Case 1:11-cv REB Document 42 Filed 06/20/12 Page 1 of 19 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF IDAHO

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1 Case 1:11-cv REB Document 42 Filed 06/20/12 Page 1 of 19 IGNACIA S. MORENO Assistant Attorney General Environment & Natural Resources Division WENDY J. OLSON (ID Bar No. 7634) United States Attorney SYRENA C. HARGROVE (ID Bar No. 6213) Assistant United States Attorney District of Idaho 800 Park Blvd., Suite 600 Boise, ID Tel: (208) Fax: (208) Syrena.hargrove@usdoj.gov JULIE S. THROWER (CA Bar No ) Trial Attorney Natural Resources Section Environment & Natural Resources Division United States Department of Justice 301 Howard Street, Ste San Francisco, CA Tel: (415) Fax: (415) julie.thrower@usdoj.gov Attorneys for Federal Defendant UNITED STATES DISTRICT COURT FOR THE DISTRICT OF IDAHO WINTER WILDLANDS ALLIANCE, Plaintiff, v. UNITED STATES FOREST SERVICE, Case No. 1:11-cv REB FEDERAL DEFENDANT S MEMORANDUM IN SUPPORT OF CROSS- MOTION FOR SUMMARY JUDGMENT AND IN OPPOSITION TO PLAINTIFF S MOTION FOR SUMMARY JUDGMENT Federal Defendant.

2 Case 1:11-cv REB Document 42 Filed 06/20/12 Page 2 of 19 INTRODUCTION Plaintiff Winter Wildlands Alliance ( Alliance ) brings a facial challenge to Subpart C of the Forest Service s 2005 Travel Management Rule ( Rule ), 36 C.F.R. Part 212, Subpart C, as well as a challenge to the Forest Service s denial of Alliance s petition to amend the Rule. Alliance claims that because Subpart C does not require the Forest Service to designate those roads, trails, and areas that are open to over-snow vehicle use, the Rule violates Executive Order 11644, as amended by Executive Order Alliance also alleges that it was arbitrary and capricious for the Forest Service to exclude over-snow vehicle use from mandatory designation when it promulgated the 2005 Travel Management Rule. Finally, Alliance contends that the Forest Service s denial of Alliance s petition to amend the Rule to make designation for over-snow vehicles mandatory is arbitrary and capricious. Alliance has moved for summary judgment on its claims. See Pl. s Mot. Summ. J. and Opening Br. in Supp. of Mot. Summ. J. ( Pl. s Br. ) (ECF Nos. 40, 40-1). Federal Defendant Forest Service opposes Alliance s motion and also moves for summary judgment. As set forth below, Subpart C of the 2005 Travel Management Rule is not arbitrary or capricious, and it fully complies with the requirements of Executive Order In addition, the Forest Service s denial of Alliance s petition was based on a reasoned analysis and thus is not arbitrary or capricious. The Forest Service is entitled to summary judgment on all claims. FED. DEF. S MEM. IN SUPP. OF CROSS-MOT. SUMM. J. AND IN OPP N TO PL. S MOT. SUMM. J. 2

3 Case 1:11-cv REB Document 42 Filed 06/20/12 Page 3 of 19 FACTUAL BACKGROUND 2 In 1972, President Richard Nixon signed Executive Order 11644, which requires federal land management agencies to develop regulations to provide a systematic approach to the management of recreational off-road motor vehicle travel on Federal lands. Exec. Order No. 11,644, 37 Fed. Reg. 2,877 (Feb. 8, 1972), as amended by Exec. Order No. 11,989, 42 Fed. Reg. 26,959 (May 24, 1977). Although the Forest Service issued regulations in 1978 to manage recreational travel, see 36 C.F.R. Part 295 (2004), by 2003, Forest Service Chief Dale Bosworth identified unmanaged recreation, particularly associated with wheeled motor vehicle use, as one of the four threats facing our National Forests today. TMR:V1:A5 at 48; TMR:V1:D28 at ; TMR:V1:A3 at (discussing various impacts from wheeled motor vehicles). 3 The significant increase in wheeled motor vehicle use about 109 percent, from 20 million users in 1982, to 41.9 million in 2000, TMR:V1:F8 at 2291, 2294; TMR:V1:A3 at 42 and the creation and widespread use of new wheeled motor vehicles previously not available were causing severe impacts on the land. TMR:V1:A5 at 48; TMR:V1:A3 at 42. The adverse impacts included unplanned roads and trails, TMR:V1:A5 at 48, soil erosion, id, [a]reas... rutted and scarred by cross-country vehicles tracks, TMR:V1:A3 at 42, and dense, braided networks of criss-crossing trail. TMR:V1:B14 at 553; see also TMR:V2:J2 at 4028 (slides 3-5); TMR:V2:J4 at 4030 (slides 19-21, 22-34). All of these highly visible impacts from wheeled motor vehicles were creating a very different landscape on our nation s Forests. TMR:V1:A5 at 48. Under the Forest Service s prior travel management regulations, 36 C.F.R. Part 295, 2 Pursuant to Local Rule 7.1, Federal Defendant has provided relevant material facts in its separate Statement of Undisputed Material Facts, and only provides a brief description of the case here. 3 Administrative Record citations are indicated by TMR for the 2005 Travel Management Rule Administrative Record, or PR for the petition response Administrative Record, and are followed by the volume number of the compact disk, and the PDF file name. E.g., TMR:V1:A3. FED. DEF. S MEM. IN SUPP. OF CROSS-MOT. SUMM. J. AND IN OPP N TO PL. S MOT. SUMM. J. 3

