IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO. Civil Action No. 1:11-cv JLK

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1 Case 1:11-cv JLK Document 26 Filed 03/28/12 USDC Colorado Page 1 of 66 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 1:11-cv JLK BACKCOUNTRY HUNTERS AND ANGLERS, Colorado Chapter, Petitioner, UNITED STATES FOREST SERVICE; MARK STILES, in his official capacity as Forest Supervisor for the San Juan National Forest; and THOMAS TIDWELL, in his official capacity as Chief of the United States Forest Service, Respondents, and COLORADO OFF HIGHWAY VEHICLE COALITION, TRAILS PRESERVATION ALLIANCE, SAN JUAN TRAIL RIDERS, PUBLIC ACCESS PRESERVATION ASS N, and THE BLUE RIBBON COALITION v. Respondent-Intervenors. PLAINTIFF S MEMORANDUM IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION Michael C. Soules, Colo. Bar No Andrew Nicewicz, Student Attorney Boe Nicholson, Student Attorney Natural Resources Clinic University of Colorado Law School Wolf Law Building, UCB 404 Boulder, CO (303) Counsel for Plaintiff Colorado Backcountry Hunters and Anglers Filed March 28, 2012

2 Case 1:11-cv JLK Document 26 Filed 03/28/12 USDC Colorado Page 2 of 66 TABLE OF CONTENTS TABLE OF EXHIBITS..iv INTRODUCTION...1 BACKGROUND.2 A. The San Juan National Forest 2 B. The Rico-West Dolores Landscape The Bear Creek Trail Network The Calico Trail Network Ryman Creek and Stoner Creek Trails...7 C. The 1983 and 1992 Forest Plans 7 D. The 2009 Travel Management Plan.11 E. The Forest Service s Authorization of ORV Use on the 14 Rico-West Dolores Trails..13 ARGUMENT.16 I. CBHA WILL SUFFER IRREPARABLE HARM WITHOUT A PRELIMINARY INJUNCTION.18 A. ORV Use on the 14 Trails Will Harm CBHA s Aesthetic, Safety, and Environmental Interests Noise and Aesthetic Interests Recreational Interests and Safety Harm to Natural Resources...22 a. Wildlife and Wildlife Habitat.23 ii

3 Case 1:11-cv JLK Document 26 Filed 03/28/12 USDC Colorado Page 3 of 66 b. Vegetation and Soils...25 B. Without a Preliminary Injunction, CBHA s Procedural Interests Will Be Irreparably Harmed The National Environmental Policy Act Harm to CBHA s Procedural Interests...30 II. III. IV. THE IRREPARABLE HARM TO CBHA OUTWEIGHS ANY POTENTIAL HARM TO DEFENDANTS..33 A PRELIMINARY INJUNCTION WOULD SERVE THE PUBLIC INTEREST CBHA WILL LIKELY SUCCEED ON THE MERITS 38 A. The Forest Service Violated the 1992 Forest Plan by Authorizing ORV Use on the RWD Trails..40 B. The Forest Service Violated NEPA by Authorizing ORV Use on the RWD Trails Without an Environmental Analysis 43 C. The Forest Service Violated NEPA by Failing to Consider Significant New Information Regarding the RWD Trails..47 D. The Forest Service Violated Executive Order by Designating Trails for Motorized Use Without Considering Impacts to Forest Resources...52 E. The Forest Service Violated Executive Order by Permitting ORV Use on the Calico Trail When it Recognized That ORVs Were Damaging the Trail 55 V. CBHA SHOULD NOT BE REQUIRED TO POST A BOND...58 CONCLUSION..59 iii

4 Case 1:11-cv JLK Document 26 Filed 03/28/12 USDC Colorado Page 4 of 66 TABLE OF EXHIBITS Exhibit 1 Exhibit 2 Exhibit 3 Amended Land and Resource Management Plan for the San Juan National Forest; Rocky Mountain Region, USDA, Forest Service (Apr. 1992) (excerpts). Complete document available at: 74.pdf. San Juan Public Lands; Draft Land Management Plan; Draft Environmental Impact Statement (Dec. 2007) (excerpts). Complete document available at: Final Supplemental Environmental Impact Statement for the Amendment of the Land and Resource Management Plan; San Juan National Forest (1992) (excerpts). Complete document available at: 13.pdf Exhibit 4 Alpine Tundra Habitat Assessment: San Juan National Forest (Nov. 2002). Document available at: ftp://ftp2.fs.fed.us/incoming/r2/ro/foia/biologicaldiversity- GreenwaldFOIA/SJNF/Final_Alpine_Tundra.pdf. Exhibit 5 San Juan Public Lands; Draft Land Management Plan (Dec. 2007) (excerpts). Complete document available at: Exhibit 6 Declaration of Robert H. Marion In Support Of Plaintiff s Motion For Preliminary Injunction (Feb. 14, 2012). Marion Declaration Exhibits: Exhibit A Wyle Laboratories Report (excerpt). iv

5 Case 1:11-cv JLK Document 26 Filed 03/28/12 USDC Colorado Page 5 of 66 Exhibit B Exhibit C Exhibit D Exhibit E Save Our Trails, Measuring Noise. This article is available at: Wildlands CPR, Off-Road Vehicle Impacts on Wildlife. This article is available at: Backcountry Hunters and Anglers, Cumulative and Universal: ATV Impacts on the Landscape and Wildlife (2011). This article is available at: Letter from Bob & Nancy Marion to U.S. Forest Service (Jan. 6, 2008). Exhibit F from Bob Marion to U.S. Forest Service (Feb. 12, 2008). Exhibit G from Bob Marion to U.S. Forest Service (July 6, 2008). Exhibit H from Bob Marion to U.S. Forest Service (Aug. 17, 2008). Exhibit I Letter from Bob & Nancy Marion to U.S. Forest Service (July 7, 2009) (Comments on EA for Rico-West Dolores TMP). Exhibit J Administrative Appeal of Rico-West Dolores TMP (Nov. 3, 2009). Exhibit K Letter from CBHA to U.S. Forest Service (Apr. 27, 2011). Exhibit L Letter from U.S. Forest Service to CBHA (June 27, 2011). Exhibit M from Bob Marion to U.S. Forest Service (July 9, 2011). v

