiking and wildlife photography. See, e.g., Sykes Decl. ¶

11; see also Ex. 18 at 3 (e-mail from Trout Unlimited explaining that ORV use on certain

roads and trails is “biologically problematic for elk and other species and socially

problematic for the vast majority of traditional quiet users”). These harms will continue

without a preliminary injunction.


21

Put simply, CBHA’s members have strong aesthetic and recreational interests in a

quiet, undisturbed forest experience, and the Forest Service’s authorization of ORV use

on these 14 trails adversely affects those interests. This type of injury satisfies the

irreparable harm requirement. See, e.g., Alliance for the Wild Rockies v. Cottrell, 632

F.3d 1127, 1135 (9th Cir. 2011) (finding a likelihood of irreparable harm where a Forest

Service logging project would, inter alia, harm plaintiffs’ members’ recreational interest

in the area).

Nor is the threat to CBHA’s interests limited to the disruption of hunting and other

recreational activities. ORV use on these 14 trails also poses a safety threat to CBHA

members and others. As Mr. Marion describes:

On many occasions I have been forced off of the trail by ORVs. They create unsafe conditions by passing me at high speeds within a foot of me. . . . [They] also scare horses and create unsafe conditions for the horse rider. . . . On one occasion a motorcycle almost ran into me because he had just gone over a hill which limited his visibility.

Marion Decl. ¶ 24. Similarly, Mr. Sykes, another CBHA member, was nearly hit by an

ORV on Bear Creek trail, and believes “that ORV use on the Bear Creek Trail is a safety

hazard to myself and other trail users.” Sykes Decl. ¶ 13.

These safety concerns have been echoed by the Colorado Division of Wildlife,

which warned that “motorized use of [Calico] trail . . . is not compatible with and is

dangerous to other users such as horseback riders.” Ex. 8 at 3. The Division expressed

similar concerns about the Horse Creek, Wildcat, and Priest Gulch trails. Id.; see also id.


22

at 4 (urging the Forest Service to prohibit ORV use on the Gold Run trail, because

allowing both ORVs and traditional uses “on this extremely steep (in spots) trail may

create hazardous conditions for all users”). By making CBHA members feel less safe

along these 14 trails—and by increasing their risk of an accident—the Forest Service’s

authorization of ORVs further threatens irreparable harm. See Brady Campaign to

Prevent Gun Violence v. Salazar, 612 F. Supp. 2d 1, 25 (D.D.C. 2009) (finding

irreparable injury where an agency decision allowing guns in national parks made

plaintiff’s members “concerned for their personal safety in parks” such that they “cannot

fully enjoy their visits to certain national parks or wildlife refuges because they feel less

safe”).

3. Harm to Natural Resources

In addition to the injuries described above, ORV use on the 14 trails has caused,

and will continue to cause, irreparable harm to the natural resources of the RWD area.

As explained below, without a preliminary injunction, ORV use will harm the wildlife,

wildlife habitat, vegetation, and soils of the RWD landscape. This harm is irreparable:

“Environmental injury, by its nature, can seldom be adequately remedied by money

damages and is often permanent or at least of long duration, i.e., irreparable.” Amoco

Production Co. v. Village of Gambell, 480 U.S. 531, 545 (1987). Because CBHA has a

strong interest in protecting these natural resources, Marion Decl. ¶¶ 2-5, 34, 37, the

Forest Service’s decision will irreparably harm CBHA absent an injunction.


23

a. Wildlife and Wildlife Habitat

ORV use on the 14 trails has and will continue to harm the wildlife populations of

the Rico-West Dolores area. As Mr. Marion’s declaration explains, the noise and

disruption associated with ORVs adversely affects elk and other big game species.

Marion Decl. ¶¶ 24(4), 25, 29-34. Indeed, a recent literature review by CBHA’s national

affiliate concludes that ORVs can have serious effects on wildlife, resulting in displaced

animals and habitat fragmentation. See Marion Decl., Ex. D. These scientific findings

are mirrored by CBHA members’ personal experiences. As Mr. Sykes observed, several

trails in the Bear Creek trail network “traverse prime elk habitat. . . . On the occasions

that I have encountered motorcycle tracks or have heard motorcycles in the vicinity, I

have never seen an elk.” Sykes Decl. ¶ 14; see also id. ¶¶ 11, 16, 18 (attributing the lack

of elk along the Calico and Ryman Creek trails and in the RWD area generally to ORV

use).

The harm that ORVs cause wildlife has been acknowledged by the Forest Service.

A fact sheet available on the San Juan National Forest website notes that “fewer elk are

found in areas bisected by several motorized routes. This is especially true during

hunting seasons. . . . Biologists have found that herds will leave national forest lands in

these areas during hunting season to escape motorized pressure.” Ex. 19 at 2l; see also

Ex. 20 (comments of CBHA and Trout Unlimited explaining that if “unrestricted cross-

country motorized travel is replaced with a proliferating web-work of authorized trails,


24

little is gained in the realms of reducing wildlife disturbance and forced relocation of

wildlife”). By lacing the RWD landscape with more than 80 miles of motorized routes,

the Forest Service has harmed this area’s elk populations and CBHA’s related interests.

The Colorado Division of Wildlife has also recognized the threat that ORVs pose

to wildlife in this area. In its 2008 letter urging the Forest Service to prohibit ORVs on

the Calico trail, the Division noted that “[m]otorized vehicle use on this trail [] inhibits

wildlife use of this important habitat by increasing fragmentation. The trail bisects

important elk habitat, e.g., calving, nursery and summering area.” Ex. 8 at 3; see also Ex.

11 at 3 (Division of Wildlife urging that Calico and other trails be designated non-

motorized, and noting that this area contains “high quality wildlife habitat”). The

Division expressed similar concerns about the Ryman Creek trail, and was opposed to

motorized use on the Bear Creek trail network due to the threat ORVs pose to wildlife

habitat, including the “productive cutthroat trout fishery in the upper portion of Bear

Creek.” Ex. 8 at 4; Ex. 11 at 2; see also Sykes Decl. ¶ 15 (“In addition to the negative

effects of ORV noise on my trout fishing experiences, I believe that silt damage from

ORVs impacts trout reproduction within Bear Creek.”). This risk of harm to the cutthroat

trout, a Forest Service-designated sensitive species, Ex. 5 at 3.62, is irreparable. See San

Luis Valley, 657 F. Supp. 2d at 1241 (noting that sedimentation from drilling activities

could irreparably harm the Rio Grande sucker).


25

As the Division of Wildlife’s comments underscore, ORV use on the 14 trails

degrades crucial wildlife habitat. By authorizing this motorized use, the Forest Service’s

decision has caused, and will continue to cause, irreparable injury to the wildlife and

wildlife habitat of the RWD area. And because it affects CBHA’s specific interests, this

threat to wildlife likewise satisfies the irreparable harm requirement. See, e.g., Colorado

Wild v. U.S. Forest Serv., 299 F. Supp. 2d 1184, 1190 (D. Colo. 2004) (finding that

plaintiff would suffer irreparable injury where the “[b]iological integrity of the area is at

risk”); Brady, 612 F. Supp. 2d at 25.

b. Vegetation and Soils

Irreparable harm to natural resources—and to CBHA’s interest in the protection of

those resources—will also result because ORV use on the 14 trails will damage the soils

and vegetation of the RWD area. As Mr. Marion has explained, the use of ORVs on

these trails frequently causes harm to the trails and surrounding areas. While hiking on

the RWD trails, Mr. Marion has witnessed numerous physical impacts from ORV use,

including trail braiding and widening, the removal of up to two feet of topsoil, deposition

of soil in nearby streams, and damage to vegetation. Marion Decl. ¶ 26. Many of these

impacts have been documented in letters and photographs that Mr. Marion submitted to

the Forest Service. See, e.g., Marion Decl., Exs. H, I, M-R.