4 Case 1:11-cv REB Document 42 Filed 06/20/12 Page 4 of 19 many National Forest managers kept their Forests open to motor vehicle use unless there was a pressing reason to close them. TMR:V1:A3 at 42. This approach, called the open unless posted closed approach, 4 worked for many years until the growing popularity and capabilities of [off-road vehicles] demand[ed] new regulations. TMR:V1:B14 at 553. In 2004, the Forest Service proposed new travel management regulations, see Travel Management: Designated Routes and Areas for Motor Vehicle Use, 69 Fed. Reg. 42,381 (July 15, 2004) (TMR:V1:A9), which were issued in final form in November See 70 Fed. Reg. 68,264 (TMR:V1:B14). The 2005 Travel Management Rule was designed to tackle the environmental impact of motor vehicle use by establishing a framework for generally prohibiting cross-country travel by wheeled motor vehicles, TMR:V1:A5 at 48, thus shifting the Forest Service s prior open unless posted closed management approach to a designated system of routes (trails and roads) and areas where motor vehicle use off the designated system is prohibited. TMR:V1:A9 at 157. The Rule thus requires the designation of those National Forest System roads, National Forest System trails, and areas on National Forest System lands that are open to wheeled motor vehicle use and prohibits wheeled motor vehicle use that is inconsistent with those designations. 36 C.F.R In addition, the Rule contains Subpart C, which regulates use by over-snow vehicles. 36 C.F.R. Part 212, Subpart C. Subpart C authorizes the Forest Service to allow, restrict, or prohibit over-snow vehicle use. 36 C.F.R Subpart C does not require designation of routes and areas for over-snow vehicle use. Id. The Forest Service determined that because of the less widespread impacts from over-snow vehicle use and because often it is appropriate for 4 Alliance wrongly characterizes management approaches referred to as open unless posted closed and closed unless posted open as Forest Service policies. See, e.g., Pl. s Br. at 3 (discussing the open unless posted closed policy ). FED. DEF. S MEM. IN SUPP. OF CROSS-MOT. SUMM. J. AND IN OPP N TO PL. S MOT. SUMM. J. 4

5 Case 1:11-cv REB Document 42 Filed 06/20/12 Page 5 of 19 over-snow vehicles to travel off route, requiring designation of roads, trails, and areas that are open to over-snow vehicle use was not necessary. TMR:V1:B14 at 562, 573. On August 27, 2010, Alliance filed a petition with the Forest Service requesting that the Agency amend the 2005 Travel Management Rule to require the designation of those National Forest System roads and trails, and areas on National Forest System lands that are open to oversnow vehicle use. PR:V2:K4 at On March 25, 2011, after review of the petition s merits, the Forest Service denied Alliance s request to amend the Rule. PR:V2:K16 at , Alliance filed this lawsuit challenging both Subpart C of the Rule, and the Forest Service s denial of Alliance s petition to amend the Rule. LEGAL BACKGROUND The Administrative Procedure Act imposes a narrow and highly deferential standard of review limited to a determination of whether the agency acted in a manner that was arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law. 5 U.S.C. 706(2)(A); see Citizens to Pres. Overton Park, Inc. v. Volpe, 401 U.S. 402, 416 (1971). The Administrative Procedure Act directs the court to review the whole record or those parts of it cited by a party. 5 U.S.C Thus, the court s review is limited to the administrative record before the agency decision-maker. See Fla. Power & Light Co. v. Lorion, 470 U.S. 729, 743 (1985); Camp v. Pitts, 411 U.S. 138, 142 (1973); see also Occidental Eng g Co. v. Immigration & Naturalization Serv., 753 F.2d 766, 769 (9th Cir. 1985) (stating that the court s role is to determine whether or not as a matter of law the evidence in the administrative record permitted the agency to make the decision it did ). [T]he ultimate standard of review is a narrow one, and [t]he court is not empowered to substitute its judgment for that of the agency. Volpe, 401 U.S. at 416; accord Earth Island Inst. v. U.S. Forest Serv. ( Earth Island II ), 442 FED. DEF. S MEM. IN SUPP. OF CROSS-MOT. SUMM. J. AND IN OPP N TO PL. S MOT. SUMM. J. 5