6 Case 1:11-cv JLK Document 26 Filed 03/28/12 USDC Colorado Page 6 of 66 Exhibit N Photographs by R. Marion re: ORV-related damage (July 7, 2011). Exhibit O from Bob Marion to U.S. Forest Service (July 29, 2011). Exhibit P Photographs by R. Marion (July 15, 2011). Exhibit Q Letter from Bob Marion to U.S. Forest Service (Aug. 26, 2011). Exhibit R Photographic Slideshow of Calico Trail (Aug. 26, 2011). Exhibit S Letter from CBHA to U.S. Forest Service (Sept. 1, 2011). Exhibit T Exhibit U Wildlands CPR, Best Management Practices For Off-Road Vehicle Use On Forestlands; A Guide for Designating and Managing Off-Road Vehicle Routes (Jan. 2008). Article available at: U.S. Forest Service, Region 2, San Juan National Forest Visitor Use Monitoring Results (Mar. 24, 2009). Exhibit 7 Map of Rico-West Dolores Management Areas (2009). Exhibit 8 Letter from Colorado Division of Wildlife to U.S. Forest Service (Feb. 7, 2008). Exhibit 9 Exhibit 10 San Juan National Forest Land and Resource Management Plan (Sept. 1983) (excerpts). The complete document is available at: 73.pdf. Management Area Map; San Juan National Forest; Land and Resource Management Plan (Apr. 1992). Exhibit 11 Letter from Colorado Division of Wildlife to U.S. Forest Service (June 5, 2009). vi

7 Case 1:11-cv JLK Document 26 Filed 03/28/12 USDC Colorado Page 7 of 66 Exhibit 12 Exhibit 13 Exhibit 14 Exhibit 15 Exhibit 16 Exhibit 17 Decision Notice and Finding of No Significant Impact for the Rico-West Dolores Travel Management Plan (Sept. 2009). U.S. Forest Service, Appeal Decision Reversing the RWD Travel Management Plan (Dec. 14, 2009); Appeal Reviewing Office s Recommendation Memorandum for Rico-West Dolores Appeals (Dec. 11, 2009). Dolores Trail Crew, San Juan National Forest; Accomplishment Report. Dolores Trail Crew, San Juan National Forest; 2008 Accomplishment Report. Declaration of Thomas Sykes In Support of Plaintiff s Motion for Preliminary Injunction (Jan. 13, 2012). U.S. Forest Service, San Juan National Forest; Order No. SJ (June 16, 2010). Exhibit 18 from Trout Unlimited to U.S. Forest Service (Nov. 4, 2008). Exhibit 19 Exhibit 20 Exhibit 21 San Juan National Forest; Roads, Water, and Wildlife. This document is available at: 06.pdf. CBHA and Trout Unlimited, Comments on the Rico-West Dolores Travel Management Plan Environmental Assessment (June 17, 2009). U.S. Forest Service; Rico-West Dolores SPNM Recreation Setting and Motorized Trails (Sept. 2, 2009). Exhibit 22 Decision Notice re: Cross-Country Travel in the Rico Area (June 16, 2010). Exhibit 23 from Forest Supervisor Stiles to S. Johnson (Feb. 26, 2010). vii

8 Case 1:11-cv JLK Document 26 Filed 03/28/12 USDC Colorado Page 8 of 66 INTRODUCTION Plaintiff, the Colorado Chapter of Backcountry Hunters and Anglers ( CBHA ), respectfully moves for a preliminary injunction to enjoin the Defendant United States Forest Service from authorizing the use of motorized off-road vehicles ( ORVs ) on more than 80 miles of non-motorized trails within the San Juan National Forest. An injunction is necessary to prevent the irreparable harm that CBHA will suffer if ORV use is allowed on these trails while this action is pending. And an injunction is warranted because CBHA will likely prevail on its claims under the National Environmental Policy Act ( NEPA ), National Forest Management Act ( NFMA ), and Executive Orders and In June 2010, the Forest Service unlawfully authorized ORV use on 14 trails within non-motorized areas of the National Forest. Because the Forest Service s decision violates federal law, and threatens irreparable harm to CBHA s members, CBHA requests an injunction directing the Forest Service to prohibit ORV use on the following 14 trails: Bear Creek (Trail No. 607) Burnett Creek (Trail No. 641) Calico (Trail No. 208) Eagle Peak/Upper Stoner (Trail No. 629) East Fall Creek (Trail No. 646) Gold Run (Trail No. 618) Grindstone (Trail No. 608) Horse Creek (Trail No. 626) Johnny Bull (Trail No. 639) Little Bear Creek (Trail No. 609)

9 Case 1:11-cv JLK Document 26 Filed 03/28/12 USDC Colorado Page 9 of 66 Priest Gulch (Trail No. 645) Ryman Creek (Trail No. 735) Stoner Creek (Trail No. 625) Wildcat (Trail No. 207) BACKGROUND A. The San Juan National Forest The San Juan National Forest, which stretches across 1.9 million acres in Southwest Colorado, is widely recognized for its wildlife habitat, vulnerable ecosystems, and recreational opportunities. The Forest serves as a major reserve for wildlife. Species emblematic of the Colorado Rocky Mountains, such as mule deer, elk, bighorn sheep, mountain lions, and black bears, make the Forest their home. Amended Land and Resource Management Plan for the San Juan National Forest at II-1 (April 1992) (Ex. 1). The Forest also provides important habitat for numerous Forest Service-designated sensitive species, including marten, river otter, bighorn sheep, bald eagle, Colorado River cutthroat trout, and the Canada lynx, a federally threatened species. Ex. 2 at 3.62, 3.158, ; see also Ex. 3 at II-70. The Forest is an important recreational destination as well, providing opportunities for hiking, mountain biking, hunting, fishing, alpine and nordic skiing, ORV riding, horseback riding, and camping. Ex. 1 at II-6. The Forest contains mesas, deep canyons, rolling foothills, and rugged mountain slopes. Ex. 1 at II-1. Not surprisingly given its diverse topography, the Forest crosses 2

