                                                                              FILED
                           NOT FOR PUBLICATION                                 JAN 07 2014

                                                                          MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                          U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


THE PRYORS COALITION, a coalition                No. 11-35733
of non-profit organizations and
individuals; WILDLANDS CPR, a non-
profit organization; EASTERN                     D.C. No. 1:10-cv-00016-RFC
WILDLANDS CHAPTER OF THE
MONTANA WILDERNESS
ASSOCIATION, a non-profit                        MEMORANDUM*
organization; YELLOWSTONE VALLEY
AUDUBON SOCIETY, a non-profit
organization; THE FRONTIER
HERITAGE ALLIANCE, a non-profit
organization; THE BEARTOOTH
BACKCOUNTRY HORSEMEN, a non-
profit organization; RICHARD WALTON,
an individual; SUSAN W. NEWELL, an
individual; PHIL JAQUITH, an individual,

              Plaintiffs - Appellants,

  v.

LESLIE WELDON, in her official
capacity as Regional Forester for the
United States Forest Service, Region One;
MARY ERICKSON, in her official
capacity as Acting Forest Supervisor of the
Custer National Forest; UNITED STATES
FOREST SERVICE, an agency of the


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
United States Department of Agriculture,

             Defendants - Appellees,

TREASURE STATE ATV ASSOC.;
MONTANA TRAIL VEHICLE ASSOC.;
GREAT FALLS TRAIL BIKE RIDERS
ASS’N; FAMILIES FOR OUTDOOR
RECREATION; CITIZENS FOR
BALANCED USE; THE BLUERIBBON
COALITION,

             Intervenor-Defendants -
Appellees.


                   Appeal from the United States District Court
                           for the District of Montana
                Richard F. Cebull, Senior District Judge, Presiding

                    Argued and Submitted December 4, 2013
                             Seattle, Washington

Before: O’CONNOR, Associate Justice (Ret.),** and TALLMAN and BEA, Circuit
Judges.

      Plaintiffs-Appellants, a coalition of groups and individuals who use the

natural wilderness of the Pryor Mountains (“Coalition”), appeal the summary

judgment dismissal of their action challenging the U.S. Forest Service’s 2008

Travel Management Plan (“Travel Plan”) for Montana’s Beartooth Ranger District


      **
            The Honorable Sandra Day O’Connor, Associate Justice of the United
States Supreme Court (Ret.), sitting by designation.
(“District”) within the Custer National Forest of south-central Montana. The

purpose of the Travel Plan is to identify and designate Forest Service roads and

trails for motorized and non-motorized use to provide recreational opportunities for

the public. The Coalition brings its challenge under Section 706(2)(A) of the

Administrative Procedure Act, which provides that “[t]he reviewing court shall . . .

hold unlawful and set aside agency action, findings, and conclusions found to be . .

. arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with

law.” Thus, while we review the district court’s award of summary judgment de

novo, Te-Moak Tribe of W. Shoshone of Nev. v. U.S. Dep’t of Interior, 608 F.3d

592, 598 (9th Cir. 2010), we “will reverse [the Forest Service’s] 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,” Ecology Ctr. v. Castaneda, 574 F.3d 652, 656 (9th Cir. 2009)

(citations and internal quotation marks omitted). We have jurisdiction under 28

U.S.C. § 1291, and we affirm.

                                          I




                                          3
      The Coalition argues first that the Forest Service’s “No Action” alternative

erroneously treated “user-created routes” as status-quo system routes. It points to

the 1987 Travel Plan and maps from 1996 that do not appear to show some or all

of the challenged routes shown as in existence in the 2008 Travel Plan. The Forest

Service, however, acknowledged that in establishing its “No Action” alternative it

relied primarily on “the set of system roads identified in the 1987 Travel Plan

along with modifications that have been made to the system since 1987.”