6 Case 1:11-cv REB Document 42 Filed 06/20/12 Page 6 of 19 F.3d 1147, 1156 (9th Cir. 2006); Anderson v. Evans, 371 F.3d 475, 489 (9th Cir. 2004). Rather, the reviewing court should reverse an agency decision as arbitrary and capricious only if the agency relied on factors Congress did not intend it to consider, entirely failed to consider an important aspect of the problem, or offered an explanation 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. Lands Council v. McNair, 537 F.3d a981, 987 (9th Cir. 2008) (internal quotation marks and citation omitted). None of these bases for reversal applies here. ARGUMENT I. Subpart C of the 2005 Travel Management Rule complies with the law. Alliance argues that because Subpart C does not require the Forest Service to designate roads, trails, and areas as open to over-snow vehicle use, Subpart C violates Executive Order and is arbitrary and capricious. Pl. s Br. at As discussed below, both of these assertions lack merit. The Court should enter judgment in favor of the Forest Service. A. Subpart C complies with Executive Order Subpart C of the 2005 Travel Management Rule fully complies with Executive Order Alliance s contention that the Executive Order mandates promulgation of a regulation that requires the designation of all areas, roads, and trails on National Forest System lands as open, restricted, or closed to over-snow vehicle use, Pl. s Br. at 7-10, is not supported by the plain language of the Executive Order or the law. Accordingly, Alliance s motion for summary judgment should be denied. The purpose of Executive Order was to create a unified Federal policy for the management of off-road motor vehicles on Federal lands by giving Federal agencies the authority to establish policies and provide for procedures that would effectively manage this type of recreational use. Exec. Order No , 1 (TMR:V1:D29 at 1380). The Executive FED. DEF. S MEM. IN SUPP. OF CROSS-MOT. SUMM. J. AND IN OPP N TO PL. S MOT. SUMM. J. 6

7 Case 1:11-cv REB Document 42 Filed 06/20/12 Page 7 of 19 Order requires promulgation of regulations that establish a framework for designation of areas and trails for off-road motor vehicle use, and provides the authority to, but does not require, the Forest Service to designate trails and areas for motor vehicle use. Id., 3. Specifically, Executive Order states that: Id., 3(a) (emphasis added). Each respective agency head shall develop and issue regulations and administrative instructions... to provide for administrative designation of the specific areas and trails on public lands on which the use of off-road vehicles may be permitted, and areas in which the use of off-road vehicles may not be permitted. Moreover, Executive Order 11989, which added section 9 to Executive Order 11644, demonstrates that the Forest Service is not required to designate all lands as open, restricted, or closed to off-road motor vehicle use. See id., 9(b) (authorizing, but not requiring, a federal land management agency to designate trails and areas for off-road motor vehicle use). If designation was required by section 3, there would be no reason that an agency would have to or need to adopt a policy that portions of the public lands within his jurisdiction shall be closed to use by off road vehicles.... Id., 9(b). In other words, if section 3(a) required a designated system, section 9(b) would be unnecessary. Section 9 simply gives a land management agency the authority to establish a system of trails and areas designated for motor vehicle use, but it does not require a land management agency to do so. 5 5 The distinction between sections 3(a) and 9(b) is noted in the preamble to the proposed travel management rule, which states: Section 3(a) of E.O directs the Forest Service to promulgate regulations that provide for designation of trails and areas for off-road motor vehicle use.... Section 9(b) was added to E.O when it was amended by E.O Section 9(b) specifically authorizes the Forest Service to adopt the policy to designate those areas or trails that are suitable for motor vehicle use and to close all other areas and trails to that use. FED. DEF. S MEM. IN SUPP. OF CROSS-MOT. SUMM. J. AND IN OPP N TO PL. S MOT. SUMM. J. 7

