Honorable Stephen M. McNamee, Senior United States District Judge.
Pending before the Court is Plaintiffs WildEarth Guardians, Grand Canyon Wildlands Council, Wildlands Network, and Sierra Club's (collectively, "Plaintiffs") motion for summary judgment and memorandum of points and authorities in support. (Docs. 44-45.) Plaintiffs filed a statement of facts and declarations in support of their motion. (Docs. 46-48.) Federal Defendants Heather Provencio and United States Forest Service (collectively, "Defendants") filed a cross-motion for summary judgment and a response in opposition to Plaintiffs' motion, and a statement of facts in support. (Docs. 49-51.) Plaintiffs filed a reply to Defendants' cross motion and response (Docs. 65, 66), to which Defendants filed a reply (Doc. 72).
Also pending before the Court is Intervenor-Defendant Safari Club International's cross-motion for summary judgment (Doc. 52-53) and Intervenor-Defendant State of Arizona's cross-motion for partial-summary judgment (Doc. 55). Intervenor Defendants filed statements of facts in support of their motions. (Docs. 54, 56-57.) Plaintiffs filed one response in opposition to Intervenor-Defendants' motions (Doc. 70), to which Intervenor-Defendants filed separate replies (Docs. 74, 75). The Court also granted Rocky Mountain Elk Foundation leave to file an Amicus Curiae Brief in support of Defendants. (Doc. 80.)
The matter being fully briefed, the Court now issues the following ruling.
A. The Kaibab National Forest
The Kaibab National Forest ("KNF") is located in northern Arizona and consists of three ranger districts: the North Kaibab Ranger District ("NKRD"), the Tusayan Ranger District ("TRD"), and the Williams Ranger District ("WRD").
The NKRD encompasses approximately 655,078 acres in Coconino and Mohave Counties in North Central Arizona and is bounded on the south by the North Rim of the Grand Canyon National Park and on the remaining sides by Bureau of Land Management areas. (AR 13949.) The TRD encompasses 331,427 acres of National Forest and is located just south of the
All three ranger districts provide opportunities for recreational activities, including hiking, hunting, and camping. (AR 13973-13974; 26054-26055; 40861-40864.) The ranger districts are also home to a number of plant and animal species, including some threatened and endangered species. (AR 14009-14031; 26128-26158; 26098-26115; 40903-40923; 40933-40960.) The ranger districts are also home to numerous cultural resources. On the NKRD, for example, heritage or cultural resources include remains of "limited activity sites such as hunting and gathering camps, prehistoric agricultural areas, rock art, and historic resource extraction areas; habitation sites including pueblos, prehistoric residential camps, and historic cabins; linear features like roads, trails, and fences; and special use sites including traditional cultural properties of significance to area tribes." (AR 14032.) On the TRD, archaeologists have identified 1,770 cultural resources, recorded 379 sites with above ground masonry architecture, and documented 259 historic period sites that include cabins, mines, mining camps, railroad grades and camps, line shacks, water storage features, an airport hangar, sweat lodges, hogans, and pinyon nut gathering camps. (AR 26158.) Cultural resources on the WRD include "prehistoric artifacts scatters, ancestral puebloan sites with masonry structures, prehistoric agricultural areas, cultural sensitive sites such as Traditional Cultural Places, historic cabins, logging railroad grades and camps, Civilian Conservation Corp camps ..., [and] historic Forest Service administration buildings." (AR 40960.)
B. The Travel Management Projects
The NKRD, TRD, and WRD undertook projects to designate a system of roads on each ranger district. (AR 13952, 26023, 40835.) The goal of each project was to improve the management of motorized vehicle use on each ranger district in accordance with the 2005 Travel Management Rule (discussed infra). (AR 13947, 26020, 40830.) These travel management projects resulted in the publication of Motor Vehicle Use Maps showing those roads designated for motor vehicle use. (
Each ranger district developed an Environmental Assessment presenting the results of the analysis of the direct, indirect, and cumulative environmental effects of the proposed action and alternatives to the proposed action (discussed infra). (AR 13942, 26041, 40823.) The decisions implementing the chosen actions for each ranger district were documented in Decision Notices signed by the Kaibab National Forest Supervisor and Findings of No Significant Impacts. (AR 14236, 25876, 41266.)
C. National Historic Preservation Act Obligations
The Forest Service's National Historic Preservation Act obligations for each ranger district's travel management decisions are guided by the First Amended Programmatic Agreement Regarding Historic Property Protection and Responsibilities between Region 3 of the Forest Service, the Advisory Council on Historic Preservation, and the States of Arizona, New Mexico, Texas, and Oklahoma. (S00233-322). Pursuant to the Programmatic Agreement, the parties developed the Standard Consultation Protocol for Travel Management Route Designation, found in Appendix I to the Agreement. (S00300-08.) The Protocol outlines the process for compliance with Section 106 of the NHPA for travel management, listing the activities for which further Section 106 is required, and those activities which are exempt. (S00301-02.) The NHPA, the Programmatic Agreement, and the Protocol are described in greater detail infra.
D. The Present Action
Plaintiffs commenced this action in January 2016 alleging violations of the National Environmental Policy Act ("NEPA"); Executive Order 11644, as amended by Executive Order 11989; the National Historic Preservation Act ("NHPA"); and certain "implementing regulations established pursuant to these federal statutes and executive orders," including the Travel Management Rule ("TMR"). (Doc. 1 at ¶ 1.) Defendants are Heather Provencio, Forest Supervisor for the Kaibab National Forest, and the United States Forest Service ("Forest Service"). (
Plaintiff WildEarth Guardians is a non-profit conservation organization that "works[s] to protect the natural and cultural features of landscapes within national forests and other public lands, including their wildlife and historic properties." (
II. LEGAL STANDARD
Administrative Procedure Act
Plaintiffs' claims are brought under the Administrative Procedure Act ("APA"), 5 U.S.C. §§ 701-706 (2012). (Doc. 1 at ¶¶ 1-3.) Under the APA, a reviewing court may overturn a final agency action if the action is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2)(A).
Summary judgment is an appropriate vehicle for resolving challenges to agency action under the APA.
Plaintiffs move for summary judgment on the grounds that the Forest Service violated the Travel Management Rule, the National Environmental Policy Act, and the National Historic Preservation Act. (Doc. 45 at 6, 15, 45.)