(emphasis added). In 1999, the Forest Service attempted to identify and inventory

all motorized and non-motorized routes in the Custer National Forest. It told the

public that it had conducted subsequent field reviews and had “a high confidence

level in the inventory.” The inventory reveals that the Forest Service considered

the challenged routes to be existing National Forest System routes rather than

unauthorized user-created routes. Importantly, the Forest Service conducted its

inventory several years after the creation of the maps relied on by the Coalition.

The Coalition presents no evidence postdating the inventory that contradicts the

Forest Service’s determination. Given this record, we cannot conclude that the

Forest Service’s reliance on its 1999 inventory to establish its “No Action”

alternative baseline was arbitrary or capricious.




                                          4
      From a practical standpoint, the continued designation of these routes did

not require additional analysis in the environmental impact statement (“EIS”)

under the National Environmental Protection Act (“NEPA”).1 See Nat’l Wildlife

Fed’n v. Espy, 45 F.3d 1337, 1344 (9th Cir. 1995) (“Discretionary agency action

that does not alter the status quo does not require an EIS.”); Upper Snake River

Chapter of Trout Unlimited v. Hodel, 921 F.2d 232, 235 (9th Cir. 1990) (“[W]here

a proposed federal action would not change the status quo, an EIS is not

necessary.”). This is fatal to the Coalition’s NEPA challenge.

      Alternatively, we are also satisfied that the Forest Service’s EIS “fulfilled its

informational purpose.” Sierra Club v. Clark, 774 F.2d 1406, 1411 (9th Cir.

1985). The Forest Service took the requisite hard look at the environmental

impacts from the Travel Plan. The Coalition’s primary argument to the contrary is

that the Forest Service failed to take a hard look at impacts to elk and deer along

five high-elevation routes. The Forest Service provided a thorough analysis of

impacts to elk in the District. And we defer to its scientific judgment to use elk as

a surrogate for mule deer and white-tailed deer, which it justified “because there is

a large amount of overlap in habitat between deer and elk, and impacts of travel



      1
       There is also no evidence that these routes will experience greater
environmental impacts merely because they are now signed and mapped.

                                          5
management on the District are expected to be very similar for these species.” See

Native Ecosystems Council v. Weldon, 697 F.3d 1043, 1053 (9th Cir. 2012) (“[W]e

are required to apply the highest level of deference in our review of the Forest

Service’s scientific judgments[.]”). “The mere fact that [the Coalition] disagrees

with the methodology does not constitute a NEPA violation.” Id. The Forest

Service also considered resource concerns along the five high-elevation routes—as

it did for every route—in its route-tracking spreadsheet. It imposed seasonal

restrictions on use of some of the five routes to address resource concerns, and it

designated certain portions of the five routes only for administrative use due to

erosion concerns. There is nothing arbitrary or capricious about this portion of the

Forest Service’s NEPA analysis.

                                          II

      The Coalition argues next that the Forest Service failed to apply the

minimization criteria provided in the 2005 Travel Management Rule, 36 C.F.R. §




                                          6
212.55(b) (“TMR”).2 On review of the voluminous records supporting its decision,

we disagree that the Forest Service merely listed the minimization criteria without

documenting how it minimized environmental impacts.

      The Forest Service’s consideration and application of the criteria is apparent

from the record. It considered numerous alternative plans for route designations

based on competing motorized and non-motorized uses. It ultimately modified one

of those plans—creating Alternative B Modified—“to provide additional points of

compromise among disparate user preference while minimizing effects” on the




      2
         The parties dispute what the TMR requires of the Forest Service. The
Coalition appears to argue that it requires some degree of actual minimization of
environmental impacts. The Forest Service interprets the TMR’s minimization
criteria as “objectives that the agency must evaluate in designating trails and areas,
rather than required outcomes.” Travel Management Rule; Designated Routes and
Areas for Motor Vehicle Use, 69 Fed. Reg. 42381-01 at 42387 (July 15, 2004).
We need not resolve this dispute, as we conclude that the Forest Service met its
obligations even if it was required to show actual minimization. Nor must we
decide whether the Coalition can privately enforce Executive Order 11644 because
the Coalition asserts that “both E.O. 11644 and the [TMR] contemplate the same
result.”