8 Case 1:11-cv REB Document 42 Filed 06/20/12 Page 8 of 19 In issuing the prior travel management regulations at 36 C.F.R. Part 295, the Forest Service met the requirements of the Executive Order by promulgating regulations that allowed administrative units to use the existing land management planning process to allow, restrict, or prohibit off-road motor vehicle use based on consideration of the minimization criteria in the Executive Order. See 36 C.F.R (a) (2004). Similarly, the 2005 Travel Management Rule is consistent with the Executive Order s mandate to issue regulations that provide a systematic approach for evaluating the designation of National Forest System lands for wheeled motor vehicle use and prohibitions and restrictions on the use of over-snow vehicles by considering the minimization criteria in the Executive Order. See 36 C.F.R , (c). Contrary to Alliance s contention, Pl s Br. at 8, over-snow vehicle use is not exempted from the requirement in the Executive Order to establish a framework for regulating off-road motor vehicle use on Federal lands. With respect to over-snow vehicle use, Subpart C maintains the regulatory status quo established by 36 C.F.R. Part 295, which authorized, but did not require, the Forest Service to allow, restrict, or prohibit motor vehicle use. See 36 C.F.R (a). Consistent with the requirements of Executive Order 11644, Subpart C further directs that if the Forest Service proposes restrictions or prohibitions on over-snow vehicle use, the agency must consider the same minimization criteria found in section for the designation of roads, trails, and areas for wheeled motor vehicle use, and the same public participation requirements found in section C.F.R (c). The criteria found in section of the Rule explicitly track those found in section 3 of the Executive Order. TMR:V1:A9 at 157. FED. DEF. S MEM. IN SUPP. OF CROSS-MOT. SUMM. J. AND IN OPP N TO PL. S MOT. SUMM. J. 8

9 Case 1:11-cv REB Document 42 Filed 06/20/12 Page 9 of 19 Contrary to Alliance s interpretation, nothing in the Executive Order requires the designation of areas and trails. Pl. s Brief at 8 (emphasis added). Alliance s reliance on the district court s decision in the National Wildlife Federation v. Morton in support of this interpretation is misplaced. See Pl. s Br. at 9. The Morton case is distinguishable from the present case in two ways. First, the court in Morton held that the Bureau of Land Management s ( Bureau ) regulations violated Executive Order because the Bureau made a blanket designation of all public lands as open to offroad vehicle use and that this wholesale designation was done without regard to any of the criteria mandated by the Executive Order. Morton v. Nat l Wildlife Fed n, 393 F. Supp. 1286, 1292 (D.D.C. 1975). The Bureau s regulations provided that the Bureau may designate any public lands as restricted or closed to off-road vehicle use. 43 C.F.R (a) (1978). However, the regulations went one step further, declaring that all public land not restricted or closed to [off-road vehicle] use remain open to off-road vehicle use and are hereby designated as open use areas and trails.... Morton, 393 F. Supp. at 1288 (citing 43 C.F.R (a) (1974)) (emphasis added). In contrast, Subpart C does no such thing. See 36 C.F.R Rather than authorize a blanket designation of National Forest System lands as open, Subpart C authorizes the appropriate official to allow[ ], restrict[ ], or prohibit[ ] over-snow vehicle use on such lands. 36 C.F.R (a). Subpart C also provides that if restrictions or prohibitions are proposed, those restrictions or prohibitions shall be established through consideration of the minimization criteria in accordance with the Executive Order. 36 C.F.R (c). Thus, Subpart C does not designate land without regard to any of the criteria mandated by the Executive Order. See Morton, 393 F. Supp. at FED. DEF. S MEM. IN SUPP. OF CROSS-MOT. SUMM. J. AND IN OPP N TO PL. S MOT. SUMM. J. 9

