                                                                             FILED
                           NOT FOR PUBLICATION
                                                                             DEC 01 2011
                    UNITED STATES COURT OF APPEALS                        MOLLY C. DWYER, CLERK
                                                                           U.S. COURT OF APPEALS

                           FOR THE NINTH CIRCUIT


MONTANA WILDERNESS                              No. 09-36051
ASSOCIATION; GREATER
YELLOWSTONE COALITION; THE                      D.C. Nos.    9:07-cv-00039-DWM
WILDERNESS SOCIETY, INC.,                                    1:07-cv-00059-DWM

             Plaintiffs,
                                                MEMORANDUM*
       and

CITIZENS FOR BALANCED USE;
KENNETH ZAHN; BIG SKY
SNOWRIDERS; GALLATIN VALLEY
SNOWMOBILE ASSOCIATION,

             Plaintiffs - Appellants,

       v.

KATHLEEN MCALLISTER, Regional
Forester for Region 1; REBECCA
HEATH; UNITED STATES FOREST
SERVICE,

             Defendants-counter-
             defendants - Appellees,

TREASURE STATE ALLIANCE;
MONTANA TRAIL VEHICLE RIDERS
ASSOCIATION; MONTANA
SNOWMOBILE ASSOCIATION;


        *
        This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
UNITED FOUR-WHEEL-DRIVE
ASSOCIATIONS; BLUE RIBBON
COALITION, INC.,

          Defendant-intervenors -
          Appellees.
MONTANA WILDERNESS                       No. 09-36058
ASSOCIATION; GREATER
YELLOWSTONE COALITION; THE               D.C. No. 9:07-cv-00039-DWM
WILDERNESS SOCIETY, INC.;
CITIZENS FOR BALANCED USE;
KENNETH ZAHN; BIG SKY
SNOWRIDERS; GALLATIN VALLEY
SNOWMOBILE ASSOCIATION,

          Plaintiffs - Appellees,

    v.

KATHLEEN MCALLISTER, Regional
Forester for Region 1; REBECCA
HEATH; UNITED STATES FOREST
SERVICE,

          Defendants-counter-
          defendants - Appellants,

    and

TREASURE STATE ALLIANCE;
MONTANA TRAIL VEHICLE RIDERS
ASSOCIATION; MONTANA
SNOWMOBILE ASSOCIATION;
UNITED FOUR-WHEEL-DRIVE
ASSOCIATIONS; BLUE RIBBON
COALITION, INC.,

          Defendant-intervenors.

                                     2
MONTANA WILDERNESS                         No. 09-36080
ASSOCIATION; GREATER
YELLOWSTONE COALITION; THE                 D.C. No. 9:07-cv-00039-DWM
WILDERNESS SOCIETY, INC.;
CITIZENS FOR BALANCED USE;
KENNETH ZAHN; BIG SKY
SNOWRIDERS; GALLATIN VALLEY
SNOWMOBILE ASSOCIATION,

          Plaintiffs - Appellees,

    v.

KATHLEEN MCALLISTER, Regional
Forester for Region 1; REBECCA
HEATH; UNITED STATES FOREST
SERVICE,

          Defendants-counter-
          defendants,

    and

TREASURE STATE ALLIANCE;
MONTANA TRAIL VEHICLE RIDERS
ASSOCIATION; MONTANA
SNOWMOBILE ASSOCIATION;
UNITED FOUR-WHEEL-DRIVE
ASSOCIATIONS; BLUE RIBBON
COALITION, INC.,

          Defendant-intervenors -
          Appellants.

               Appeal from the United States District Court
                       for the District of Montana
               Donald W. Molloy, District Judge, Presiding



                                    3
                       Argued and Submitted June 7, 2011
                      Submission Withdrawn June 17, 2011
                        Resubmitted November 22, 2011
                               Portland, Oregon

Before: FISHER, GOULD and PAEZ, Circuit Judges.

      Citizens for Balanced Use, et al. (Citizens), a coalition of motorized

recreation groups, brought this action under the Administrative Procedure Act,

alleging that the Final Environmental Impact Statement (FEIS) prepared by the

United States Forest Service in conjunction with its 2006 Gallatin National Forest

Travel Management Plan (Travel Plan) violates the National Environmental Policy

Act (NEPA). The district court granted summary judgment to the Service.1 We

affirm.