TRAVEL MANAGEMENT RULE
In 2005, the Department of Agriculture revised its regulations regarding travel management on National Forest System lands in order to "clarify policy related to motor vehicle use, including the use of off-highway vehicles." Travel Management; Designated Routes and Areas for Motor Vehicle Use, 70 Fed. Reg. 68264-01, 2005 WL 2986693 (Nov. 9, 2005) (codified at 36 C.F.R. §§ 212, 251, 261, 295). The TMR "prohibit[s] the use of motor vehicles off the designated system, as well as use of motor vehicles on routes and in areas... not consistent with the designations."
Motor vehicle use on a National Forest System road, on a National Forest System trail, and in an area on National Forest System land is prohibited unless that road, trail, or area is specifically designated for motor vehicle use. 36 C.F.R. § 212.51(a); § 261.13. Exempt from this prohibition are certain vehicles and uses, such as limited administrative use by the Forest Service, law enforcement responses to violations of law, and the authorized use of any combat or combat support vehicle for national defense purposes. § 212.51(a)(4),(6)-(7). A notable exception to the general prohibition
The MBGR exception provides that "the responsible official may include in the designation [of routes] the limited use of motor vehicles within a specified distance of certain forest roads or trails where motor vehicle use is allowed, and if appropriate within specified time periods" for the purpose of retrieving a downed big game animal.
§ 212.1 (emphasis added). Based on the plain language of these definitions, it is clear that the MBGR exception applies following the designation of roads or trails (i.e., routes) for motor vehicle use. The use of "roads or trails" following the use of "routes" in the MBGR exception lends further support to this conclusion.
The TMR contains general and specific criteria for the Forest Service to consider when designating trails, areas, and roads for motor vehicle use. § 212.55 (a)-(c). The general criteria apply to trails, areas, and roads, and require that
§ 212.55(a). The specific criteria apply to trails and areas, and roads, respectively. § 212.55(b)-(c). When designating trails or areas, the responsible official must consider effects on, with the objective of minimizing, a number of things, such as damage to soil, harassment of wildlife, and significant disruption of wildlife habitats.
Plaintiffs raise two TMR arguments. First, Plaintiffs argue that the Forest Service violated the TMR because it failed to "limit and sparingly apply" the MBGR exception by allowing "extensive" cross-country off-road motorized vehicle use for the purpose of big game retrieval, and second, that the Forest Service violated the TMR by failing to consider, or failing to sufficiently consider, the minimization criteria set forth in § 212.55(b). (Doc. 45 at 8, 11.) The Court will examine these arguments in reverse order.
A. 36 C.F.R. § 212.55(b) Minimization Criteria
Plaintiffs allege that the Forest Service violated the TMR by failing to consider, or failing to sufficiently consider, the minimization criteria set forth in § 212.55(b). (Doc. 45 at 11-12.) Section 212.55(b) lists the specific criteria which a responsible official must consider when designating trails or areas for motor vehicle use, such as damage to soil, harassment of wildlife, and significant disruption of wildlife. § 212.55(b)(1)-(5).
Plaintiffs assert that the Forest Service was obligated to consider the minimization
As a preliminary matter, the Court finds that the Forest Service has not "maintained that it complied" with the minimization criteria of § 212.55(b) for the WRD. Plaintiffs' citations to the record in support of the assertion do not, in fact, support it. First, the quotation taken from AR 41091 is taken out of context. When quoted in full:
(AR 41091.) The repeated mentions of "road system" indicate that the Forest Service was likely referring to compliance with § 212.55(c), not § 212.55(b). Moreover, the statement that the responsible official has "complied with all of 36 CFR part 212.55" necessarily means that he complied with either § 212.55(a) and (b), or § 212.55(a) and (c) — depending on whether he designated trails or areas, or roads.
Neither does the quotation taken from AR 40838 support the assertion that Forest Service "maintained that it complied" with the criteria set forth in § 212.55(b). The quote is also taken out of context. The quote appears under the heading "Motorized Trails and Areas" and under the sub-heading "Desired Condition." The "Desired Condition" sub-heading focuses on trails. Thus, the statement that the transportation system is "within the District's ability to manage (operate and maintain) and provides a variety of users with a safe and diverse experience while minimizing resource impacts (36 C.F.R. § 212.55(b))" is consistent with the regulation requiring the Forest Service to consider the minimization criteria if it designates trails (or areas). (AR 40837-38.)
Finally, the quotation from AR 41436-37 is an excerpt from the Forest Service's response to the contention that "none of the alternatives comply" with § 212.55(a) or (b). Although the response to the contention lists the minimization criteria of § 212.55(b) and then cites the WRD's Environmental Assessment ("EA"), Decision Notice ("DN") and Finding of No Significant
The Court now turns to Plaintiffs' charge that the Forest Service violated the TMR by failing to consider the minimization criteria of § 212.55(b).
Plaintiffs summarily argue that the Forest Service designated areas for MBGR on each ranger district and therefore was required to apply the minimization criteria of § 212.55(b). (Doc. 45 at 11-14.) The Forest Service urges the Court to reject Plaintiffs' argument that the ranger districts' authorization of MBGR constitutes a "de facto designation of a discrete `area' that falls within the definition of `area' in the TMR ..." (Doc. 49-1 at 28.) The Forest Service argues that the regulations do not treat MBGR as designation of an area, but rather "as a narrow exception to the closure of the administrative unit to motor vehicle use..." (Doc. 49-1 at 28.) In support, the Forest Service cites the preamble to the Forest Service's final rule, which provides: "[o]n some units, it may be possible to administer motor vehicle use associated with dispersed camping or big game retrieval through a permit system, rather than as a component of a designation" (
The Court agrees with the Forest Service's characterization of MBGR as a "component of a designation" and finds that MBGR is a component of trail and road — not area — designations. As explained supra, the plain language of the MBGR exception makes clear that where the responsible official designates roads or trails (i.e., routes) for motor vehicle use, he or she may then apply the MBGR exception. Accordingly, Plaintiffs' argument — that the Forest Service designated areas for MBGR on each ranger district and therefore was required to apply the minimization criteria of § 212.55(b) — simply fails.
The Court thus rejects Plaintiffs' argument that the Forest Service violated the TMR by failing to apply the minimization criteria of § 212.55(b).