10 Case 1:11-cv REB Document 42 Filed 06/20/12 Page 10 of 19 Second, the Morton court found that the Bureau s regulations violated the Executive Order because the regulations fail[ed] to ensure that all public lands will be evaluated and designated in accordance with Section 3(a) of the Order. Id. at The court was concerned that under the Bureau s regulations areas and routes would be evaluated under the criteria established by the Executive order only if the authorized officer chooses to exercise his discretionary authority to redesignate. Id. If the authorized officer chose not to redesignate areas and routes that were already designated prior to the signing of the Executive Order, these areas and routes might never be designated in accordance with the minimization criteria. See id. This was because the regulations at issue in the Morton case were the first regulations for offroad vehicle travel management that the Bureau had issued after Executive Order was signed. See Use of Off-Road Vehicles, 39 Fed. Reg. 13,612 (Apr. 15, 1974). Thus, any prior designations of land by the Bureau as open or closed for motor vehicle use would not have necessarily considered the minimization criteria in Executive Order In contrast, Subpart C requires the responsible official to consider the Executive Order s minimization criteria whenever he or she imposes restrictions or prohibitions on over-snow vehicle use. See 36 C.F.R (c). The Forest Service s prior designations of areas and trails as open or closed to motor vehicle use, including over-snow vehicle use, were established pursuant to 36 C.F.R. Part 295, which explicitly required the Forest Service to consider the Executive Order s minimization criteria in its designations. See 36 C.F.R Furthermore, the 2005 Travel Management Rule allows for incorporation of previous travel management decisions made under other authorities in designating routes and areas. FED. DEF. S MEM. IN SUPP. OF CROSS-MOT. SUMM. J. AND IN OPP N TO PL. S MOT. SUMM. J. 10

11 Case 1:11-cv REB Document 42 Filed 06/20/12 Page 11 of 19 Thus, the Morton case does not support Alliance s interpretation that the Executive Order requires that routes and areas be designated. Accordingly, Subpart C does not violate the Executive Order. B. A reasonable basis supports the Forest Service s decision. Contrary to Alliance s assertions, the Forest Service did not violate the Administrative Procedure Act in promulgating Subpart C of the 2005 Travel Management Rule. See Pl. s Br. at Alliance argues that the Forest Service failed to adequately explain why over-snow vehicle use should be treated differently from other motor vehicle use. Pl. s Br. at 13. As discussed below, the key impetus for the revision of the agency s prior travel management regulations was the impacts and conflicts occurring from increased use of wheeled motor vehicles. And the administrative record demonstrates that it was reasonable for the Forest Service to create a separate regulatory scheme that applied to over-snow vehicle use. Thus, Alliance s motion for summary judgment should be denied. The rationale for not mandating designation of routes and areas for over-snow vehicle use was included in the 2004 preamble to the proposed travel management rule: [A] sowmobile traveling over snow results in different and less severe impacts to natural resource values than wheeled motor vehicles traveling over the ground. Consequently, in contrast to wheeled motor vehicles, it may be appropriate for snowmobiles to travel off route. TMR:V1:A9 at 161; TMR:V1:B14 at 562 (stating that cross-country use of snowmobiles presents a different set of management issues and environmental impacts than cross-country use of other types of motor vehicles ). This rationale was further explained in the response to comments on the proposed rule: FED. DEF. S MEM. IN SUPP. OF CROSS-MOT. SUMM. J. AND IN OPP N TO PL. S MOT. SUMM. J. 11

12 Case 1:11-cv REB Document 42 Filed 06/20/12 Page 12 of 19 Unlike other motor vehicles traveling cross-country, over-snow vehicles traveling cross-country generally do not create a permanent trail or have a direct impact on soil and ground vegetation. Therefore, the Department believes that use by oversnow vehicles should be addressed in separate regulatory provisions and that mandatory designation of use by over-snow vehicles is not appropriate. 70 Fed. Reg. at 68,284 (TMR:V1:B14 at 573). The administrative record provides ample support for the Forest Service s conclusion to address over-snow vehicle use in a separate regulatory provision[ ]. Just as Alliance describes in its brief, see Pl. s Br. at 10-12, the key reasons for the revision to the Forest Service s prior travel management regulations were a substantial increase in motor vehicle use; increased capability of motor vehicles; significant adverse environmental impacts; increased user conflicts; and an approach to management that was no longer working. TMR:V1:A3 at 41-42; TMR:V1:B14 at 560. However, the administrative record demonstrates that the Forest Service s concerns and the impetus for rule revision were largely focused on wheeled motor vehicle use, and not over-snow vehicle use. See TMR:V1:A3 at 42. In 2003, Forest Service Chief Dale Bosworth identified unmanaged recreation, especially natural resource impacts from wheeled OHVs, as one of the greatest threats to national forests. TMR:V1:A5 at 48 (emphasis added); TMR:V1:D28 at Between 1982 and 2000, wheeled motor vehicle use, or those participating in driving off-road, had increased by 109 percent from 20 million users to 41.9 million. TMR:V1:A3 at 42; TMR:V1:F8 at 2291, But increased use was not the only problem. New wheeled vehicles all-terrain vehicles (ATVs) and sport utility vehicles (SUVs) that are able to travel off-road and had not been previously available were now widely used and growing in popularity. 69 Fed. Reg. at 42,383 (TMR:V1:A9 at 158). Most of the major environmental FED. DEF. S MEM. IN SUPP. OF CROSS-MOT. SUMM. J. AND IN OPP N TO PL. S MOT. SUMM. J. 12

