United States District Court, D. Minnesota
IZAAK WALTON LEAGUE OF AMERICA, INC., WILDERNESS WATCH, SIERRA CLUB NORTHSTAR CHAPTER, and NORTHEASTERN MINNESOTANS FOR WILDERNESS, Plaintiffs,
THOMAS TIDWELL, Chief of the United States Forest Service; and TOM VILSACK, Secretary of Agriculture, Defendants, and COOK COUNTY, CONSERVATIONISTS WITH COMMON SENSE, and ARROWHEAD COALITION FOR MULTIPLE USE, Intervenors.
Charles N. Nauen, David J. Zoll, and Kristen G. Marttila, LOCKRIDGE GRINDAL NAUEN P.L.L.P., for plaintiffs.
David W. Fuller, Assistant United States Attorney, UNITED STATES ATTORNEY'S OFFICE, for defendants.
David R. Oberstar, FRYBERGER, BUCHANAN, SMITH & FREDERICK, for intervenors.
MEMORANDUM OPINION AND ORDER
JOHN R. TUNHEIM, District Judge.
This opinion in this case is the next stage in long-standing litigation between four environmental advocacy organizations and the United States Forest Service over the proposed South Fowl Snowmobile Trail. The proposed trail runs through the Superior National Forest in northeastern Minnesota, adjacent to the Boundary Waters Canoe Area Wilderness ("BWCAW" or "wilderness"). This Court previously ordered the Forest Service to produce a full Environmental Impact Statement ("EIS") analyzing the proposed trail's effects on sound quality in the BWCAW. Since then, the Forest Service has completed its environmental analysis and selected a preferred route. The plaintiffs challenge the Forest Service's decision as violating both Section 4(b) of the Wilderness Act and the National Environmental Policy Act ("NEPA").
The matter is before the Court on cross-motions for summary judgment. Because the Forest Service's proposed action does not impermissibly degrade the wilderness character of the affected portion of the BWCAW and because any error on the part of the Forest Service in failing to disclose its adaptive management strategy in the EIS was harmless, the Court will grant the Forest Service's and intervenors' summary judgment motions on both the Wilderness Act and NEPA claims. The Court will deny plaintiffs' motion for summary judgment and enter final judgment.
I. DEVELOPMENT OF THE SOUTH FOWL SNOWMOBILE TRAIL
In 2003, the Forest Service learned that snowmobilers were illegally crossing the BWCAW to travel between South Fowl Lake and McFarland Lake. (Aff. of Kristen G. Marttila ("Marttila Aff."), Ex. C (Record of Decision ("ROD") at 12-13), July 1, 2014, Docket No. 157; AR_001415-AR_001416.) The Forest Service shut down the unlawful route, known locally as the Tilbury Trail, diverting snowmobilers south along existing roadways. (ROD at 13-14; AR_001416-AR_001417.) Since it is dangerous to have snowmobilers regularly traveling along steep and narrow roads, the Forest Service decided to create a new snowmobile trail that would connect the two lakes and allow snowmobilers to continue to travel safely and efficiently. ( See ROD at 13-14; AR_001416-AR_001417.)
In 2005, the Forest Service released an environmental assessment ("EA") for the proposed South Fowl Trail. (Marttila Aff., Ex. B (Final EIS ("FEIS")) at 11; AR_00925.) The EA identified four action alternatives and one no-action alternative. (AR_2006_0118-AR_2006_0123.) Alternative 2 was the northernmost of the proposed alternatives, running the closest to the BWCAW. (AR_2006_0118-AR_2006_0120.)
The EA recognized the possibility of increased illegal recreational use resulting from the construction of a new snowmobile trail. (AR_2006_0149-AR_2006_0151.) However, the EA noted that the project area is not a popular destination for off-highway vehicles, and that Alternative 2 was unlikely to result in additional incursions into adjoining wilderness because of the steep terrain separating the trail from the BWCAW. (Id. )
Among other impacts, the EA considered the potential projection of sound into the BWCAW from each alternative. The EA found that the sound of snowmobile traffic from Alternative 2 would carry directly into the adjoining wilderness. Because wilderness visitors would consider any sight or sound from snowmobiles to be negative, the EA dispensed with any quantitative measurements of the sound impact, stating that "such detailed data appears to be moot." (AR_2006_0157.)
In 2006, the Forest Service issued a Decision Notice and Finding of No Significant Impact ("DN/FONSI") selecting Alternative 2 for the South Fowl Trail. (Marttila Aff., Ex. E (DN/FONSI) at 4-7 (explaining the reasons for selecting Alternative 2); AR_2006_0017-AR_2006_0020.) The DN/FONSI estimated that the volume of snowmobile sound reaching the adjoining wilderness would reach approximately 49 decibels at most, and concluded that this decibel level was not significant. (DN/FONSI at 14; AR_2006_0038.) Several environmental organizations appealed the DN/FONSI. On May 18, 2006, a Forest Service Appeal Reviewing Officer ("ARO") recommended affirming the selection of Alternative 2, as set forth in the DN/FONSI, and, on May 22, 2006, the Forest Supervisor (also called, in this case, the Appeal Deciding Officer) adopted that recommendation. (AR_2006_3559-AR_2006-3561.)