These negative impacts are especially acute in the portions of the Calico trail

network above treeline. Marion Decl. ¶¶ 18, 20, 26. Indeed, the Colorado Division of


26

Wildlife urged the Forest Service to close the Calico trail because, among other things,

“[i]t is a steep trail above timberline and erodes easily damaged soils and delicate

vegetation.” Ex. 8 at 3. The Division of Wildlife expressed similar concerns about the

Horse Creek, Wildcat, and Priest Gulch trails. Id. Harm to vegetation and soils is

occurring in other areas as well, such as steep sections of trails and wet meadows.

Marion Decl. ¶¶ 26, 57.

The damage from ORVs to alpine tundra areas above treeline—like those on the

Calico—will be especially long lasting. As the Forest Service recognized in a 2002

tundra assessment, ORVs “have the potential to alter a community of plants completely

to mineral soil in a matter of minutes. The capacity to recover or allow the community

succession to start from the beginning may take decades or even centuries just to get

started.” Ex. 4 at 6 (emphasis added); see also Marion Decl. ¶ 20 (“Damage from years

ago is still visible . . . .”). The long recovery time for sensitive alpine vegetation further

underscores the irreparability of the harm that will occur without a preliminary

injunction. See, e.g., San Luis Valley, 657 F. Supp. 2d at 1241 (noting that a long

recovery time for vegetation damage supports a finding of irreparability).

Regardless of the recovery time, however, the environmental damage that ORVs

cause irreparably harms the aesthetic interests of CBHA members. As Mr. Marion has

described:

The beauty and scenic value of the trails and terrain surrounding the trails is frequently destroyed by ORVs. These ORVs often: destroy small


27

meadows; cause erosion and removal of topsoil, which makes it impossible for plants to survive; transform pleasant narrow trails into wide swaths devoid of plant life; create mudholes which are impossible to walk through; make steep trails impossible to walk on by exposing rocks and roots; and force the Forest Service trail crews to build ugly turnpikes and other non-natural structures which alter the natural beauty of the terrain.

Marion Decl. ¶ 24. As in Davis, where a proposed transportation project threatened to

“impair the aesthetic attributes” of a parkway and “disrupt the natural setting and feeling

of the park,” ORV use on the 14 trails irreparably harms CBHA because these aesthetic

injuries “cannot adequately be remedied by nonequitable forms of relief.” Davis, 302

F.3d at 1115-16; see also San Luis Valley, 657 F. Supp. 2d at 1240-41 (finding

irreparable harm where drilling two wells would impair plaintiffs’ “interests in the water,

wildlife, air, solitude and quiet, and natural beauty” of a wildlife refuge).

The harm caused by ORVs begins each summer once the snow melts and the 14

trails open to recreational users. Marion Decl. ¶ 35. Once this occurs, the damage

stemming from ORV use on these trails will resume, further harming the wildlife, habitat,

and other natural resources of the RWD area. This ongoing damage will continue for

months, affecting CBHA members and other quiet users. See generally id. ¶¶ 23-37;

Sykes Decl. ¶¶ 6-8, 11, 13. These harms can only be avoided through the issuance of a

preliminary injunction.

Although ORVs have used these 14 trails in past years, the harm CBHA’s

members will suffer in the summer and fall of 2012 is no less irreparable. Though

similar harms have occurred in previous years, the harm from ORV use this season


28

remains irreparable. Moreover, the adverse effects of motorized use are cumulative: each

additional year that ORVs use these trails, the greater the harm to the resources of the

Rico-West Dolores landscape. See, e.g., Marion Decl., Ex. C at 11 (research suggests

“recovery to pre-disturbance conditions can take generations”). Another year of ORV

use will only magnify the damage, causing further harm to CBHA and its members.

B. Without a Preliminary Injunction, CBHA’s Procedural Interests Will Be Irreparably Harmed.

In addition to the substantive harms described above, CBHA will also suffer

irreparable procedural injury without an injunction. This procedural harm stems from the

National Environmental Policy Act’s (“NEPA”) role in agency decisionmaking.

1. The National Environmental Policy Act

As “[t]he centerpiece of environmental regulation in the United States, NEPA

requires federal agencies to pause before committing resources to a project and consider

the likely environmental impacts of the preferred course of action as well as reasonable

alternatives.” New Mexico v. BLM, 565 F.3d 683, 703 (10th Cir. 2009). NEPA requires

that federal agencies prepare an environmental impact statement (“EIS”) for each

“proposed major Federal action” that could “significantly affect the quality of the human

environment.” 42 U.S.C. § 4332(c). An EIS “details, among other things, the

environmental impacts of the proposed action, any adverse environmental effects that

would occur as a result, and alternatives to the proposed action.” Wyoming v. U.S. Dep’t

of Agric., 661 F.3d 1209, 1237 (10th Cir. 2011) (citation omitted). If it is uncertain


29

whether an EIS is necessary, the agency may instead prepare a less detailed

environmental assessment (“EA”), and may issue a finding of no significant impact

(“FONSI”) if the EA reveals that the action will not significantly affect the environment.

40 C.F.R. §§ 1501.4(e), 1508.9, 1508.13. Regardless of whether it ultimately prepares an

EIS or only an EA, an agency must conduct some environmental review before

implementing a proposed action. This is necessary to prevent an EIS from serving “as a

subterfuge designed to rationalize a decision already made.” Wyoming, 661 F.3d at 1263

(citations omitted); see also 40 C.F.R. §§ 1502.2(g), 1502.5.

This statutory mandate—that an agency “take a ‘hard look’ at the impacts of a

proposed action,” Wyoming, 661 F.3d at 1263 (citations omitted)—serves two important

purposes: First, “[i]t ensures that the agency, in reaching its decision, will have available,

and will carefully consider, detailed information concerning significant environmental

impacts.” Robertson, 490 U.S. at 349. Second, it “guarantees that the relevant

information will be made available to the larger audience that may also play a role in both

the decisionmaking process and the implementation of that decision.” Id. These action-

forcing requirements “ensure[] that important effects will not be overlooked or

underestimated only to be discovered after resources have been committed or the die

otherwise cast.” Id. at 349.


30

2. Harm to CBHA’s Procedural Interests

Given the goals underlying NEPA, a plaintiff’s “procedural interest in a proper

NEPA analysis is likely to be irreparably harmed” where the agency is “permitted to go

forward with the very actions that threaten the harm that NEPA is intended to prevent,

including uninformed decisionmaking.” San Luis Valley, 657 F. Supp. 2d at 1241; see

also Brady, 612 F. Supp. 2d at 24. In this case, that procedural injury stems from the

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

As explained in Part IV.B below, the Forest Service violated NEPA by authorizing

motorized use on the 14 RWD trails without performing any environmental analysis.