10 Case 1:11-cv JLK Document 26 Filed 03/28/12 USDC Colorado Page 10 of 66 four major climatic and vegetative zones, including subalpine forest and alpine tundra. Id. The alpine tundra of the San Juan National Forest is a particularly important biological resource. As the Forest Service has noted, [t]here is tremendous diversity of species and vegetation communities within the alpine type. Ex. 4 at 2. Not only do some species depend upon alpine habitat for breeding or life-cycle requirements, but this ecosystem also provides the only known habitat for the Uncompahgre fritillary butterfly, a federally endangered species. Ex. 2 at 3.146; see also 56 Fed. Reg (June 24, 1991) (listing butterfly as endangered). The alpine tundra is also very fragile. Ex. 4 at 5. The tundra can be easily damaged to a point that it may take hundreds of years to heal and return to what originally existed. Id. B. The Rico-West Dolores Landscape The 14 trails at issue in this case are located in the Rico-West Dolores ( RWD ) area of the San Juan National Forest. The RWD area is rugged, with elevations ranging from 7500 feet to two peaks exceeding 14,000 feet within the Lizard Head Wilderness Area. Complaint for Declaratory and Injunctive Relief and Petition for Review of Agency Action ( Pet. ) 57 (Dkt. No. 1); U.S. Forest Service Response to Petitioner s Complaint ( USFS Resp. ) 57 (Dkt. No. 14). This landscape contains seven Inventoried Roadless Areas, which make up approximately 50% of the RWD area s total acreage. Pet. 57; USFS Resp

11 Case 1:11-cv JLK Document 26 Filed 03/28/12 USDC Colorado Page 11 of 66 The roadless areas of the RWD landscape provide habitat for a range of wildlife species. Pet. 58; USFS Resp. 58; see also Ex. 5 at 217. This remote landscape has many other unique attributes, including pristine vistas, streams harboring native cutthroat trout, and large, healthy meadows. Declaration of Robert H. Marion 7 (attached as Ex. 6); see also Pet. 59; USFS Resp. 59. Because of its rugged topography, many parts of the RWD landscape are only accessible by trail. Approximately 300 miles of trails cross the RWD area. Marion Decl. 9. These trails are popular with outdoor recreationalists, and are heavily used by hunters. Id. Due to the heavy snowfall this area receives, most of these trails are effectively closed during winter. See id. The natural resources of the RWD area, and quiet forest users enjoyment of them, are imperiled by the Forest Service s decision to authorize ORV use on 14 trails within the RWD landscape. The 14 trails at issue in this case include two major trail networks, the Calico and Bear Creek networks, as well as two other trails, Ryman Creek and Stoner Creek. See Ex. 7 (map displaying trails within the RWD area). 1 These trails lie primarily in the roadless areas of the RWD landscape. Pet. 65; USFS Resp This map, which was included with the 2009 travel management plan for the RWD area, is attached to this Memorandum because it shows the location of the 14 trails more easily than other maps of the RWD area. As explained below at 12-13, the motorized trail designations shown on this map were vacated by the Forest Supervisor. Thus, this map is for illustrative purposes only. 4

12 Case 1:11-cv JLK Document 26 Filed 03/28/12 USDC Colorado Page 12 of The Bear Creek Trail Network The Bear Creek trail network consists of the 14-mile Bear Creek trail, which forms the backbone of the network, and four feeder trails: Gold Run, Grindstone, Grindstone Loop, and Little Bear. 2 This network lies in the heart of the pristine Bear Creek watershed, which originates at over 13,000 feet and runs 18 miles to the Dolores River. See Pet. 68; USFS Resp. 68; Marion Decl. 13. Bear Creek valley contains large, beautiful meadows, beaver dams, excellent riparian habitat, and red sandstone cliffs. Marion Decl. 14; Pet. 69; USFS Resp. 69. This watershed, which adjoins the proposed Hermosa Wilderness Area, provides wildlife habitat and a roadless connection between two adjacent watersheds. Pet. 57; USFS Resp. 57. The Colorado Division of Wildlife 3 has recognized this area s ecological importance and warned of the threat that ORVs pose to these resources. The Division described Bear Creek as a highly desirable backcountry area, noting that it is a large and important drainage for big game and cutthroat trout. Ex. 8 at 4. The Division also stated that great efforts have been made to alleviate and reverse wildlife habitat degradation and establish a productive cutthroat fishery in the upper portion of Bear 2 Consistent with its non-motorized classification under the Forest s land management plan, ORVs are currently prohibited on Grindstone Loop. See Marion Decl. 12; USFS Resp. 66. This trail is not at issue in this case. 3 In July 2011, the Colorado Division of Wildlife merged with Colorado State Parks to form a new state agency called Colorado Parks and Wildlife. Because the documents cited in this Memorandum predate the merger, CBHA refers to the agency by its pre-merger name. 5

13 Case 1:11-cv JLK Document 26 Filed 03/28/12 USDC Colorado Page 13 of 66 Creek, and warned that [e]stablishing a high use, off-highway vehicle route through the area... may jeopardize that work. Id. 2. The Calico Trail Network The Calico network includes the 19-mile Calico trail and seven feeder trails: Burnett Creek, Eagle Peak/Upper Stoner, East Fall Creek, Horse Creek, Johnny Bull, Priest Gulch, and Wildcat. The Calico trail traverses many types of habitat, and more than 10 miles of the trail are largely above treeline. Pet. 71; USFS Resp. 71. Six of the seven feeder trails connect with the Calico above treeline, passing through excellent wildlife habitat as they climb in elevation. Marion Decl. 19. The section of the Calico trail above treeline is a special place: it has views that extend for many miles, contains bowls with excellent forage for wildlife, and features expansive fields of wildflowers. Marion Decl. 18; Pet. 72; USFS Resp. 72. Unfortunately, the effects of motorized use are magnified within this landscape: sound travels great distances (harming both wildlife and quiet forest users), vegetation recovers slowly, and habitat fragmentation problems are more acute. Marion Decl. 18; see also Ex. 4 at 6 (noting that in alpine tundra areas, recovery from ORV-related damage may take decades or even centuries just to get started ). The Colorado Division of Wildlife has recognized the threat that ORVs pose to the Calico trail and surrounding habitat. The Division observed that Calico is a steep trail above timberline, and suggested that motorized use on this trail erodes easily damaged 6