                                          7
TMR’s environmental criteria.3 Specifically, it reduced the total mileage of

motorized routes from approximately 150 to 125. It made a number of its route

designations contingent on first reducing negative impacts to soil, fisheries, and

water quality. It avoided route designations that would clearly contribute to

unacceptable resource impacts, for example, by not allowing public motorized use

on routes 21401A, 21401B, and 241412 to minimize impacts to water quality.

And it imposed seasonal restrictions on roughly 64 miles of routes to reduce

impacts on soil, vegetation, water quality, and wildlife. Notably, the seasonally

restricted routes included 2088, 2091, and 2095A—three of the higher-elevation

routes the Coalition identifies as traversing sensitive areas.

      On this record, we are satisfied that the Forest Service did not act arbitrarily

or capriciously in applying the TMR’s minimization criteria to its route

designations. Nor were the Forest Service’s minimization actions “plainly




      3
         The Coalition points to Meyers Creek trail as one example where the Forest
Service failed to minimize use conflicts. This assertion is belied by the record.
Alternative B Modified was selected, in part, “because it responds to users[’]
requests to keep Meyers Creek [trail] . . . available for motorcycle use, but includes
a season of use designation of 6/15 to 12/1 . . . . [to] provide[] a non-motorized
experience during the motorized restricted period” and to “reduce[] concerns about
motorized disturbance of wintering big game and moose calving in the vicinity of
the trail[].”

                                           8
erroneous or inconsistent with the language of the regulation[.]” League of

Wilderness Defenders v. U.S. Forest Serv., 549 F.3d 1211, 1218 (9th Cir. 2008).

                                         III

      The Coalition also attacks the Forest Service’s decision to allow off-road

vehicle camping within 300 feet of all public motorized routes in the Pryor Unit.

Like its challenge to the Forest Service’s route designations, the Coalition claims

that the Forest Service did not take the requisite “hard look” under NEPA or apply

the TMR’s minimization criteria. We disagree.

      We note at the outset that off-road vehicle camping appears to have been

permitted before the Travel Plan was enacted, either by virtue of the 1987 Travel

Plan or the 2001 Off-Highway Vehicle Travel Plan. We are reluctant, however, to

divest the Forest Service entirely of its obligation to conduct a NEPA analysis, see

Hodel, 921 F.2d at 235, as both the 1987 Travel Plan and the 2001 Off-Highway

Vehicle Travel Plan included restrictions on off-road vehicle camping that the




                                          9
current 2008 Travel Plan may not.4 Thus, while the Travel Plan may have altered

the existing off-road vehicle camping regulations, it did not uproot the status quo

entirely.

                                          A

      The Forest Service’s vegetation analysis satisfied NEPA requirements. It

relied primarily on satellite-assisted Geographical Information System (“GIS”)

methods to identify vegetation risk categories based on (1) the frequency, duration,

and timing of motorized travel, and (2) the resistance and resilience of vegetation

to trampling. It used this risk stratification to describe how many acres of low,

moderate, and high risk areas could be impacted by off-road vehicle camping. It

concluded that, under Alternative B Modified, the “[p]otential impacts from

frequent motorized use [in high risk areas] constitute about 2% . . . of the total

Pryor Unit.” It further explained that, “While impacts resulting from camping . . .

      4
        For example, the 1987 Travel Plan allowed visitors to drive 300 feet off
designated routes to access campsites, but required travel on an existing access
road to the site. The 2001 Off-Highway Vehicle Travel Plan allowed off-road
vehicle camping within 300 feet of roads and trails, but required visitors to select
campsites by non-motorized means and access the campsites by the most direct
route causing the least damage. The Forest Service contends that, under the 2008
Travel Plan, recreationists must still drive the most direct route to their off-road
campsite. We find no such requirement in the Record of Decision or the final EIS.
It would thus behoove the Forest Service to include this restriction, if it exists, on
its Motorized Vehicle Use Map for the area. But that correction does not mandate
vacating the entire decision and remanding to the district court.