Because this lack of analysis harms the environmental interests of CBHA’s members,

CBHA has suffered, and will continue to suffer, an irreparable procedural injury absent

an injunction. See, e.g., Davis, 302 F.3d at 1115 (finding procedural injury under NEPA

where plaintiffs showed “that the environmental harm results in irreparable harm to their

specific environmental interests”); Save Strawberry Canyon v. Dep’t of Energy, 613 F.

Supp. 2d 1177, 1187 (N.D. Cal. 2009).

As in Save Strawberry Canyon, the procedural injury in this case is “irreparable—

even if a NEPA review might later be conducted.” 613 F. Supp. 2d at 1189. Even if the

Forest Service someday performs a proper NEPA review of its decision authorizing ORV

use on the 14 trails, CBHA “will have been deprived of the opportunity to participate in

the NEPA process at a time when such participation is required and is calculated to


31

matter.” Id.; see also Sierra Club v. U.S. Army Corps of Engineers, 645 F.3d 978, 994-95

(8th Cir. 2011).

If CBHA prevails on its NEPA claims, then the Forest Service will be required to

prepare an EA or EIS before authorizing ORV use on the 14 trails. But CBHA’s

“remedy . . . would be meaningless if [ORV use] were to proceed during the pendency of

this litigation.” San Luis Valley, 657 F. Supp. 2d at 1241; see also id. at 1242 (noting that

without an injunction “alternatives would be foreclosed and the environmental harm

would already be inflicted”). Because the Forest Service authorized ORV use on these

14 trails without a NEPA analysis, CBHA has suffered, and will continue to suffer,

irreparable harm.

Moreover, the June 2010 decision to authorize ORV use on these trails further

injures CBHA by creating “a bureaucratic steam roller” that will be difficult to undo.

Colorado Wild, 523 F. Supp. 2d at 1221 (citing Davis, 302 F.3d at 1115 & n.7). Each

additional year these trails are open to ORVs, the more damaged the Rico-West Dolores

ecosystem becomes—and the less attractive this landscape becomes to wildlife and quiet

forest users. See Marion Decl. ¶ 73. Thus, “the irreparable injury threatened here is not

simply” the adverse impacts of ORV use “in the relatively short interim before this action

is decided, it is the risk” that if CBHA prevails and the Forest Service is required to

prepare an EIS, “the bureaucratic momentum created by Defendants’ activities will skew


32

the analysis and decision-making of the Forest Service towards its original, non-NEPA

compliant [] decision.” Colorado Wild, 523 F. Supp. 2d at 1221.

The threat from a “bureaucratic steam roller” extends well beyond the current trail

designations. At some point in the coming years, the Forest Service will begin preparing

a new travel management plan (“TMP”) for the Rico-West Dolores area. See 36 C.F.R. §

212.51. This future plan will designate certain trails for motorized use, and because

TMPs do not automatically expire, those trail designations could remain in place

indefinitely. See 36 C.F.R. § 212.54. Even if the Forest Service someday revises it, the

TMP will likely govern ORV use within the RWD area for many years to come.

Given the long-term consequences of the TMP process, it is critical that the Forest

Service begin that process with the proper baseline. If the Forest Service starts from the

incorrect assumption that these 14 trails are already open to motorized use, the TMP will

likely permit more ORV use than if the Forest Service had started with the correct

baseline. In other words, by establishing an improper baseline for the future TMP

process, the Forest Service’s authorization of ORV use on the 14 trails creates a risk “that

the analysis of alternatives required by NEPA will be skewed toward” an outcome that

favors motorized use. Davis, 302 F.3d at 1115 n.7; Colorado Wild, 523 F. Supp. 2d at

1221.6 Because the unlawful authorization of ORV use on these 14 trails creates a

6 Nor is the risk of an improper baseline mere conjecture: the Draft EIS for the forthcoming Forest management plan includes a “no action” alternative that incorrectly identifies several of the RWD trails as being motorized. See Marion Decl. ¶¶ 70-72; see also Ex. 2 at 2.25, 3.402. The use of this incorrect baseline in the Forest planning process violates NEPA’s mandate that


33

bureaucratic steam roller, CBHA will suffer irreparable harm without a preliminary

injunction.

II. THE IRREPARABLE HARM TO CBHA OUTWEIGHS ANY POTENTIAL HARM TO DEFENDANTS.

In contrast to the irreparable injuries that CBHA would suffer without an

injunction, Defendants will suffer little or no harm if ORV use is prohibited while the

case is decided.

The Forest Service will suffer virtually no harm from a preliminary injunction. As

an initial matter, the agency has no legal or cognizable interest in allowing motorized use

on National Forest trails before it performs the environmental review required by NEPA.

An injunction would merely bring the Forest Service back into compliance with NEPA

and NFMA. See infra Part IV.

Nor would an injunction impose a financial hardship. To comply with the terms

of the injunction, the Forest Service would have to: issue an order prohibiting ORV use

on the 14 trails, remove several small trail signs, and stop distributing maps and other

literature suggesting that ORV use is allowed on these trails. None of these steps would

require a major commitment of resources.

an EIS “[i]nclude the alternative of no action.” 40 C.F.R. § 1502.14(d). More generally, an incorrect baseline taints the analysis in an EIS, preventing the agency from accurately considering the potential effects of different alternatives. See American Rivers v. FERC, 201 F.3d 1186, 1195 n.15 (9th Cir. 1999).


34

More importantly, any financial burden this injunction might cause the agency is

far outweighed by the serious, irreparable harm that CBHA and its members would suffer

without an injunction. As this Court has observed in deciding other preliminary

injunction requests, “economic harm . . . is not irreparable and does not outweigh the

serious risk that irreparable environmental harm will result if [the proposed action] is

allowed to proceed.” Colorado Wild, 523 F. Supp. 2d at 1222; see also Colorado Wild,

299 F. Supp. 2d at 1190. In this case, as in San Luis Valley, “the likelihood of irreparable

environmental injury and the risk of uninformed decisionmaking regarding such delicate

and intertwined natural resources[] outweighs any potential harm accruing to

Defendants.” 657 F. Supp. 2d at 1242.

The equities further favor an injunction because the agency’s injury was self-

inflicted. As the Tenth Circuit has noted, when a defendant has “jumped the gun” by

taking action without complying with environmental laws, the self-inflicted nature of the

defendant’s harm will weigh in favor of granting a preliminary injunction. Davis, 302

F.3d at 1116 (citation omitted); see also Sierra Club, 645 F.3d at 997. Because the Forest

Service opened the trails to ORV use without performing the required NEPA analysis,

any cost it incurs complying with the injunction would be self-inflicted.

The Intervenor-Defendants (hereinafter, “ORV Groups”) also will not suffer any

serious harm from a preliminary injunction. If, following merits briefing, the Court

ultimately finds that the authorization of ORV use was illegal, then motorized use on the


35

14 trails was improper to begin with. But even if Defendants eventually win, the only

cognizable harm to the ORV Groups would be a temporary delay in their members’

ability to ride ORVs on these trails. Where, as here, a plaintiff’s “injury is imminent and

irreparable,” and the defendants’ only harm is a delay before proceeding with their plans,

the “balance of equities tip sharply in plaintiff’s favor.” Save Strawberry Canyon, 613 F.