14 Case 1:11-cv JLK Document 26 Filed 03/28/12 USDC Colorado Page 14 of 66 soils and delicate vegetation.... Motorized vehicle use on this trail also inhibits wildlife use of this important habitat by increasing fragmentation. The trail bisects important elk habitat, e.g., calving, nursery and summering area. Ex. 8 at Ryman Creek and Stoner Creek Trails The Ryman Creek trail lies in a watershed important to the wildlife of the RWD area. As the Colorado Division of Wildlife has noted, this area supports elk calving grounds, provides important mule deer fawning areas and habitat, and is used by black bears, mountain lions, and a variety of small mammals and birds. Ex. 8 at 4. The creek itself supports a population of native cutthroat trout. Marion Decl. 21. The Stoner Creek trail also runs through an ecologically important area. According to the Division of Wildlife, this area is highly valuable to wildlife, particularly elk and valued by sportsmen as an area free of motorized vehicles. Ex. 8 at 3. C. The 1983 and 1992 Forest Plans The National Forest Management Act ( NFMA ), the statutory framework that governs the management of national forests, directs the Forest Service to prepare management plans for all lands under Forest Service control. 16 U.S.C These plans are often called land and resource management plans or forest plans. Once enacted, a forest plan governs the permissible uses within a national forest. Site-specific decisions must be consistent with the forest plan. 16 U.S.C. 1604(i). 7

15 Case 1:11-cv JLK Document 26 Filed 03/28/12 USDC Colorado Page 15 of 66 In 1983, the Forest Service issued the first forest plan for the San Juan National Forest ( 1983 Forest Plan or 1983 Plan ). The 1983 Plan, which was accompanied by an environmental impact statement ( EIS ), establishe[d] the long-term direction for managing the San Juan National Forest. San Juan National Forest Land and Resource Management Plan at I-1 (Sept. 1983) (Ex. 9). Similar to a municipal zoning map, a forest plan divides a national forest into different management areas based on the type of activities allowed in that part of the forest. The 1983 Plan established 20 different management area classifications for the San Juan National Forest. Each management area was subject to a Management Area Direction, which contains management requirements specific to individual areas with[in] the Forest. Ex. 9 at III-1. Under the 1983 Plan, uses within these management areas must be consistent with the management requirements listed in the... Management Area Direction. Id. at I-1. To the extent the Forest Service wished to change the Plan s management requirements, those changes may not be made without amending or revising the Forest Plan. Ex. 9 at III-10; see also 36 C.F.R (where a site-specific decision is not consistent with a forest plan, the agency must either modify the decision or amend the plan). Two of the Plan s management area classifications are particularly relevant to this case: Management Areas 2A and 3A. Management Area 2A ( MA2A ) is designated for semi-primitive motorized recreation. Ex. 9 at III-105. This Area s [m]anagement 8

16 Case 1:11-cv JLK Document 26 Filed 03/28/12 USDC Colorado Page 16 of 66 emphasis is for semi-primitive motorized recreation opportunities such as snowmobiling, four-wheel driving, and motorcycling both on and off roads and trails. Id. Consistent with that management emphasis, the management requirements for MA2A allow motorized uses. Id. at III-107. Management Area 3A ( MA3A ), by contrast, is designed for semi-primitive non-motorized recreation. Id. at III-130. The management emphasis for MA3A areas calls for semi-primitive non-motorized recreation in both roaded and unroaded areas such as hiking, horseback riding, hunting, cross-country skiing, etc. Id. Consistent with that emphasis, the 1983 Plan places strict limits on motorized use within MA3A areas: Specific land areas or travel routes may be opened seasonally and with specific authorization to accomplish resource management activities. The area is never open for motorized recreation activities except for specifically identified motorized corridors through the area. Id. at III-131 (emphasis added). Thus, the 1983 Plan only allows motorized use in MA3A areas for certain resource management activities, or where a motorized corridor (such as a trail or road) has been specifically identified. The only motorized corridors that were specifically identified in the 1983 Plan are listed in Appendix G of that Plan. Of the 14 trails at issue in this case, five of them were identified as motorized corridors in Appendix G: Bear Creek, Calico, Gold Run, Grindstone, and Little Bear. Ex. 9 at G-2. Each of these trails was located, at least 9

17 Case 1:11-cv JLK Document 26 Filed 03/28/12 USDC Colorado Page 17 of 66 partially, in MA3A areas. But because the 1983 Plan specifically identified these trails as motorized corridors, they were open to ORV use under the 1983 Plan. In 1990, the Forest Service issued an amendment ( Amendment 11 ) to the 1983 Plan that changed several management area designations within the National Forest. Specifically, Amendment 11 changed the Landslip Mountain/Calico Peak area through which the Calico trail runs from MA2A (motorized) to MA3A (non-motorized) because the [t]opography is too steep, and soils too erosive, for motorized recreation. Ex. 1 at J-96. When the Forest Service designated this area as MA3A, the agency did not specifically identify the Calico trail as a motorized corridor. Cf. Ex. 9 at III-131 (requiring motorized trails in MA3A areas to be specifically identified ). Amendment 11 also moved portions of the following trails into MA3A without specifically identifying motorized corridors: Burnett Creek, Eagle Peak, East Fall Creek, Horse Creek, Johnny Bull, Priest Gulch, and Wildcat. See Ex. 1 at J-95 to J-105. In April 1992, the Forest Service issued an Amended Land and Resource Management Plan for the San Juan National Forest (the 1992 Forest Plan or 1992 Plan ). See generally Ex. 1. Like the 1983 Plan, the 1992 Plan was accompanied by an EIS. See Ex. 3. The Preface to the 1992 Plan states that this Plan superseded the original Forest Plan and stands alone as the direction for the Forest. Ex. 1 at Preface- 1. The 1992 Plan also incorporated all prior amendments to the 1983 Plan, including Amendment 11. Id. 10