II. THE DISTRICT COURT'S PREVIOUS DECISION
After exhausting their administrative remedies, the environmental organizations - the Izaak Walton League of America, Inc.; Wilderness Watch; Sierra Club Northstar Chapter; and Northeastern Minnesotans for Wilderness ("plaintiffs") - filed a complaint with this Court in August 2006, with the Chief of the Forest Service and the U.S. Secretary of Agriculture ("defendants" or "Forest Service") listed as defendants. (Compl., Aug. 17, 2006, Docket No. 1.) Relevant to this stage of the litigation, they alleged in Count III that Alternative 2 would project the sounds of snowmobiles into the wilderness area in violation of Section 4(b) of the Wilderness Act, ( id. ¶¶ 72-73), and in Count V that the Forest Service violated NEPA by failing to prepare an EIS for the proposed trail, ( id. ¶¶ 76-79). The parties filed cross-motions for summary judgment. (Defs.' Mot. for Summ. J., Nov. 9, 2006, Docket No. 22; Pls.' Mot. for Summ. J., Nov. 9, 2006, Docket No. 26.)
As to Count III, the Court held that the Wilderness Act could proscribe activity outside of a wilderness area, but determined that more data was needed to determine whether Section 4(b) had been violated in the instant case. Izaak Walton League of Am., Inc. v. Kimbell, 516 F.Supp.2d 982, 988-90 (D. Minn. 2007) (stating that "the agency's duty to preserve the wilderness area is wholly independent of the source or location of that activity" and concluding that, as a result, Section 4(b) of the Wilderness Act "may apply to agency activity that occurs outside of the boundaries of the wilderness area"). Regarding the NEPA claim, the Court concluded that the "Forest Service [had] not provided sufficient analysis to support its conclusion that the sound impact of the South Fowl Trail is not significant." Id. at 997. It directed the Forest Service to prepare an Environmental Impact Statement "to evaluate more thoroughly the sound impact in the BWCAW, and to suspend further activity on the South Fowl Trail pending completion of the EIS." Id. at 997.
III. THE SOUND ANALYSIS
A. Draft and Final Environmental Impact Statements
Pursuant to this Court's order, the Forest Service published a Draft Environmental Impact Statement ("DEIS") in 2010. (Am. Compl. ¶ 41, Aug. 30, 2013, Docket No. 137; Marttila Aff., Ex. F (DEIS); AR_000434-000783.) The DEIS analyzed three action alternatives and evaluated the future impacts of the existing snowmobile trail as a noaction alternative. ( See DEIS at 13-29; AR_000492-AR_000508; see also 36 C.F.R. § 220.7(b)(2) (2014) (allowing an EA to consider the impacts of taking no action)). These alternatives are the same options at issue today. The no-action alternative is Alternative 1; Alternative 2 is the northernmost route, running closest to the BWCAW; and Alternatives 3 and 4, which are slightly different, are largely the same as the noaction alternative. (DEIS at 13-20; AR_000492-AR_000499.) The plaintiffs submitted comments disputing the sufficiency of the noise analysis in the DEIS and citing a report by sound expert Richard D. Horonjeff. (Am. Compl. ¶ 42; AR_000869-AR_000880.) In 2011, the Forest Service released both a Final Environmental Impact Statement ("FEIS") and a Record of Decision ("ROD"). (FEIS; AR_000916-AR_001398; ROD; AR_001399-AR_001488.)
The FEIS analyzed the same no-action alternative and three action alternatives as the DEIS. (FEIS at 11-12; AR_000925-AR_000926.) The FEIS noted that audible snowmobile sound already reaches the entire portion of the BWCAW that would be impacted by any of the alternatives due to existing motor use in the territory outside the wilderness area. (FEIS at 30-31; AR_000974-AR_000975.) The increase in the decibels ("dBA") of sound heard under Alternative 2 would be at most 5 dBA at Royal Lake, the portion of the wilderness that is closest to Alternative 2. (FEIS at 38; AR_000982.) The FEIS concluded that sounds from single snowmobile sleds would be audible for 11.8% of the week with Alternative 2, versus 11.0% of the week with the no-action alternative. (FEIS at 40; AR_000984.) Two snowmobile sleds or groups of snowmobile sleds would be audible for 5.9% of the week with Alternative 2, versus 5.5% of the week for the noaction alternative. (FEIS at 40; AR_000984.) The FEIS also analyzed how long the snowmobile noise would be above the natural ambient noise level. (FEIS at 40; AR_000984.) For a single sled under Alternative 2, the duration above natural ambient would be 2.2% of the week; it would be 1.1% of the week for two sleds or a group. (FEIS at 40; AR_000984.)