13 Case 1:11-cv REB Document 42 Filed 06/20/12 Page 13 of 19 impacts identified by the Forest Service unplanned roads and trails, soil erosion, areas rutted and scarred by cross-country vehicle tracks, and a braided patch of criss-crossing trails were from wheeled motor vehicles. TMR:V1:A3 at 42; TMR:V1:A5 at 48; see also TMR:V1:A5 at 48 ( Impressive advances in motor vehicle technology coupled with the increased capability of motor vehicles to travel off flat, firm roads have created a very different landscape.... ). The preamble to the proposed travel management rule also recognizes that the majority of the problem was from impacts caused by wheeled motor vehicles. 69 Fed. Reg. at 42,382 (TMR:V1:A9 at 157). The preamble discusses several studies conducted by the Forest Service that have raised these same issues. Id. All of these studies discussed the impacts of wheeled motor vehicles and the benefits associated with restricting cross-country wheeled motor vehicle use. Id. Because of the increasingly significant impacts of motor vehicle use on National Forest System lands, the Forest Service proposed a travel management rule that would generally prohibit cross-country travel by wheeled motor vehicles and require designation of roads, trails, and areas as open to wheeled motor vehicle use. TMR:V1:A5 at 48 (emphasis added). Although some of the same issues arise with over-snow vehicle use as with wheeled motor vehicle use on National Forest System lands, it was not unreasonable for the Forest Service to create separate regulatory provisions for over-snow vehicle use. The percent of oversnow vehicle use has also increased substantially, by 125 percent. TMR:V1:F8 at 2291, But the actual number of users is substantially less 6 million in 1982, and 13.5 million in 2000 compared to 20 million wheeled motor vehicle users in 1982, and 41.9 million in Id. And unlike the impacts from wheeled motor vehicle use, the direct impacts on the ground from over-snow vehicle use are less severe. The Forest Service thus recognized that it may be entirely appropriate for over-snow vehicles to travel off-route. 70 Fed. Reg. at 68,284 FED. DEF. S MEM. IN SUPP. OF CROSS-MOT. SUMM. J. AND IN OPP N TO PL. S MOT. SUMM. J. 13

14 Case 1:11-cv REB Document 42 Filed 06/20/12 Page 14 of 19 (TMR:V1:B14 at 573). It did not make sense, therefore, for the Forest Service to require prohibition of cross-country travel for over-snow vehicles as it did for wheeled motor vehicles. Finally, the 2005 Travel Management Rule does not exempt over-snow vehicles from the requirements of the Executive Order. The Forest Service recognized that over-snow vehicle use has impacts on National Forest System resources and preserved its authority in 36 C.F.R. Part 295 to allow, restrict, or prohibit over-snow vehicle use. TMR:A1:A9 at 161; see 36 C.F.R (a). Under Subpart C, once an administrative unit or ranger district determines that the restrictions or prohibitions on over-snow vehicle use are appropriate, the same criteria in establishing those restrictions and prohibitions apply as for designation of roads, trails, and areas for wheeled motor vehicle use. 36 C.F.R (c). Thus, Subpart C fully complies with the Executive Order and fully meets the intent to ensure that the use of off-road vehicles on public lands will be controlled and directed so as to protect the resources, promote [user] safety, and minimize conflicts. Exec. Order No (TMR:V1:D29 at 1380). The Court should find in favor of the Forest Service and uphold the 2005 Travel Management Rule. II. The Forest Service s denial of Alliance s petition to amend the 2005 Travel Management Rule was not arbitrary or capricious. Alliance advances two arguments of why the Forest Service s decision to deny Alliance s petition to amend the 2005 Travel Management Rule is arbitrary and capricious. First, Alliance contends that the Forest Service misinterpreted Executive Order 11644, the agency s own regulations, and the case law, and relied on that misinterpretation in reaching its decision. Pl. s Br. at Second, Alliance argues that the Forest Service failed to provide a rational explanation for denying Alliance s petition to amend the Rule to make designation of roads, trails, and areas for over-snow vehicle use mandatory. Pl. s Br. at Alliance s arguments lack merit, and the Court should deny its summary judgment motion. FED. DEF. S MEM. IN SUPP. OF CROSS-MOT. SUMM. J. AND IN OPP N TO PL. S MOT. SUMM. J. 14