18 Case 1:11-cv JLK Document 26 Filed 03/28/12 USDC Colorado Page 18 of 66 Although several MA3A (non-motorized) areas expanded in size under the 1992 Plan, the rules governing motorized use in MA3A areas remained the same as those in the 1983 Plan. Thus, like its predecessor, the 1992 Plan prohibited all motorized recreation activities within MA3A except for specifically identified motorized corridors through the area. Id. at III-131. Under the 1992 Plan, each of the 14 trails at issue in this case are wholly or partially located in areas designated as MA3A. 4 Moreover, although the 1992 Plan briefly references Appendix G (which was not reprinted), id. at III-2, the Plan does not otherwise discuss motorized corridors within MA3A areas. 5 D. The 2009 Travel Management Plan In 2005, the Forest Service issued a new, nationwide travel management rule that was intended to improve management of ORVs in national forests. The travel management rule directed the Forest Service to create travel management plans ( TMPs ) that designate routes, vehicle types, and seasons of use for motorized travel on national forest roads, trails, and in other areas. See 36 C.F.R (a), (a). 4 The locations of different management areas within the Forest are set forth in the Management Area Map, which is an official part of the 1992 Plan. See Ex. 10 (copy of 1992 Management Area Map); Ex. 1 at I-1. These management areas are also shown in the map attached as Exhibit 7. 5 There are four trails, specifically, that were listed in Appendix G to the 1983 Forest Plan and were not affected by Amendment 11: Bear Creek, Gold Run, Grindstone, and Little Bear. Although CBHA does not concede that these four trails remain motorized under the Forest Plan, the NFMA argument in this Motion (Part IV.A) focuses on the other 10 trails at issue in this case. Regardless of the status of these four trails at the time of the 1992 Plan, the Forest Service s authorization of ORV use on these trails in June 2010 was unlawful under NEPA and Executive Order See infra Parts IV.B-.D. 11

19 Case 1:11-cv JLK Document 26 Filed 03/28/12 USDC Colorado Page 19 of 66 Once completed, these TMPs would identify motorized trails and areas in different parts of the forest. In April 2009, the Forest Service issued a draft TMP for the Rico-West Dolores area of the San Juan National Forest. A number of stakeholders, including the Colorado Division of Wildlife and CBHA, raised concerns about the draft TMP. See, e.g., Ex. 11 at 2-4; Marion Decl Despite these concerns, in September 2009 the Forest Service issued a final TMP that authorized motorized use on a number of trails within MA3A areas, including the Calico, Bear Creek, Little Bear, Eagle Peak/Upper Stoner, and Johnny Bull trails. See Ex. 12 at 10. The final TMP was administratively appealed by six separate groups of appellants, including CBHA. In December 2009, Forest Supervisor Mark Stiles reversed the TMP. See generally Ex. 13 (Dec. 14, 2009 Appeal Decision). Because the TMP has been vacated, the 1992 Plan remains the legally binding plan for motorized use on the 14 trails that are the subject of this action. In rejecting the TMP, Supervisor Stiles followed the recommendation of the Appeal Reviewing Officer ( ARO ) who reviewed the issues raised by the six appellant groups. See 36 C.F.R (describing the role of the ARO in the administrative appeals process). The ARO recommended reversing the TMP because, among other things, designating trails in MA3A areas as motorized violates the Forest Plan. Ex. 13, Dec. 11, 2009 Recommendation Memorandum at 2. The ARO also recommended reversal of the TMP because the trail use designations in the Bear Creek watershed were 12

20 Case 1:11-cv JLK Document 26 Filed 03/28/12 USDC Colorado Page 20 of 66 arbitrary, and because the [m]otorized trail designations failed to minimize or mitigate impacts of motorized use on wildlife and forest resources, as required by travel management planning rules. Id. at 4, 5. Mr. Stiles adopted the ARO s analysis on each of these points. Ex. 13, Appeal Decision at 2. E. The Forest Service s Authorization of ORV Use on the 14 Rico-West Dolores Trails In recent years, the Forest Service has taken a series of steps to facilitate and encourage ORV use (primarily motorcycles) on the 14 trails at issue in this case. For example, the Forest Service installed a series of trail signs indicating that motorcycles were allowed on these trails. Marion Decl. 38 (explaining that he has seen trail signs permitting ORV use on 13 of the 14 trails); Ex. 14 at 4-13 (showing the installation of trail signs that permitted ORVs on the Calico, Priest Gulch, Burnett Creek, Wildcat, East Fall Creek, Bear Creek, and Gold Run trails). The Forest Service has also performed trail reconstruction and maintenance to address damage caused by ORVs and to enable further ORV use. Marion Decl. 39; see also Ex. 15 at 5-7, 12, 20 (explaining the need to perform trail work due to erosion, deep ruts, and trail widening and braiding). And the Forest Service has distributed visitor maps which purported to allow ORVs on the 14 trails. See Marion Decl. 49. The Forest Service s efforts to encourage ORVs on these 14 trails has coincided with a dramatic increase in ORV use. CBHA member Thomas Sykes, for example, states that [o]ver the past decade I have witnessed a huge explosion in the popularity of 13