As for the percentage of wilderness impacted, the FEIS determined that 10.3% of the wilderness would be impacted by the no-action alternative, versus 10.8% with Alternative 2. (FEIS at 37; AR_000981.) The FEIS noted that the Tilbury Trail impacted 12.8% of the wilderness. (FEIS at 37; AR_000981.) The FEIS, like the DEIS before it, included a section describing the actions the Forest Service would take "to monitor the predictions and assumptions for the project." (FEIS at 103-05; AR_001047-AR_001049.) The FEIS set out five monitoring objectives: (1) ensure that the trail is properly constructed; (2) keep use of the trail within its capacity; (3) eliminate any illegal motorized trail use; (4) limit erosion; and (5) stop the establishment of non-native invasive plant species along the trail. (FEIS at 105; AR_001049.)
B. Record of Decision
The ROD selected Alternative 2 as the new snowmobile route, but also adopted an adaptive management strategy not discussed in the FEIS. ( See ROD at 16-20; AR_001419-AR_001423.) Under the adaptive management strategy, "Alternative 2 will be effectively closed and obliterated and Alternative 4 will be constructed" if specific conditions are met: (1) if the State, County, and Forest Service decide to put a connecting system of snowmobile trails from the State grant-in-aid trails to the McFarland or South Fowl Lakes area; (2) if measures to keep Off Highway Vehicles ("OHVs") off the trail are ineffective; (3) if snowmobilers develop a pattern of intentionally diverting from Alternative 2 to travel through the wilderness; or (4) if snowmobile use exceeds Alternative 2's capability such that it causes excessive resource damage or excessive interaction between snowmobilers. (ROD at 18-19; AR_001421-AR_001422.) The monitoring plan in the ROD is the same as in the FEIS. The Forest Service would monitor the trail, largely through regular field checks at different intervals, for capacity issues, illegal off-trail activity, erosion, and non-native invasive plant species. (ROD at 21; AR_001424.)
The ROD considered the sound impacts of Alternatives 2 and 4 in the BWCAW. (ROD at 26-28; AR_1429-AR_001431.) Because snowmobile sound already reaches the BWCAW throughout the project area, the ROD concluded that neither Alternatives 2 nor 4 would change the type of sound heard in the wilderness area. (ROD at 26-27; AR_001429-AR_001430.) As for area of sound impact, the ROD noted that the overall project area is 7, 400 acres. (ROD at 27-28; AR_001430-AR_001431.) It stated that neither Alternative 2 nor 4 would increase the wilderness acreage that would experience audible snowmobile sound, although Alternative 2 would increase by 3 to 36 acres the amount of wilderness that would experience snowmobile sound above natural ambient levels. (ROD at 27-28; AR_001430-AR_001431.) Because this 36 acres amounts to only 0.5% of the project area, and because Alternative 2 does not pose an increase if considered against the original Tilbury Trail (versus the no-action alternative), the ROD concluded there would be a relatively minor sound increase under Alternative 2 (and no increase under Alternative 4). (ROD at 27-28, 35; AR_001430-AR_001431, AR_001438.)
Since "the same use level of snowmobiles is anticipated under all alternatives, " the ROD also anticipated no difference in the frequency of snowmobile sound under any alternative. (ROD at 27; AR_001430.) As for duration, the ROD noted that Alternative 2 poses only a 0.8% increase in the duration of snowmobile traffic experienced in the wilderness each week. (ROD at 28; AR_001431.)
Because the area of the BWCAW affected is already considered a Semi-Primitive, Non-Motorized management area, where "[o]pportunities for experiencing isolation and solitude are moderate to low, " the ROD concluded that this minor sound increase would not change the character of the wilderness area beyond what should be expected of it under the Forest Plan. (ROD at 29-31 (quoting Forest Service Eastern Region, Land and Resource Management Plan ("Forest Plan") (2004), at 3-45); AR_001432-AR_001434.) The ROD also noted that very few, if any, human visitors travel to the Royal Lake and River portion of the BWCAW during the winter and, to the extent they do, the sights and sounds of snowmobiles will have a minor impact on them. (ROD at 31-32; AR_001434-AR_001435.)
Considering these findings in light of the already-existing character of the wilderness area at issue (e.g., the fact that Congress placed this portion of the BWCAW boundary close to heavily used roads and lakes), the ROD concluded that its selection of Alternative 2, and in the alternative, under an adaptive management strategy, Alternative 4, would not degrade the wilderness character of the relevant portion of the BWCAW under the Wilderness Act. (ROD at 34-35; AR_001437-AR_001438.)