                                          10
can be locally very significant, the total area of impact is small when compared to

various ecosystems of the project area,” and that “[s]election of any alternative

would be consistent with the regulatory framework relative to vegetation

sustainability at the level of this project’s scale.” It is clear that the Forest

Service’s analysis contained significantly more than vague and conclusory

statements, as alleged by the Coalition.

       We are not convinced that the Forest Service’s GIS methodology was

unreliable or that reliance on GIS methods was arbitrary or capricious. See Native

Ecosystems Council, 697 F.3d at 1053 (“We are required to apply the highest level

of deference in our review of the Forest Service’s scientific judgments[.]”). Nor

was the Forest Service required to supplement its analysis with on-the-ground

testing or studies. See Lands Council v. McNair, 537 F.3d 981, 991-92 (9th Cir.

2008) (“The Forest Service is at liberty, of course, to use on-the-ground analysis if

it deems it appropriate or necessary, but it is not required to do so.”).

       We also find unpersuasive the Coalition’s argument that “the Forest Service

may have made a significant error in its GIS analysis by underestimating the size of

the potential use corridor” by analyzing a 300 foot buffer instead of a 600 foot

buffer. Even if the single map identified by the Coalition contained such an error,

we see nothing in the record demonstrating whether or how this map was used in


                                            11
the Forest Service’s NEPA analysis. Indeed, this spatial analysis appears to be one

of several, as the map’s cover page explains that “[f]urther GIS runs were made per

methodology outlined” in the final EIS.

      The Coalition also fails to provide a cite to the administrative record

supporting its assertion that GIS mapping cannot identify campsites smaller than

10,000 square feet. Even if true, we find no support for the Coalition’s conclusory

assertions that smaller campsites “are much more common and likely used” than

larger campsites, or that “driving off-road to car camp in small to moderate areas

has just as much impact as driving to large flat areas.” Furthermore, despite the

Coalition’s argument to the contrary, the Forest Service did analyze both flat areas

(0–4 percent slopes), which it designated as “frequent use areas,” and non-flat

areas, which it labeled “infrequent use areas.” In short, it is beyond our role to

“insert our opinions in the place of those of forest [scientists],” Native Ecosystems

Council, 697 F.3d at 1053, and we again decline to do so here.

      The Coalition takes issue with the Forest Service’s assumption that not all

areas within the off-road vehicle camping corridor will be traveled because visitors

must take a direct route to campsites. Even if the Forest Service’s assumption is

faulty, it nevertheless analyzed potential environmental impacts based on total

acreage, not just the subset of acreage that it believed would be impacted by direct-


                                          12
route traveling. Nothing in this record leads us to conclude that the Forest

Service’s vegetation impacts analysis was arbitrary or capricious.

      Neither was the Forest Service’s soil analysis. The Forest Service relied

heavily on a 1975 Soil Survey of Montana’s Carbon County (“Survey”) to describe

land formations and determine erosion hazards in the Pryor Unit. The Survey is

maintained on the U.S. Department of Agriculture’s website. Relying on the

Survey, along with a number of additional sources, the Forest Service estimated the

potential for erosion after soil disturbance, including the number of miles of roads

and trails that would traverse low, medium, high, and very high risk erosion areas.

      In response to public requests, the Forest Service also added a discussion of

soil crust impacts in the final EIS. It concluded that soil crusts are probably very

limited in the Pryor Unit and would likely not exist in areas popular for off-road

vehicle camping, i.e., high elevation areas with higher vegetative cover and some

shade. Instead, soil crusts are typically found in high elevation areas with bare

ground, or at lower elevations. That it was unable to locate information on the

distribution and extent of soil crusts in the specific project area does not render its

analysis inadequate.5 The Coalition contends that the Forest Service should have



      5
      The Survey did not contain soil crust data, and the Soils State Office in
Bozeman, Montana, had no knowledge of any soil crust studies in the Pryor Unit.