Supp. 2d at 1190; San Luis Valley, 657 F. Supp. 2d at 1242.

Nor would an injunction impair the ORV Groups’ recreational interests. For one

thing, an injunction would not materially restrict ORV opportunities within the San Juan

National Forest. Many other trails are legally open for ORV use, both within and

adjacent to the Rico-West Dolores area. For example, 119 miles of trails are available for

ORV use in the adjacent Mancos-Cortez Travel Management Area. Marion Decl. ¶ 22.

The RWD area itself contains approximately 85 miles of trails that are legally open to

ORVs under the 1992 Forest Plan, as well as 200 miles of unpaved roads. Id.

Moreover, the ORV Groups’ members would not be prevented from using and

enjoying the 14 RWD trails if an injunction were issued. These members could continue

to hike, hunt, fish, horseback ride, mountain bike, and engage in other quiet-use

recreational activities along these trails. As their declarations make clear, these members

regularly access the 14 trails through non-motorized means, including horseback riding,

mountain biking, and hiking. See, e.g., Bongiovanni Decl. ¶ 5 (Dkt. No. 6-1). The only

thing these individuals would be precluded from doing is riding ORVs on these particular


36

trails. This type of temporary restriction is neither serious nor irreparable. As the Ninth

Circuit Court of Appeals found when facing a similar issue:

[R]estrictions on human intervention are not usually irreparable in the sense required for injunctive relief. Unlike the resource destruction that attends development, and that is bound to have permanent repercussions, restrictions on forest development and human intervention can be removed if later proved to be more harmful than helpful. Enforced inaction of the type we are presented with here poses no immediate threat of harm which must be forestalled.

Kootenai Tribe of Idaho v. Veneman, 313 F.3d 1094, 1125 (9th Cir. 2002), abrogated on

other grounds by Wilderness Soc’y v. U.S. Forest Service, 630 F.3d 1173 (9th Cir. 2011).

The same calculus applies here: whereas CBHA and the natural resources of the RWD

landscape face irreparable harm without an injunction, the issuance of a preliminary

injunction would, at most, temporarily inconvenience the ORV Groups’ members.

Because any potential harm to the Defendants is modest, and because CBHA faces

serious harm without an injunction, the balance of harms favors the issuance of an

injunction.

III. A PRELIMINARY INJUNCTION WOULD SERVE THE PUBLIC INTEREST.

A preliminary injunction is also in the public interest, for at least two fundamental

reasons. First, the public “has an undeniable interest in the Forest Service’s compliance

with NEPA’s environmental review requirements and in the informed decision-making

that NEPA is designed to promote.” Colorado Wild, 523 F. Supp. 2d at 1223. In Davis,

the Tenth Circuit weighed the competing public interests in “construction of much-


37

needed highways” against the “strong public interest in NEPA compliance.” 302 F.3d at

1116. In that case, the court concluded “that the public interest associated with

completion of the [highway] Project must yield to the obligation to construct the Project

in compliance with relevant environmental laws,” including NEPA. Id. Here, where

there is no compelling public interest (such as a pressing transportation need) arrayed

against issuance of an injunction, the public interest tilts even more strongly in favor of

injunctive relief.

Second, and equally important, issuance of a preliminary injunction promotes the

public interest in protecting crucial natural resources, like those in the RWD landscape.

This goal is inherent in NEPA, Brady, 612 F. Supp. 2d at 26, as well as the other

environmental laws at issue in this case. See, e.g., Executive Order 11644 § 1, 37 Fed.

Reg. 2877 (Feb. 8, 1972) (seeking to “ensure that the use of off-road vehicles on public

lands will be controlled and directed so as to protect the resources of those lands”).

Fulfilling this goal is itself sufficient to satisfy the public interest requirement. As this

Court noted in Colorado Wild, a case involving a proposed logging project, “[t]here is an

overriding public interest in the preservation of biological integrity and the undeveloped

character of the Project area that outweighs public or private economic loss in this case.”

299 F. Supp. 2d at 1190-91. Here, the biological integrity of the RWD landscape—its

wildlife and habitat, plant communities, and soils—is threatened by ORV use on the 14

trails. See generally Marion Decl. ¶¶ 23-37; Exs. 8, 11. Because a preliminary


38

injunction would protect the Rico-West Dolores landscape from environmental harm, an

injunction is in the public interest.

IV. CBHA WILL LIKELY SUCCEED ON THE MERITS.

Finally, a preliminary injunction is warranted because CBHA will likely succeed

on the merits of its claims. CBHA’s Petition (Dkt. No. 1) alleges violations of NFMA,

NEPA, and Executive Orders 11644 and 11989. Because these provisions do not provide

a private cause of action, this Court reviews the Forest Service’s actions under the

Administrative Procedure Act (“APA”). See 5 U.S.C. § 702; see also Silverton

Snowmobile Club v. U.S. Forest Service, 433 F.3d 772, 779-80 (10th Cir. 2006) (noting

that courts review NEPA and NFMA claims under the APA).

Under the APA, an agency action is unlawful and must be set aside if it is

“arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law.” 5

U.S.C. § 706(2)(A). An agency action also must be set aside if it is unsupported by

substantial evidence in the record. Olenhouse v. Commodity Credit Corp., 42 F.3d 1560,

1574 (10th Cir. 1994). An agency action will be set aside “if the agency has relied on

factors which Congress has not intended it to consider, entirely failed to consider an

important aspect of the problem, offered an explanation for its decision that runs counter

to the evidence before the agency, or is so implausible that it could not be ascribed to a

difference in view or the product of agency expertise.” Id. (quoting Motor Vehicle Mfrs

Ass’n v. State Farm Mut. Ins. Co., 463 U.S. 29, 43 (1983)).


39

The APA provides for judicial review of final agency actions. See, e.g., Norton v.

S. Utah Wilderness Alliance, 542 U.S. 55, 61-62 (2004). An agency action is final if it

“mark[s] the ‘consummation’ of the agency’s decisionmaking process,” and is “one by

which ‘rights or obligations have been determined,’ or from which ‘legal consequences

will flow.’” Bennett v. Spear, 520 U.S. 154, 177-8 (1997) (citations omitted); see also

Franklin v. Massachusetts, 505 U.S. 788, 797 (1992) (finality turns on “whether the

agency has completed its decisionmaking process, and whether the result of that process

is one that will directly affect the parties”).

Although the Forest Service took a series of intermediate steps facilitating and

encouraging ORV use prior to 2010, see, e.g., Pet. ¶¶ 105-16, 123-28, the June 2010

Order is the final agency action in this case. The Order is, by definition, an agency

action, 5 U.S.C. § 551(13), and it satisfies the Bennett test. First, the Order represents the

culmination of a decisionmaking process. Barring a future change in agency policy, the

June 2010 Order will remain in effect until December 31, 2015. Ex. 17. Second, the

June 2010 Order has legal consequences. By approving motorized use on these 14 trails,

the Forest Service bestowed a legal right to ride ORVs on these trails and impaired the

ability of CBHA’s members and other quiet forest users to enjoy these trails. See Ex. 17

at 1-2. And the Order is enforceable with criminal penalties. Id. at 1. The June 2010

Order therefore represents a final agency action for purposes of the APA.