21 Case 1:11-cv JLK Document 26 Filed 03/28/12 USDC Colorado Page 21 of 66 backcountry ORV use. Declaration of Thomas Sykes 6 (attached as Ex. 16); see also Marion Decl. 40 (noting a large increase in ORV use on the Calico, Bear Creek, and other RWD trails). These observations are mirrored by those of supporters of ORV use on the 14 trails. A representative of Intervenor-Defendant San Juan Trail Riders observed that [t]he Dolores District is gaining widespread notoriety for these opportunities across the Southwest and this availability is bringing in greater amounts of use each year. Ex. 14, Appendix B, cmt. 8; see also id., cmt. 5. In an effort to protect the Rico-West Dolores landscape and the 14 trails, CBHA, a non-profit organization of hunters and anglers dedicated to conserving public lands and their resources, Marion Decl. 2, 4, has repeatedly urged the Forest Service to prohibit motorized use on these trails. For example, CBHA member Robert Marion a designated Forest Watchman for the San Juan National Forest has (a) sent letters and s to the Forest Service explaining that these trails are non-motorized under the 1992 Forest Plan, and that any effort to authorize ORV use must be accompanied by a NEPA analysis; (b) reported instances of trail damage resulting from ORVs; and (c) met with Forest Service officials to explain the legal and environmental problems associated with the agency s actions. See generally id & Exs. E-J. CBHA s efforts fell on deaf ears. Rather than prohibiting ORV use on the 14 trails, the Forest Service did the opposite: in June 2010, the agency codified its on-theground practices in an order that officially authorized motorized use. Specifically, the 14

22 Case 1:11-cv JLK Document 26 Filed 03/28/12 USDC Colorado Page 22 of 66 Forest Supervisor issued an administrative order regarding ORV use within the Rico- West Dolores area. See Order No. SJ (June 16, 2010) (Ex. 17) (hereinafter June 2010 Order ). The stated intent of the June 2010 Order was to prohibit motorized travel in crosscountry areas, i.e., the areas between roads and trails. Id. However, the June 2010 Order also expressly permitted the operation of vehicles on motorized trails as specified on the accompanying Closure Map. Id. Because the Closure Map shows all 14 trails as open to motorcycles, id. at 2, the June 2010 Order formally authorized ORV use on these trails. By its terms, this Order will remain in effect until December 31, 2015, unless it is subsequently rescinded. Id. at 1. In issuing this Order, the Forest Service prepared neither an EIS nor an environmental assessment ( EA ) analyzing the effects of its decision to authorize ORV use on the 14 trails. Cf. 40 C.F.R (requiring preparation of an EIS or EA for federal agency actions with possible environmental effects). Moreover, although the June 2010 Order designated these 14 trails for motorized use, the Forest Service made no attempt to adhere to the requirements of Executive Order and 36 C.F.R (b). These regulations require the Forest Service, when designating motorized trails, to consider and attempt to minimize: (1) Damage to soil, watershed, vegetation, and other forest resources; (2) Harassment of wildlife and significant disruption of wildlife habitats; [and] (3) Conflicts between motor vehicle use and existing or proposed 15

23 Case 1:11-cv JLK Document 26 Filed 03/28/12 USDC Colorado Page 23 of 66 recreational uses of National Forest System lands or neighboring Federal lands. 36 C.F.R (b). Following issuance of the June 2010 Order, CBHA continued its efforts to protect the 14 trails and surrounding resources. On April 27, 2011, CBHA submitted a detailed letter to the Forest Service that identified some of the agency s legal violations, discussed the damage occurring as a result of ORV use, and urged the Forest Service to prohibit motorized use on these 14 trails. Marion Decl. 55 & Ex. K. In a response dated June 27, 2011, the Forest Service refused to close these trails. Id. 55 & Ex. L. On September 1, 2011, CBHA s counsel sent a final demand letter to the Forest Service, seeking to reach a resolution without the need for litigation. Marion Decl. 60 & Ex. S. In October 2011, CBHA met with Forest Service officials to explore the possibility of settlement. Marion Decl. 61. Unfortunately, the Forest Service refused to consider the immediate closure of any of the 14 trails at issue in this case. Id. Now, to prevent harm to the ecosystems of the Rico-West Dolores landscape, and to avoid irreparable injury to its members, CBHA brings this motion for preliminary injunction. ARGUMENT To obtain a preliminary injunction, the moving party must establish: (1) a likelihood of success on the merits; (2) a likelihood that the movant will suffer irreparable harm in the absence of preliminary relief; (3) that the balance of equities tips in the movant s favor; and (4) that the injunction is in the public interest. Roda Drilling Co. v. 16

24 Case 1:11-cv JLK Document 26 Filed 03/28/12 USDC Colorado Page 24 of 66 Siegal, 552 F.3d 1203, 1208 (10th Cir. 2009) (citing Winters v. Nat. Res. Def. Council, 555 U.S. 7 (2008)). Because the relief that CBHA seeks an order directing the Forest Service to prohibit ORVs on the 14 trails while this case is pending qualifies as a mandatory injunction, CBHA must make a strong showing both with regard to the likelihood of success on the merits and with regard to the balance of harms. O Centro Espirita Beneficiente Uniao Do Vegetal v. Ashcroft, 389 F.3d 973, 976 (10th Cir. 2004) (en banc). CBHA satisfies the four-part test. Because the exigencies of the case require extraordinary interim relief, this Court should issue a preliminary injunction. Roda, 552 F.3d at 1209 (citation omitted). I. CBHA WILL SUFFER IRREPARABLE HARM WITHOUT A PRELIMINARY INJUNCTION. A plaintiff satisfies the irreparable harm requirement by demonstrating a significant risk that he or she will experience harm that cannot be compensated after the fact by monetary damages. Roda, 553 F.3d at 1210 (citing Greater Yellowstone Coal. v. Flowers, 321 F.3d 1250, 1258 (10th Cir. 2003)). Irreparable harm is [p]erhaps the single most important prerequisite for the issuance of a preliminary injunction. Flowers, 321 F.3d at 1260 (quoting Federal Practice and Procedure ). In this case, CBHA and its members will be irreparably harmed in several respects if an injunction is not issued. The relief that CBHA seeks is narrow. CBHA requests an order directing the Forest Service to prohibit ORV use on the 14 Rico-West Dolores ( RWD ) trails pending 17