B. Motorized Big Game Retrieval Exception: 36 C.F.R. § 212.51(b)
Plaintiffs also allege that the Forest Service violated the TMR because it failed to "limit and sparingly apply" the MBGR exception by allowing "extensive" cross-country off-road motorized vehicle use for the purpose of big game retrieval. (Doc. 45 at 8-9, citing AR 25878, AR 14241, AR 41268). In response, the Forest Service contends that the AR "demonstrates that the one-mile MBGR exceptions on the three districts allow for limited exceptions to the general prohibition on cross-country motor vehicle use" and that the Forest Service gave "careful consideration to limiting the exception in order to allow reasonable opportunity to retrieve downed big game animals, while
As stated supra, the MBGR exception provides that "the responsible official may include in the designation [of routes] the limited use of motor vehicles within a specified distance of certain forest roads or trails where motor vehicle use is allowed, and if appropriate within specified time periods" for the purpose of retrieving a downed big game animal. § 212.51(b). For the following reasons, the Court finds that the Forest Service has adhered to the directives of § 212.51(b).
First, the Forest System has imposed a number of limitations on the use of motor vehicles in each of the ranger districts for the purpose of retrieving a downed big game animal. For example, on the NKRD, MBGR is limited in the following ways: (1) only legally harvested bison or elk may be retrieved; (2) MBGR of legally harvested bison or elk is only allowed during seasons designated by the Arizona Game and Fish Department ("AZGFD"), and for 24 hours following each season; (3) only one vehicle (one trip in and one trip out) is allowed for MBGR per harvested animal; (4) hunters are required to use the most direct and least ground disturbing route in and out of the area to accomplish the retrieval; (5) MBGR is not allowed in any existing off-road travel restricted area, or when conditions are such that travel would cause negative resource impacts. (AR 14241.) Notably, these limitations are a significant departure from the previous policy which did not limit the number of trips for MBGR, did not limit the type of species which could be retrieved by motor vehicle, did not limit the distance traveled from system roads, and had no restrictions on seasons or weather conditions and no requirement for use of a direct route. (AR 14248.)
Similar to the NKRD, the TRD and WRD impose the following limitations on MBGR: (1) only legally harvested elk may be retrieved; (2) MBGR of legally harvested elk is only allowed during seasons designated by the AZGFD, and for 24 hours following each season; (3) only one vehicle (one trip in and one trip out) is allowed for MBGR per harvested animal; (4) hunters are required to use the most direct and least ground disturbing route in and out of the area to accomplish the retrieval; (5) MBGR is not allowed in any existing off-road travel restricted area, or when conditions are such that travel would cause negative resource impacts; and (6) motorized vehicles would not be permitted to cross riparian areas, streams and rivers except at hardened crossings or crossings with existing culverts. (AR 25878, 41269.) On the TRD, these limitations were a significant departure from the previous policy which did not limit the number of trips for MBGR, did not limit the type of species which could be retrieved by motor vehicle, did not limit the distance traveled from system roads, and had no restrictions on seasons or weather conditions and no requirement for use of a direct route. (AR 25884.)
Not only has the Forest Service placed limitations on the use of motor vehicles in each ranger district, but it has also applied mitigation measures to "ensure environmental effects remain at acceptable levels." (AR 14243, 25879). Mitigation measures on the NKRD include: (1) prohibiting MBGR when it results in damage to natural and cultural resources and/or compromises the ability of the Forest Service to meet management objectives; and (2) providing motor vehicle operators information and ethics guidance at portals located at main access points on the District, on the
In addition to these limitations and mitigation measures, the Forest Service monitors those areas where MBGR is authorized "to assess for damage to natural and cultural resources and/or frequently occurring actions that compromise the ability of the Forest Service to meet management objectives." (AR 14243, 25880, 41270.) If damage to soil or vegetation is discovered, the Forest Service "will take the necessary action" to move the areas/corridors into compliance with the Forest Plan, which may include temporary or permanent closure to motorized vehicle use. (
The Court finds that the aforementioned limitations on MBGR, the mitigation measures to contain the environmental effects on MBGR, and the monitoring of MBGR demonstrate that the Forest Service has authorized the limited use of motor vehicles for the purpose of retrieving downed big game animals on the NKRD, TRD, and WRD.
Moreover, the record supports the Forest Service's decision to authorize MBGR on the three ranger districts. (AR 13942, 26014, 40822.) Each Environmental Assessment shows that off-road motor vehicle use for up to one mile off of every open NKRD, TRD, or WRD road would have no significant impact on ranger district resources.
For example, big game harvest data published by the AZGFD led the Forest Service to reasonably conclude that corresponding levels of cross-country motor vehicle use would have no significant impact on the NKRD's resources. (AR 13986, 13988-89, 14036, 14020.) In 2009, the estimated number of bison retrieved by motor vehicle was 34, and the estimated number of elk retrieved by motor vehicle was zero. (AR 13956). The selected alternative allows for MBGR of bison and elk only, and does not allow for the MBGR of mule deer on the NKRD because mule deer is a far more popular game species on the NKRD — in 2009, it was estimated that 918 mule deer were harvested by motor vehicle. (AR 13956.) Thus, the relatively small number of motor vehicle retrievals of bison and elk, combined with the aforementioned limitations, mitigation measures, and monitoring by the Forest Service, support the Forest Service's decision to authorize MBGR for bison and elk retrieval on the NKRD and show that it was neither arbitrary nor capricious.
On the TRD and WRD, a seemingly large number of elk is expected to be retrieved by motor vehicle on an annual basis (414 in the TRD, 695 in the WRD). (AR 26026, 40840). However, a very small percentage of each district is expected to be actually impacted by MBGR (0.06% of the TRD, or 200 acres, and 0.625% of the WRD, or 350 acres), and currently, most motorized big game retrievals in the TRD and WRD use one trip with a vehicle and leave "very little or no evidence" that the trip occurred. (AR 26160, 26026, 40962, 40839). These facts, combined with the aforementioned limitations, mitigation measures, and monitoring by the Forest Service, support the Forest Service's decision to authorize MBGR of elk on the TRD and WRD and show that the decision was neither arbitrary nor capricious.
A reviewing court "must uphold agency decisions so long as the agenc[y] ha[s] considered the relevant factors and articulated a rational connection between the factors found and the choices made."
NATIONAL ENVIRONMENTAL POLICY ACT
NEPA is a "procedural statute that requires the Federal agencies to assess the environmental consequences of their actions before those actions are undertaken."
The EIS requirement serves two important purposes. First, "it ensures that the agency, in reaching its decision, will have available, and will carefully consider, detailed information concerning significant environmental impacts."