40

A. The Forest Service Violated the 1992 Forest Plan by Authorizing ORV Use on the RWD Trails.

Under the 1992 Plan, recreational ORV use is prohibited on at least 10 of the 14

trails at issue in this case. Because the June 2010 Order nevertheless sanctioned ORV

use on these trails, the Forest Service violated the 1992 Plan and NFMA.

As explained above at 7-9, NFMA establishes the legal framework for

management of national forests. Under NFMA, the Forest Service must “develop,

maintain, and, as appropriate, revise” forest plans. 16 U.S.C. § 1604(e). The 1992 Plan

is the governing forest plan for the San Juan National Forest, including the Rico-West

Dolores area. See generally Ex. 1. Under NFMA, site-specific projects and decisions

must be consistent with the forest plan. 16 U.S.C. § 1604(i); see also Lamb v. Thompson,

265 F.3d 1038, 1042 (10th Cir. 2001). Thus, if a proposed site-specific decision is

inconsistent with a forest plan, the Forest Service must either “modify the proposed

decision to make it consistent with the plan, reject the proposal; or amend the plan to

authorize the action.” 36 C.F.R. § 219.10. In issuing the June 2010 Order, however, the

Forest Service took none of those approaches. Instead, the agency simply disregarded the

requirements of the 1992 Plan.

All 14 trails at issue in this case are located wholly or partly within MA3A (non-

motorized) management areas. See Exs. 7, 10 (maps displaying management areas). The

1992 Plan imposes strict limits on ORV use within MA3A areas. An MA3A “area is

never open for motorized recreation activities except for specifically identified motorized


41

corridors through the area.” Ex. 1 at III-131. Thus, unless a trail within MA3A is

“specifically identified” as a motorized corridor, the 1992 Plan prohibits ORV use on that

trail.

In both the 1992 Plan and its predecessor (the 1983 Plan), only five of the 14 trails

have ever been “specifically identified” as motorized corridors: Bear Creek, Calico, Gold

Run, Grindstone, and Little Bear. These five trails were identified in Appendix G of the

1983 Plan. See Ex. 9 at G-2 (“Roads and Trails to Remain Open to the Public for

Motorized Within Management Area 3A”). Appendix G was referenced but not reprinted

in the 1992 Plan. Ex. 1 at III-2. Thus, nine of the 14 trails are located within MA3A

(non-motorized) areas and have never been “specifically identified” as motorized

corridors: Burnett Creek, Eagle Peak/Upper Stoner, East Fall Creek, Horse Creek, Johnny

Bull, Priest Gulch, Ryman Creek, Stoner Creek, and Wildcat. These nine trails are

therefore non-motorized under the 1992 Forest Plan. Because the Forest Service

nevertheless authorized ORV use on these nine trails in the June 2010 Order, the Forest

Service violated NFMA. See also Ex. 21 at 2 (Forest Service memorandum

acknowledging that motorized use occurs on trails not listed in Appendix G).

Likewise, the Forest Service’s decision to allow ORV use on Calico trail also

violates the 1992 Plan. The Calico trail was identified as a motorized corridor in the

1983 Plan. See Ex. 9 at G-2. But in 1990, the Forest Service amended the Plan and

reclassified the Landslip Mountain/Calico Peak area—through which the Calico trail


42

runs—from MA2A (motorized) to MA3A (non-motorized) because the “topography is

too steep, and the soils too erosive, for motorized recreation.” Ex. 1 at J-96 (Amendment

11). In shifting this area to a non-motorized classification, the Forest Service did not

“specifically identify” the Calico trail as a motorized corridor. Thus, although ORVs

were allowed on the Calico trail prior to 1990, Amendment 11 converted this trail to non-

motorized use. See Ex. 1 at J-98 to J-105 (maps of the changes made by the 1990

Amendments). Because the Forest Service did not “specifically identify” the Calico as a

motorized corridor when it moved a large section of this trail into MA3A, the 1992 Forest

Plan precludes ORV use on the Calico trail. And because the Forest Service nevertheless

authorized ORV use in the June 2010 Order, the agency’s action violates NFMA.7

Had the Forest Service wished to allow ORV use on these 10 trails, NFMA and its

implementing regulations prescribe the vehicle for doing so: amendment of the forest

plan. 16 U.S.C. § 1604(f)(4); 36 C.F.R. § 219.10. The Forest Service could have

proposed the creation of these 10 new “motorized corridors” and, following appropriate

environmental analyses and public involvement, the agency could have expanded the list

of motorized corridors in MA3A areas. See 36 C.F.R. § 219.8(b). But the agency did

none of those things. Instead, the Forest Service unlawfully short-circuited the NFMA

process by authorizing ORVs on these trails in the June 2010 Order. 7 As explained above in footnote 5, four of the 14 trails were identified as motorized corridors in Appendix G and unaffected by Amendment 11: Bear Creek, Gold Run, Grindstone, and Little Bear. Regardless of the status of these trails under the 1992 Plan, the Forest Service’s authorization of ORV use on these trails in June 2010 was unlawful because the agency’s decision violated both NEPA and Executive Order 11644. See infra at Parts IV.B-IV.D.


43

The Forest Service’s disregard of the 1992 Plan’s management requirements is

especially egregious given that the agency acknowledged those requirements just months

earlier. Following the Forest Service’s issuance of the Rico-West Dolores TMP, several

stakeholders appealed the decision because, among other things, the TMP’s designation

of several trails within MA3A areas “as motorized violates the Forest Plan.” Ex. 13,

Recommendation Memorandum at 2; see also Marion Decl., Ex. J at 2 (arguing that the

TMP’s designation of the Wildcat, Priest Gulch, Stoner Creek, Eagle Peak/Upper Stoner,

Johnny Bull, East Fall Creek, and Little Bear trails as motorized is inconsistent with the

1992 Plan’s MA3A classification). When he reversed the TMP in December 2009, the

Forest Supervisor agreed with this point, concluding that the designation of some of these

trails “as motorized violates the Forest Plan.” Ex. 13, Appeal Decision at 2.

Because site-specific decisions must be consistent with the 1992 Plan, 16 U.S.C. §

1604(i), and because the Forest Service’s authorization of ORV use on 10 of the RWD

trails contradicts the 1992 Plan, the June 2010 Order violates NFMA.

B. The Forest Service Violated NEPA by Authorizing ORV Use on the RWD Trails Without an Environmental Analysis.

One of the June 2010 Order’s principal effects was that it authorized ORV use on

the 14 RWD trails. See supra at 14-15. The Forest Service permitted this ORV use

without performing any environmental analysis. Indeed, since the 1992 Plan, the Forest

Service has never analyzed the environmental effects of its decision to allow ORV use on


44

these 14 trails. Because the June 2010 Order authorized ORV use without analyzing the

consequences of that decision, the Forest Service has violated NEPA.

As explained above at 29, NEPA requires federal agencies to take a “hard look” at

the likely environmental impacts of their proposed actions. Wyoming, 661 F.3d at 1263;

New Mexico, 565 F.3d at 703. Specifically, agencies must prepare environmental impact

statements (“EISs”) for major federal actions that significantly affect the environment.

See 42 U.S.C. § 4332(2)(C). An EIS must analyze the direct, indirect, and cumulative

impacts of an agency’s proposed action, and must consider alternatives to the proposal.