      1. Response to comments. Citizens argues that the Service should have

included in the FEIS a formal response to “a large binder of miscellaneous

documents” Citizens submitted, even though the binder contained “no introduction

or even a discussion of the reason” Citizens submitted it. We disagree. An agency

cannot be faulted for declining to respond to “cryptic and obscure” comments like

this one. Vt. Yankee Nuclear Power Corp. v. Natural Res. Def. Council, Inc., 435

U.S. 519, 554 (1978). We reject Citizens’ unsupported argument that the Service’s

      1
         A coalition of environmental groups (Montana Wilderness Association, et
al., or MWA) challenged the FEIS and Travel Plan in a separate lawsuit that was
consolidated with this one in the district court. We address MWA’s claims in an
opinion filed concurrently with this memorandum disposition.

                                         4
decision to allow Citizens to file an administrative appeal of the Travel Plan

demonstrates that Citizens must have submitted a cogent substantive comment

warranting formal NEPA response.

      Citizens also contends that the Service should have responded to several

comments submitted by Dr. Kenneth Zahn. We agree with the Service, however,

that it adequately responded to the substance of Dr. Zahn’s comments in the FEIS,

even if it did not discuss the comments explicitly. See Navajo Nation v. U.S.

Forest Serv., 479 F.3d 1024, 1056-57 (9th Cir. 2007), adopted in relevant part,

535 F.3d 1058, 1079 (9th Cir. 2008) (en banc).

      2. No-action alternative. Citizens’ contention that the Service failed to

consider a valid no-action alternative, as required by 40 C.F.R. § 1502.14(d), is

without merit. Because the Service was uncertain how it would ultimately

implement the Regional Forester’s 2001 Off-Highway Vehicle (OHV) Decision, it

constructed two no-action alternatives. Alternative 1 would have continued uses

allowed under the Service’s most recent travel planning document, and Alternative

2 attempted to model future management actions that might be taken to implement

the 2001 OHV Decision. We find nothing unreasonable about the Service’s

formulation of these no-action alternatives. See Kilroy v. Ruckelshaus, 738 F.2d

1448, 1453-54 (9th Cir. 1984) (holding that, by discussing both the status quo and

an alternative reflecting a potential policy shift that might be implemented in light

                                          5
of recent legislative changes, the agency satisfied the no-action alternative

requirement). In fact, we find it ironic that, despite contending that Alternative 1

improperly failed to implement the 2001 OHV Decision, Citizens nonetheless

attacks Alternative 2, which attempted to model future management actions that

might be taken to implement the Decision, as impermissibly adopting a new

management direction.

      3. Range of alternatives. We also reject Citizens’ contention that the

Service did not consider a reasonable range of alternatives because it failed to

include an appropriate alternative increasing motorized access. Alternative 1

would have increased motorized access that may otherwise be foreclosed through

implementation of the 2001 OHV Decision. Citizens is correct that the Service did

not ultimately favor Alternative 1, but that does not mean it was not a reasonable or

feasible alternative. See City of Carmel-by-the-Sea v. U.S. Dep’t of Transp., 123

F.3d 1142, 1159 (9th Cir. 1997) (rejecting a challenge to the range of alternatives

where “[n]o one alternative fulfilled all the [project] goals completely,” the agency

reasonably selected the alternative it deemed most suitable and “[u]ltimately, [the

plaintiff’s] disagreement with the [FEIS] appears to be a substantive one”).

      4. Cumulative impacts. Assuming NEPA requires discussion of cumulative

recreational impacts at all – a proposition the Service disputes – the FEIS

adequately discussed the cumulative impact of the Travel Plan and other past

                                          6
management decisions on motorized recreational access. The FEIS explained that

current recreational opportunities in the Gallatin are the result of an accumulation

of management decisions, and discussed the “net effect” of these decisions. There

was no failure to analyze “individually minor but collectively significant actions

taking place over a period of time.” 40 C.F.R. § 1508.7.

      AFFIRMED.




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