A federal agency may prepare an Environmental Assessment ("EA") to decide whether the environmental impact of a proposed action warrants preparation of an EIS. 40 C.F.R. § 1508.9. An EA is a "concise public document" that "briefly provide[s] sufficient evidence and analysis for determining whether to prepare an environmental impact statement or a finding of no significant impact." § 1508.9(a). An EA must include "brief discussions... of the environmental impacts of the proposed action and alternatives, and a listing of agencies and persons consulted." § 1508.9(b). If an agency determines that an EIS is not required, it must issue a FONSI, briefly describing why the action "will not have a significant effect on the human environment ..." § 1508.13.
In reviewing an agency decision not to prepare an EIS, a court inquires whether the "responsible agency has reasonably concluded that the project will have no significant adverse environmental consequences."
Plaintiffs raise two NEPA arguments. First, Plaintiffs contend that the Forest Service violated the NEPA by failing to take a "hard look" at "several categories of environmental effects." (Doc. 45 at 19.) Second, Plaintiffs contend that the Forest Service violated the NEPA by declining to prepare an EIS for each travel management plan "despite the presence of several significance factors indicating possible significant environmental consequences of the proposed actions." (
A. Whether the Forest Service Took a "Hard Look"
Plaintiffs argue that the Forest Service failed to take a "hard look" at the effects of: MBGR on each ranger district; closing routes on each ranger district; and past, present, and future motorized use on each ranger district. (Doc. 45 at 19.) The Court will address each argument in turn.
1. Effects of MBGR
Plaintiffs argue the Forest Service failed to analyze, or failed to adequately analyze, the effects of MBGR with regard to wet conditions, erodible soils, invasive weeds, tire tracks, animal habitat, and hunter noncompliance. (Doc. 45 at 19-23.) For the following reasons, the Court rejects the argument.
Regarding wet conditions, Plaintiffs dispute the Forest Service's conclusion that MBGR "will result in short term negative effects to some recreation settings on just a few hundred acres per district per year" and contend that each ranger district's EA and DN/FONSI "ignore the fact that nearly the entire forest is going to be open to motorized cross-country travel, placing far more than a few hundred acres at risk for continued damage each year." (
The record does not support Plaintiffs' contention. First, it is an exaggeration to say the "entire forest is going to be open to motorized cross-country travel" when each ranger district's proposed action prohibits unrestricted cross-country motor vehicle use, with the exception of dispersed camping and MBGR (AR 26063-65, 13985, 40880-82), and limits MBGR to certain seasons (AR 14241, 25878, 41269). Second, the EAs make clear that MBGR, on an annual basis, is anticipated to impact only.0099% of the acreage on the NKRD, 0.06% of the TRD, and 0.0625% of the WRD. (AR 14042-43, 26160, 40962.) The EAs provide the methodology behind these estimates. (
Based on the foregoing, the Court has no reason to find that the Forest Service "ignored" the effects of MBGR with regard to wet conditions. To the contrary, the Court finds that the Forest Service adequately analyzed the effects of MBGR with regard to wet conditions and provided convincing reasons why the potential effects of MBGR on wet conditions would be insignificant.
Regarding erodible soils, Plaintiffs argue the NKRD EA is insufficient because it did not undertake a site-specific analysis despite the fact that "highly erodible soils are found on more than 233,900 acres in the [NKRD]" and "[off road vehicle] use is highly discouraged on over 244,573 acres." (Doc. 45 at 20.) Plaintiffs do not say why additional analysis beyond that which was conducted by the Forest Service is required. Defendants contend that their analysis, conducted on a district-wide scale, was appropriate. (Doc. 49-1 at 33-34.)
The Court agrees with Defendants. Given the fact that "[t]he effects to soils by motorized uses on native surface routes are directly related to the impact caused by the vehicle footprint on the ground" (AR 13997), and the fact that the cross-country motorized travel prohibition and MBGR limitations apply across the NKRD, it was not unreasonable for the Forest Service to conduct a district-wide analysis. And, the Court finds that the Forest Service properly considered the impacts on soil by motorized uses in its EA. (AR 13991-14009.) Accordingly, the Court finds that the Forest Service satisfied NEPA's "hard look" requirement with respect to the impact the NKRD's MBGR allowance may have upon soils.
Regarding invasive weed dispersion, Plaintiffs argue that "there is no analysis of the impacts of continued use of cross-country travel throughout nearly the entire forest on the spread or management of invasive species other than the statement that the action alternatives `would reduce the introduction and spread of exotic weeds by hunters.'" (Doc. 45 at 20-21 (emphasis added).) There is simply no support for this statement.
The Forest Service conducted an adequate analysis of the potential effect of the MBGR alternatives on the introduction of new species. (AR 26117-28, 14015-18, 40923-33.) For example, each ranger district's EA discusses the general effects of invasive exotic weeds and the various ways that those weeds may be introduced or spread. (AR 26117-19, 14015-17, 40923-24.) Each ranger district's EA recognizes that motorized vehicle is a common, if not the most common, cause of weed introduction and spread. (AR 26117, 14015, 40923.) Each ranger district's EA also describes the direct and indirect effects on invasive exotic weeds accompanying each alternative. (AR 26117-28; 14017-18; 40926-33.) Based on all of this, the Court finds that the Forest Service did consider the effect of MBGR on the introduction of new species, and their consideration and discussion of the issue meets NEPA's "hard look" requirement.
Regarding tire tracks, Plaintiffs argue that the impacts analysis for each ranger
Regarding animal habitat, Plaintiffs argue that the TRD's EA and DN/FONSI did not analyze the impacts on mule deer, elk, pronghorn, or wild turkey associated with MBGR, and dispute the NKRD and WRD's finding that the impacts on mule deer, white-tailed deer, and elk associated with MBGR are "less than" or "reduced" from the no action alternative. (
First, contrary to Plaintiffs' argument, the record shows that the Forest Service did analyze the impacts on mule deer, elk, and pronghorn associated with MBGR on the TRD. (AR 26108-26112.) The Forest Service did not analyze the impacts on wild turkey because only elk, mule deer, and pronghorn were found to have the potential of being affected by implementation of the activities associated with proposed project. (AR 26107.)