See 40 C.F.R. §§ 1502.14, 1502.16(a)-(b), 1508.7, 1508.8. If an agency is unsure

whether an EIS is required, the agency may prepare an environmental assessment (“EA”)

instead. 40 C.F.R. § 1508.9(a)(1). Although less comprehensive than an EIS, an EA still

briefly discusses the need for a proposed action, alternatives to it, and the environmental

impacts of the proposed action and its alternatives. Id. § 1508.9(b). If, after preparing an

EA, an agency determines that an EIS is not necessary, the agency must issue a finding of

no significant impact (“FONSI”) explaining why the proposed action will not have a

significant environmental impact. 40 C.F.R. §§ 1501.4(e), 1508.13.

A federal agency can avoid the need for an EIS or EA only when its proposed

action falls within a categorical exclusion (“CE”). CEs are actions which have been

previously determined to “not individually or cumulatively have significant effect on the

human environment.” 40 C.F.R. § 1508.4. If an agency wishes to invoke a CE, it must


45

do so explicitly before taking the action. Anacostia Watershed Soc’y v. Babbitt, 871 F.

Supp. 475, 481 (D.D.C. 1994). Thus, NEPA “unambiguously” requires either an EA or

EIS for all federal actions that have not been categorically excluded. Id. at 482.

The June 2010 Order, which authorized ORV use on the 14 Rico-West Dolores

trails, was a federal agency action with potential environmental effects. But the Forest

Service failed to take a “hard look” at those effects, preparing neither an EIS nor an EA

when it authorized ORV use on the 14 trails. Nor did the Forest Service invoke a

categorical exclusion in authorizing ORV use on these trails. Although the Forest

Service issued a CE for that portion of the June 2010 Order prohibiting ORV use in

cross-country areas, the CE did not apply to the simultaneous decision authorizing ORV

use on the 14 trails. See Ex. 22 (hereinafter, “2010 Decision Notice”). Indeed, the

agency failed entirely to consider the effects of ORV use on the 14 trails.

Far from “thoroughly investigat[ing] and forthrightly acknowledg[ing]” the

environmental effects of its action, Nat’l Audubon Soc’y v. Dept. of Navy, 422 F.3d 174,

199 (4th Cir. 2005), the 2010 Decision Notice does not even acknowledge that the Order

authorized ORV use on the 14 trails. See Ex. 22 at 2 ( asserting that “[n]o change in

current road and trail designations . . . occur [sic] under this decision”). But as explained

above in Part IV.A, 10 of the 14 trails are unquestionably non-motorized under the 1992

Forest Plan. And even if, as the record suggests, the Forest Service informally permitted

ORV use on these trails prior to the June 2010 Order, the agency has never analyzed the


46

environmental effects of motorized use on these trails. Because the authorization of ORV

use on the 14 trails must have had “some environmental impacts,” Brady, 612 F. Supp. 2d

at 25, the Forest Service violated NEPA by preparing neither an EIS nor EA.

And although the other four trails (Bear Creek, Gold Run, Grindstone, Little Bear)

arguably remained motorized under the 1992 Plan, the agency could not simply

reauthorize ORV use on those trails 18 years later without any analysis or discussion.

Courts have repeatedly held that agencies cannot reflexively rely on an old NEPA

analysis, but must instead “carefully reexamine whether the passage of time warrants

preparation of new EAs or EISs. . ., and explain whatever decision it makes.” Oregon

Natural Resources Council Action v. U.S. Forest Service, 445 F. Supp. 2d 1211, 1232 (D.

Or. 2006) (citing cases). Here, the Forest Service’s duty to revisit its 1992 decision

permitting ORV use on these four trails was especially compelling, because the agency

had been given significant new information that merited a “hard look.” See infra at Part

IV.C.

In sum, this “is not a case where an arguably inadequate EA was prepared or the

agency’s decision not to prepare an EIS is at issue.” Shivwits Band of Paiute Indians v.

Utah, Case No. 2:96CV1025C, 2001 WL 1806986 at *9 (D. Utah Mar. 21, 2001).

Rather, the Forest Service authorized ORV use on the 14 RWD trails without “any

environmental analysis at all.” Id. Because the June 2010 Order authorized ORV use on

the 14 trails without fulfilling “even the first and least burdensome step” of NEPA


47

compliance, the agency violated NEPA. Anacostia Watershed Soc’y, 871 F. Supp. at

487; see also United States v. Coal. for Buzzards Bay, Case No. 10-1664, --- F.3d ---,

2011 WL 1843818 (1st Cir. May 17, 2011) (finding NEPA violation where federal

agency “did not perform any environmental analysis at all”). By authorizing the use of

ORVs on the RWD trails in the June 2010 Order without preparing an EIS or an EA, the

Forest Service violated NEPA.

C. The Forest Service Violated NEPA by Failing to Consider Significant New Information Regarding the RWD Trails.

The Forest Service violated NEPA when it issued the June 2010 Order because it

failed to consider significant new information available to it at the time of its decision.

By June 2010, the Forest Service was aware of the ongoing degradation due to ORV use,

as well as its own non-compliance with current regulations for motorized use. Thus,

when the agency authorized motorized use on the Bear Creek trail network (Gold Run,

Grindstone, Grindstone Loop, and Little Bear trails), the agency could not simply rely on

the EIS for the 1992 Plan.

NEPA imposes an ongoing obligation for agencies to consider and address new

information, even after a proposal action has received initial approval. See Marsh v.

Oregon Natural Resources Council, 490 U.S. 360, 374 (1989). As the Supreme Court

explained in Marsh, NEPA requires agencies to take a “hard look” at environmental

actions, even after an EIS has been finalized. Id.; see also 40 C.F.R. § 1502.9(c)(1)(ii)

(requiring an agency to supplement an EIS when there are “significant new circumstances


48

or information relevant to environmental concerns and bearing on the proposed action or

its impacts” ).

Not all new information requires a supplemental EIS. See Marsh, 490 U.S. at 378-

85 (holding that once an agency has taken a “hard look” at the new information, it has

discretion in deciding whether that new information warrants a supplemental EIS).

An agency’s decision not to prepare a supplemental EIS will be upheld “so long as 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.” Trout Unlimited v. USDA, 320 F. Supp. 2d 1090, 1111 (D. Colo. 2004)

(quoting Colo. Envtl. Coalition v. Dombeck, 185 F.3d 1162, 1178 (10th Cir. 1999)). In

Trout Unlimited, this Court upheld the decision not to prepare a supplemental EIS,

finding that the Forest Service had substantially completed a final EIS, addressed the

changes at issue in an addendum, and provided an explanation for the decision. 320 F.

Supp. 2d at 1112.

But even if a supplemental EIS is not required, the agency must nevertheless

consider the new information. Id. Thus, the Ninth Circuit has found that the Forest

Service violated NEPA where the agency’s decision failed to consider the recent

designation of seven species as sensitive and the development of new old growth

management standards. Friends of the Clearwater v. Dombeck, 222 F.3d 552 (9th Cir.

2000). Because the Forest Service failed to consider this new information, and instead


49

operated under its prior EIS, the agency violated NEPA. Id. at 559. The court

emphasized that the Forest Service had knowledge of the information and that NEPA

required a “timely review” of whether that new information required a supplemental EIS.

Id.

Under these standards, the Forest Service should have considered new information

on ORV damage available to it, and clearly documented its decision-making process

before issuing the June 2010 Order. But the agency failed to do so.