                                           13
conducted its own soil crust studies, presumably throughout the 8,900

acres—approximately 14 square miles—it claims will be impacted by off-road

vehicle camping. We disagree, as “NEPA does not require the government to do

the impractical.” See Inland Empire Pub. Lands Council v. U.S. Forest Serv., 88

F.3d 754, 764 (9th Cir. 1996) (citation omitted).

      Finally, we reject the Coalition’s contention that the Forest Service needed

to rely on its own soil quality standards. The Coalition concedes that “nothing in

NEPA mandates compliance with soil standards.” Moreover, as a supplement to

the Forest Service Manual, the soil standards do not have the force and effect of

law. See W. Radio Servs. Co. v. Espy, 79 F.3d 896, 901 (9th Cir. 1996) (finding

that the Forest Service Manual is “not promulgated in accordance with the

procedural requirements of the Administrative Procedure Act,” is “not [a]

regulation[],” and thus “do[es] not have the independent force and effect of law”).

      We conclude that the Forest Service took the requisite hard look at the

environmental impacts from continuing to allow off-road vehicle camping along

public motorized routes.

                                         B

      The Forest Service also took several steps to minimize off-road vehicle

camping’s environmental impacts, and thus complied with the TMR’s


                                         14
minimization criteria. Its initial analysis revealed that “[e]ffects from dispersed

vehicle camping have been observed at site-specific locations and [are] not

widespread along the District’s motorized routes.” Accordingly, it used the

existing 300 foot standard “as the starting point and considered alternatives to this

standard where there was a need to do so.” Alternative B Modified “specifically

address[ed] where there have been resource issues with allowing 300 foot

dispersed vehicle camping[.]”6

      Several more general actions as part of Alternative B Modified will also

directly alleviate environmental impacts from off-road vehicle camping. The

Forest Service purposely declined to designate a number of roads and portions of

roads for motorized use because of the impacts on cultural resources, water quality,

and erosion. This will prevent off-road vehicle camping in the same sensitive

areas. The Forest Service reduced the miles of motorized routes (and thus the

amount of acreage open to off-road vehicle camping) from approximately 150 to

125. It prohibited off-road vehicle camping along 27 miles of non-system routes.

It designated 18 miles of system roads for administrative use only, along which

      6
        For example, in the Beartooth Unit the Forest Service prohibited off-road
vehicle camping within 100 feet of the West Fork of Rock Creek or its tributaries,
limited off-road vehicle camping along the Main Fork of Rock Creek to one
vehicle length from the edge of designated spurs off system road 2421, and closed
over 20 camping sites due to environmental resource concerns.

                                          15
off-road vehicle camping is prohibited. And it imposed seasonal restrictions on

roughly 64 miles of routes, including higher elevation routes 2088, 2091, and

2095A, the same sensitive routes with which the Coalition is particularly

concerned. Seasonal closures during the spring thaw will protect not only the

roads and trails, but also the adjacent land that would otherwise have been open for

off-road vehicle camping.

      These steps satisfy us that the Forest Service “consider[ed] effects on” the

TMR’s environmental criteria “with the objective of minimizing” the

environmental impacts from off-road vehicle camping. See 36 C.F.R. § 212.55(b).

                                     *    *   *

      We are mindful of the Coalition’s interest in non-motorized recreation

opportunities in the Pryor Unit and of the considerable environmental resources at

stake. But we must give deference to the Forest Service’s actions unless they were

arbitrary, capricious, an abuse of discretion, or contrary to law. See 5 U.S.C. §

706. Here, they were not. The Forest Service complied with NEPA, the TMR, and

Executive Order 11644.

      AFFIRMED.




                                         16