Second, the record supports the finding that the impacts on mule deer and elk in the WRD and mule deer in the NKRD would be reduced under a cross-country motor vehicle use prohibition. The EA for the WRD acknowledges that elk are affected by human disturbance associated with motorized travel. (AR 40952.) Under the selected alternative, the open road system would be reduced and motorized cross-country travel restricted, resulting in, predictably, "reduced motorized access to the district for hunters to shoot elk and reduced levels of human disturbance associated with motorized travel" and thus, "increased habitat quality for elk." (AR 40953.) Additionally, MBGR would be restricted to the fall, outside of the spring elk calving season. (
The EA for the NKRD also supports the Forest Service's conclusion that the impacts on mule deer in the ranger district would be reduced. As discussed supra, the previous policy did not limit the type of species which could be retrieved by motor vehicle, did not limit the distance traveled from system roads, and had no restrictions on seasons or weather conditions and no requirement for use of a direct route. (AR 14248.) Under the selected alternative,
For these reasons, the Court finds that Plaintiffs' argument fails. The Forest Service took the requisite "hard look" at the impact of the travel management plans on wildlife.
Lastly, Plaintiffs argue that "the realities of a lack of compliance by hunters were not identified or analyzed in the EA and DN/FONSI." (Doc. 45 at 22 (emphasis added).) According to Plaintiffs, such "realities" include the ability for hunters to drive off-road vehicles to nearly every part of the forest and the unknown number of hunters who have and will participate in MBGR. (
In sum, the Court finds that the Forest Service has provided a convincing statement of reasons as to why the potential effects of MBGR under the Travel Management Plans would have no significant impact with regard to wet conditions, erodible soils, invasive weeds, tire tracks, animal habitat, and hunter noncompliance. Accordingly, the Court finds that the Forest Service has taken the necessary "hard look" under NEPA.
2. Effects of Closing Routes
Plaintiffs next argue that Defendants violated the NEPA by failing to disclose and analyze the effects of those routes the Forest Service has not designated, and the effects of those roads closed across the three ranger districts. (Doc. 45 at 23.) The argument is unpersuasive.
Plaintiffs rely on a series of cases, none of which support their argument. Plaintiffs cite
Plaintiffs also cite
Lacking any legal or factual support for their argument, Plaintiffs' argument fails.
Moreover, the Court agrees with Defendants (Doc. 49-1 at 37) that evaluating the effects of closing roads to motor vehicles but not obliterating them is outside the purpose and need of the travel management projects.
3. Effects of Motorized Use
Plaintiffs next allege that the EAs are inadequate because they fail to properly consider the cumulative impacts of motorized vehicle use. (Doc. 45 at 25.) As part of its assessment of environmental impacts of an agency action, a proper NEPA analysis
Plaintiffs' argument is confusing, unclear, and thus unhelpful, on this matter. In the end, Court managed to extract two major allegations: (1) the Forest Service's cumulative impacts analysis is deficient with respect to the impacts from illegal motorized vehicle use (Doc. 45 at 25); and (2) the Forest Service's cumulative impacts analysis is deficient because the Forest Service did not incorporate analysis from the effects of the existing travel system (
As to the latter allegation, Defendants summarily argue that the cumulative impacts analysis of the effects of the existing travel system is not deficient, and their conclusion of no cumulative impact was reasonable. (Doc. 49-1 at 39-44.) In support, Defendants point to several places in the administrative record where they analyzed the current and ongoing impacts of motorize use on natural resources: the "Existing Conditions" sections (AR 40835; 26023; 13952) of each EA, which outline current activities in the forest, including motorized use, and the impacts of those activities; and the chapters entitled "Environmental Effects" (AR 13972, 26046, 40861), which summarize the existing conditions of forest resources and disclose the potential effects of implementing each alternative. (Doc. 49-1 at 40.)
Defendants also argue that where the Forest Service has proposed a travel designation decision that would result in a net reduction of motor vehicle use in a forest, the Forest Service properly incorporates the baseline effects of previous motor vehicle use into its cumulative effects analysis. (
The Forest Service reasonably concluded that no cumulative impact would result from the net reduction of routes available for motorized use in each ranger district. In upholding these conclusions, the Court follows a line of other district courts which have upheld the Forest Service's no cumulative impact conclusion where the proposed action led to net fewer routes available for motorized use.
As to the former allegation, Plaintiffs do not explain how the cumulative impacts analysis is deficient with respect to illegal motorized vehicle use; instead, they rely on a previous argument (Doc. 45 at 25 (citing Doc. 45 at 24)) which the Court already rejected in the previous section.
Thus, the Court finds no NEPA violation on the grounds that Defendants failed to take a "hard look."
B. Whether the Travel Management Plans Will Have or May Have a Significant Effect on the Environment
Plaintiffs next contend that the Forest Service violated the NEPA by declining to prepare an EIS for each travel management plan "despite the presence of several significance factors indicating possible significant environmental consequences of the proposed actions." (Doc. 45 at 33.)
"An EIS must be prepared if substantial questions are raised as to whether a project ... may cause significant degradation of some human environmental factor."
Whether effects are "significant" depends on both "context" and "intensity." 40 C.F.R. § 1508.27. "Context" refers to the "setting" of the proposed action, and "intensity" refers to the "severity of the impact."
1. Beneficial and Adverse Impacts, Cumulatively Significant Impacts
Plaintiffs refer the Court to other arguments in their memorandum in support of their contention that the proposed actions for each ranger district are significant under § 1508.27(b)(1) and § 1508.27(b)(7). (
2. Unique Characteristics of the Geographic Area
Under § 1508.27(b)(3), the Forest Service must consider the unique characteristics of the project area, such as proximity to park lands and ecologically critical areas. Plaintiffs argue that the Forest Service did not adequately consider the effect of the travel management plans on: (1) the spreading of exotic plants from the TRD and the NKRD to Grand Canyon National Park ("GCNP"); (2) illegal motorized vehicle use in each ranger district, which could affect GCNP (TRD), the Havasupai Indian Reservation (TRD), Red Butte and Coconino Rim areas (TRD), and designated wilderness areas (TRD, WRD, NKRD); and (3) the Mexican spotted owl ("MSO") habitat and its designated critical habitat (WRD and NKRD), and the MSO Protected Activity Centers ("PAC") (WRD). (Doc. 45 at 34-37.) The Forest Service argues that it evaluated each selected alternative's potential impact on the unique characteristics of the KNF, and determined that there would be no significant impacts. (Doc. 49-1 at 45.) The record supports the Forest Service's conclusion.