As in Friends of the Clearwater, the Forest Service was aware of the new

information regarding the condition of the trails at issue. Prior to June 2010, CBHA and

its members repeatedly warned the Forest Service about the ongoing damage caused by

ORVs. See, e.g., Marion Decl. ¶¶ 42-61 (documenting numerous e-mails, letters, and

phone calls to the Forest Service describing the damage ORVs were causing to the RWD

area).

In addition to these communications, the Colorado Division of Wildlife supplied

additional new information to the Forest Service that should have been addressed. The

Division listed numerous instances of unauthorized motorized use in the area, as well as

the general decline of trail and habitat conditions. In a February 2008 letter, the Division

of Wildlife specifically pointed to ORV use on the Grindstone, Gold Run, Bear Creek,

and Little Bear trails, among others, as a basis for concern. Ex. 8 at 3-4. These concerns

included the impacts that ORVs have on wildlife, erosion of trails and subsequent


50

damage to vegetation, and the conflicts ORVs create with other uses, including hunters.

Id. The Division raised similar concerns in a June 2009 letter. See Ex. 11. Although the

Forest Service had all this information before it when it issued the June 2010 Order, the

agency neither analyzed nor discussed this information in authorizing motorized use on

the Rico-West Dolores trails. This violates NEPA.

If the Forest Service had thoroughly considered the new information that ORVs

were damaging the RWD area, it should have concluded that a supplemental EIS was

necessary. But even if it concluded that the information was not significant, the Forest

Service was still obligated to produce some record of its decision and reasoning. Marsh,

490 U.S. at 385 (“[R]egardless of its eventual assessment of the significance of this

information, the [agency] had a duty to take a hard look at the proffered evidence.”).

Here, because the Forest Service has no documentation of its analysis of this information

prior to the June 2010 Order, it has failed to meet even this burden. By not taking the

requisite “hard look,” the Forest Service acted unlawfully when it issued the June 2010

Order.

An agency must also re-examine its management plan when that plan “rests on

stale scientific evidence. . .and false assumptions.” Seattle Audubon Soc’y v. Espy, 998

F.2d 699, 704 (9th Cir. 1993). In Espy, the Forest Service issued an EIS that

incorporated a scientific model of the spotted owl population that had been criticized

prior to the finalization of the EIS. Id. Noting that the agency was free to either retain or


51

reject the model, the court stated that the agency must at least account for its reasoning

either way. Id.

In June 2010, the Forest Service was operating under an 18-year old forest plan.

In 2005 the Forest Service issued a Travel Management Rule, which was intended to

improve management of ORV use in the Forest. See 36 C.F.R. §§ 212.50(a), 212.51(a).

The Forest Service had recently vacated the 2009 TMP for the Rico-West Dolores area,

which included motorized designations in the Bear Creek network that the Forest

Supervisor found were arbitrary and “failed to minimize or mitigate impacts of motorized

use on wildlife resources. . . .” Ex. 13, Recommendation Memorandum, at 4, 5; Appeal

Decision at 2.

Because the 1992 Plan and EIS were issued years before the travel management

rule and these changed circumstances, the Forest Service should have been aware that its

forest plan rested on stale, outdated information. By not making a “timely review” of its

stale management plan in light of this new information, the Forest Service violated

NEPA. The agency’s lapse was especially egregious given that this new information

came from the agency itself. See Friends of the Clearwater, 222 F.3d at 559 (Forest

Service failed to evaluate ongoing timber sales in light of agency’s own sensitive species

designation and other Forest Service-generated information).

Finally, the June 2010 Order authorized motorized use on the 10 previously non-

motorized trails in tandem with the four trails in the Bear Creek network. This vast


52

expansion of motorized use in the Rico-West Dolores area likely caused new cumulative

effects that were not previously analyzed. Because the 1992 Plan assumes (at most) that

only four of the 14 trails are motorized, when it issued the June 2010, the Forest Service

had a further obligation to consider the new information about trail degradation in light of

this expanded authorization.

Because of the passage of time between the 1992 Plan and the June 2010 Order,

and because the Forest Service had significant new information regarding damage to the

trails, the Forest Service violated NEPA by not taking a “hard look” at this new

information.

D. The Forest Service Violated Executive Order 11644 by Designating Trails for Motorized Use Without Considering Impacts to Forest Resources.

In designating the 14 RWD trails as open for motorized use in the June 2010

Order, the Forest Service neither considered nor made efforts to minimize the effects of

motorized use on forest resources, wildlife, and other recreational users. By failing to do

so, the Forest Service violated Executive Order 11644 and 36 C.F.R. § 212.55.

Executive Order 11644 was issued in 1972 to “ensure that the use of off-road

vehicles on public lands will be controlled and directed so as to protect the resources of

those lands, to promote the safety of all users of those lands, and to minimize conflicts

among the various uses of those lands.” Executive Order 11644 § 1, 37 Fed. Reg. 2877

(Feb. 8, 1972). In furtherance of those goals, this Executive Order directs federal


53

agencies to adopt regulations requiring that the impacts of ORVs be considered when

designating trails for motorized use, and that efforts to be made minimize those impacts.

See id. § 3. The Forest Service subsequently issued regulations adopting these

requirements. See 36 C.F.R. § 212.55. Thus, when designating National Forest trails for

ORV use, the Forest Service must consider, with the objective of minimizing:

(1) Damage to soil, watershed, vegetation, and other forest resources;

(2) Harassment of wildlife and significant disruption of wildlife habitats; [and] (3) Conflicts between motor vehicle use and existing or proposed recreational uses of National Forest System lands or neighboring Federal lands.

36 C.F.R. § 212.55(b); see also Executive Order 11644 § 3.

Executive Order 11644 and 36 C.F.R. § 212.55(b) thus require the Forest Service

to consider the effects of ORVs on forest resources when designating trails for motorized

use. See Idaho Conservation League v. Guzman, 766 F. Supp. 2d 1056, 1071-72 (D.

Idaho 2011); Center for Sierra Nevada Conservation v. U.S. Forest Serv., No. CIV. S-09-

2523 LKK/JFM, 2011 WL 2119101, at *6 (E.D. Cal. May 26, 2011) (concluding that 36

C.F.R. § 212.55(b) and Executive Order 11644 compel the Forest Service to minimize

impacts from ORVs when designating trails for motorized use). Moreover, the Forest

Service is not only required to consider the impacts of ORV use, but is also required to

make efforts to minimize those impacts when designating trails for motorized use. See


54

Idaho Conservation League, 766 F. Supp. 2d at 1072; Sierra Nevada, 2011 WL 2119101,

at *6.

In Idaho Conservation League, the District of Idaho applied these standards in

finding a violation of Executive Order 11644 and 36 C.F.R. § 212.55. There, the Forest

Service had adequately considered the criteria set forth 36 C.F.R. § 212.55, because the

agency had developed numerous measures of the impacts of ORVs on various forest

resources. 766 F. Supp. 2d at 1072. The court nevertheless found that the Forest Service

had violated these regulations because the agency failed to demonstrate that these criteria

were “implemented into the decision process.” Id.; see also id. (“There is no way to

know how or if the Forest Service used this information to select routes with the

objective of minimizing impacts.”). Because the agency did not “explain how the

minimization criteria were applied in the route designation decisions,” the Forest Service

violated Executive Order 11644 and its implementing regulation. In this case, the Forest

Service violated Executive Order 11644 and 36 C.F.R. § 212.55 because it did not

consider—much less attempt to minimize—impacts to forest resources or user conflicts

when designating the 14 RWD trails for motorized use.