C. Administrative Appeal
In November 2011, three of the four plaintiffs (all but the Izaak Walton League), filed an administrative appeal of the ROD, challenging both the sufficiency of the sound analysis and whether, even accepting the Forest Service's sound analysis, the ROD was in compliance with the Wilderness Act. (Am. Compl. ¶ 46; AR_001506-AR_001508, AR_001510-AR_001514.) They also challenged the procedural impropriety of not mentioning the adaptive management approach in its DEIS or FEIS. (Am. Compl. ¶ 46; AR_001508-AR_001510.) The ARO affirmed the ROD, stating that "no violation of any law, regulation, or policy" had occurred. (AR_001538.) But the ARO did concede "that the public was unable to review and comment on the effectiveness or appropriateness of the triggers or caveats' described in the ROD that would cause the Responsible Official to close the Alternative 2 route and open Alternative 4." (AR_001530.) In addition, the ARO directed the Forest Service to conduct additional sound analysis before implementing Alternative 2. Specifically, the Forest Service was to consider new information provided by the acoustics expert retained by the plaintiffs, Richard Horonjeff, as well as retain its own acoustics expert to evaluate the existing analysis. (AR_001537.) If the existing analysis was found to be "insufficient to provide reasonable technical estimations of acoustics effects, " the Forest Service would be required "to engage a recognized independent acoustics expert to conduct such a study." (Id. )
The ARO concluded that "[w]hile the Forest [Service] does not appear to have the expertise to independently design and conduct such a [sound or acoustics] study with certainty of reliable results, it clearly does have the expertise to apply the results of such a study to the management issues related to the Wilderness Act." (Id. ) The Appeal Deciding Officer/Forest Supervisor adopted the entirety of the ARO's analysis in a December 21, 2011 decision. (AR_001522-AR_001523.) That decision constituted the final agency action pursuant to the Administrative Procedure Act ("APA"), but the decision could not be implemented until the Forest Service completed additional acoustics analysis. (AR_001523.)
D. Supplemental Information Report
The Forest Service presented its additional acoustics analysis in a March 7, 2013 Supplemental Information Report ("SIR"). To implement the directives of the ARO decision, the Forest Service contracted with the National Park Service Natural Sounds and Night Skies Division ("NPS") "to conduct an independent review of the South Fowl FEIS." (Marttila Aff., Ex. D (SIR) at 5; SIR_13E_000004.) The NPS subsequently produced a report and model data, both of which form the basis for the SIR's conclusions, along with data provided in the Horonjeff letter. (SIR at 6; SIR_13E_000005.)
The SIR's review focused on the same factors that had been analyzed in the DEIS, FEIS, and ROD: new types of sound in the wilderness area and the sound's volume, area, frequency, and duration. (SIR at 7; SIR_13E_000006.)
As for the type of sound heard in the BWCAW portion of the project area, the SIR confirmed the FEIS's conclusion that "snowmobiles are currently heard throughout the project area under all alternatives" and that, as a result, Alternative 2 would not change the type of sound projected into the BWCAW. (SIR at 8; SIR_13E_000007.) Similarly, the SIR found no new information to dispute the FEIS's conclusion that the frequency of snowmobile traffic would not change due to the construction of Alternative 2. (SIR at 8-9; SIR_13E_000007-SIR_13E-000008.)
However, the SIR did modify other conclusions articulated in the FEIS. The SIR noted that the area newly affected by snowmobile sound above the natural ambient level would increase by 0.9% (65 acres), as opposed to the 0.5% (36 acres) estimate in the FEIS. (SIR at 10; SIR_13E_000009.) Given that both numbers amount to small percentages of the much larger 7, 430-acre project area, the SIR concluded the difference between the NPS model and the FEIS was only "slight." (SIR at 10; SIR_13E_000009.) It noted that the duration of sound audible above natural ambient levels under Alternative 2 would be 4.8% of the week with a single sled, 2.6% greater than under the FEIS. (SIR at 17; SIR_13E_000016.) It labeled this difference "relatively small." (SIR at 17; SIR_13E_000016.)
The SIR also found a greater impact in sound volume than estimated in the FEIS. Using the L50 sound level as a baseline, the SIR concluded that the L50 natural ambient sound level in the relevant area of the BWCAW was 23 dBA, 11 dBA less than the Forest Service FEIS estimate of 34 dBA. (SIR at 9; SIR_13E_000008.) As a result, the impact of snowmobile sound (i.e., non-natural ambient sound) would be greater than the Forest Service predicted in the FEIS under any alternative, whether no-action or action. ( See SIR at 9; SIR_13E_000008.) Because the SIR estimated a lower natural ambient sound level than ...