Spreading of Exotic Plants
In the TRD's EA, the Forest Service analyzed the potential impact of MBGR on the spreading of exotic plants, and concluded that the proposed action will actually reduce the spread of exotic plants. (AR 26123.) The Forest Service acknowledged the possibility that exotic plants might enter the GCNP through the KNF and identified a way by which this possibility might be reduced: by reducing the road density along the boundary between the GCNP and the KNF. (AR 26121.) Effectuating this, the proposed action converts 20% of NFS roads to administrative use (and prohibits most motorized cross-country vehicles except for administrative purposes or by permit), thus reducing the spread of existing noxious and invasive exotic weeds and the introduction of new weeds. (AR 26122-26123.) Although motorized cross country travel by Forest Service employees, contractors, and permittees in support of land management projects would be allowed, the Forest Service cites various best management practices and mitigation measures to minimize the likelihood of exotic plants spreading, such as the requirement that loggers, miners, and utility crews wash their heavy equipment before entering the Forest. (AR 26121.)
Similarly, in the NKRD's EA, the Forest Service analyzed the impact of MBGR on the spreading of noxious and invasive weeds. (AR 14015-17.) The Forest Service acknowledged that "one of the many dispersal mechanisms in which invasive species are spread is via roads and forest visitors." (AR 14015.) Under the proposed action, the number of roads that can be traveled is reduced by 376 miles, thereby lowering the amount of invasive species seed introduced or spread across the NKRD. (AR 14017.) Moreover, under the
Plaintiffs' singular and conclusory statement that exotic plants might spread from the TRD or the NKRD to GCNP does not raise substantial questions that would trigger the need for an EIS. In any event, the Forest Service did consider the unique characteristics of the GCNP in its noxious and invasive weed analyses, and supplied a convincing statement of reasons as to why no significant impact would result.
Illegal Motorized Vehicle Use
Plaintiffs argue that the Forest Service did not consider the effect of the travel management plans on the unique characteristics of the ranger districts, in particular, the effect of illegal motorized use. Other than a suggestion from the National Park Service ("NPS") that the Forest Service implement a one-mile buffer zone between the TRD and the GCNP, and Plaintiffs' observation that illegal motorized vehicle use may occur, and does occur, on each ranger district, Plaintiffs offer no real argument, and cite to no facts, to support the argument. (Doc. 45 at 35-36.)
Not only did the Forest Service explain the reason for their decision not to implement a buffer zone (because management actions need to extend to the boundary line) (AR 24100), but it also explained that it would work to limit the effects of illegal motorized vehicle use by prohibiting cross-country travel, limiting MBGR, and working closely with AZGFD "to monitor and enforce illegal cross-country travel associated within hunting activities." (
Expounding on their observation that illegal motorized vehicle use may occur and does occur in each ranger district, Plaintiffs present hypothetical illegal motorized vehicle use situations, and point out that each ranger district has experienced impacts from illegal motorized vehicle use despite being "closed" to motorized vehicle use. (Doc. 45 at 36.) Given the extraordinary number of roads over which the Forest Service has jurisdiction across these three ranger districts — 3,343 miles of roads in the NKRD (AR 13953), 709 miles of roads in the TRD (AR 26024), and 1,500 miles of roads in the WRD (AR 40836) — it is not surprising that illegal vehicle motorized use occurs even if roads are "closed" to motorized vehicle use. The fact that some illegal motorized vehicle use occurs, without more, proves nothing.
Importantly, each ranger district's EA discusses illegal motorized vehicle use, and the record shows that such effects would not be significant. Under the proposed action for the TRD, motorized cross country travel (which has the "greatest negative effects on scenic quality and integrity") would be prohibited, which led the Forest Service to reasonably conclude that this
Similarly, under the proposed action for the WRD, motorized cross country travel would be prohibited, which led the Forest Service to reasonably conclude that there would be a great reduction of "noise, dust and unwanted motorized intrusions." (AR 40880-82.) The prohibition would also result in "negative" effects to motorized recreationists because they would be restricted to designated systems of forest roads, and result in "positive effects" to "vegetation cover, natural settings provided adjacent to the designated road system, improved scenic quality, and greater sense of isolation." (AR 40883.) Also, the limitations on MBGR in the WRD would ensure only short term negative effects on the ranger district. (AR 40882-83.)
Finally, under the proposed action for the NKRD, the quantity of forest roads open to motorized travel would be reduced by 20%, and motorized cross-country travel would be prohibited. (AR 13985.) This prohibition, the Forest Service reasonably concluded, would "restrict creation of unauthorized routes through the forest and would greatly reduce the effects of linear routes and contrast with the surrounding landscape that result from repeated cross-country motorized travel" and over time, improve the district's visual integrity. (
Contrary to Plaintiffs' claim, the administrative record shows that the Forest Service considered illegal motorized use in each district and supports the Forest Service's conclusion that the effects would not be significant. Plaintiffs conveniently overlook the Forest Service's discussion on the issue, and its stated plans to reduce the number of illegal motorized vehicle use incidents and its associated effects. In the end, Plaintiffs fail to raise serious questions regarding illegal motorized use under the travel management plans.
Mexican Spotted Owl
Plaintiffs dispute the Forest Service's determination that the travel management plans would have no significant impact on the Mexican spotted owl ("MSO") habitat, MSO critical habitat, and MSO PAC in the WRD and NKRD. (Doc. 45 at 36-37.) Plaintiffs cite to various parts of the administrative record where the Forest Service discusses potential negative impacts on MSO, and to the U.S. Fish and Wildlife Service's (FWS) recommendations and warnings to the Forest Service on the issue. (
Under Plaintiffs' theory, any information in an EA or NEPA documents that admits impacts on the MSO and its habitat would trigger preparation of an EIS. "NEPA permits a federal agency to disclose such impacts without automatically triggering the `substantial questions' threshold."
The WRD's EA recognizes that roads and motorized travel have potential negative direct and indirect effects on wildlife (such as habitat loss, fragmentation, the potential for animals to be killed or injured as a result of being hit or run over by motor vehicles, and human disturbance or harassment of animals facilitated by motorized travel). (AR 40933.) The proposed action, however, would result in an increase in the MSO's habitat quality and would have "primarily beneficial" effects. (AR 40937.) Supporting this conclusion are the following facts: the closure of 1 mile of the 1.8 miles of currently open roads intersecting PACs on the WRD; a 62-mile decrease in the WRD designated road system; and a substantial restriction of motorized cross-country travel. (AR 40936-37.) The restriction of motorized cross-country travel is "substantial" because it would prohibit all motorized cross-country travel except for MBGR of elk. (AR 40934.) Currently, most motorized cross-country travel occurring on the WRD is for purposes other than big game retrieval. (
Importantly, the FWS concurred with the Forest Service that the WRD's proposed action would affect, but was not likely to adversely affect, the MSO in the WRD, specifically finding that the proposed action would not alter key habitat components of MSO habitat or primary constituent elements of MSO critical habitat. (AR 40798-99.) The FWS also found that "[r]eductions of cross-country motorized travel and what will be the designated road system should decrease the current effects of motorized vehicle traffic to MSO and their critical habitat." (AR 40798-99.)