The Forest Service’s failure to consider these impacts is especially surprising

given that it previously acknowledged its duty to consider and minimize such impacts.

When he reversed the TMP for the Rico-West Dolores area in December 2009, the Forest

Supervisor concluded that the TMP should be overturned because, among other things,


55

the “[m]otorized trail designations failed to minimize or mitigate impacts of wildlife and

forest resources, as required by the travel management planning rules.” Ex. 13,

Recommendation Memorandum at 5; Appeal Decision at 2. In other words, the Forest

Supervisor concluded that the TMP issued in September 2009 improperly disregarded the

requirements of Executive Order 11644 and 36 C.F.R. § 212.55. Yet, the Forest Service

repeated that same mistake six months later when issued the June 2010 Order.

In its decision to allow ORVs on the 14 RWD trails, the Forest Service did not

consider the damage ORVs cause to soil and vegetation, harassment of wildlife, or

conflicts between motor vehicle use and other recreational uses. Nor has the agency

made any effort to minimize those impacts. Because the Forest Service did not meet its

obligations under Executive Order 11644 and 36 C.F.R. § 212.55, CBHA will likely

prevail on the merits of this claim.

E. The Forest Service Violated Executive Order 11989 by Permitting ORV Use on the Calico Trail When it Recognized That ORVs Were Damaging the Trail.

Executive Order 11989 and 36 C.F.R § 252.52(b)(2) require the Forest Service to

close trails to motorized use when ORVs are found to be causing “considerable adverse

effects” to forest resources. The Forest Service violated these legal requirements when it

authorized ORV use on the Calico trail despite its knowledge that ORV use on the trail

was causing considerable adverse effects.


56

Executive Order 11989, issued by President Carter in 1977, amended Executive

Order 11644 and “strengthened it considerably.” Utah Shared Access v. Carpenter, 463

F.3d 1125, 1130 (10th Cir. 2006). The amended Order requires an agency to

“immediately close” trails to motorized use if ORVs are causing or will cause

“considerable adverse effects” to “the soil, vegetation, wildlife, wildlife habitat or

cultural or historic resources.” Executive Order 11989 § 2, 42 Fed. Reg. 26959 (May 24,

1977). The Forest Service has adopted regulations to implement this requirement; the

regulations are codified at 36 C.F.R. § 212.52(b)(2).

Thus, under Executive Order 11989 and 36 C.F.R. § 212.52(b)(2), the Forest

Service has a mandatory duty to prohibit motorized use on a trail when it finds that ORVs

are causing considerable adverse effects to forest resources. See Utah Shared Access v.

Carpenter, 463 F.3d at 1130 (noting that closures under the Bureau of Land Management

regulation adopting Executive Order 11989, 43 C.F.R. § 8341.2(a), are

“nondiscretionary”); see also Gardner v. BLM , 638 F.3d 1217, 1223 (9th Cir. 2011)

(same); Idaho Conservation League, 766 F. Supp. 2d at 1078 (suggesting that the Forest

Service must close trails if it “determines that the use of off-road vehicles will cause or is

causing considerable adverse effects”).

In this case, the Forest Service found that the ORV use on the Calico trail was

causing considerable adverse effects. Specifically, in a February 2010 e-mail message,

the Forest Supervisor acknowledged that motorized trail use, together with past efforts to


57

improve the trail, were adversely affecting forest resources. See Ex. 23 at 1-2. He

acknowledged that ORV use was causing resource damage “including continued

accelerated erosion, trail braiding, and impacts to adjacent vegetation.” Id. at 2. The

Supervisor stated that these adverse effects “should be addressed as soon as practicable to

prevent further degradation of the area,” and ultimately concluded that there is “an

immediate need to correct a deteriorating situation that is leading to both onsite and

offsite environmental damage.” Id. (emphasis added).

As this e-mail reveals, the Forest Service found that motorized use on the Calico

trail was, at a minimum, causing significant adverse effects to soil and vegetation. Thus,

under Executive Order 11989 and 36 C.F.R § 252.52(b)(2), the Forest Service was

obligated to close the Calico trail to ORVs. But instead, four months later the Forest

Service did the opposite: in the June 2010 Order, the Forest Service expressly authorized

ORV use on the Calico trail. See generally Ex. 17. Because the Forest Service

concluded that motorized use on the Calico trail was causing considerable adverse effects

to forest resources, and because the agency sanctioned ORV use, rather than prohibiting

ORV use, the Forest Service violated Executive Order 11989 and 36 C.F.R. §

252.52(b)(2). The decision authorizing ORV use on the Calico trail was therefore

arbitrary, capricious, and not in accordance with law, 5 U.S.C. § 706(2), and CBHA will

likely prevail on this claim.


58

V. CBHA SHOULD NOT BE REQUIRED TO POST A BOND.

If this Court issues a preliminary injunction, CBHA respectfully requests that the

Court waive the bond contemplated by Federal Rule of Civil Procedure 65(c). As this

Court has recognized, courts have “discretion to dispense the security requirement, or to

request mere nominal security, where requiring security would effectively deny access to

judicial review.” Colorado Wild, 523 F. Supp. 2d at 1230-31; see also Davis, 302 F.3d at

1126 (“Ordinarily, where a party is seeking to vindicate the public interest served by

NEPA, a minimal bond amount should be considered.”); Save Strawberry Canyon, 613 F.

Supp. 2d at 1191 (waiving 65(c) bond in a NEPA case where “Plaintiff is a small non-

profit organization and has indicated that it would have difficulty posting the bond”).

Those are precisely the circumstances here.

As Mr. Marion’s declaration explains, CBHA is a non-profit, 501(c)(3) grassroots

organization of hunters and anglers who seek to conserve the public lands and their

natural resources. Marion Decl. ¶ 2. CBHA has extremely limited financial resources—

less than $5000 to support all its activities—and anything more than a minimal bond

would create financial hardship for the organization. Id. ¶ 75. Because CBHA brought

this suit to enforce NEPA, NFMA, and other environmental laws, and because the

imposition of a bond would effectively preclude CBHA’s “request for review of the

Forest Service’s decision and frustrate the policies underlying NEPA and the APA,”

Colorado Wild, 523 F. Supp. 2d at 1231, this Court should waive the Rule 65(c) bond.


59

CONCLUSION

For the foregoing reasons, CBHA respectfully requests that this Motion be

granted, and that the Court order the Forest Service to prohibit ORV use on the 14 trails

at issue in this case pending a final decision on the merits.

Dated: March 28, 2012 Respectfully submitted,

s/ Michael C. Soules Michael C. Soules, Colo. Bar No. 43474 [email protected]

s/ Andrew Nicewicz Andrew Nicewicz, Student Attorney [email protected] s/ Boe Nicholson Boe Nicholson, Student Attorney [email protected] Natural Resources Clinic University of Colorado Law School Wolf Law Building, UCB 404 Boulder, CO 80309-0404 (303) 492-5897 Counsel for Plaintiff Colorado Backcountry Hunters and Anglers


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