15 Case 1:11-cv REB Document 42 Filed 06/20/12 Page 15 of 19 The Forest Service s interpretation of the Executive Order, its own prior travel management regulations, and the case law is reasonable. Thus, the agency s decision to deny Alliance s petition is not arbitrary or capricious. 6 First, the Forest Service reasonably concluded that the Executive Order does not require the agency to designate areas, roads, and trails on all National Forest System lands for motor vehicle use. PR:V1:K16 at As discussed in the Forest Service s response to Alliance s petition, the Executive Order directs Federal land management agencies to develop regulations to provide for [administrative] designation[s] and requires that all land designated be evaluated under the criteria set forth in section 3 of the Executive Order, but does not mandate that an agency s regulations require that all Federal land under its jurisdiction be designated. PR:V2:K16 at 4328 (quoting Exec. Order No , 3). Moreover, the agency reasonably concluded that its own prior regulations did not require the Forest Service to designate all National Forest System lands C.F.R provides that [o]n National Forest System lands, the continuing land management planning process will be used to allow, restrict, or prohibit use by specific vehicle types off roads. And consistent with the Executive Order, those regulations required the Forest Service to consider the section 3 criteria in its designations. 36 C.F.R (2004). Nothing in the Federal Register notice for the final rule or the regulations themselves indicates that the regulations mandate designations. 6 The fact that the Forest Service stated in its response to the petition that it did not find the Executive Order to be enforceable, PR:V2:K16 at 4327, does not make its decision to deny Alliance s petition to amend the 2005 Travel Management Rule arbitrary and capricious. See Pl. s Br. at 15. On the contrary, even if the conclusion was wrong, this was a harmless error because the Forest Service reached the merits of the petition, see PR:V2:K16 at , and its conclusion that the Executive Order was not enforceable had no bearing on... the substance of [the] decision reached. Sierra Club v. U.S. Fish & Wildlife Serv., 245 F.3d 434, 444 (5th Cir. 2001) (citation omitted). As explained below, infra at pgs , the Forest Service had a reasoned basis for denying Alliance s petition to amend the 2005 Travel Management Rule. 7 Even if incorrect, the Forest Service s interpretation of the prior travel management regulations constitutes harmless error because its conclusion had no bearing on... the substance of [the] decision reached. See Sierra Club, 245 F.3d at 444. FED. DEF. S MEM. IN SUPP. OF CROSS-MOT. SUMM. J. AND IN OPP N TO PL. S MOT. SUMM. J. 15

16 Case 1:11-cv REB Document 42 Filed 06/20/12 Page 16 of 19 Likewise, as discussed above, supra at pgs. 9-10, the Forest Service s interpretation that the Morton case did not mandate that an agency s regulations require designation was reasonable. See PR:V2:K16 at Courts have given deference to an agency s interpretation of statutes and executive orders it is charged with administering. Am. Fed n of Gov t Emps., AFL-CIO/AFGE, Council 147 v. Fed. Labor Relations Auth., 204 F.3d 1272, (9th Cir. 2000); Kester v. Campell, 652 F.2d 13, 15 (9th Cir. 1981). To be sustained, the agency s interpretation need not be the only reasonable interpretation. Id. at It must simply be a reasonable interpretation. The agency s interpretation will be found reasonable unless it is plainly erroneous or inconsistent with the (order). Id. at 16 (citation omitted). As explained above, the Forest Service s interpretation that Executive Order does not mandate that the agency s regulations require all land under its jurisdiction to be designated as open, closed, or restricted to motor vehicle use is reasonable and therefore should be accorded deference. Additionally, the Forest Service provided a reasoned explanation as to why it denied Alliance s petition to amend the 2005 Travel Management Rule and why requiring mandatory designations for over-snow vehicle use does not make sense. The Forest Service cited several factors that make over-snow vehicle use different from motor wheeled vehicle use, including lack of use on every administrative unit; the varying environmental impacts from one unit to the next; and the fact that impacts associated with over-snow vehicle use are not as widespread as with wheeled motor vehicle use. PR:V2:K16 at ; see also PR:V2:K10 at 4311 (no detrimental effects of snowmobile use on vegetation with adequate snow); 69 Fed. Reg. at 42, (TMR:V1:A9 at ) (discussing widespread impacts of wheeled motor vehicle use across many National Forests). In addition, in promulgating the 2005 Travel Management FED. DEF. S MEM. IN SUPP. OF CROSS-MOT. SUMM. J. AND IN OPP N TO PL. S MOT. SUMM. J. 16