Similarly, the EA for the NKRD recognizes that "[m]any of the direct and indirect effects of roads on wildlife are negative" but that "there is an opportunity to reduce impacts to wildlife by restricting cross-country travel and reducing the density of open roads on the district" — opportunities the proposed action seizes. (AR 14018.) The proposed action reduces the designated road system by 20% and prohibits cross-country travel (with the exception of authorized motorized travel for camping and retrieval of big game), resulting in "fewer impacts to habitat of spotted owl small mammal prey" and "some level of increased quality of spotted owl foraging habitat within designated Critical Habitat." (AR 14022.) The Biological Evaluation and Wildlife Report support these conclusions. (AR 13689-90; 13804-05.) The restrictions placed upon MBGR limit the impact on MSO by allowing MBGR of elk and bison only, and limiting the distance traveled, number of trips, and seasons for retrieving. (AR 14020.) While the concentration in camping corridors "may increase disturbance to MSO habitat," the potential for disturbance will be decreased because only 1.7 miles of roads will be used for corridor camping, and the roads are located in open, grassy areas. (AR 14022.)
For these reasons, the Court finds that Plaintiffs fail to raise substantial questions on the MSO issue, and the record supports the Forest Service's determination that the travel management plans will have no significant impact on the MSO.
3. Highly Controversial
The Forest Service must consider "[t]he degree to which the effects ... are likely to be highly controversial." § 1508.27(b)(4). A controversy exists where there is "a substantial dispute [about] the size, nature, or effect of the major Federal action rather than the existence of opposition to a use."
Plaintiffs argue that a "significant controversy exists as to the amount and type of motorized recreation that would be allowed across the three ranger districts" because "thousands" of comments were submitted during the NEPA process, "many of them protesting the Forest Service[`]s proposed action and excessive allowance of motorized big game retrieval." (Doc. 45 at 38.) Based on the sheer number of comments submitted, Plaintiffs urge the Court to find that a controversy exists: "[i]f approximately 385 negative comments on a federal action are sufficient to demonstrate a controversy such that an EIS is required ... surely the significantly greater volume of negative comment here also demonstrates the controversial nature of the [ranger districts] ..." (
The Court rejects Plaintiffs' argument. As stated supra, a proposal is highly controversial where there is "a substantial dispute [about] the size, nature, or effect of the major Federal action rather than the existence of opposition to a use."
Accordingly, the Court finds that the number of comments received by the Forest Service, without more, does not raise substantial questions that would trigger the need for an EIS.
4. Highly Uncertain or Unique or Unknown Risks
The Forest Service must also consider "[t]he degree to which the possible effects ... are highly uncertain or involve unique or unknown risks." § 1508.27(b)(5). An EIS is not required anytime there is some uncertainty, but only if the effects of the project are highly uncertain.
Plaintiffs argue that uncertainty and unknown risks exist because there is "simply no way for the Forest Service to know
The Forest Service contends that NEPA regulations do not require a reviewing agency to eliminate "all uncertainty" prior to issuing a FONSI, and further contends that there is very little uncertainty as to the potential effects of the proposed decisions. (Doc. 49-1 at 49). The Forest Service points to the fact that cross-country travel motor vehicle use would be prohibited under the proposed actions — a significant departure from previous policies, under which unrestricted cross-country vehicle use for any purpose was allowed. (
Plaintiffs' argument lacks merit. Contrary to what Plaintiffs assert, the Forest Service has an estimated number of big game animals that will be killed and then retrieved by motorized vehicle an annual basis, and knows the general areas and locations where these animals are killed, because the AZGFD tracks this information on an annual basis. (AR 13956, 26026, 40839-40.) Additionally, the Forest Service analyzed the spread of noxious weeds and implemented measures to reduce the chances of such spreading occurring ((
5. Precedent for Future Actions
Under § 1508.27(b)(6), the Forest Service must consider "the degree to which the action may establish a precedent for future actions with significant effects or represents a decision in principle about a future consideration." Plaintiffs argue that the proposed actions, in particular MBGR under the proposed actions, create precedent because "other National Forests intend to adopt decisions" mirroring the KNF. (Doc. 45 at 40.) In support, Plaintiffs cite a statement by a Prescott National Forest ("PNF") spokeswoman ("We'll try to match [the Kaibab National Forest] as best as we can") and an alleged statement from Coconino National Forest ("CNF") NEPA documents ("the CNF will defer to the neighboring Kaibab National Forest's policy for MBGR in units shared with the Williams Ranger District, regardless of how the Coconino proposes to apply the Travel Management Rule for MBGR."). (
These statements prove nothing. The PNF spokeswoman simply said that the PNF will try to match the KNF, and the alleged statement from the CNF's NEPA documents strongly suggests that the CNF will apply the TMR for MBGR differently in its Forest. Therefore, the Court finds Plaintiffs have failed to raise serious questions regarding the precedential effect of the Forest Service's decisions in the KNF as to trigger the need for an EIS.
6. Cultural or Historical Resources
Under § 1508.27(b)(8), the Forest Service must consider "the degree to which the action may adversely affect districts, sites, highways, structures, or objects listed in or eligible for listing in the National Register of Historic Places or may cause loss or destruction of significant ... cultural or historical resources." Plaintiffs argue that the travel management plans
7. Threatened Species or Its Habitat
Under § 1508.27(b)(9), the Forest Service must consider "[t]he degree to which the action may adversely affect an endangered or threatened species or its habitat..." Plaintiffs contend that the travel management plans effects are likely to adversely affect the MSO and its habitat. (Doc. 45 at 40-42.) For reasons already discussed in this Order, however, the Court finds that record supports the Forest Service's determination that the travel management plans will have no significant impact on the MSO or its habitat.
8. Violation of Federal Law
Under § 1508.27(b)(10), the Forest Service must consider "[w]hether the action threatens a violation of Federal, State, or local law or requirements imposed for the protection of the environment." Plaintiffs argue that the travel management plans for each ranger district "contemplate violations of the travel management rule, Executive Order 11644, and the National Historic Preservation Act." (Doc. 45 at 42.) As discussed supra and infra, however, the travel management plans did not violate the TMR or the NHPA and therefore did not threaten a violation of federal law.