25 Case 1:11-cv JLK Document 26 Filed 03/28/12 USDC Colorado Page 25 of 66 a final decision on the merits. The substantive harm CBHA would suffer without an injunction will occur between early summer and late fall, when the 14 trails are open to ORVs and other users. See Marion Decl. 35. Thus, CBHA will suffer irreparable harm unless it can obtain a preliminary injunction, or a favorable decision on the merits, by early June Because the merits of this case will not be resolved within that timeframe, this Motion is necessary to prevent irreparable harm to CBHA and its members. A. ORV Use on the 14 Trails Will Harm CBHA s Aesthetic, Safety, and Environmental Interests. Unless restrained by a preliminary injunction, the Forest Service s continued authorization of ORV use on the 14 trails will irreparably harm CBHA and its members. CBHA consists of sportsmen and women who seek to conserve the public lands and resources that support their hunting and angling traditions. Marion Decl. 2; Sykes Decl. 3. CBHA works to conserve the traditional backcountry values of solitude, silence, personal challenge, physical fitness and adventure from the threat of improper motorized use on public lands. Marion Decl. 3. CBHA members use and enjoy the 14 RWD trails for a variety of recreational activities, including hunting, fishing, hiking, camping, wildlife viewing, landscape photography, cross-country skiing, and enjoying the solitude and aesthetic attributes of the RWD area. Marion Decl. 5; Sykes Decl. 5. By allowing ORV use on the 14 trails, the Forest Service has harmed, and will continue to harm, CBHA s aesthetic, safety, and environmental interests. 18

26 Case 1:11-cv JLK Document 26 Filed 03/28/12 USDC Colorado Page 26 of Noise and Aesthetic Interests CBHA s members will be directly harmed by the sight and noise of ORVs within this non-motorized area of the San Juan National Forest. As CBHA members have explained, noise from ORV use adversely affects their peaceful, quiet use experiences, and has forced them to cancel hikes they otherwise would have taken. Sykes Decl. 11; Marion Decl. 24(2), 28. Likewise, the presence of ORVs on these 14 trails injures CBHA s aesthetic interests. As Forest Watchman Robert Marion explains: I have been splashed with mud, enveloped in a dust cloud, and forced to stand on the side of a trail while over 10 motorcycles passed at high speed.... ORVs, especially those with 2-cycle engines, emit substantial pollutants into the air. When hiking on these trails, I am subjected to these obnoxious fumes when an ORV passes. Marion Decl. 24. These harms, standing alone, are sufficient to satisfy the irreparable harm requirement. See San Luis Valley Ecosystem Council v. U.S. Fish & Wildlife Service, 657 F. Supp. 2d 1233, 1240 (D. Colo. 2009) (finding irreparable injury from noise and impacts to aesthetic interests); Davis v. Mineta, 302 F.3d 1104, (10th Cir. 2002) (finding irreparable harm requirement had been met because, inter alia, increased noise and damage to an area s aesthetic attributes is irreparable in the sense that it cannot adequately be remedied by non-equitable forms of relief ). CBHA has not only suffered these harms in the past; these injuries will resume later this year without a preliminary injunction. Indeed, once the snow melts and ORVs return to the 14 RWD trails which 19

27 Case 1:11-cv JLK Document 26 Filed 03/28/12 USDC Colorado Page 27 of 66 could occur as early as June 2012 CBHA s members will yet again suffer irreparable injury. See Marion Decl. 66. Because its members will be affected by noise and [] their aesthetic interests will be affected, 657 F. Supp. 2d at 1240, CBHA satisfies the irreparable harm requirement. 2. Recreational Interests and Safety The authorization of ORV use on the 14 trails also interferes with CBHA s use of the RWD area for backcountry hunting, angling, hiking, and other activities. CBHA members regularly hunt along and near the 14 trails, and their hunting experiences are frequently disrupted by ORVs. Marion Decl. 36; Sykes Decl. 11, 14 (discussing ORVs negative effect on his hunting interests because ORVs impact elk populations). Sometimes, ORVs directly interfere with CBHA members hunting by scaring away the game: On one hunt... a few years ago, I was regularly seeing elk (at long distances) until two motorcycles rode a ridgeline trail through the area. I did not see another elk for 3 days. Marion Decl. 24. ORVs also interfere with CBHA members pursuit of other recreational activities, such as hiking and wildlife photography. See, e.g., Sykes Decl. 11; see also Ex. 18 at 3 ( from Trout Unlimited explaining that ORV use on certain roads and trails is biologically problematic for elk and other species and socially problematic for the vast majority of traditional quiet users ). These harms will continue without a preliminary injunction. 20

28 Case 1:11-cv JLK Document 26 Filed 03/28/12 USDC Colorado Page 28 of 66 Put simply, CBHA s members have strong aesthetic and recreational interests in a quiet, undisturbed forest experience, and the Forest Service s authorization of ORV use on these 14 trails adversely affects those interests. This type of injury satisfies the irreparable harm requirement. See, e.g., Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1135 (9th Cir. 2011) (finding a likelihood of irreparable harm where a Forest Service logging project would, inter alia, harm plaintiffs members recreational interest in the area). Nor is the threat to CBHA s interests limited to the disruption of hunting and other recreational activities. ORV use on these 14 trails also poses a safety threat to CBHA members and others. As Mr. Marion describes: On many occasions I have been forced off of the trail by ORVs. They create unsafe conditions by passing me at high speeds within a foot of me.... [They] also scare horses and create unsafe conditions for the horse rider.... On one occasion a motorcycle almost ran into me because he had just gone over a hill which limited his visibility. Marion Decl. 24. Similarly, Mr. Sykes, another CBHA member, was nearly hit by an ORV on Bear Creek trail, and believes that ORV use on the Bear Creek Trail is a safety hazard to myself and other trail users. Sykes Decl. 13. These safety concerns have been echoed by the Colorado Division of Wildlife, which warned that motorized use of [Calico] trail... is not compatible with and is dangerous to other users such as horseback riders. Ex. 8 at 3. The Division expressed similar concerns about the Horse Creek, Wildcat, and Priest Gulch trails. Id.; see also id. 21