17 Case 1:11-cv REB Document 42 Filed 06/20/12 Page 17 of 19 Rule, the Forest Service had identified differences in impacts between over-snow vehicle use and wheeled motor vehicle use. And after reviewing the 162 pages of information provided by Alliance in its petition, see PR:V2:K4 at , the Forest Service found that none of the information justified amending the 2005 Travel Management Rule. PR:V2:K16 at The Forest Service also considered the practicalities of meeting the requirements of mandating designation for over-snow vehicle use when the agency s funding and staff were already stretched thin in trying to complete the Agency s priorities under Subparts A and B of the Travel Management Rule. PR:V2:K13 at Based on these factors, the Forest Service determined that a new national rule mandating designation of routes and areas for over-snow vehicle use was not warranted at that time. In light of this information, it was reasonable for the Forest Service to determine that it was best to leave the decision of whether new over-snow vehicle use restrictions or prohibitions were required up to each individual unit, PR:V2:K16 at 4333, and deny Alliance s petition. Despite the fact that the 2005 Rule does not require designations for over-snow vehicle use, all National Forests in Idaho have restrictions or prohibitions governing over-snow vehicle use. 8 See Ex. A (Table of over-snow vehicle restrictions and prohibitions in National Forests in Idaho and elsewhere). Although some of these restrictions were made pursuant to the prior travel management rule, 36 C.F.R. Part 295, these management decisions were still made pursuant to the minimization criteria in Executive Order and are still valid. As explained above, the Forest Service s denial of Alliance s petition to amend the 2005 Travel Management Rule had a reasonable basis. Consequently, the Court should find that the Forest Service s decision was not arbitrary or capricious and rule in favor of the Forest Service. 8 In addition, other Forest Service administrative units have imposed restrictions and prohibitions on over-snow vehicle use, as needed. See, e.g., Ex. A. FED. DEF. S MEM. IN SUPP. OF CROSS-MOT. SUMM. J. AND IN OPP N TO PL. S MOT. SUMM. J. 17

18 Case 1:11-cv REB Document 42 Filed 06/20/12 Page 18 of 19 CONCLUSION For the reasons set forth above, Subpart C of the 2005 Travel Management Rule and the Forest Service s decision to deny Alliance s petition to amend the 2005 Travel Management Rule are not arbitrary and capricious. Furthermore, the 2005 Travel Management Rule fully complies with the requirements of Executive Order Plaintiff s motion for summary judgment should be denied, and Federal Defendant is entitled to summary judgment on all claims. Of Counsel: Respectfully submitted this 20th day of June Ellen R.Hornstein USDA Office of the General Counsel Stop 1412 Washington, D.C IGNACIA S. MORENO Assistant Attorney General Environment & Natural Resources Division /s/ Julia Thrower JULIE S. THROWER (CA Bar No ) Trial Attorney United States Department of Justice Environment & Natural Resources Division 301 Howard Street, Ste San Francisco, CA Tel: (415) Fax: (415) julie.thrower@usdoj.gov Attorneys for Federal Defendant FED. DEF. S MEM. IN SUPP. OF CROSS-MOT. SUMM. J. AND IN OPP N TO PL. S MOT. SUMM. J. 18

19 Case 1:11-cv REB Document 42 Filed 06/20/12 Page 19 of 19 CERTIFICATE OF SERVICE I HEREBY CERTIFY that on the 20th day of June 2012, I filed the foregoing document electronically through the CM/ECF system, which caused the following parties or counsel to be served by electronic means, as more fully reflected on the Notice of Electronic Filing: Michael A. Ealy mealy@ramsdenlyons.com Laurence J. Lucas llucas@lairdlucas.org Lauren M. Rule lrule@advocateswest.org Paul A. Turke pat@msbtlaw.com; cam@msbtlaw.com AND I FURTHER CERTIFY that on such date I served the foregoing on the following non- CM/ECF Registered Participates in the manner indicated: None /s/ Julia Thrower JULIE S. THROWER Attorney for Federal Defendant FED. DEF. S MEM. IN SUPP. OF CROSS-MOT. SUMM. J. AND IN OPP N TO PL. S MOT. SUMM. J. 19