"If substantial questions are raised regarding whether the proposed action may have a significant effect upon the human environment, a decision not to prepare an EIS is unreasonable."
Having found no NEPA violation on any basis asserted by Plaintiffs, the Court will grant summary judgment in favor of Defendants on the NEPA claim.
NATIONAL HISTORIC PRESERVATION ACT
A. Threshold Matter — Standing
Defendants argue that Plaintiffs lack standing to bring their NHPA claim. (Doc. 49-1 at 18-20.) Specifically, Defendants argue that Plaintiffs do not satisfy the first element of the Article III standing test: injury in fact. (Doc. 49-1 at 18, Doc. 72 at 9.)
"[T]o satisfy Article III's standing requirements, a plaintiff must show (1) it has suffered an injury in fact that is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) the injury is fairly traceable to the challenged action of the defendant; and (3) it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision."
As to the first element, Plaintiffs assert that they have suffered a procedural injury in fact. (Doc. 65 at 2.) In support, Plaintiffs submitted the Declarations of Joseph Shannon on behalf of the Sierra Club, Kim Crumbo on behalf of Grand Canyon Wildlands
To show a cognizable procedural injury in fact, a plaintiff must allege "that (1) the [agency] violated certain procedural rules; (2) these rules protect [a plaintiff's] concrete interests; and (3) it is reasonably probable that the challenged action will threaten their concrete interests."
Here, Plaintiffs allege concrete aesthetic interests in the enjoyment of the Kaibab National Forest. For example, in Kim Crumbo's supplemental Declaration, he states that he explores, by hiking or four-wheel driving, the ranger districts for both recreational and professional purposes. (Doc. 68 at ¶¶ 8-10.) In Andrew Laurenzi's Declaration, he states the he regularly visits all three ranger districts to hike and to observe wildlife, biological features, archaeological, and culturally significant sites. (Doc. 69 at ¶ 4.) In Joseph Shannon's Declaration, he states that he is avid recreationist in the WRD. (Doc. 48 at ¶¶ 1-2, 8-11.) Plaintiffs also point to Section 106 of the NHPA (54 U.S.C. § 306108), which requires the Government to "take into account the effect of [an] undertaking on any historic property," and to "afford the Council [on Historic Preservation] a reasonable opportunity to comment regard to the undertaking," and allege that the Forest Service did not satisfy these requirements. (Doc. 1 at ¶¶ 207-08.) It is reasonably probable that the Forest Service's alleged failure to satisfy these requirements threatens Plaintiffs concrete interests since the requirements are designed to protect historic property,
"A showing of procedural injury lessens a plaintiff's burden on the last two prongs of the Article III standing inquiry, causation and redressability."
B. Alleged Violations of the NHPA
Under the NHPA, it is the policy of the federal government to "foster conditions under which our modern society and our prehistoric and historic resources can exist in productive harmony and fulfill the social, economic, and other requirements of present and future generations" and to "administer federally owned, administered, or controlled historic property in a spirit of stewardship for the inspiration and benefit of present and future generations." 54 U.S.C. § 300101(1),(3) (2012).
The Advisory Council and the federal agency "may negotiate a programmatic agreement to govern the implementation of a particular program or the resolution of adverse effects from certain complex project situations or multiple undertakings" on historic property. 36 C.F.R. § 800.14(b). Programmatic agreements are appropriate under certain circumstances, such as when effects on historic properties are similar and repetitive or are multi-State or regional in scope, or when effects on historic properties cannot be fully determined prior to approval of an undertaking. § 800.14 (b)(1)(i),(ii). Significantly, "[c]ompliance with the procedures established by an approved programmatic agreement satisfies the agency's section 106 responsibilities for all individual undertakings
Plaintiffs advance two NHPA arguments. First, they argue that the Forest Service's reliance on Exemption Q of their Programmatic Agreement for the WRD and TRD was improper, and second, they argue that the Forest Service's "no effect" MBGR determination for the NKRD was improper. (Doc. 45 at 44.) The Court will address each argument in turn.
1. Reliance on Exemption Q
The Region 3 First Amended Programmatic Agreement ("PA") exempts a number of Forest Service activities "from further review and consultation" where the Forest Service and the State Historic Preservation Officers (SHPOs) of Arizona, New Mexico, Oklahoma, and Texas have agreed that the activities "have predictable effects and a very low likelihood of affecting historic properties." (S00249-50.)
Plaintiffs dispute Defendants' decision to exempt MBGR "from further review and consultation" under Exemption Q. (Doc. 45 at 42-46.) Plaintiffs argue that MBGR is an activity that involves ground and surface disturbance, and the Forest Service even admits this in its TRD and WRD EAs. (
The record supports the Forest Service's findings that MBGR under the proposed actions would result in only minimal surface impacts and have a very low likelihood of affecting cultural resources. The findings satisfy the definition of "Exemption" ("those undertakings, which because of their nature and scope, have predictable effects and a very low likelihood of affecting historic properties ..."). (S00253.)
In the TRD, archaeologists evaluated all of the proposed alternatives in relationship to the protocols under the PA. (AR 26159.) Recognizing that potential effects from MBGR may "lead to undesirable effects on cultural resources," archaeologists evaluated the effects in depth. (
Similarly, in the WRD, archaeologists evaluated all of the proposed alternatives
Based on the archaeologists' findings, it was not unreasonable for the Forest Service to conclude that MBGR on the TRD and WRD would have minimal surface impacts and a very low likelihood of affecting cultural resources.
2. No Effect Determination
Plaintiff final argument is as follows: "[a]lthough the North Kaibab Ranger District does not assert that NHPA compliance is not required under Programmatic Agreement Exemption Q, its no adverse effect from motorized big game retrieval, AR 14832-33, is also arbitrary and capricious for the same reasons as the no adverse effect determinations for the Williams and Tusayan Ranger Districts." (Doc. 45 at 46.) This singular, conclusory statement constitutes Plaintiffs' entire argument on this issue. Plaintiffs rely on previous arguments challenging the Forest Service's conclusion that MBGR would have insignificant impacts on the ranger districts. Having already rejected these arguments, however, the Court need not address them again.
In the end, the Court finds no NHPA violation on the grounds asserted by Plaintiffs. The Forest Service's reliance on Exemption Q was not improper. Accordingly, the Court will grant summary judgment in favor of the Forest Service on the NHPA claim.
Based on the foregoing,