29 Case 1:11-cv JLK Document 26 Filed 03/28/12 USDC Colorado Page 29 of 66 at 4 (urging the Forest Service to prohibit ORV use on the Gold Run trail, because allowing both ORVs and traditional uses on this extremely steep (in spots) trail may create hazardous conditions for all users ). By making CBHA members feel less safe along these 14 trails and by increasing their risk of an accident the Forest Service s authorization of ORVs further threatens irreparable harm. See Brady Campaign to Prevent Gun Violence v. Salazar, 612 F. Supp. 2d 1, 25 (D.D.C. 2009) (finding irreparable injury where an agency decision allowing guns in national parks made plaintiff s members concerned for their personal safety in parks such that they cannot fully enjoy their visits to certain national parks or wildlife refuges because they feel less safe ). 3. Harm to Natural Resources In addition to the injuries described above, ORV use on the 14 trails has caused, and will continue to cause, irreparable harm to the natural resources of the RWD area. As explained below, without a preliminary injunction, ORV use will harm the wildlife, wildlife habitat, vegetation, and soils of the RWD landscape. This harm is irreparable: Environmental injury, by its nature, can seldom be adequately remedied by money damages and is often permanent or at least of long duration, i.e., irreparable. Amoco Production Co. v. Village of Gambell, 480 U.S. 531, 545 (1987). Because CBHA has a strong interest in protecting these natural resources, Marion Decl. 2-5, 34, 37, the Forest Service s decision will irreparably harm CBHA absent an injunction. 22

30 Case 1:11-cv JLK Document 26 Filed 03/28/12 USDC Colorado Page 30 of 66 a. Wildlife and Wildlife Habitat ORV use on the 14 trails has and will continue to harm the wildlife populations of the Rico-West Dolores area. As Mr. Marion s declaration explains, the noise and disruption associated with ORVs adversely affects elk and other big game species. Marion Decl. 24(4), 25, Indeed, a recent literature review by CBHA s national affiliate concludes that ORVs can have serious effects on wildlife, resulting in displaced animals and habitat fragmentation. See Marion Decl., Ex. D. These scientific findings are mirrored by CBHA members personal experiences. As Mr. Sykes observed, several trails in the Bear Creek trail network traverse prime elk habitat.... On the occasions that I have encountered motorcycle tracks or have heard motorcycles in the vicinity, I have never seen an elk. Sykes Decl. 14; see also id. 11, 16, 18 (attributing the lack of elk along the Calico and Ryman Creek trails and in the RWD area generally to ORV use). The harm that ORVs cause wildlife has been acknowledged by the Forest Service. A fact sheet available on the San Juan National Forest website notes that fewer elk are found in areas bisected by several motorized routes. This is especially true during hunting seasons.... Biologists have found that herds will leave national forest lands in these areas during hunting season to escape motorized pressure. Ex. 19 at 2l; see also Ex. 20 (comments of CBHA and Trout Unlimited explaining that if unrestricted crosscountry motorized travel is replaced with a proliferating web-work of authorized trails, 23

31 Case 1:11-cv JLK Document 26 Filed 03/28/12 USDC Colorado Page 31 of 66 little is gained in the realms of reducing wildlife disturbance and forced relocation of wildlife ). By lacing the RWD landscape with more than 80 miles of motorized routes, the Forest Service has harmed this area s elk populations and CBHA s related interests. The Colorado Division of Wildlife has also recognized the threat that ORVs pose to wildlife in this area. In its 2008 letter urging the Forest Service to prohibit ORVs on the Calico trail, the Division noted that [m]otorized vehicle use on this trail [] inhibits wildlife use of this important habitat by increasing fragmentation. The trail bisects important elk habitat, e.g., calving, nursery and summering area. Ex. 8 at 3; see also Ex. 11 at 3 (Division of Wildlife urging that Calico and other trails be designated nonmotorized, and noting that this area contains high quality wildlife habitat ). The Division expressed similar concerns about the Ryman Creek trail, and was opposed to motorized use on the Bear Creek trail network due to the threat ORVs pose to wildlife habitat, including the productive cutthroat trout fishery in the upper portion of Bear Creek. Ex. 8 at 4; Ex. 11 at 2; see also Sykes Decl. 15 ( In addition to the negative effects of ORV noise on my trout fishing experiences, I believe that silt damage from ORVs impacts trout reproduction within Bear Creek. ). This risk of harm to the cutthroat trout, a Forest Service-designated sensitive species, Ex. 5 at 3.62, is irreparable. See San Luis Valley, 657 F. Supp. 2d at 1241 (noting that sedimentation from drilling activities could irreparably harm the Rio Grande sucker). 24

32 Case 1:11-cv JLK Document 26 Filed 03/28/12 USDC Colorado Page 32 of 66 As the Division of Wildlife s comments underscore, ORV use on the 14 trails degrades crucial wildlife habitat. By authorizing this motorized use, the Forest Service s decision has caused, and will continue to cause, irreparable injury to the wildlife and wildlife habitat of the RWD area. And because it affects CBHA s specific interests, this threat to wildlife likewise satisfies the irreparable harm requirement. See, e.g., Colorado Wild v. U.S. Forest Serv., 299 F. Supp. 2d 1184, 1190 (D. Colo. 2004) (finding that plaintiff would suffer irreparable injury where the [b]iological integrity of the area is at risk ); Brady, 612 F. Supp. 2d at 25. b. Vegetation and Soils Irreparable harm to natural resources and to CBHA s interest in the protection of those resources will also result because ORV use on the 14 trails will damage the soils and vegetation of the RWD area. As Mr. Marion has explained, the use of ORVs on these trails frequently causes harm to the trails and surrounding areas. While hiking on the RWD trails, Mr. Marion has witnessed numerous physical impacts from ORV use, including trail braiding and widening, the removal of up to two feet of topsoil, deposition of soil in nearby streams, and damage to vegetation. Marion Decl. 26. Many of these impacts have been documented in letters and photographs that Mr. Marion submitted to the Forest Service. See, e.g., Marion Decl., Exs. H, I, M-R. These negative impacts are especially acute in the portions of the Calico trail network above treeline. Marion Decl. 18, 20, 26. Indeed, the Colorado Division of 25